Balkinization: A Republic That We Clearly Did Not Keep

A Republic That We Clearly Did Not Keep

Sandy Levinson

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).

The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders’ Constitution, 1780-1830s, by Gerald Leonard and Saul Cornell, proves that you can’t always tell a book by its size or even its title. It is quite short (only 223 pages) and, although clearly based on deep scholarship—as revealed especially in an impressive bibliographical essay plus their own earlier important work—it has relatively few extended quotations of the type that one might expect to find in a comprehensive survey examining American constitutional development over this key half-century period. Nor does it examine explicitly the work and conclusions of other scholars. Yet it is a powerful, at times quite stunning, and largely persuasive, revisioning of the development of American constitutionalism. The book would not only make an ideal assignment in any course on the subject; it also deserves to be read by both fellow academics and general readers alike inasmuch as it challenges of the conventional wisdom of an earlier generation of writers that was, no doubt, taught to generations of impressionable students and amply deserves replacement.

Benjamin Franklin had famously declared that the Framers in 1787 had created a “republic,” and the great question facing Americans thereafter was whether they could “keep it.” The answer suggested by Leonard and Cornell is that we failed. Moreover, this might be both bad news and good news. There is cause for both regret and celebration. Their title is in some way confusing, for a central thesis of their book is that the idea of a “partisan republic” is oxymoronic. Partisanship was something to be bewailed, not embraced. As they write in their pellucid concluding chapter, “the advocates for the new Constitution broadly shared the goal of a republic of law under elite leadership…. Advocates of the new Constitution sought to save republicanism by enhancing federal power and insulating that power from popular whims by lodging it in a distant, governing elite controlled less by the electorate than by built-in checks and balances” (p. 210). These elites, Madison argued in Federalist 10, would, for reasons never satisfactorily explained, be more virtuous and committed to a “public good” than were the selfish partisans of various “factions” he had observed while serving in the Virginia state legislature. Whatever may have been his later views, the Madison of 1787 could easily join with Hamilton in a basic contempt for the actualities of state governance. Madison’s principal objection to the Constitution, beyond the “evil” of equal voting power in the Senate, was the failure of the Convention to authorize Congress to veto any and all state legislation adverse to the national interest.

By the 1830s this “republican” vision of rule by a benevolent elite, what Jefferson might have labeled a non-partisan “natural aristocracy”—"We are all Republicans; we are all Federalists,” as he put it, sincerely or not, in his first Inaugural—was in complete shambles. This is often associated with the election of Andrew Jackson, who fit almost no one’s notion of the “natural aristocrat,” especially when compared with his predecessor, John Quincy Adams, properly chosen by the House of Representatives in the 1824 election when no one won a majority of the electoral vote. But a central force behind the developments emphasized by Leonard and Cornell was the intelligence and energy of Martin Van Buren, who is in substantial ways the Founder of the “Partisan Republic” (or, “Partisan Herrenvolk Democracy,” as shall be explained below) that replaced the earlier vision.

It is not only that Van Buren wrote a major, widely-ignored today, treatise outlining his theory of a democratic constitutional order and the centrality of an organized political party in operating such an order. He was also the major force behind the creation of the Democratic Party, which systematically organized itself throughout the country to assure the election of candidates who would be committed to its particular vision of limited national government—especially with regard to so-called “public improvements” or the National Bank—and states’ rights, as well as a willingness to enter into full-scale alliance with what would come to be called the “slavocracy.”

Moreover, and crucially, implementation of the party’s constitutional vision was to be in the hands of elected officials, most definitely not the judiciary. This meant, as Leonard and Cornell write, that that the “Democratic Party’s triumphant claim to constitutional supremacy in the 1830s” served as a “substantial displac[ement of] the Supreme Court as preeminent interpreter of the Constitution and, indeed, displacing the original principles of the Constitution itself” (p. 212). John Marshall ended his first paragraph in McCulloch v. Maryland by thunderously declaring, without the slightest citation to any support for the proposition, that “by this Court alone” could the issues presented in the case, concerning both the reach of national power and the limits on state taxing authority ,“be resolved.” Nothing could be more alien to the new notion of American constitutionalism created by the rise of the Democratic Party and of its first champion, Andrew Jackson.

