Balkinization: An Elusive Constitution

An Elusive Constitution

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).

Gerry Leonard

I must begin with my earnest gratitude to Mark Graber and Jack Balkin for putting this symposium together and to each of the participants, both for their kind words and for their critical engagement with the substance of Saul Cornell’s and my book, The Partisan Republic. It’s easy to enjoy those passages that tell us that we have achieved what we aimed for, and I am grateful for them. But it is just as gratifying to read more-critical responses and passages, extending or redirecting our work to places we were unable to reach on our own. Thus Mary Bilder is correct to note that our attention to women as a category is much less thorough than she (or we) would’ve liked it to be. In fact, I have often consoled myself by thinking of the ways in which historians like Bilder might take some value from our work as they build their own fuller accounts of the experience and achievements of women in relation to the Constitution. Gregory Ablavsky too observes that our promise to write a history that includes a “bottom-up” perspective goes unfulfilled in some respects. I fully accept that, but it is good to see that he then anticipates some of my own sentiments in his last paragraph: “The Partisan Republic . . . 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.” As Ablavsky acknowledges here, part of the point of the book is to provide a kind of rough draft of a genuinely inclusive synthesis of the constitutional history of the period. A fully inclusive synthesis would not have been possible in a short book (and possibly not even in a much longer book, given our personal limitations as historians). The beauty of responses like Bilder’s and Ablavsky’s is that they educate us in the visions of scholars who, in some ways, know more than we do about what our story might become.

I particularly appreciate Ablavsky’s adumbrations of important arenas of agency for the formally marginalized: freedom suits by enslaved persons; the practice of petitioning that many women (and others) exploited; and the infiltration of the politics of white men achieved by the Cherokees, among other examples. Certainly, all these arenas could have been productively discussed in the book, though of course other material would have had to give way. But I think it’s worth explaining some reasons why we did not include more accounts of these groups’ exercises of agency.

The main reason emerges, I think, from a statement of the central narrative of the book. Even though a major point of the book is that the Constitution gradually took on the character of rigid white-male-supremacy (and thank you to Mary Bilder for noting our failure to include “male” in some cases where we should have), the book is not centrally about slavery or racism or the otherwise marginalized. Rather, it is about the transformation of a recognizable Constitution over the course of fifty years from an elitist document to a putatively democratic one, a transformation that entailed for these particular “democrats” a hardening of exclusions on lines of race and gender. It is certainly true that we also wanted to include a wider cast of characters simply to restore some of the breadth and diversity of the early United States to that society’s constitutional history. To do that fully would have required much more attention to the work of Ablavsky’s female petitioners, enslaved litigants, etc. But the actual argument of the book is not primarily about those who were, for the most part, successfully excluded from constitution-making by white male “democrats.” Rather, it is about how the latter succeeded in reshaping the Constitution. I recognize that in some ways that is just privileging one side of the coin rather than the other, that the story of “democratization” by white males is incomplete without an account of the creativity and resistance of those who were ultimately marginalized by the aggressions of white masculinity. It was therefore essential that the non-white-male experience play an important part in the story, and I don’t doubt that we could have done a better job with that dimension. But it also made intellectual sense to sacrifice some attention to those who ultimately had less effect in shaping the Constitution of the 1830s in order to adequately develop the story of the white-male-supremacists’ campaign for herrenvolk democracy (a term revived by Sandy Levinson here). In the end, I would not defend too aggressively the balance that we actually struck in the book. Many different arrangements could have made sense, and certainly part of the reason for our choices lay simply in our own degrees of familiarity with different literatures and evidentiary bases, likely also in our own identities as white males. But I do want to make clear the sense I see in the choices we made, given the book’s central goal of explaining the transformation of a kind of aristocratic Constitution into a putatively democratic one.

