Balkinization: The Van Buren/Lincoln Connection

The Van Buren/Lincoln Connection

Mark Graber

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).

Leading textbooks and scholars maintain that during the nineteenth century in theory and in practice departmentalism was the main alternative to judicial supremacy. Thomas Jefferson and Abraham Lincoln, in this conventional view, articulated the foundational expressions of departmentalist logic. Jefferson insisted on pardoning persons convicted under the Sedition Act of 1798 because he thought the act unconstitutional, even though every federal court that considered the matter had sustained that measure. He famously informed Spencer Roane, “each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action.” Lincoln called for legislation banning slavery in the territories, even though the Supreme Court in Dred Scott v. Sandford (1856) had ruled that slaveholders had a right to take their human chattel into those jurisdictions. His first inaugural address famously claimed, “if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

An important difference nevertheless exists between Jefferson’s writings on constitutional authority and Lincoln’s speeches on that subject. Jefferson clearly informed Roane and other correspondents that Article II vested the president with independently authority to interpret the Constitution. Jefferson claimed power to pardon on constitutional grounds persons federal courts had declared constitutionally convicted because Jefferson was the president and the Constitution permitted the president to make independent constitutional judgments when exercising the pardoning power. Lincoln’s first inaugural made no explicit or implicit reference to any Article II power. Lincoln spoke about the constitutional authority of “the people,” not the constitutional authority of an officeholder. Lincoln did not point to a distinctive Article II power that vested the president with the power to ban slavery in the territories. Instead, he insisted that members of the Republican party in control of the elected branches of the national government were constitutionally authorized to ban slavery in the territories. Lincoln may conventionally be classified as a departmentalist only because he clearly rejected both judicial supremacy and compact theory, and those doing the classification treat departmentalism as the only available alternative to those two understandings of constitutional authority.

Professors Gerald Leonard and Saul Cornell in their justly acclaimed The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders’ Constitution, 1780s-1830s provide an extremely accessible historical study of constitutional authority in the early Republic that permits historians, political scientists and law professors to classify correctly Lincoln’s first inaugural address. Leonard and Cornell detail how American constitutional development from almost the beginning of the republic was structured by contests between proponents of judicial supremacy, proponents of departmentalism, and proponents of popular constitutionalism (though none of these phrases were explicitly used by the participants in these struggles), as well as proponents of compact theory (a phrase that was in common use during the early Republic). Federalists, at least when Federalists controlled the national government, were judicial supremacists. Alexander Hamilton and John Marshall believed judicial decisions resolved the dispute before the justices and provided other government officials with authoritative interpretations of constitutional provisions. Prominent Republican elites were departmentalists. They believed that government elites in the different branches of the national government had independent power to interpret the federal constitution. Although most commentators contrast Federalist judicial supremacy and Jeffersonian departmentalism, Leonard and Cornell correctly highlight an important commonality. Both approaches to constitutional authority confine constitutional decision making to elites. Marshall and Jefferson disputed only which elites were authorized to make independent constitutional judgments. Compact theory similarly limited constitutional decision making to elites, only expanding the circle of elites to encompass state officeholders. The Partisan Republic successfully insists that a more populist alternative challenged these elite theories of constitutional authority. By 1840, a broad understanding existed that constitutional meaning could be contested by ordinary people acting outdoors and through the ballot-box. Larry Kramer had developed this conception of “popular constitutionalism” in his influential The People Themselves: Popular Constitutionalism and Judicial Review, but Leonard and Cornell expand Kramer’s horizons in two important and fascinating ways.

First, The Partisan Republican documents how popular constitutionalism described the practice, even if judicial supremacy or departmentalism (or compact theory) was the official theory of the early republic. Leonard and Cornell observe, “the operative meaning of the Constitution depended on political and cultural developments much more than on constitutional text, established doctrine, and judicial pronouncements” (208). William Marbury did not get his commission. The speculators in Fletcher v. Peck did not get the full value of their constitutional claim and only got any compensation when Congress passed supportive legislation. Andrew Jackson killed the national bank that McCulloch v. Maryland described as “necessary and proper.” Native American tribes withered before the Jacksonian assault, even as the Supreme Court sought to preserve some semblance of tribal independence from state governments. Judicial decisions mattered, but they mattered as forms of popular constitutionalism, decrees that could be cited by persons acting within constitutional politics, rather than as the final word on raging controversies. John Marshall was at most one constitutional player in the early Republic and hardly the most important figure in any constitutional struggle.

