Balkinization: Constitutional Conflict (Almost) All the Way Down

Constitutional Conflict (Almost) All the Way Down

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).

Jonathan Gienapp

After falling out of favor, constitutionalism is enjoying a resurgence in American historical circles. For those of us who have tilled this intellectual soil, this is a propitious development, and one that makes the arrival of Gerald Leonard and Saul Cornell’s new book, The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders’ Republic, 1780s-1830s, timely. When fields, particularly one as long-standing as constitutional history, attract renewed interest, expert syntheses are especially valuable. They can provide original perspective on enduring conversations while provoking new ones; take stock of our existing knowledge while noting its current limits; and survey previous avenues of analysis while fashioning new points of departure. This book realizes this promise. It offers the finest succinct overview of the constitutional and legal history of the early United States yet written, along the way reminding readers why this is such a fertile and stimulating field of study.

By virtue of its synthetic prowess, The Partisan Republic is sure to have a major impact on how the subject is introduced to those new to its study. Condensing half a century of historical development and integrating several distinct scholarly literatures into such a tidy, highly readable volume is no small feat. Especially impressive is how ably Leonard and Cornell integrate a more familiar top-down narrative of legal and constitutional development with one from the bottom up—weaving together the formal debates and disquisitions found in legislative halls, courtrooms, and treatises with the muscular forms of popular political expression that dominated the expanding world of partisan print, gave rise to new kinds of public gathering and protest while invigorating traditional ones, and fueled new techniques of politicking, campaigning, and political mobilization. Well-known episodes such as the battle over Alexander Hamilton’s financial program, the Virginia and Kentucky Resolutions, Marbury v. Madison, and the Missouri Crisis are told alongside less familiar ones like Martin v. Commonwealth, the Ohio Supreme Court’s ruling in Rutherford, and the New York Constitutional Convention of 1821. Thomas Jefferson’s understanding of the Constitution and republicanism is understood in contrast to John Taylor’s and William Manning’s. This kind of integrated constitutional history is sorely needed. We still know far too little about popular constitutionalism in the early republic (what we do know is owed in no small measure to the authors’ own prior, important work on the subject) or how popular constitutionalism, across its many dimensions, intersected with the kind of constitutionalism that manifested itself in James Madison’s learned writings, the Washington administration, or the Marshall Court. Leonard’s and Cornell’s book helps address these longstanding deficiencies while calling attention to the continuing need for additional work.

Thanks to the authors’ deep learning, the volume offers far more than compact synthesis, however. Its tight narrative of constitutional conflict and change also advances an overarching argument sure to provoke productive scholarly debate. That would be fitting, because if this fine book is ultimately about one thing, it surely would be debate itself—the deep and fundamental debate that roiled the early United States and transformed it into a new kind of constitutional republic. The many meanings embedded in its evocative title capture this essential story. The Partisan Republic charts how one integrated vision of the Constitution and the republic was supplanted by another. Echoing Gordon Wood’s The Radicalism of the American Revolution, Leonard and Cornell argue that the elitist republican vision shared by most of the Constitution’s framers was challenged and ultimately superseded by a more popular, democratically-minded vision of the nation’s fundamental law. The republic thus came to be engulfed in and defined by the kind of democratic partisanship and party politics that many of the Founders had hoped to keep at bay. Unlike Wood’s account, however, Leonard and Cornell assiduously emphasize the darker side of this process: how the ascent of white, male democracy marched in lockstep with the exclusion of blacks, women, and Native Americans from participation in the republic. The ascent of Jeffersonian republicanism, but most especially Martin Van Buren’s Democratic Party that grew out of it, led to the “full, explicit racialization of the American constitutional order” (147) through the “legal entrenchment of white democracy.” (175) The republic, in this regard, was itself partisan, promoting some members at the stark exclusion of others.

