As such, US constitutional history becomes bookended by the events of the founding and the events of the present.
Although growing chronologically ever further away from each other, they seem to be ever more tightly linked.
The recurrence to the founding has reified the notion that constitutional legitimacy can be traced to a moment, even if the content of that moment has itself become more contested.
But the idea that past and present can be easily bifurcated is not without challenge. In this vein, Anne Norton has written of the founders themselves as both conquering and being conquered by history.[361] In Norton's telling, this return to the founding has worked to make the founders available to future generations in acceptable terms, while at the same time renewing the hold of the founders over the present. Caught in this dialectic, both history and present are intertwined, unable to escape each other, but nonetheless mutually defining. American self-understanding is rooted in an assumption of the founding, but this understanding shifts at different times between accounts and characters in order to make that past legible and digestible. In his chapter in this collection, Ming-Sug Kuo has further suggested that narratives of a founding moment are themselves instances of constituent power active in forging a constitutional nomos.[362] For both Norton and Kuo, discussion of constitutional politics is refocused away from interpretation of the founding moment and towards the reconstruction of that moment at different - later - temporal points.Norton's and Kuo's de-centring of the founding moment in constitutional politics points to a tendency to reconfigure the past in the service of present; to reconstruct a historical moment in terms that expand or contract the political possibilities of the present. For Norton, the founding moment is ‘conquered' and so reinterpreted in the present. For Kuo, the founding moment is ‘narrated', reanimating the constituent power of the present.
I would like to suggest here that another possibility for such de-centring exists in a reconceptualisation of the founding moment itself. Rather than reinterpreted or narrated anew, the moment of founding is itself reconfigured to be something it previously was not, which is to say that the present relocates the precise temporal moment of the founding - redefines that instance of sovereign authority - in ways that conform to the political necessities of the present.The other chapters within this part of this book highlight the ways in which founding moments are contested and narrated by subsequent political actors. Yair Sagy’s chapter shows that the Israeli founding of the 1950s has undergone a repeated process of historical revisionism as commentators rejected and then re-embraced a Diceyan orthodoxy of parliamentary supremacy.[363] In examining the emergence of the norm of semi-presidentialism in the states of the former USSR, Eugene D Mazo traces the ineluctability of path dependency with projects of constitutional revision, raising the question of precisely when, if at all, a moment of sovereign intervention can be seen to have taken place.[364] In each of these contexts, there are multiple candidates for the historical location of the founding moment, opening up opportunities for relocation and redefinition. Taken together, these contributions require scepticism towards the idea of a singular and always- accepted moment of founding. But each account - and in particular Sagy’s - also indicates the ways in which contestation over a founding moment is linked to the political pressures and considerations of those engaged in the identification of that founding moment. As a whole, then, they suggest widening our scope of inquiry away from ‘the founding moment' alone and instead towards a set of contemporary interpreters engaging with a founding.
In order to explore this possibility, I turn to three periods within the early American Republic - discussions of the electoral crisis of 1800-01, the debates surrounding McCulloch v Maryland in 1819, and the debates around slavery in Washington DC in the early 1830s. Each represents a moment in which the American founding was reconfigured in order to further contemporary political interests, not just in terms of what the founders advocated, but actually in terms of whom exactly the founders were and what it was that they founded. These accounts show that even in close proximity to the concrete events of a founding, the people that emerge from it can radically reconfigure its history and meaning. The chapter proceeds in three stages. I begin with a discussion of founding moments as theoretical ideas. Next I take up the historical accounts of the three periods noted above. The chapter ends with a reflection on these accounts before exploring the potential significance of them for constitutional theory and design.
I.