Balkinization: A Frank Acknowledgment of Reality?

A Frank Acknowledgment of Reality?

Guest Blogger

For the Symposium on Gerald Leonard and Saul Cornell, The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders' Constitution, 1780s-1830s (Cambridge University Press, 2019).

Mark R. Killenbeck

The Partisan Republic is eloquent and deeply reasoned. Gerald Leonard and Saul Cornell argue persuasively that “[t]hose who wrote and adopted the Constitution . . . took a dim view of democracy” and that any account of the Constitution in general and its original goals and understandings in particular must acknowledge that the individuals who wrote and ratified it advanced “notions of liberty and equality [that] embraced overt racial and gender discrimination.” (1)

It’s a powerful message, amply and persuasively documented. As such it provides of powerful check on those whose vision of the founding is refracted through the rosy lens of “self-evident” truths, of an imaginary nation in which “all men are created equal” and “are endowed” with the “unalienable Rights [of] Life, Liberty and the pursuit of Happiness.” Of course, as Leonard and Cornell document, Thomas Jefferson, the Declaration’s putative author, neither believed nor practiced any of this. Rather, he harbored “racialist views of republicanism” and as president “opposed any policy that would create a ‘racial blot or mixture’” in an expanding nation. (120-21) He fits, accordingly, comfortably within the spectrum of individuals who set up a system premised on the need to exclude rather than include when constructing “We the People.”

This is accordingly necessary reading for anyone interested in understanding and accounting for the full range of principles embraced by a document and a political structure that were of necessity the product of compromise. The people of the northern states may well have harbored a dominant belief that a truly United group of States would eventually “find a path to emancipation.” (21) And the various sections of the Constitution that acknowledged and protected the institution of slavery, at least for the first twenty years of the new nation’s life, may well have been a necessary concession in the face of “the de facto power of the slaveholding interests.” (21)

That said, subsequent events just outside Leonard and Cornell’s chronological remit (a shortcoming I will return to) put paid to many of these beliefs. In 1849, for example, it was not a state supreme court in the deep South that sanctioned the functional equivalent of separate but equal in a decision asking whether de jure segregation in public education was either necessary or proper. It was, rather, the Supreme Judicial Court of Massachusetts that simultaneously embraced the fiction that “colored persons . . . are entitled by law . . . to equal rights, constitutional and political” and deferred to a local judgment that it was “in the best interests of both classes of children” to “maintain . . . separate primary schools for colored and white children.” Roberts v. City of Boston (1849). In a similar vein, in Ohio, the home state of John Bingham, the principal sponsor of the Fourteenth Amendment, it was “[a]s a mater of [law and] policy . . . unquestionably better that the white and colored youth should be placed in separate schools.” State ex rel. Directors of the School Districts of Cincinnati v. City of Cincinnati (1850).

Leonard and Cornell also argue persuasively that women and Native American fared no better. All white men may have been created equal. But there was little if any room in the “democratic” system envisioned at the Founding for the “weaker sex,” beyond a possible “moral sphere” within which they “raise[d] boys and men of virtue for active roles in public life.” (65) In a similar vein, “indigenous hunting nations” (190) both pursued a lifestyle at odds with the norms of the American body politic and occupied lands deemed essential for the common good (and profits!) of a developing nation. As such, their rights were questionable, and their fate sealed.

It is a persuasive narrative. There is, admittedly, at least for those who have looked with some care at both the constitutional text and the attitudes and policies prevalent in the nation’s early years, a strong dose of Yogi Berra’s “deja vu all over again.” That said, the fact that the ultimate conclusions are not surprising for many does not detract from the work’s value, especially if it gains the wider audience it deserves. As indicated, it is a rich source for extensive documentation of the points made, and the evidence marshaled alone make this an indispensable resource.

What about the Supreme Court? Leonard and Cornell bring it into the mix in ways that amply support their contention that John Marshall’s repeated attempts to impose “judicial supremacy and common law principles against states’ rights and raw democratic will” (207) was doomed, initially by Andrew Jackson’s ascendency and then by the (surprisingly) never discussed transition to the Taney Court.

