Constitutional Interpretation without a Constitution: Debating Union in the Early United States

by Jonathan Gienapp

Abstract

Debates over the American union that preceded the drafting of the U.S. Constitution of 1787 are often overlooked, but they had lasting significance. In particular, because these early debates followed an unusual path, they helped entrench a particular interpretive habit: deciphering the powers of the United States required first understanding the nature of the United States. Before American statesmen had codified articles of union outlining the formal powers of the national government, that government was exercising broad power to prosecute the war for American independence. This experience taught American statesmen how to engage in constitutional interpretation without a formal constitution at hand—by debating the unwritten constitution of union that all were capable of discerning and delineating. That habit of interpreting union first and constitution second did not disappear once formal constitutional documents were adopted but rather deeply shaped constitutional interpretation for decades to come.