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Thursday, May 07, 2020

Is Aaron Burr is one of our Constitution’s Most Important Founding Fathers? The Legitimacy and Ubiquity of Partisan Constitutional Interpretation

With The Partisan Republic: Democracy, Exclusion, and the Fall of the Founder's Constitution, Saul Cornell and Gerry Leonard have produced a tour de force of constitutional history, the central gist of which is that the constitutional founders failed to achieve their vision. According to Saul and Gerry, the founders aspired to create a republican regime in which elites ruled without political parties, governing with the consent, but not under the control, of non-elite voters. By 1832, this genteel model of popular government was swept away by the rise of Andrew Jackson’s and Martin Van Buren’s rival model of partisan democracy. In the partisan republic, nonelite but propertied white men ruled the roost, excluding not only the pretensions of what Federalist framers would call the “natural aristocracy” but also women, Indians, and African-Americans. Aside from advancing an important thesis, the book is an addictively good read that encapsulates an action-packed period, from the 1780s to the Cherokee Nation's forlorn litigation of the early 1830s, in briskly elegant prose.

Although Partisan Republic is essential reading for historically minded constitutional scholars, I imagine that many legal scholars wedded to one or another form of originalism might be confused by the reference to a “Fall of the Founders’ Constitution” in the title. If one concedes that the Constitution contains gaps, then it should be no surprise that the struggle over how to fill those gaps became the occasion for fierce debates. Providing a space for such politics, our originalist might argue, is precisely the point of the original document’s gaps. It does not contradict the “Founders’ Constitution” for lots of partisan debates to occur where the Constitution’s original public meaning does not specify any rule. The elite, mostly Federalist, founders may themselves have fallen from power – but their Constitution, ambiguous as it is, still rules us all where its language is plain.

As I explain after the jump, I think that this originalist rejoinder to Saul’s and Gerry’s project misses the mark, because the originalist misunderstands constitutional ambiguities as linguistic oversights rather than (as I have argued) political strategies. The gaps in constitutional text could not be "liquidated" by referring back to the shared constitutional purposes of 1788, because, at least with respect to the controversies described by Saul and Gerry, the Constitution's ratifiers lacked any such shared purposes. They merely sought to defer disagreements that might have defeated constitutional ratification. Instead, as Saul and Gerry brilliantly describe, politicians in the early republic resolved constitutional differences through a cocktail of moral rhetoric, constituent self-interest, and voter mobilization.

I have a friendly amendment to Saul and Gerry's wonderfully told and critically important story. They have described constitutional partisanship without political parties. This is partly because, (as Gerry has argued in his earlier work), the book ends before the Second Party System really got started. After the jump, two friendly amendments to their account, explaining how parties solve two constitutional challenges for the "white yeomanry" that ruled the roost in 1832: (1) the challenge of providing an alternative to distributive politics of universal log-rolls and (2) the challenge of a new evangelical opposition to Van Buren's party of propertied white men that arose between 1826 and the Cherokee Case. The critical take-away: The most effective antebellum constitutional advocates were not courtroom lawyers but politicians like Aaron Burr and Martin Van Buren who knew how to get out the vote.

1. Why partisan mobilization filled constitutional gaps in the 1790s.

Consider why partisan mobilization fills constitutional gaps: The gaps were likely designed to defer ideological conflict made intractable at the ratification stage by the Article VII "ultimatum game." The problem was that Federalist drafters who organized the Philadelphia Convention used a ratification process -- an up-or-down vote by state ratifying conventions --that did not permit amendment by the ratifying conventions. This process precluded textually specific negotiation and compromise with likely opponents, especially those from the western backcountry who also were not present at the Philadelphia drafting convention. Anti-Federalist opponents resented this ultimatum and accused of the Federalists of "cramming the Constitution down the throats of the people," but there is no reason to believe that the Federalists proposed the Article VII process as a bad-faith cram-down measure. In their private communications, those Federalists worried instead (and with good reason) that a second constitutional convention or conditional ratification would become mired in endless squabbling that would ultimately defeat any proposal. Article VII, therefore, was the only plausible way to ratify an overhaul of the Articles of Confederation. The Federalists' innocent motives, however, did not eliminate seething resentment that could have defeated ratification. The safest and fairest bet of the Federalist drafters, therefore, was to defend general constitutional terms like "executive power," "judicial power," "arising under," "necessary and proper," etc., as necessarily ambiguous terms that could be clarified after ratification through some sort of political process like Article V amendment.