I am proud that we were able, as I think, to sustain this clear narrative arc throughout. It is also true, however, that that narrative arc rests on some assumptions or postulates that our reviewers helpfully question and explore. Jonathan Gienapp, for example, essentially asks what the Constitution even was when every piece of it seemed to be up for debate in this period, when our narrative may imply that constitutional meaning was only ever what the winners said it was. Presumably, if the Constitution mattered, it must have had some agreed meaning and authority that moved everyone in public life to accept it as the frame within which politics worked. But, beyond the most vacuous meanings—that there would be institutions of some scope and authority called the Presidency and the Congress and the Supreme Court, for example—there were no rules for preserving an agreed core of the Constitution as against those elements that would be subject to debate. Thus, one of the main arguments of the book is indeed that the Constitution was an elusive object, subject to debate on everything from where it got its authority in the first place (who authorized that minority of white men to speak for everybody in 1787-88?), to who had the authority subsequently to impart meaning to the Constitution, to what substantive meanings should be imparted to that Constitution as particular problems of law and governance arose. There were no clear rules even on who could participate in these debates and in what capacities and with what authority. The story of the book is one of politics—constitutional politics but still politics—such that it is easy to lose track of any independent role for law or the Constitution amid the raw struggle of persons and interests.

Similarly, as we try to grasp the Constitution that was being “democratized,” we have to ask what democratization or democracy—a.k.a., rule by “the people”—even means. Mary Bilder is understandably impatient with the word democracy as a label for the manifestly aristocratic Constitution of white-male-supremacy by the 1830s. Of course, we held on to that word in the narrative deliberately: because that was the applicable language in the public life of that time and place; and because that universalist rhetoric of democracy was in time appropriated by the excluded to claim a presence in public life and constitution-making. Note, though, that, as democracy came to be understood as less and less exclusive, exclusion nevertheless remained. Even today, formal rules continue to exclude, for example, the young, the incarcerated, non-citizens, etc. Even more importantly, the idea of democracy is persistently mocked by inequalities of power that reflect, at the least, the so-called iron law of oligarchy and, at the most, deliberate efforts to undermine equal rights. That is, the word democracy always deserves to have some modifier attached to it or at least scare quotes around it. These would alert the reader that we are not so naïve as to believe in the imaginary democracy routinely invoked in American public life since the period of The Partisan Republic. And we are not so naive as to believe in some entity called “the people” who might actually be able to rule as such. As Mark Graber notes, it was the achievement of Van Buren to sell the idea that the mass political party could deliver genuine ruling power to “the people.” But the mass party was always going to deliver power to some narrower group than that, even after it eventually rejected its explicit race- and gender-exclusionism. Our book is indeed about the founding of an American democracy that has always rhetorically celebrated inclusiveness even as it has always engaged in exclusion and subordination, whether openly or surreptitiously.

Thus the central notions of democracy and the Constitution that ground our narrative remain elusive in significant degree. We have a 1787 Constitution that we characterize as elitist but that—in keeping with our story of the Constitution as an object of struggle—actually meant different things to different people from the start. We have a reconstructed Constitution of democracy by the 1830s but one that was internally contradictory. It was characterized by universalist rhetoric at one moment and frank exclusion the next. It was rooted in the new institution of the political party as the agent of an empowered people even as it was clear that the party and its leadership would absorb power at the expense of “the people.” And even the notion of the people was just a label imputed to a chaos of individual Americans and only the white males among them. Yet, as Gienapp’s image of Neurath’s boat suggests, each real world debate over constitutional meaning rested on just enough agreement about the meaning of such terms as democracy and the Constitution—for the purposes of that particular debate—to sustain the belief that those terms had real meaning, that they effectively grounded politics in grand principles, not just momentary questions of interest and policy. In the same way, I hope that the arc of our narrative remains a genuinely valuable means of extracting meaning from the period, even as each of its pieces remains always at risk of disintegration, depending on the particular purposes of the particular reader.