Yet, the book’s title is fitting for another reason still, one that best captures why debate is arguably its defining theme. The Constitution itself, Leonard and Cornell insist, proved both the source and object of the period’s acrimonious and transformative partisanship. At a time when few thought the Revolution was truly over or accepted the possibility of a loyal opposition, disputes often ran deep to the very marrow of the constitutional order that Americans had only recently erected. The early republic was no era of good feelings or broad consensus and the Constitution in particular, new and untested as it was, proved to be a fount of pronounced and fundamental disagreement. As Leonard and Cornell show so well, bitter disputes that helped precipitate the drafting of the federal Constitution in 1787 spilled over beyond ratification only to be deepened and extended by fresh conflicts. For these reasons, the Constitution could not stand above the conflict. The period’s partisanship did not unfold safely and orderly in a space that the Constitution had created; more often than not, those struggles contested the very confines of that space. Even if early constitutional disputants commonly appealed to the Constitution’s authority, their ways of doing so often betrayed radical disagreement over the very Constitution to which they were appealing: its character, how it should be interpreted, and its ultimate relationship to the sovereign people.

The rival forms of constitutionalism that emerged from these fundamental divisions created the early republic’s defining fault lines. And the history that Leonard and Cornell narrate becomes a story of collision and its consequences: of how those competing ways of understanding the Constitution smashed into one another to produce a constitutional republic that few, in 1787, could have imagined. How Leonard and Cornell track the debates generated by these early constitutional fault lines is among the most invigorating and revealing features of their rich narrative.

As they explain, in the wake of ratification, at least three distinct kinds of constitutionalism took shape: a Federalist Constitution, a moderate Republican Constitution, and a radical Republican Constitution. What most sharply divided these different varieties of Constitutions was what Leonard and Cornell call “legalism”—or the extent to which the Constitution ought to be conceived as a legal instrument that incorporated standing legal principles and entrusted the judiciary with final interpretive authority over its meaning. Federalists were the arch-defenders of the legalist Constitution. They contended that the federal courts enjoyed unique authority to determine the Constitution’s meaning and exploited that perceived authority in an attempt to constitutionalize traditional common law rights to contract and property. They especially embraced this judge-centered vision of constitutional law after 1800, once their Republican opponents had taken control of the federal government’s political branches and they found themselves confined to the judiciary.

Republicans conceived of the Constitution in a much different way, though among themselves they disagreed over how completely to reject Federalists’ legalism. Radical, democratic-minded Republicans vigorously championed a “populist Constitution” (113) built on an “antilegalist ideology.” (84) They refused to accept that the Constitution was an anti-democratic, legal instrument that smuggled in judge-made common law and elevated the judiciary above the will of the sovereign people—who they believed alone enjoyed final interpretive authority over the nation’s fundamental law. They bristled at the notion that law’s purpose was to curb and constrict the democratic energy that had been unleashed by the Revolution, and especially if that meant unduly safeguarding minority rights to contract and property against the will of the majority and the public good. These radicals accordingly sought to free the Constitution from Federalists’ lawyerly grips, calling for constitutional amendments that would bring appointment and removal of federal judges under congressional control, the repeal of the Judiciary Act of 1801 (which had dramatically expanded the federal judiciary), and the impeachment of the most outspoken and partisan Federalist judges. Moderate Republicans shared many of the radicals’ misgivings with legalism, particularly the idea of judicial supremacy. But, as Leonard and Cornell stress, the moderates valued the role an independent judiciary played in the Constitution’s scheme of separated powers and more generally respected the distinction between law and politics—even if they agreed with the radicals that the latter ought to play a decisive role in constitutional development. These constitutional divisions that separated Federalists from Republicans and divided Republicans among themselves were not merely interpretive; they turned on the very nature of the Constitution’s content and its relationship to law.

Before and after 1800, these distinct varieties of constitutionalism did battle, as illustrated in Leonard’s and Cornell’s illuminating discussions of several crucial episodes: including the conflict over the judiciary acts that culminated in Stuart v. Laird, Marbury v. Madison, the failed attempt to remove Judge Samuel Chase, debates over the constitutionality of a national bank and internal improvements legislation that followed the War of 1812, and the Cherokees’ and John Marshall’s (ultimately futile) efforts to hold the white democracy at bay in Worcester v. Georgia. In perhaps the book’s best treatment, the decade-plus struggle to bring resolution to the corrupt sale of Georgia’s Yazoo lands neatly pitted the localist, democratic Constitution of popular will against the national, legalist Constitution of judicial pronouncement, with the Supreme Court eventually overruling the Georgia legislature’s exercise of popular constitutional review (which had voided the corrupt land sales) in Fletcher v. Peck. “All of these messy results,” argue Leonard and Cornell, “made clear that the meaning of the Constitution would evolve in fits and starts, not as the working out of a single principle but as the product of a fluid constitutional politics.” (114) The Constitution would not be neatly worked out based on its own inner logic; debate over the character of that very logic would fuel the politics that drove its development.

