The Emerging Genre of The Constitution: Kent Newmyer and the Heroic Age

Abstract

In written celebration of Kent Newmyer's intellectual and collegial influence, this essay argues that the written constitution was an emerging genre in 1787-1789. Discussions of the Constitution and constitutional interpretation often rest on a set of assumptions about the Constitution that arose in the years and decades after the constitutional Convention. The most significant one involves the belief that a fixed written document was drafted in 1787 intended in our modern sense as A Constitution. This fundamental assumption is historically inaccurate. The following reflections of a constitutionalist first lay out the argument for considering the Constitution as an emerging genre and then turn to Kent Newmyer's important influence. *** At the outset, let me be honest … in the dark hours of the night, I have considered converting to originalism. The appeal is undeniable. I love history and think that history is relevant to constitutional interpretation. I have written about what people of the framing generation thought about words and concepts-and I find fascinating the tracing of etymologies