Jackson, in his famous Veto of the bill renewing the charter of the Bank of the United States declared first that “Mere precedent is a dangerous source of authority….” He went on, far more ominously for adherents of judicial authority, to state that opinions issued by the judiciary, including, of course, the unanimous opinion in McCulloch, “has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.” All public officials are presumably entitled to think for themselves, as is true, importantly, of the electorate itself when issues of constitutional meaning become matters of public controversy. In any event, opinions of the Supreme Court are entitled to “have only such influence as the force of their reasoning may deserve” (emphasis added). These statements, taken together, do in any notion of genuine judicial “authority,” let alone the claim to “judicial supremacy” articulated by today’s Supreme Court. It is telling, I think, that Leonard and Cornell frequently use the term “ judicial legalism” as an alternative to democratic decisionmaking. I could not help thinking of Judith Shklar’s classic book Legalism, which dissected it as in effect the ideology especially of elite lawyers who had special, and undeserved, faith in their “professional” abilities to resolve what were in fact deeply contentious political (and moral) issues.

But, as already hinted at, the constitutional vision underlying the Democratic Party—the self-professed defenders of the “authentic Constitution”—included not only limited national power and concomitant respect for the autonomy of states. It was also, as suggested by the title of the book, an explicitly “exclusionist” vision, limited, as the authors repeatedly (though not excessively) emphasize, to white males. Two chapters on the conceptualization—and actual treatment—of blacks (who only after 750,000 died between 1861-1865 could truly be termed “African-Americans,” given the exclusionism of Dred Scott) and Native Americans underline the extent to which the ante-bellum United States could be described as what the historian George Fredrickson labeled a “herrenvolk democracy.” This refers to a system that is quite inclusive with regard to a favored group, in this case whites, but, at the same time, is rigorously, even fanatically, exclusionist with regard to anyone outside the group.

There is a debate, recently joined by Princeton historian Sean Wilentz, as to how exactly accepting of slavery the Framers were and, therefore, how "pro-slavery" was their Constitution. In my own case, I tend to be quite Garrisonian, believing that the 1787 Constitution is accurately described as a “Covenant with Death and an Agreement with Hell,” which, among other things, could easily justify Garrison in his 1841 burning of the U.S. Constitution and call for “No Union With Slaveowners.” Wilentz disagrees, preferring to place the most generous possible spin on the admittedly ambiguous documents from the time. It is a notorious truth, for example, that the Constitution nowhere explicitly endorses “slavery,” and Frederick Douglass in 1859 famously, albeit implausibly, asserted that the Constitution, best understood, was actually anti-slavery. But one way of reading Cornell and Leonard is that the debate approaches the pointless. Even if one concedes, for sake of argument, that Garrison was wrong and Wilentz correct, the brunt of this new book is that by the 1830s the “Founders Constitution” had “fallen,” to be replaced by Van Buren’s Constitution, which was pro-slavery to the core. As Richard Kreitner incisively notes in his forthcoming book Break It Up: Secession Division, and the Secret History of America's Imperfect Union, several Southern proponents of slavery opposed secession because they believed that they would in fact be worse off if a now-liberated North no longer had to comply with the draconian Fugitive Slave Act of 1850. And the Supreme Court, of course, had in Prigg v. Pennsylvania invalidated Pennsylania's "personal liberty" laws designed to provide at least some protection to those wrongfully described as "fugitive" slaves.

Nor did it really matter, for example, what the Supreme Court said, after all their hemming and hawing, about the constitutional rights of the Cherokee Nation. Jacksonian “ethnic cleansing” and the forced removal to Oklahoma triumphed. “When the Cherokees were in fact physically removed from Georgia in 1838, it helped to signal the ascendancy of the white democracy’s remade Constitution, as well as the marginalization of the Supreme Court.” As Mary Bilder notes in her own review, one should speak as well of the “white male democracy,” given the exclusion of women from any role in politics once New Jersey’s willingness to allow some degree of women’s suffrage was eliminated in 1807. Although Leonard and Cornell certainly mention this, it does not get the same degree of attention as do exclusionary policies directed at blacks and Native Americans., the subjects of rich separate chapters.

In any event, The Partisan Republic is close to an ideal introduction into the actualities of American constitutional development, particularly with regard to notions of inclusion (almost all white males) and exclusion (almost everyone else) that helped to constitute the political demos that actually ruled. Perhaps the most truly challenging sentence in the book is literally its conclusion, at the end of a discussion of Dred Scott, which, among many other things, represented the decidedly anti-Jacksonian (and Van Burenite) reintroduction of the Supreme Court as the authoritative (purported) resolver of American constitutional disputation. Taney’s “racism was an honest reflection of the constitutional order that the white democracy had created. In important ways, [though], Dred Scott survives today in the Court’s continuing constitutional supervision of major political controversies, and even our escape from its racist premises remains a work in progress” (p. 223).

Posted 9:30 AM by Sandy Levinson [link]