Crucial aspects of each constitutional vision survived these struggles, Leonard and Cornell contend. The Federalist-minded judiciary maintained relative independence and was able to defend, at least partially, many of its priorities. Nevertheless, the emerging Democratic Party, which sprang from Republicans’ internal divisions over legalism and came to speak for the radical defenders of popular sovereignty, proved the dominant constitutional institution by the 1830s. This meant, crucially, that during this long period the “operative meaning of the Constitution depended on political and cultural development much more than on constitutional text, established doctrine, and judicial pronouncements.” (208) Those legal scholars who project a modern Court-centric view of the Constitution backwards in time might take particular note of this contention. Yet, Leonard and Cornell also stress that the courts, like all of the period’s constitutional partisans, were never overwhelmed. In the end, the fundamental conflict that defined the period lingered on, as “no dogma of constitutional authority would ever grasp final victory.” (114)

Leonard and Cornell suggest, in other words, that when it came to the early Constitution there was conflict (almost) all the way down. The Constitution was accepted as supreme authority—meaning the conflict did not run all the way to the bottom—yet most attempts to call upon its authority only constitutionalized politics and politicized the Constitution more deeply. This portrayal aligns, in important ways, with my own stated thinking on the matter, and I certainly believe that it ought to frame further efforts to understand the history of early national constitutional debate. It also helps us better see the nature of the Founding and the Constitution, and how each relates to the present, and I will briefly consider two particular ways in which The Partisan Republic does so: in the first instance by challenging us to see how poorly the Founding, on its own terms, fits our modern expectations; in the second by urging us to think more deeply about the character of constitutional agreement at the Founding and beyond.

The illuminating way in which Leonard and Cornell portray early constitutional conflict encourages us to overcome the enduring and ever potent desire to see the Founding as a tidy morality tale, with well-defined heroes and villains, that can be easily translated into the interpretive needs of the present. There has never been any shortage of interest in identifying what the Founding just was so that its essential meaning, and the moral to be taken from it, might be mobilized in the present. The enduring debate over the Progressive interpretation of the Constitution—which, for over a century, has maintained that the Constitution was erected as a bulwark against democracy—has richly enhanced scholarly understanding. Yet, too often it has devolved into a loaded dispute over justice and equity, forcing interpreters to crudely choose sides in the Founding era’s own struggles based on who we think deserves our sympathies and, in turn, whether the original reasons for drafting the Constitution are worthy of our esteem. A similar dynamic has fueled parallel efforts to pinpoint the Founding’s fraught relationship with slavery, often by measuring just how much aid and comfort the Constitution provided the institution—controversy over which just recently exploded surrounding the New York Times’s “1619 Project.” The hit Broadway sensation, Hamilton, has also prompted debate over the Founding’s capacity to offer a usable past. The musical earned acclaim for how its diverse casting inverted (and thus called attention to) the racial hierarchies that have plagued the nation’s past, raising important questions about who controls the narrative of history, and for how it turned Hamilton’s life into an homage to the contributions of immigrants. Many historians joined the chorus of praise. But some have condemned not just the musical’s historical inaccuracies but its faux-wokeness, reminding students of the period that the real Hamilton was at best a lukewarm opponent of slavery, who held democracy at arm’s length, supported child labor, tolerated his party’s anti-immigration policies, laid the groundwork for the military-industrial complex, and, above all, extolled the virtues of a system of financial capitalism destined to widen inequalities between rich and poor. Perhaps reviving neo-Federalism is not so progressive after all. Meanwhile, in law it of course has long been common to look to the Founding not just for legal understanding but as a source of constitutional ideology—to ground a particular brand of constitutional politics, and its assumptions about the size and reach of government and the kinds of freedoms meant to be protected from it, in the authority of the Founding.

