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.