Articles and Book Chapters
American Journal of Legal History, 2023
The enduring and protracted debate over the original scope of American presidential power often r... more The enduring and protracted debate over the original scope of American presidential power often reduces to a simple question: What did the words "executive power" in the Article II vesting clause of the US Constitution originally mean? Yet this singular preoccupation has concealed a crucial historical transformation. To bring this underappreciated shift into focus, this article offers four observations on the great 1789 congressional debate over the removal of executive officers: first, the debate was unexpected; second, it covered new ground; third, during the course of it, participants openly changed their minds; fourth, it remained unresolved until the end. Rather than attempting to settle the issue of removal that has divided scholars and jurists for so long, this article instead offers these observations in hopes of redirecting our focus: to see that the removal debate was marked by uncertainty and confusion because the debate over executive power was itself changing at this time. Eighteenth-century Americans had been debating executive power since long before declaring independence, but the question that had animated that debate for close to a century began to change after the Constitution was ratified. As the question mutated, so too did the dispute itself, and, with that, understandings of executive power. The removal debate was one of the key markers of this important transformation. There remains no shortage of interest in the historical foundations of presidential power. We misapprehend what Founding-era Americans thought about executive power unless we appreciate how the framework of debate was itself changing at the time of the Constitution's birth.
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Georgetown Journal of Law & Public Policy, 2023
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Missouri Law Review, 2021
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Law and History Review, 2021
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Political Thought and the Origins of the American Presidency, 2021
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Fordham Law Review, 2021
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Fordham Law Review, 2021
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The New England Quarterly, 2020
Jonathan Gienapp, Stanford University, reflects on the historiographic and scholarly contribution... more Jonathan Gienapp, Stanford University, reflects on the historiographic and scholarly contributions of Gordon Wood's The Creation of the American Republic.
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American University Law Review Forum, 2020
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Texas Law Review Online, 2019
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Nullification and Secession in Modern Constitutional Thought, 2016
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Fordham Law Review, 2015
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Journal of the Early Republic, 2015
In one of its earliest debates, the first federal Congress divided over the question of whether t... more In one of its earliest debates, the first federal Congress divided over the question of whether the president could remove executive officers. Long neglected by historians, the episode has received ample attention from constitutional scholars who have interpreted it as a crucial contest over the scope of presidential power. However, the debate’s significance owes less to these implications than it does to the language of constitutional essentialism that it produced. In the aftermath of ratification, American politicians were still reckoning with what it meant to be subject to the authority of a supreme, written constitution and in so doing debated not only the meaning of specific constitutional clauses but more generally the kinds of interpretive practices that could legitimately accompany Americans’ governing document. The removal debate began because the Constitution, other than specifications for impeachment, was silent on removal. Some contended that, given this silence, nobody could remove. Most disagreed and as justification contended that Congress enjoyed discretion to fill the document’s silences. However, those who favored removal divided over who could remove: the president alone or in conjunction with the Senate. In waging this disagreement the two sides grounded their rival interpretations in two separate sources of authority: the ‘‘nature of things’’ and the original intent of the Constitution’s framers. In retreating from arguments built on congressional discretion in favor of ones premised on fixed constitutional meaning, politicians constructed a powerful language of constitutional essentialism that implied that the Constitution was equipped with unchangeable meaning.
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Constitutional Commentary, 2014
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Essays
Process: A Blog for American History, 2017
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Process: A Blog for American History, 2017
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Books
Harvard University Press, 2018
Americans widely believe that the United States Constitution was created when it was drafted in 1... more Americans widely believe that the United States Constitution was created when it was drafted in 1787 and ratified in 1788. But in rereading of the Founding era, this book upends this long-held assumption, recovering the unknown story of American constitutional creation in the decade after its adoption―a story with implications for current debates over constitutional originalism and interpretation.
When the Constitution first appeared, it was shrouded in uncertainty. Not only was its meaning unclear, but so too was its essential nature. Was the American Constitution a written text, or something else? Was it a legal text? Was it finished or unfinished? What rules would guide its interpretation? Who would adjudicate competing readings? As political leaders put the Constitution to work, none of these questions had answers. Through vigorous debates they confronted the document’s uncertainty, and―over time―how these leaders imagined the Constitution radically changed. They had begun trying to fix, or resolve, an imperfect document, but they ended up fixing, or cementing, a very particular notion of the Constitution as a distinctively textual and historical artifact circumscribed in space and time. This means that some of the Constitution’s most definitive characteristics, ones which are often treated as innate, were only added later and were thus contingent and optional.
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Book Reviews
William and Mary Quarterly, 2017
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Papers
Social Science Research Network, May 11, 2021
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When the Constitution first appeared, it was shrouded in uncertainty. Not only was its meaning unclear, but so too was its essential nature. Was the American Constitution a written text, or something else? Was it a legal text? Was it finished or unfinished? What rules would guide its interpretation? Who would adjudicate competing readings? As political leaders put the Constitution to work, none of these questions had answers. Through vigorous debates they confronted the document’s uncertainty, and―over time―how these leaders imagined the Constitution radically changed. They had begun trying to fix, or resolve, an imperfect document, but they ended up fixing, or cementing, a very particular notion of the Constitution as a distinctively textual and historical artifact circumscribed in space and time. This means that some of the Constitution’s most definitive characteristics, ones which are often treated as innate, were only added later and were thus contingent and optional.
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When the Constitution first appeared, it was shrouded in uncertainty. Not only was its meaning unclear, but so too was its essential nature. Was the American Constitution a written text, or something else? Was it a legal text? Was it finished or unfinished? What rules would guide its interpretation? Who would adjudicate competing readings? As political leaders put the Constitution to work, none of these questions had answers. Through vigorous debates they confronted the document’s uncertainty, and―over time―how these leaders imagined the Constitution radically changed. They had begun trying to fix, or resolve, an imperfect document, but they ended up fixing, or cementing, a very particular notion of the Constitution as a distinctively textual and historical artifact circumscribed in space and time. This means that some of the Constitution’s most definitive characteristics, ones which are often treated as innate, were only added later and were thus contingent and optional.