At their best, each of these forms of historical engagement have produced fruitful insights and provoked valuable conversations. But the instinct to distill the Founding down to a distinctive set of recognizable values is not without its costs. Not only does it tend to flatten the period’s messy contours but, more problematic still and less widely recognized, it runs the risk of presupposing that the early republic’s constitutional politics are consonant with our own. Among The Partisan Republic’s great strengths is how effectively it exposes this dissonance between past and present.

It does this through its lucid classification of the period’s competing constitutional ideologies, by forcing readers to take full measure of the Federalist, moderate Republican, radical Republican, and finally, Democratic Constitutions that vied for early Americans’ allegiance. Any effort to categorize these Constitutions by the standards of modern political dispute break down. As Leonard and Cornell detail, Federalists favored an expansive national government capable of coping with distinctly national problems. But they were also skeptical of, if not downright hostile to democracy. While some among their ranks, such as James Wilson, promoted democratic ideas, most others from Alexander Hamilton and John Adams to Gouverneur Morris and Fisher Ames were far less receptive. Thus, while the Federalist judiciary defended national power against those who might revive the kind of devolved federalism known under the Articles of Confederation, that same judiciary persistently favored contract and property rights against what it regarded as the impulsive whims of popular rule. Republicans and Democrats, especially their more radical partisans, were more committed to the practice of democracy and more hostile to elite pretensions and economic interests. But they assumed democracy went hand-in-hand with weakening the federal government and championing states’ rights as well as starkly defining political participation based on gender and race (which was among the reasons wealthy slaveholders often were not the immediate target of their populist critiques). Federalists, as illustrated by the Alien and Sedition Acts, were perfectly willing to clamp down on foreigners, yet, they also proved more willing (however meagerly) to protect and even empower marginalized groups. Meanwhile, even if Federalists were more committed to the rule of property, their favored common law interpretive techniques presumed that the Constitution incorporated vast swaths of unwritten content and thus called for a more latitudinarian reading, one more capable of defending and tapping into the Constitution’s full possibilities. Republicans and Democrats, by contrast, were hostile to the common law and artful legal reasoning, claiming that, when it came to the Constitution, sola scriptura would suffice, thus tightly circumscribing its interpretation and use.

Labeling any one of these ideologies liberal or conservative, progressive or libertarian (as we understand those terms), without resorting to distortion, is all but impossible. In portraying this complex constitutional history so lucidly and accurately, then, Leonard and Cornell encourage us to do the hard work of familiarizing ourselves with the period’s peculiar constitutional politics rather than forcing it to speak to our own.

This is among the advantages of seeing how the Constitution was an endless source of dispute in the early republic. But, as Leonard and Cornell also imply, that conflict did not run the entire way down. It is not difficult to imagine a slightly alternative history in which Anti-Federalism persisted into the 1790s and a healthy cross-section of the nation refused to accept the Constitution’s legitimacy. Yet, whether Madison’s gambit to push through constitutional amendments in the First Congress proved the difference-maker, the Second Convention movement quickly collapsed and debate was subsumed under the Constitution’s authority. Even if the depth of constitutional strife in the early republic was more pronounced than many have been willing to see or accept, this emphasis also urges us to better understand the character of the constitutional agreement upon against which such divisive conflict was ultimately set. If when it came to the early Constitution it was—to invoke an enduring allegory—turtles most of the way down, how ought we to conceive of the bottom turtle upon which all of that fierce constitutional partisanship rested? How do we make sense of the Constitution that took shape during this formative age (and perhaps with which we still live), one that simultaneously functioned as a source of unquestioned authority and yet such searching disagreement? Most attempts at the time to defend what the Constitution was and required proved divisive, so what kind of agreement lay beneath these disputes? Adequately answering such complex questions would require an extensive analysis far beyond what is possible here. But some preliminary thoughts might at minimum suggest that these questions—fairly raised by the Constitution’s own history, especially as told in The Partisan Republic—deserve fuller attention.