Second, The Partisan Republic point to the ways Martin Van Buren sharpened popular constitutionalism during the 1820s and 1830s. The notion of popular constitutionalism, both in founding practice and contemporary scholarship, is fuzzy, in large part because as Edmund Morgan noted no entity corresponds to “the people.” Van Buren by creating mass political parties established a vehicle by which “the people” could be actualized and ordinary citizens could do battle against judicial and other elites for the power to control the Constitution. The Jacksonian Democracy was not simply a vehicle for controlling the government, making policy, and distributing patronage. Rather, in Van Buren’s vision, Democrats were the party of ordinary people who could through elections make their constitutional vision the official law of the land. Van Buren, Leonard and Cornell detail, insisted that “only constant vigilance, sustainable by no means but party organization, could protect the Jeffersonian, states’-rights Constitution from the relentless subterfuges of consolidators, the heirs of the Hamiltonian Federalists” (145). Popular constitutionalism as practiced by Van Buren and Jacksonian leaders was a cousin to departmentalism, but parties were valorized over individual officeholders. Van Buren maintained, “Each of the [federal branches] is the agent of the people, doing their business according to the powers conferred; and where there is a disagreement as to the extent of those powers, the people themselves, through the ballot-boxes, must settle it” (217).

Van Buren gets top billing as the founder of partisan supremacy, but Leonard and Cornell by ending the book in 1840 omit the importance of popular constitutionalism in Republican Party thought. Lincoln, in particular, consistently spoke the language of popular constitutionalism rather than departmentalism. As noted above, his first inaugural refers to the constitutional authority of the people rather than that of a particular federal officeholder. References to the constitutional authority of the people dot other Lincoln speeches responding to the Supreme Court’s decision in Dred Scott. He informed an audience in Cincinnati, “We must prevent each of these things being done by either Congresses or courts. The people of these United States are the rightful masters of both Congresses and courts, not to overthrow the constitution, but to overthrow the men who pervert that constitution.” An 1859 speech in Columbus, Ohio stated, “the American people shall see that Constitutions are better construed than our Constitution is construed in that decision. They must take care that it is more faithfully and truly carried out than it is there expounded.” Following Van Buren, Lincoln treated dominant political parties as the main vehicle for constitutional development and as the authoritative source for constitutional meaning at any particular time. The constitutional status of slavery, in his view, was ultimately determined at the ballot-box, when voters chose between pro-slavery Democrats and anti-slavery Republicans. Lincoln in his fifth debate with Stephen Douglas asserted, “The Dred Scott decision, as it is, never would have been made in its present form if the party that made it had not been sustained previously by the elections. My own opinion is, that the new Dred Scott decision, deciding against the right of the people of the States to exclude slavery, will never be made, if that party is not sustained by the elections.” Van Buren agreed.

Van Burenite popular constitutionalism guided the persons responsible for the Fourteenth Amendment. Thaddeus Stevens championed a constitutional amendment that would “secure perpetual ascendancy to the party of the Union; and so as to render our republican Government firm and stable forever.” This broadly shared concern with the Republican party as the main vehicle for constitutional development explains why Republicans in Congress debated with great care and at great length what became Sections Two and Three of the Fourteenth Amendment, but John Bingham aside, paid almost no attention to the individual rights provisions that were eventually incorporated into what became Section One. Section Two of the Fourteenth Amendment reduced a state’s representation in Congress to the extent that states disenfranchised adult male voters. Section Three prohibited some former Confederates from holding office and, as originally proposed, prohibited most former Confederates from voting. Combined, Republicans hoped, Sections Two and Three would ensure that Republicans controlled the meaning of the post-Civil War Constitution. The Constitution of 1865 would be maintained because Republicans in all branches of government would defeat southern efforts to repeal in practice the Thirteenth Amendment. The Thirteenth and Fourteenth Amendments would be interpreted consistently with the Republican antislavery constitutional vision, Republicans thought, because for the foreseeable future only Republicans would be doing the interpreting.

T.H. White described the central job of the scholar as “increasing the number of ideas available to” humankind. Leonard and Cornell have performed that task admirably. They have produced the first constitutional history of the early American republic in which the Supreme Court is reduced to barely more than a bit player and explained why what we now consider as foundational constitutional decisions had little impact on politics when originally handed down. The Partisan Republic provides a fresh synthesis of the path to Jacksonian America and the tools by which scholars can rethink the role of legality and courts in post-Jacksonian American. Some of that rethinking might focus on how popular constitutionalism structured the post-Civil War amendments. Constitutionalists inspired by Leonard and Cornell might also think about the role of political parties as the primary vehicles for constitutional change in our own hyperpartisan constitutional era, both when they explain the course of contemporary American constitutional development and when they envision paths towards a healthier constitutionalism.

Posted 9:30 AM by Mark Graber [link]