205 Years Later, Reiterating the Importance of the Election of 1800

I just finished Bruce Ackerman's alliterative and illuminating new book, "The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy," and have to say that, although I enjoyed it quite thoroughly, I'm not quite sure how it's all that new. Specifically, what I take to be Ackerman's central points -- that we have to understand the Election of 1800 as a hugely important foundational moment in American history; that the more important 1803 Supreme Court decision wasn't Marbury, it was Stuart v. Laird, in which the Court upheld the Judiciary Act of 1802 and allowed Congress to do away with the "Midnight Judges"; and that the more important period is the next decade, in which the Federalist Court quietly but surely ceded power to the Jefferson Administration, culminating with U.S. v. Hudson & Goodwin, in 1812 -- seem, with the possible exception of the last point, to be well-established, at least as historical canon.

At least the American historians, if not the American constitutional lawyers, have long since understood the undeniable significance of the Election of 1800, and the potential disaster that could have befallen the country had March 4, 1801, rolled around with[out] a settled outcome. [In my AP U.S. History class in high school, we learned all about the "Revolution of 1800."] Indeed, Akhil Amar's new book -- "America's Constitution: A Biography" [the link is to Jack Rakove's excellent review in The Nation] -- touches on much of this history in its discussion of the enactment of the Twelfth Amendment, hurried through Congress to ensure that history didn't repeat itself in 1804.

Instead, what really strikes me as "new" is the emphasis on Hudson & Goodwin, long a mainstay of federal courts classes, but hardly noteworthy elsewhere. In H&G, the Court, per Jefferson's first appointee -- Justice William Johnson -- held that there was no general federal common law of crimes, an important early move against federal supremacy, and in favor of state law.

I'm all for reasserting the importance of Hudson & Goodwin, even though, as Hart & Wechsler note, there was some disagreement four years later, in United States v. Coolidge, that H&G was to be so broadly read, and Justice Story always seemed inclined to the contrary.  Nevertheless, unless I'm missing something, that's really what I take as the bulk of the contribution to the literature made by Professor Ackerman's new book. 

Don't get me wrong. Not that everything any of us write (and especially someone as established as Ackerman) needs to be path-breaking. Anything but. But I was at least a little disappointed that much of the rest of the book does not do much more than bring together a history that has long-since been told. It brings that history together quite elegantly, to be sure, and the book is without doubt a worthwhile read. I would just have loved to see more.