The Federalists' strategy of deferring ratification-defeating disagreements naturally invited later partisan resolution of those disagreements. There simply was no shared purpose underlying contested ideas like "executive power," "judicial power," or "necessary and proper" to which the contending sides could refer to fill in these gaps.

As Saul and Gerry note, it took a long time for the politicians in charge of the new regime to figure out that winning such fights required partisan tools as well as partisan goals. The leadership in the early years of the republic was drawn mostly from Tidewater, Mid-Atlantic, and New England elites who initially expected deference from voters and consensus among their fellow leaders, both of which would be eroded by partisan rancor. Madison recognized as early as 1791 that the Democratic-Republicans had to unify themselves around a few fundamental principles to prevent their opponents from "taking advantage of all prejudices, local, political, and occupational, that may prevent or disturb a general coalition of sentiments." But Madison did almost nothing to create party institutions to hold a programmatic coalition together. His effort to use Democratic-Republican Societies as organizational institutions was foiled by the Whiskey Rebellion, which made such "self-created societies" look treasonous to many Americans. His effort to rally state legislatures to resist the Federalist federal government foundered on ideological and sectional divisions among the states. Thus, despite being fiercely divided as Federalists and Democratic-Republicans, a third of the presidential electors in 1796 still cast their votes for nine alternative (mostly "favorite son") candidates, dividing on sectional rather than ideological grounds. Absent any unifying institutions that could hold voters to their principles, even clear party platforms like John Taylor's division of policies and politicians into binary "aristocratic" and "democratic-republican" principles could not make those principles stick.

In the end, it was not the high-flown rhetoric of the Virginia and Kentucky Resolutions but rather the organizational talent of Aaron Burr that won the constitutional debate for the Democratic-Republicans against the Federalists. Burr used his Manhattan Company, ostensibly a corporation for bringing water to New York, as a bank with which to extend credit to voters, bribing them away from the Federalists and swinging the New York City votes into the Democratic-Republican column. In doing so, Burr simultaneously carried out an ideological objective (break the "monopoly" of the Federalist Bank of New York and Bank of the United States) and a party-building objective (create a machine tying voters to the party by links of both self-interest and ideology). Burr's strategy merely imitated that of his rival, Alexander Hamilton, who had built up federal bondholders as a powerful Federalist constituency.

Aaron Burr is only one of many unsung constitutional "founders" to make cameos in Saul's and Gerry's action-packed narrative of the Federalist Era. Other members of the supporting cast include William Manning, the Democratic-Republican tavern keeper, author of the 1798 "Key to Libberty tract calling for workingmen to unite against the Federalists and William Rawle, the Federalist prosecutor who tried but failed to get Pennsylvania juries to convict Whiskey rebels for erecting seditious liberty poles. The brilliance of Saul's and Gerry's exposition is to recognize that Rawle and his recalcitrant juries were fighting a constitutional debate when they faced off over the scope of federal courts' common-law powers to define the scope of legitimate dissent. This question of whether or not there was a federal common law of crimes was one of the many questions left open by Article III's delphic reference to "judicial power." Eventually, Justice Johnson would declare in United States v. Hudson & Goodwin that "the general acquiescence of legal men shews the prevalence of opinion in favor of the negative of the proposition” that federal judges had such a crime-defining power. But this "acquiescence of legal men" was brought about not by reflection on the meaning of 18th century semantic sources but instead the stubbornness of juries and the organizational talents of people like Aaron Burr who buried the Federalist Party's theories with electoral facts on the ground.

