Balkinization: Popular Constitutionalism, Constitutional Politics, and the Founders’ Constitution

Popular Constitutionalism, Constitutional Politics, and the Founders’ 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).

Saul Cornell

I would like to thank Jack Balkin and Mark Graber for organizing this virtual symposium. In a short response it would be difficult to do justice to the thoughtful responses of all of the contributors. There is a vast and rich literature on early American constitutionalism that spans multiple disciplines. The Partisan Republic draws liberally from this immense body of scholarship. Sandy Levinson shrewdly notes that The Partisan Republic does not fit easily into the most familiar models of scholarship we have become accustomed to as academics. It is far shorter than most synthetic works, avoids extensive quotation from primary sources, and does not expressly engage with other scholars’ work directly in the body of the text. These stylistic choices were deliberate. The Partisan Republic not only offers a new interpretation of early American constitutional history, but a new model for how serious scholarship can reach a wider audience. The Partisan Republic can be read by those with little background in the subject matter, but still speaks to our scholarly peers across multiple disciplines. Threading this needle was not easy and likely it meant that it took twice as long to write a book that ended up being half the size of a more conventional history.

Mary Bilder and Greg Ablavsky echo a point made by Sandy Levinson about the Partisan Republic’s effort to “expand the cast of characters” beyond the “usual suspects” in traditional works of constitutional history. Our efforts here build on a generation of scholarship. All three commentators correctly note that there is still much empirical work to be done to recover the voices of these actors. In this sense, our effort to write a constitutional history from the bottom up to supplement the traditional court-centered top down approach was less fully fleshed out than we might have wished. In particular, the literature on gender and the Constitution in the early Republic is still far less developed than the literature on race, a fact that Mary Bilder’s new project will doubtless remedy. Gregg Ablavsky’s most recent scholarship, published after our book went to press, also offers a fresh reading of federalism that complicates our account in interesting ways and I wish I had the chance to engage with his most recent arguments about federalism in the book.

Mark Graber and Mark Killenbeck draw attention to the problems posed by cutting our story off in the Jacksonian era. The themes of democracy, exclusion and party are not only relevant to the constitutional politics of the period we cover in the Partisan Republic, but arguably only became more important in the period after our volume ends. These issues continued to shape the contours of constitutional development until the Civil War. One might argue that ending our story so early diminishes its analytical power. Frankly, I agree with that critique and taking the story forward in time would have been desirable. Although the book ends in the 1830s, the story we set out to tell did not. Indeed, in the early planning stages of the book, there was some very brief discussion of dividing the project into two separate volumes. The first volume would have covered the period 1788-1819 and the second volume would have explored constitutional politics in the period between the Missouri Crisis and the Civil War. I hope the editors of this important series consider commissioning such a volume to address the era of sectional conflict and the coming of the Civil War.

I want to focus the rest of my comments on the overlapping themes explored in the thoughtful essays of Jud Campbell and Jonathan Gienapp. Both scholars focus on the implications of the Partisan Republic for modern debates about constitutional meaning and interpretation. ( I also suggest readers consult the insightful exploration of these issues on Profsblawg in a fascinating essay by NYU’s Rick Hills.) History has always been important to American constitutional theory, but until recently such debates were not cast in the terms associated with constitutional originalism. Exploring the theoretical and empirical problems with originalism would require a book length treatment, not a short blog post. Rather than dive into that sprawling debate, I want to highlight one of the most troubling aspects of originalism: the failure to recognize the power of popular constitutionalism in the Founding era. Most originalists simply take it as a given that the people themselves were mute bystanders in the great constitutional debates of the early republic. If the Partisan Republic accomplishes nothing else, I hope that it shows that this claim is demonstrably false. The people themselves took an active role in shaping early American constitutional development. There are many ironies in the originalist use of democracy as a trope and theoretical construct. The supreme irony is that many in the Founding generation looked at democracy as a danger to be avoided at all costs, not as a theoretical foundation for a constitution whose meaning would be frozen in time. Although the Partisan Republic falls short of providing a comprehensive history of popular constitutionalism in the Founding era (a point made by many of the contributors to this symposium) the book does demonstrate that even the landmark decisions of the Marshall Court only make sense when one acknowledges the role of the people themselves in the constitutional politics of the period.

A number of originalists have dismissed the relevance of the people themselves, arguing that constitutional meaning is a legal construct and popular ideas are largely irrelevant to the lofty world inhabited by lawyers and judges. The Partisan Republic not only offers strong evidence that this was not the case, but even if this dubious claim were true this would not justify the simplistic model of consensus history that virtually all originalists accept uncritically. Conflict, not consensus, was the defining feature of Founding era constitutional culture and law. There was no consensus among judges and lawyers in the Founding era about how to read constitutional texts. In fact, lawyers and judges may well have been more divided over such matters than ordinary Americans. Restoring voices to groups who have been marginalized in earlier accounts and recognizing the contingency of this formative period of our constitutional tradition ought to spur innovative new research on the Founding era. If The Partisan Republic makes a modest contribution to this intellectual project, it will have achieved its main goal.

Saul Cornell is the Paul and Diane Guenther Chair in American History at Fordham University. You can reach him by e-mail at scornell1@fordham.edu.

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