Document Type



Legal History


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. The Essay argues that the constitution as a system or frame of government and the instrument were not quite one and the same. This distinction helps to make sense of ten puzzling aspects of the framing era.

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