Balkinization: The Natures of Constitutional Histories

The Natures of Constitutional Histories

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).

Jud Campbell

Many of the constitutional histories that I read (and all of the ones that I write) focus on questions of constitutional meaning. Sometimes it’s the meaning of particular clauses or terms. Other times it’s interpretive methods or the allocation of interpretive power. But questions about constitutional meaning are paramount.

The Partisan Republic is a different type of constitutional history. Drawing on an extraordinarily diverse range of sources and literatures, Gerald Leonard and Saul Cornell provide a much broader account of American constitutional politics from the 1780s to the 1830s. Their focus is the sociology of American constitutionalism. Interpretive questions arise throughout, of course. But the book principally explores the processes of constitutional governance, including the undergirding attitudes and social relations that shaped the exercise of political power in the United States.

For some readers, this book will provide an illuminating introduction, or reintroduction, to early American constitutional and political history. The narrative is lively and easy to follow—well within range of non-experts—but also has a depth and sophistication that will make it required reading on graduate-level syllabi. I’ll assign it the next time I teach constitutional history.

But in my space here, I’d like to reflect on the book’s primary scholarly contribution, which emerges from the authors’ focus on constitutional politics and their ability to synthesize an incredibly wide range of materials. As I read it, The Partisan Republic calls on us to question basic assumptions about the nature of American constitutionalism.

The virulence of political fights two centuries ago isn’t news. Americans were famously at loggerheads over all sorts of things, including the constitution. Leonard and Cornell survey these familiar debates with clarity and brevity. But the book’s main strength is exposing conflicting assumptions about constitutionalism itself—like the function of political representation and the locus of sovereignty. Americans quickly accepted the legitimacy of the federal system after ratification. But just beneath the surface were deep-seated disagreements about constitutional ontology—about the nature of the American political order. And these were debates that the written constitution did not and could not resolve.

The fact that the document was not a self-contained instrument of governance is plain enough. Originalist scholarship has emphasized, for instance, how constitutional provisions were written against a backdrop of existing law, including textually unspecified interpretive methods. Equally clear is the inevitability of constitutional underdeterminancy and the need for post-ratification “liquidation.” As James Madison noted in Federalist 37, even “the Almighty himself” could not speak to humans with full clarity because of the “cloudy medium” of human language. One could hardly expect better of the Framers. This sort of problem, though, is just a fact of life—and not really an ontological challenge.

But Leonard and Cornell draw a different picture, and one that challenges conventional modes of constitutional history. On their view, the backdrops weren’t merely legal, and the ambiguities weren’t merely semantic. Rather, meaning itself is constructed based on presuppositions about what we are looking and why, and whose views count. And so understanding constitutional meaning, at least in any genuinely historical sense, requires appreciating the processes by which that meaning was created after ratification, not before. A strength of this book is the way that this lesson comes into better focus when the many moving parts are viewed together.

Debates over judicial review exemplify this multi-faceted process. As an elitist and nationally focused Federalist reign gave way to democratic and decentralized Republican control, the authors argue, the federal judiciary took up what was left of the Federalist mantle. In the process, however, constitutional interpretation within the judiciary became more self-consciously legalistic. Judicial review had initially been a “complement” to popular sovereignty—conceived less as a special judicial power and more as a byproduct of legislative supremacy’s demise. But the Marshall Court embraced a “counterweight” theory, relying on a legalistic conception of the constitution and asserting that judges were supreme in its exposition. Another layer thus emerged in the conflict between nationally inclined elites and locally inclined democrats.

Readers will likely have their own views about which side had the better argument. But the crucial thing to recognize is that these questions about the constitution’s character are ultimately normative and cultural. Whether the federal constitution is a “legal” document in the way the Marshall Court insisted can’t be settled by appeals to the document itself. Why? Because the dispute is not linguistic. It turns instead on a normative assessment of whether the people themselves ought to be supreme interpreters of their own delegations of power. The conflicting ways that Americans addressed this issue thus revealed a deep fissure in their constitutional culture.

Debates over the nature of sovereignty offer another powerful example. Proponents of greater centralization generally viewed the constitution as having created (or at least recognized) a federal body politic—that is, a unitary national polity. And the opening language of the preamble certainly supported their position. But once again, the nature of sovereignty isn’t the sort of thing that can be grounded simply on constitutional language. No wonder Jefferson had so little trouble discounting the preamble when he described the federal constitution as a “compact under the style & title of a Constitution.” The ultimate question, he thought, was how the federal constitution obtained its authority—not what the written document claimed that authority to be.

Nor, I might add, did political theory offer much help. Americans widely accepted a social-contractarian view of political legitimacy, but this theory was all about justifying and limiting political authority within an existing political society. Social-contract theory was tailor-made to rebut monarchical claims of divine right, but it offered little help when facing a conflict over how to define the polity. Invoking “popular sovereignty” was no answer because the question still remained: which people? A single federal body politic? Or the peoples of the several states? And what about demographics? Whose voices counted? The constitution could not settle these questions because they were, by definition, pre-constitutional.

With these (and many more) fault lines running beneath the surface, how did the American constitutional edifice stay intact? How can a constitution survive when its very nature is essentially contested? Leonard and Cornell respond by pointing to political settlements, and particularly the Democratic Party’s embrace of a more populist and decentralized politics defined largely in terms of its racial and gendered exclusivity. The Supreme Court continued to push a more legalistic and nationalistic view. But Democrats did not take their cues from the Court. The glue that held the constitutional order together was white male democracy, oriented around the preservation of slavery. And when that bond lost its grip, a civil war began.

What relevance does this story have for people like me—that is, folks with a scholarly or jurisprudential interest in constitutional meaning? Some will surely doubt the interpretive relevance of constitutional sociology. Indeed, given our own acculturation—with Marshall Court cases like McCulloch at the center of today’s canon—it might be tempting to just move on, dismissing historical alternatives as mistaken or as water under the bridge. That is indeed an option. But The Partisan Republic shows that this is a choice—and not the only one. At the end of the day, questions of constitutional ontology were not and cannot be settled by the written constitution. Core features of our constitutional order were—and still remain—a contested part of an ongoing socio-political process. They are not, as one might claim, simply a matter of interpretation.

Jud Campbell is an associate professor at the University of Richmond School of Law. You may reach him at jcampbe4 at richmond.edu.

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