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