Recap: “The Lost Constitution,” Constitution Day Lecture w/ Stanford Prof. Jonathan Gienapp

Back for an encore re-telling of the U.S. constitutional backstory (he gave a Valentine’s Day 2019 talk on this subject at the Kinder Institute), Stanford Assistant Professor of History Jonathan Gienapp focused this time around on two figures from the 1787 Convention whose contributions to the drafting of the Constitution have largely been forgotten: James Wilson and Gouverneur Morris. Far from some whimsical act of scholarly archaeology, in introducing his September 20 talk, the 2019 James E. Fleming & Linda C. McClain Constitution Day Lecture, Prof. Gienapp underscored how excavating and re-examining Wilson and Morris’ influence can have real bearing on our understanding of constitutional orthodoxy in the present day. Specifically, we take for granted that the intention was always and exclusively to establish a government whose powers were limited to those textually enumerated in Article I, Section 8. Not only did Wilson and Morris refuse to accept this familiar construction of limited government. They also put forth a vivid, competing form of nationalist constitutionalism that was incorporated into the United States’ charter, if just as quickly abandoned.

This form of nationalist constitutionalism took center stage in Wilson’s 1785 “Considerations on the Bank of North-America,” a pamphlet certifying the Continental Congress’ power to charter a central bank, even though said power was not explicitly enumerated in the Articles of Confederation. To make his case, Wilson reached back to the Declaration of Independence. By establishing an inseparable unity—by establishing a nation—the Declaration likewise established, or at least called for the establishment of, a national government with the powers necessary to represent a national people. For the time being, Wilson argued, this government was the Continental Congress. Some of its powers were once held by the individual states, and these, he conceded, required enumeration. Others, however, were general or incidental powers born out of a national government’s obligation to make and carry out laws when the individual states were incompetent to do so. Chartering a bank, Wilson concluded, was thus miscategorized as a congressional power that had to be enumerated; a task too tall for the states, it was instead implied by the mere act of forming a nation.

Wilson’s logic would find its way into the deliberations of 1787 in the form of Resolution 6 of the Virginia Plan, which stated that “the national Legislature ought to be empowered to enjoy the legislative rights vested in Congress by the confederation—and moreover to legislate in all cases to which the separate States are incompetent: or in which the harmony of the United States may be interrupted by individual legislation.” “Too vague!” proponents of limited government cried. For Wilson, though, this was perfectly, necessarily vague, given that it would be impossible to anticipate, let alone enumerate, all of the incidental powers upon which the national legislature would be called to act. The Virginia Plan hung around until the Constitution went to the Committee of Detail, which Wilson was the dominant voice of, and interestingly, it was thus under his watch that it became Article I, Section 8, with its enumerated powers and “necessary and proper” clause. This would seem, Prof. Gienapp pointed out, to eviscerate the governing latitude that the Virginia Plan allowed the legislature, but for Wilson, that was not at all the case. Through creative comma usage at the very end of Article I, Section 8, he turned one clause into three and, in the process, drew a distinction between the “foregoing [i.e., enumerated] Powers” bestowed upon Congress and “all other Powers vested by this Constitution in the Government of the United States.” This grammatical twist, Wilson thought, was enough to ensure that the government would have all those incidental—all those “other”—powers implied by nationhood. It would ensure, then, that Resolution 6 wasn’t removed from but rather incorporated into the Constitution.

As for Morris, the “one-man Committee of Style” supported the work of his ideological ally by overhauling the Constitution’s Preamble. The original intro simply named the 13 states and affirmed that they did, in fact, “ordain, declare, and establish the following Constitution for the Government of Ourselves and Our Posterity.” The final Preamble is, of course, much different, most notably substituting “We the people of the United States” for “We the people” of the individual states and outlining, in general terms, the ends of government (establishing Justice, insuring domestic Tranquility, et al.). In its projection of unified authorship and purposefully broad articulation of legislative purpose, the Preamble thus became Morris’ appeal to do exactly what Wilson was trying to do: codify for the U.S. government the general powers of nationhood.

So, what happened? Why did limited government become our default orthodoxy? As Prof. Gienapp argues in The Second Creation, the 2018 book that he provided an overview of during his February talk, the Constitution emerged from ratification incomplete, and its shape and purpose would ultimately be sorted out in a series of political battles in the decades after 1789. Even when they disagreed, the dominant voices of this period—think Madison, Jefferson, and Hamilton during debates over chartering the first Bank of the United States—all stressed a doctrine of enumerated powers. And while some Bank supporters drew on Morris and Wilson’s vocabulary of state incompetence and powers conferred by nationhood, Morris and Wilson themselves were more or less entirely absent from this and other such defining back-and-forths. And so, with the primary advocates of nationalist constitutionalism no-shows at a time when the rules of the game were being established, and with the Preamble steadily losing jurisprudential authority—it was finally relegated to the status of “rhetorical flourish” by Jacobson v. Massachusetts (1905)—we arrived at where we are today.