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The Closing of the American Constitutional Imagination

In his relentlessly substantive and intelligent book, The Second Creation: Fixing the American Constitution in the Founding Era, Stanford historian Jonathan Gienapp offers an important contribution to founding scholarship and a fresh and foundational challenge to originalism. Specifically, Gienapp examines how the founders answered the question, what is a constitution? The historical narrative resulting from Gienapp’s research into this question traces the eclipse and eventual replacement of “incomplete” and “unfinished” understandings of constitutional identity with a form of constitutional consciousness he calls “constitutional fixity.” This review essay identifies several contributions of Second Creation and explains how and why it represents a fundamental challenge to originalism. It takes issue, however, with Gienapp’s understanding of the evolution of James Madison’s understanding of constitutional identity and suggests that “constitutional fixity” may have been present in the political thought of the American founders earlier than Gienapp claims.