So the book is a narrative of a mutli-faceted constitutional politics, but I want to say a bit more about what that means. Mark Graber identifies the book at times with the notion of “popular constitutionalism” popularized by Larry Kramer’s great book, The People Themselves. That identification is very fair, but I have always resisted the popular constitutionalism label for my own work on constitutional development in this period. In fact, I have always found it reductive and preferred the phrase “constitutional politics,” which, in fact, I learned from political scientists like Graber and Keith Whittington. Although there is a certain resonance to popular constitutionalism when discussing the radical populism that informed (say) the Whiskey Rebellion and Van Buren’s theory of a democratic party, I think of constitutional development as a much more complex matter. It is not simply a matter of “the people” insisting on their own authority as against the claims of judges. Rather, constitutional development rests on a generally extra-judicial politics of many players that is often not particularly populist at all. Moreover, as the book shows, even recognized populist movements were only so popular, given that they generally excluded large parts of the population. So I prefer to think of constitutional development as a matter of constitutional politics rather than popular constitutionalism. Relatedly, perhaps, I resist a little Jud Campbell’s separation of what he calls the book’s “constitutional sociology” (what I would call constitutional politics) from questions of constitutional interpretation. I do think that one of the lessons of this history is that even the creation of doctrine by way of judicial interpretation turns in significant part on constitutional politics. I don’t necessarily believe that judges should explain how their opinions are affected by the constitutional politics of the time—see any number of Marshall Court opinions that hardly disguise the ways in which they were shaped by extra-judicial pressures—but I do think the book demonstrates that the history of constitutional politics is sometimes about the creation of constitutional doctrine, not just about the “processes of constitutional governance” (Campbell’s words). So, for me, the history of constitutional development in this period is a history of constitutional politics, not just a history of popular constitutionalism and not just a history of processes of governance.

Finally, our history of constitutional politics in this period could not have avoided questions of race and slavery, but it does try to avoid—as Sandy Levinson observes—the question whether the Constitution was “pro-slavery” or “anti-slavery.” We do take a clear position, I hope, on the relation of the Constitution to slavery. That position is that the Constitution was “slavery-protective” throughout our narrative, although in importantly different ways at the beginning and end. I have no problem with anyone who prefers the term pro-slavery to sum up our account of the Constitution, but I prefer our language because throughout this period the supporters of the Constitution included people with a wide range of views on the justifiability of slavery. Thus, even once the Democratic party had entrenched a white-male-supremacist Constitution, as we argue, that party drew many adherents who opposed slavery in principle and resisted the introduction of slavery into their own states or the common territories. These Democrats were not generally racial egalitarians. They mostly adhered to their own anti-slavery version of white supremacy and mostly were willing to accommodate southern slavery where it was—on principles of democratic federalism—without becoming advocates of slavery itself. This vindication of white supremacy as an essential principle of the Democratic party rendered ideas of pro- or anti-slavery merely local, not foundational to the party. And this feature of the party was clear and established as early as the mid-1820s and certainly by the late 1830s. For that reason, I am a little surprised by Mark Killenbeck’s surprise that we did not address the continuing history of racism and slavery after the 1830s. That history is incredibly complex in relation to our story and, for that reason alone, we could not have treated it meaningfully in this book. But, as Killenbeck and Graber note, we do make quick use of the 1857 Dred Scott case in the conclusion as a way of suggesting the complicated history of democracy, race, and the Constitution that followed the period of The Partisan Republic. Part of the point of that discussion is to recognize that we are all embedded in the constitutional politics of our time but that we cannot use that as an excuse for getting too comfortable with the Constitution of the moment. So Killenbeck may be uncomfortable labeling Chief Justice Taney a judicial racist. After all, he was merely giving judicial voice to the racist Constitution of his time (see Mark Graber’s great work on that subject and my own subsequent contribution). But I have no problem describing the opinion as “judicial racism” for its willing implementation of a frankly racist Constitution, derived from that of The Partisan Republic.

Gerry Leonard is Professor of Law at Boston University School of Law. You can reach him by e-mail at gleonard at bu.edu

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