Balkinization: Expanding the Cast of Constitutional Actors

Expanding the Cast of Constitutional Actors

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).

Gregory Ablavsky

In their new book The Partisan Republic, Gerry Leonard and Saul Cornell offer an impressive model for how to do large-scale synthetic constitutional history that speaks to both historians and lawyers. From my perspective, their most admirable commitment is methodological. Their book declines to interpret constitutional history solely as the product of an internally sealed discourse of a set of canonical texts or as a mandarin debate among a select handful of canonical “Founders” and jurists. Those familiar accounts and sources feature, but alongside and in dialogue with what Leonard and Cornell call a “bottom-up approach.” For them, this means integrating law with politics—which they define broadly, drawing on the past several decades of work on the “new political history,” including earlier research by both Leonard and Cornell. This approach acknowledges that politics was not the exclusive preserve of elite white men but crafted and shaped by the “people out of doors,” including formally excluded groups like women, African-Americans, and Native peoples. The refreshing result is a history that does not see debates over constitutional meaning as confined to the pages of The Federalist.

This more expansive approach yields important insights. As with Alison LaCroix’s ongoing scholarship on the federalism and the interbellum constitution, Cornell and Leonard reveal that constitutional meaning, hardly fixed during ratification, substantially developed as partisanship pushed toward Jacksonian democracy. What the Constitution meant in 1830, they persuasively demonstrate, was far from what had been intended, or even written, in 1787. This resulted in large part, they suggest, from the rise of an ideology of white supremacy increasingly entrenched in the new “democratic, states’-rights Constitution” epitomized, in their view, in Dred Scott. Jacksonian democracy as a herrenvolk regime committed to exclusion is a familiar concept to historians—it was a leitmotif of Daniel Walker Howe’s expansive 2007 synthesis of the era, for instance--but Cornell and Leonard do important work by translating these insights into constitutional history, a sometimes staid field, especially as practiced in law schools, that has sometimes been slow to incorporate new historical literature.

The challenge with such a broadly synthetic approach is that it is hard to integrate all these moving parts well. As with all books, The Partisan Republic does some things better than others. Leonard and Cornell are very skilled expositors and interpreters of judicial opinions, for instance; they also repeatedly deftly summarize decades of complicated history and debate in a couple pages. Where they arguably fall short is in their promise to produce a more inclusive constitutional history—one, they announce at the beginning, in which Judith Sargent Murray and James Forten appear “in the same cast of characters” as Madison, Hamilton, and Marshall. But the book makes clear which members of this “cast” are the headliners and which are mere bit players. Even as Madison, Hamilton, and Marshall each receive hundreds of mentions, Forten and Murray make a single appearance apiece.

This shortcoming is a critique less of Leonard and Cornell than of the current state of the field. The Partisan Republic demonstrates convincingly that the status of women, enslaved Africans, and Native peoples were all critical constitutional topics in the early republic—a substantial improvement over previous accounts that ignored these questions altogether. But, although extensively talked about, members of these groups rarely speak themselves. An artifact of the book’s admirable brevity, this omission also reflects that, as Leonard and Cornell stress, one of the primary constitutional developments of this period was the systematic exclusion of women and people of color from both the ballot box and political discourse. As the book notes, when the white Whiskey Rebels used revolutionary rhetoric to challenge the law, they were chastised; when Gabriel’s black rebels attempted something similar, they were brutally executed. This history makes it difficult to see marginalized peoples as meaningful creators of law--especially when the American legal order seemed single-mindedly dedicated to their subordination.

This perspective stems partly from a slippery word in the book’s subtitle: “democracy.” Following how most antebellum whites described the concept, Leonard and Cornell link democracy with the increasingly racialized and gendered franchise. Only very recently has a substantial body of legal-historical work begun to challenge this conflation. A host of new research—including Martha Jones’s scholarship on African-Americans claiming birthright citizenship, Maggie Blackhawk and Dan Carpenter’s research on petitioning, a burgeoning literature on enslaved people’s freedom suits, and work by many others—has demonstrated how widely marginalized peoples asserted claims and practiced politics outside elections. These works go further still: not only did women, African-Americans, and Natives make constitutional arguments, they demonstrate, but their views shaped law, albeit grudgingly and unpredictably. Take The Partisan Republic’s closing vignette of Dred Scott. Not only was the case the product of persistent claims-making by enslaved people, but so too, at least in part, was the ensuing war, mass politics, and constitutional amendment that overturned Taney’s ruling.

This contradictory reality—that, for marginalized groups, antebellum American constitutional law was oppressive and yet, through its pluralism, sometimes opened unpredictable spaces for legal maneuvering—is highlighted particularly clearly in the so-called Marshall Trilogy, which dominates The Partisan Republic’s final chapter. Leonard and Cornell rightly emphasize the legal confrontation between Native nations and southern states as a major moment in U.S. federalism and separation of powers. They narrate the story—in which the Cherokee Nation’s startling victory in Worcester v. Georgia is undone by “democracy’s readiness to retake the Constitution from the Court”—elegiacally, embracing as realistic Justice McLean’s concurrence that regarded deportation as the “inevitable” outcome of “constitutional politics.” But, as the latest history of so-called Removal argues, this result was actually a close-run thing, with the Cherokees proving remarkably adept at securing allies and building coalitions, and with Congress only barely endorsing Jackson’s brutal policies. Equally important, Native peoples had successfully enshrined their sovereignty in U.S. law: a victory that, although it did not prevent their violent expulsion from their homelands, helped ensure their persistence as nations into the present.

Recognizing this complexity is not to fault Leonard and Cornell for failing, in a short book, to cover every aspect of constitutional law in the early republic. On the contrary, The Partisan Republic largely succeeds on its terms: it persuasively argues for the importance of a more inclusive constitutional history, even for those primarily focused on courts and doctrine, and points toward what such a history might look like. That their slim volume does not entirely realize its expansive vision is less a shortcoming than a call to arms, a reminder of how much exciting work there is left to do.

Gregory Ablavsky is Associate Professor of Law and (by courtesy) of History, Stanford Law School. You can reach him by e-mail at ablavsky at law.stanford.edu

Posted 9:30 AM by Guest Blogger [link]