The simple answer would be that the Constitution’s first users regarded it as an authoritative written text that was open to a range of interpretations. They could agree on the source of authority if not its exact meaning. But that effectively describes, in different terms, what actually needs explaining. Because, as Leonard and Cornell illustrate so skillfully, early understandings of constitutional text and interpretation could lead to radically different places, depending on one’s conception of, among other things, the relevance of existing forms of law and the extent to which the Constitution recognized them. Rival accounts of what kind of content was even in the Constitution thus complicated early efforts to ground its interpretation, fueling the precise brand of fundamental debate that Leonard and Cornell document so well. The Constitution that the Founding generation agreed on, consciously or implicitly in their practices, was to be found outside the bounds of known law and beyond putative recognition of an authoritative text.

Possibly what early disputants really agreed on, then, was a set of institutions, established under the Constitution, through which existing and emerging disputes could be channeled. And, of course, they did readily agree on this. Yet, as Leonard and Cornell repeatedly stress, at no point during the period they investigate was their agreement on which institution (if any) could resolve disagreements among them. More than this, when invoking the Constitution, early disputants agreed that it was a higher law that preceded and superseded those institutions. So their own arguments betrayed something more than a functional description of government.

Perhaps instead what they agreed on was an authoritative language of debate, a common set of argumentative resources. This understanding flowed naturally from how the Constitution seemed to present itself and what was known about its construction. In many ways, it was a series of deferred disagreements—textual choices its framers had made to avoid controversy and help ensure ratification that left subsequent generations to have the debates that they had been unable to resolve. But were there inherent limits to this language of debate? Was it all, in practice, endlessly malleable? Leonard and Cornell, of course, argue that political and cultural, rather than legal, developments primarily shaped the Constitution during the early republic. Conflict over the Constitution ran sufficiently deep, they suggest, that pragmatic accommodations, informal settlements, and other essentially political resolutions provided the stability and order that the Constitution’s putative legal meaning simply could not. This might indicate that constitutionalism was largely a reflection of the urgency of certain political needs and the measurement, at any given time, of certain partisans’ political strength. Yet, the Constitution remained authoritative, no matter its intermingling with politics.

Maybe, then, the Constitution was primarily a shared language of debate that recorded a series of what were fundamentally political resolutions. Those could always be revised and reworked through subsequent political disputes, though, once recorded in the language of constitutionalism, not without significant effort. Perhaps this dynamic—in which the Constitution both controlled and yet was controlled by politics—was akin to the philosopher of science Otto Neurath’s analogy that likened scientific verification to the reconstruction of a boat already at sea:

We are like sailors who on the open sea must reconstruct their ship but are never able to start afresh from the bottom. Where a beam is taken away a new one must at once be put there, and for this the rest of the ship is used as support. In this way…the ship can be shaped entirely anew, but only by gradual reconstruction.

Any of the ship’s beams could be moved—just as most any aspect of the Constitution could become a source of controversy. But not all of the beams could be moved at once. Those that needed to stay in place, at any one time, would comprise the Constitution that was agreed upon, the foundation upon which constitutional debate could take place. That would suggest that the Constitution was not neatly carved up between its hardwired, settled features and its ambiguous, uncertain ones; rather, that activity of constitutional sorting—in which certain things were debated while others were necessarily conceded—was itself a fluid and historical practice, shifting as constitutional politics themselves evolved. Perhaps the image of Neurath’s boat helps us better understand how, from a historical perspective, during the first half century of its existence the Constitution could both be a source of irreconcilable debate and yet do so much to shape and control that very debate.

Often, more effort is spent trying to establish how the Constitution ought to be understood rather than how its authority has been instantiated in practice. Carefully charting the Constitution’s historical development, as The Partisan Republic does so well, can help answer this need. The book’s invigorating account of early constitutional conflict and change not only offers a splendid overview of a vital subject during a formative period of its development but helps show just how much can be learned about the Constitution if its history is reconstructed with rigor and care.

Jonathan Gienapp is Assistant Professor of History at Stanford University. He can be reached at jgienapp@stanford.edu.

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