The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy
by Bruce Ackerman
The Founders Rule!
A review by Gordon S. Wood
Academic historians are not much interested in constitutional history these days.
Historians who write on America's constitutional past are a vanishing breed. For
much of the academy, constitutional history, with its concentration on the actions
of dead white males, is much too old-fashioned, and not to be compared in importance
with cultural and social history, especially of the sort focusing on issues of
race and gender. And so the teaching and the writing of constitutional history
in American universities has been left almost exclusively to law school faculties.
This is unfortunate. An understanding of our constitutional past would seem to
be an integral part of a liberal-arts education, but few of our undergraduates
have an opportunity to gain such an understanding. Having Congress mandate, as
it recently did, that universities receiving federal funds find a way every September
17 to celebrate something called "Constitution Day" will scarcely suffice.
Still, we do have all those law professors teaching and writing constitutional
history. Some of them are increasingly well-trained historians, and their history
is as good and as contextual as anyone could hope for. But there are also law
professors who write what one wag has called "history lite" -- law-office
history that sees the writing of history as akin to the preparation of a legal
brief. Whatever furthers the particular cause, or the particular case, is good
history. And, in addition to these two categories of law professors working
on constitutional history, there is Bruce Ackerman.
He is an unusual law professor. He thinks like a lawyer and a political scientist,
but he strives to write good history. Sometimes we forget how good his history
writing can be. Too often it gets lost amid his many other intellectual pyrotechnics.
He is constantly firing off ideas for reforming this and that -- everything from
granting all young adults a citizen's stake of $80,000 to establishing a system
of secret donation booths for campaign contributions. But at the same time he
is in the middle of an impressive intellectual project titled We the People,
consisting of three volumes, two of which have appeared. The first is titled
Foundations, the second, Transformations, and the third, yet to
be published, Interpretations.
In these volumes Ackerman aims to undermine the traditional narrative of lawyers
by demonstrating that the Constitution is not just what the Founders in 1787
said it was. Americans, he contends, have had three great bursts of "constitutional
politics" and "higher lawmaking" amid long periods of "normal
politics." These transformative constitutional moments in the name of the
people are the original founding of 1787, the reconstruction of the Union following
the Civil War, and the Democrats' legitimizing of an activist national government
during the New Deal. While the first moment created the Constitution, the last
two fundamentally transformed it in ways that went way beyond the formal mechanisms
of change prescribed in Article V of the Constitution.
Ackerman's project is interesting but controversial. Every constitutional scholar
can agree that the Constitution we have today is very different from that of
1787, and also that the difference cannot be explained by the twenty-seven amendments
that have been added to the original text. Yet many scholars, especially historians,
would not agree with Ackerman that the major constitutional changes occurred
only at his three extraordinary moments of transformation. Instead, they say,
the changes have been ongoing, incremental, and often indeliberate. Indeed,
ultimately they have made our Constitution as unwritten as that of Great Britain.
As a constitutional lawyer, concerned with using the past to find correct judicial
interpretations of the Constitution, Ackerman cannot accept this historicized
view that constitutional change has been continual and incremental throughout
our past. Complex contextual history, with all its contingency and unpremeditated
results, is not good for judges seeking historical authority for judicial decisions.
Still, Ackerman aims to ground his constitutional thinking in sound history,
even if he has to write it himself. In his new book, he does not want to cut
loose from the authority of the Founding -- its title is perhaps too provocative
for its own good. He wants instead to give constitutional scholars and jurists
more history to work with by expanding the dimensions of the Founding.
Ackerman knows only too well why we continue to write and to read books about
the persons and events of two hundred years ago. "So long as the republic
lives," he says, "the Founding is our fate. In our politics, in our
law, in our deepest self-understandings as a nation, we are forever returning
to consult its meaning." He admits that "there is a Sisyphean character
to the enterprise -- but that will never deter the effort, nor should it. Americans
are right to suppose that decisions made long ago by Enlightenment revolutionaries
continue to shape the range of our present opportunities -- if only through a
complex process of historical mediation over two centuries." But if the
Founding is so important, especially to jurists, then it is crucial that we
get it right and understand precisely what it was. He is right.
In his new book, Ackerman adds the election of 1800 and its aftermath to his
earlier definition of the Founding, which included the making of the Constitution
in 1787 and the Bill of Rights in 1791. He realizes that many constitutional
scholars often include within the Founding the Marbury v. Madison
decision of 1803, in which Chief Justice John Marshall set forth the idea of
judicial review. But he believes that by focusing exclusively on Marbury
v. Madison, we have misunderstood and overemphasized the significance
of that case, and more generally have neglected the immense political and constitutional
significance of the election of 1800. Once we grasp the importance of that contest,
he argues, we will gain a better understanding not only of the Marshall Court
in its early years, but also of the peculiar plebiscitary nature of the presidency.