Which brings me to my concerns and questions. What informed the decision to confine the relevant period of inquiry to the 1830s? If, as it must be, the Constitution’s pact with the Devil of Slavery is central to the narrative, why cut off meaningful discussion with Martin Van Buren’s “stunning” loss of the presidency in the election of 1840? After all, in 1841 we get the first of the Supreme Court’s slavery point-counter points in United States v. The Amistad (1841), redolent as it is with John Quincy Adams’s resort to the principles of the Declaration of Independence. Then, in 1842, Prigg v. Pennsylvania (1842) arrives, with what Paul Finkelman accurately described in The Supreme Court Review as Joseph Story’s “intellectually dishonest, “judicially extreme,” and “inhumane” opinion. Story was attempting to “enhance federal power” in contravention of the assumption that the post-Marshall years were a period during which decisions like M’Culloch v. Maryland (1819) and their vision of “wide-ranging Congressional power” (183) had become “all but a dead letter.” (221) As such, the opinion, and Story’s efforts, seem to be both a logical and essential extensions of this work’s narrative. Their omission is then puzzling.

This is arguably addressed to a certain extent in the “Coda,” within which Leonard and Cornell treat Dred Scott v. Sanford (1857) as “the birth announcement of a recognizably modern constitutional system.” (221) That, we are told very early on, is one within which “the conventional wisdom [is] that the Supreme Court has the last word on the meaning” of the Constitution. (1) This subsequent “founding act of the modern Supreme Court” (223) is attributed to the Court’s ability to step into a void created by the shortcomings of the Democratic Party in the post-Van Buren years. Once again, the explanation is lucid, albeit terse. But the attempt to cast what happened as “judicial racism” is both surprising and unconvincing, albeit consistent with “modern” views of the decision. A few years ago, the Attorney General of Kansas summarily withdrew a brief in an important case about abortion rights within which a junior attorney cited and quoted Dred Scott (erroneously, as it turned out). His action was reflexive rather than thoughtful, but was also entirely in keeping the widespread and politically correct that any resort to Taney’s opinion for the Court is in and of itself toxic.

Was this appropriate? Politically, probably. As a matter of history, doubtful. The principles Taney advances are historical facts, properly attributed to Leonard and Cornell’s prime suspects, “those who formed the sovereignty and framed the Constitution.” These individuals created a system within which “[t]he majority of the population – women, black Americans, the indigenous nations, the poor – would take positions decisively superfluous to that of propertied white men in the new constitutional structure.” (2) As matters of history, then, they are simple truths, albeit at odds with what we might otherwise wish to pursue, simple justice.

I confess. As I read the book I forgot that the title imposed what I now view as an unfortunate chronological limit. I have in recent years developed a pronounced contrarian streak and one of my as yet unpublished hobby horses will be an attempt to impose context on, and to an extent, counter what Leonard and Cornell rightly describe as today’s “bipartisan condemnation” of Dred Scott (akin, ironically, to their sage observation that Van Buren believed that “sober second thought” would lead the body politic back to an appropriate view of democracy (220)).

Yes, there is no place in our current system for Taney’s declaration that African American slaves were “a subordinate and inferior class of beings” that have properly “been subjugated by the dominant race.” But was that “judicial racism”? (223) Taney came from a slave-holding family and was a complex individual who may well have harbored racist sentiments consistent with that heritage. As written, however, his opinion for the Court does not take the approach embraced by the majority in Plessy v. Ferguson (1896), where Justice Henry Billings Brown makes a value judgment when he concludes that “[l]egislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences.”

So, for example, Senator Charles Sumner condemned both the decision and its author, arguing that Taney’s opinion was “thoroughly abominable” and that its “most unrighteous judgement was sustained by a falsification of history.” That is wrong, and one of the real values of this book is that it shows so convincingly why that is the case. It also sets up the full range of the Taney opinion, noting that “the doctrine of substantive due process,” first articulated there, would allow a “resurgent Court [to] supervise the legislation of the nation, much as the Marshall Court had done for a time through the Contracts Clause.” (223) That said, is Dred Scott redeemed by the fact that it gave birth to a powerful weapon in the modern Court’s vision and pursuit of social and political justice? Perhaps. Perhaps not.

Do not mistake me. I am not arguing that Leonard and Cornell celebrate Dred Scott. Far from it. Rather, they have rendered a great service by fashioning a “frank acknowledgment of the realit[ies]” (200) of the framing and the political and social developments in its wake. They ask us to think carefully and critically about key elements of our history and the issues they discuss lie at the heart of many of today’s key constitutional and political questions. The treatment may, at least as I see it, be a tad incomplete. But that shortcoming, if shortcoming it be, does not detract from its value.

Mark R. Killenbeck is Wylie H. Davis Distinguished Professor of Law at the University of Arkansas. You can reach him by e-mail at mkillenb at uark.edu

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