2. Why have constitutional parties at all?

As Saul and Gerry note in chapter 4, Jefferson's 1800 victory destroyed Jeffersonianism. In proclaiming that "we are all Federalists, we are all Republicans," Jefferson began the process, completed by Monroe, of eroding the ideological coherence of Republican ideology. Saul and Gerry argue that "the realities of governance" required Jefferson, Madison, and Monroe to trim "principled commitment to strict construction" of federal power to advance the interests of "the white yeomanry." From supporting the Louisiana Purchase to endorsing the Second bank of the United States, the Virginia Dynasty repeatedly endorsed the idea that "legitimate constitutional ends justified some flexibility in constitutional means."

Saul's and Gerry's explanation for the demise of the National Republicans is certainly true, but it is also incomplete. They provide no answer to a fundamental question: Why could not the National Republicans just opt 100% for "practical governance" over constitutional purity? Why not, in other words, simply de-constitutionalize most of politics and leave the funding of roads and canals, the chartering of banks, and the the sale of western land up to the give and take of politics, free from pesky constitutional limits? Both the National Republicans and the Jacksonians, their successors, after all, wanted to cater to the same "white yeomanry," and that yeomanry plainly wanted infrastructure and credit. So why not do what we have done today: Treat these matters as purely policy issues to be resolved without any constitutional limits on federal power? Instead, Jackson and Van Buren ousted the National Republicans and defeated the Whigs by opting for a version of the Constitution that barred the federal government from depositing its revenue in private banks, directly subsidizing or chartering transportation corporations, or subsidizing a vast array of internal improvements plainly valuable to the white yeomanry. Why did they do so -- and why were they so successful?

What follows are two explanations for political parties intended as friendly amendments to Saul's and Gerry's account. First, parties help avoid the practical and constitutional challenge of universal coalitions created by purely distributive politics. Second, a party organization was necessary to fend off a new ideological rival largely ignored by Saul and Gerry -- the evangelicals who, along with refugee Federalists, created the Anti-Masonic, Whig, and Republican Parties. Because those evangelicals played the key role in Worcestor v. Georgia, they make a fitting epilogue to Saul's and Gerry's great book.

3. Parties as Solutions to Universal Log-Rolls

Start, first, with the problem of universal coalitions. Whenever a legislature divides up a divisible public good like money, it faces the challenge of assembling a winning coalition. Legislatures organized along party lines can use party affiliation (if the parties are non-programmatic) or ideology (if they are programmatic) to divide the dollar. Party-less legislatures, however, gravitate towards coalitions assembled through a universal log-roll, because anyone who votes against anyone else's pork risks being carved out of a universal coalition minus one (the dissident who did not roll logs). Universal coalitions spread the pork around to every district at the cost of governmental efficiency (not every district is equally valuable for an interstate highway), and this inefficiency undoubtedly offended Madison when he vetoed the Bonus Bill. (The failure of the 1808 Gallatin Plan - an expertly drawn road network that failed for lack of pork-spreading stuck in his craw).

But universal distributions also confront a constitutional dilemma, where "constitutional" is defined in partisan terms of Democratic-Republican ideology. Such distributions either flagrantly defy any principle of a federal spending power limited by the enumeration, or they raise the spectre of corruption from the "Crown's" buying of "placemen" with pork. The first lemma springs from money's being allocated without any regard to national needs for commerce, defense, postal roads, etc. The second lemma is triggered by trying to make distributions less universal by delegating spending and credit decisions to the executive.

The Monroe and Adams Administrations settled for that second lemma: Delegation to the executive. The Second Bank of the United States relied on Nicholas Biddle to allocate credit, while the General Survey Act of 1824 gave federal surveyors and engineers the task of allocating infrastructure money for roads and canals. Such delegations required the yeomanry to trust the experts, especially financial and engineering experts who disproportionately came from New England and Mid-Atlantic regions. The constitutional ideology of the Republicans, however, had been built on distrust of precisely such urban and mercantile elites. Biddle's control of credit inspired imprecations against the "Monster Bank" and resentment from any region that felt shortchanged when Biddle called in state banks' notes. Cost overruns in the construction of the federally funded Chesapeake & Delaware Canal in 1827 inspired suspicion that money was being funneled disproportionately to the Atlantic Coast. (See Todd Shallot's highly recommended Structures in a Stream at pages 129-30). Executive discretion opened the way in 1828 for Old Hickory to campaign on a vague promise to redeem the nation from "corruption."

