Rediscovering the Founders’ Constitution

• In Event: The Founders' Evolving Constitution

Abstract

Today the US Constitution is widely understood as a fundamentally textual, prescriptive, and codified instrument that defines authority relations, circumscribes lawful political conduct, and functions as the supreme law. A corollary of this understanding is the belief that the Constitution fixes constitutional meaning, freezing in place the authority relations it established upon ratification. However, as recent scholarship has begun to demonstrate (e.g., Gienapp 2018), this understanding contrasts sharply with the arguments expressed by many political actors during the ratification debates. Leading figures, including Publius, described the Constitution in markedly dynamic terms, placing the changeability of authority relations at the centre of American constitutionalism (Ewing forth). To this point, though, a full account of founding-era thought on this score has yet to be advanced. This paper takes a step in that direction, examining conceptions of political power, the consequences of constitutional design, and arguments about the Constitution’s dynamic character in the ratification debates. Against the immediate backdrop of Publius’s arguments, this chapter examines two sets of Anti-Federalist texts: those that most influenced the terms of debate (Cornell 1999) and those written by the objectors that saw “farther or better” (Storing 1981). These sources depict a constitutional order in which ratification was but the first step in a process that would shape and reshape the relationship between the new national and already existing state governments. In turn, these depictions simultaneously drew from and expressed a dynamic constitutional ontology. While many Federalists acknowledged and some even embraced these features of the Constitution, for many Anti-Federalists they were precisely the grounds on which the proposed regime was to be opposed.

Author

• Connor Ewing, University of Toronto