This worry about executive corruption was a constitutional worry, in Saul's and Gerry's sense of "constitutional." As Julian Mortenson and Nick Bagley have persuasively argued, the non-delegation doctrine has no home in the original public meaning of text or 18th century understandings of executive power. But from the perspective of constitutional politics, Jackson's anger at "corruption" fit neatly into political and cultural traditions stretching back to 1791 and beyond, to English Country Party attacks on the Bank of England and the South Sea Company.

A strong party organization can solve the dilemma of universalism versus executive discretion by forcing Congress to accept a distribution credibly dictated not by executive discretion but instead fixed by a rigid party platform. Jackson, Van Buren, and Polk all experimented with various constitutional formulae for allocating credit and infrastructure, but they eventually settled on rigorous constitutional rules that, while not 100% efficient, were good enough to allay the sectional and class suspicions aroused by the National Republicans. There's no need here to rehearse the details of those party-based doctrines, which were worked out in Van Buren's Administration. (The key step was Van Buren's opting for an Independent Treasury System). The important point is that Van Buren could enforce such doctrines only with heavy-handed insistence on party "regularity" -- voting with the party whip -- that drove several important constituencies (for instance, William Cabell Rives and other Virginia Conservative Democrats) out of the Democratic Camp. Party regularity requires powerful whips and very clear platforms -- what the Democratic slogan described as "principles, not men."

The failure of the National Republicans, in short, was not IMHO rooted in a conflict between practical governance and constitutional principle, as Saul and Gerry suggest. It was rooted instead in a dilemma posed by rival constitutional values, none of which could be simultaneously satisfied without a party that could whip votes into conformity with a rigid platform.

4. The Democratic Party as a Solution to the Challenge of Evangelicals

The Democratic Party was a solution to another constitutional challenge omitted from Saul's and Gerry's book: The challenge of an evangelical opposition.

The absence of evangelicals from Saul's and Gerry's account might make expository sense: One of the great virtues of their book is its brevity and clarity. But that absence leaves a pretty big hole in their explanation for why antebellum Southerners felt so worried about federal power by the 1820s. Saul and Gerry note that the fight over Missouri's admission raised Southern hackles. True -- but northern Democrats stuck with their Southern brethren in 1820, so why worry more in the 1820s than, say, the 1790s? After all, if it is true that, as Saul and Gerry claim, "northern Federalists... remained committed to an orderly, hierarchical, and usually racist structure of society," then where was the new threat from the federal government coming from? Saul and Gerry note that "relatively idealistic antislavery types" like Representative Tallmadge provoked Southerners like Robert Turnbull to publish angry, scared screeds denouncing federal power. But why did these tracts, and S.C. politicians like South Carolina's William Smith, carry the day against nationalists like Calhoun, forcing the latter into abandoning nationalism with his Fort Hill Address?

To answer these questions, I think that one has to focus on the Second Great Awakening in general, the campaigns of evangelical revivalists like Charles Grandison Finney along the route of the Erie Canal during the late 1820s, and the rise of the Anti-Masonic Party in 1826-27. Often drawing inspiration from Federalist rhetoric, these religious reformers transformed northern politics with innovations like the party convention, the enlisting of women into moral campaigns, and the mass petition drive. Evangelicals also became militantly opposed to slavery and pushed the various parties that they influenced -- the Anti-Masonics, the Whigs, the Liberty Party, and, finally, the Republicans -- into anti-slavery stances that the Southerners had to counteract with a party organization of their own.

Anti-slavery petitioning was one of a series of controversies, ranging from temperance to stopping mail delivery on the Sabbath, that mobilized evangelicals for politics. The protection of the Cherokee Nation from Georgia was another one of those causes. Samuel Worcestor, the plaintiff in Worcester v. Georgia was a missionary sent by the American Board of Commissioners for Foreign Missions (ABCFM) to serve the Cherokee, and the litigation was, from start to finish, a joint product of both ABCFM activism and old Federalist constitutional theory. Elias Boudinot, the leading Cherokee proponent for Cherokee sovereignty, had been educated at Connecticut congregationalist school and re-named himself after his friend and mentor, the elderly New Jersey Federalist Elias the Elder. Boudinot's marriage to a white Connecticut woman caused a scandal in Connecticut and beyond, but it was backed by evangelical missionaries like Daniel Budrick (who was convinced that the Cherokee were one of the Lost Tribes of Israel). The entire scheme of the litigation was dependent on Federalist ideas about the national government's unenumerated powers: Worcester was not only a missionary but U.S. postmaster and appointee of the War Department under a scheme of benevolent nationalism created by Henry Knox, George Washington's Secretary of War.

There are solid expository reasons for why Saul and Gerry ignore the evangelical role in the Worcester litigation: they apparently wanted instead to focus on the SCOTUS' various opinions as the swan song of the Marshall Court. I confess, however, that the chapter on Worcester was frustrating to me, because telling the story of this case without evangelicals is truly Hamlet without the Prince. Indeed, the absence of evangelicals like Boudinot (the Cherokee publisher and activist, not the elder Federalist statesman) runs counter to the theme that otherwise pervades their book - the theme that constitutional law is the product of partisan struggles waged out of court, not learned opinions handed down by SCOTUS. As Gerard Magliocca has argued, the Cherokee Nation's fight was a dress rehearsal for the Abolitionist movement and one of the roots of the Fourteenth Amendment. William Lloyd Garrison published the first issue of the Liberator in January, 1831,three years after the Cherokee Nation first sought an injunction against Georgia's overthrowing Cherokee sovereignty in March of 1828. On the masthead of his newspaper were not only chained slaves being driven to a market but also trampled treaties with Indian tribes.

By ignoring the role of the evangelicals, Saul and Gerry have also shortchanged the Federalists, whose racism, contrary to Saul's and Gerry's claim, was eventually tempered and even overcome by their devotion to religious restraints on selfish passions. Garrison, himself a Federalist, was (as Marc Arkin has argued) inspired by the rhetoric of arch-Federalist Fisher Ames - rhetoric about how the lust for freedom from all religious and social constraint led to tyrannies ranging from the Jacobins' terror to slaveowners' tyranny. Peter Jay, the one anti-slavery politician quoted at length by Saul and Gerry, belonged to a family with extended ties to both slavery and anti-slavery . The anti-slavery convictions won out in the end, producing not only Peter but also John Jay's son William, who, as a New York judge, declared it “a duty and a pleasure” to “facilitate the escape of any fugitive slave.”

That the descendants of Federalists should gravitate towards anti-slavery is not a surprise when one realizes that the anti-slavery movement was a religious and evangelical movement straight out of the Quaker and Congregationalist strongholds of Philadelphia and New England - also strongholds of the Federalists It was that movement of moral reform, with outposts from New Echota, the Cherokee's capital in Georgia, to Garrison's printing press in Boston, that struck fear in the Southern Democrats' heart. It was the evangelicals' political organization, however, starting with the first-ever party convention of the Anti-Masonic Part in 1831 that made the federal government a possible source of anti-slavery legislation, requiring the Democrats' ideology of rigid constitutional limits on federal power. It was not lost on Southerners that the Anti-Masonic Party nominated William Wirt, the Cherokee's lawyer, as their candidate: The Anti-Masons (including a young Thaddeus Stevens) were religious reformers opposed to secular tyrannical cabals and viewed slavery as one of those tyrannies.

Although they omitted any discussion of the evangelicals, I think that the evangelical rejoinder to the Democrats' party of "white yeomanry" fits well into the theme of their book, which is that constitutional law has historically been made by political conviction and partisan organization, not learned oral arguments and briefs. By bringing out this theme with their powerful narrative, Saul and Gerry have added a lot of important figures like Aaron Burr to our list of constitutional founders. I suggest only as a friendly amendment that they add a few more: Finney, Garrison, and Boudinot deserve a place of honor next to Aaron Burr as the political organizers who created our constitution.

Posted by Rick Hills on May 7, 2020 at 03:11 PM | Permalink


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