And we will also find out what incredible blunderers the Founders really were.
As Ackerman nicely reminds us in the first section of his book, titled "The
People's President," we have forgotten what a hairy moment the United States
had during the election of 1800. The election was very close and very partisan,
with two parties, the Republicans and the Federalists, each putting up candidates
for the presidency and the vice presidency, Jefferson and Aaron Burr for the
Republicans and the sitting president, John Adams, and Charles Cotesworth Pinckney
for the Federalists.
The Founders had not anticipated the rise of political parties: this, contends
Ackerman, was their "original misunderstanding," and the source of
much of the confusion in 1800. The Constitution provided that each elector in
the electoral college could vote for two persons (one of whom had to be from
a state other than the elector's home state), with the person receiving the
majority of electoral votes becoming president and the person with the next
most votes becoming vice president. But the emergence of political parties in
the 1790s threw a monkey wrench into the intricate machinery of the electoral
college. By 1800, both parties wanted to avoid the incongruous result of 1796,
when the Federalist Adams became president with the Republican Jefferson as
vice president. The way to do that was for the electors to identify themselves
by party and vote for their respective candidates; but the Founders had blundered
by not allowing the electors to designate who was to be president and who vice
As it turned out, the victorious Republican electors in 1800 -- who numbered
seventy-three, a majority of the 138 total electoral voters -- forgot to throw
away one vote for Burr; and so both Jefferson and his running mate Burr each
received seventy-three electoral votes. The Federalists were shrewder. They
arranged for one elector to vote for John Jay instead of Pinckney; thus Adams
received sixty-five electoral votes with his running mate Pinckney receiving
sixty-four. At this time the Constitution declared that if more than one person
received a plurality of the electoral votes and they were tied, then the House
of Representatives, with each congressional delegation having only a single
vote, would select the president who would be inaugurated on March 4, 1801.
To complicate matters further, the Congress making the decision was not the
Republican-dominated body that had been elected in 1800, which would not come
into being until December 1801. The Constitution had provided that the Congress
would convene on "the first Monday in December" unless it designated
another day. The Congress elected in 1788 should have designated another day,
presumably March 4, when both the old Congress expired and the president and
vice president took office. But in what Ackerman calls another one of "the
Founders' blunders," the first Congress back in 1790 had simply voted a
third session in December 1790, even though the members of the first Congress
would be lame ducks by then since the election for the new second Congress would
already have occurred; and each subsequent new Congress had "mindlessly"
carried on "this silly schedule" of beginning its first session more
than a year after its members were elected, on "the first Monday in December,"
until the Twentieth Amendment in 1933 changed the schedule. This meant that
the Congress elected in 1800 would not convene until December 1801, which in
turn meant that the Congress making the decision in the election of 1800 would
be the lame-duck Congress elected two years earlier in 1798. And that earlier
election had resulted in an overwhelming victory for the Federalists, which
meant that the Congress deciding who was president between the Republicans Jefferson
and Burr was Federalist-dominated.
Still, the Constitution stipulated that each state congressional delegation
had only one vote, and so the Federalists' strength was not as great as it would
have been if each congressman voted individually. The Federalist congressmen
were concentrated in the North and thus controlled only six states; the more
widely distributed Republicans controlled eight states, with two (Vermont and
Maryland) split evenly between Federalists and the Republicans and unable to
cast a ballot.
When the lame-duck Congress met on February 11, 1801 to count the electoral
ballots, Vice President Thomas Jefferson was the president of the Senate, and,
according to the Constitution, the officer in charge of opening the electoral
certificates from each state. It turned out that the Georgia ballot of four
votes for Jefferson and Burr was irregular. It could easily have been thrown
out, in which case those four votes would have brought the total for Jefferson
and Burr down to sixty-nine, one shy of the majority of seventy of the 138 total
electors. The Constitution provided that if no candidates had a majority of
electoral votes, then the House of Representatives could vote from among the
top five candidates, not just the two who were tied with the most votes. If
this had happened, the House would have had the ability to chose among the Federalist
Adams, Pinckney, and John Jay, as well as the Republican Jefferson and Burr.
But Jefferson as president of the Senate simply counted the irregular Georgia
ballot for himself and Burr, and no one challenged his decision. Ackerman makes
a great deal of this incident, and concludes that it was the Founders' "bad
mistake" in making the vice president the official in charge of opening
the ballots. (Vice President Gore had to do the same thing in the disputed election
of 2000 in which he was one of the candidates.) So the House had only Jefferson
and Burr to choose from. But, as Ackerman is at pains to emphasize, the Federalist-dominated
House had other alternatives. Since nine of the sixteen existing states were
needed for Jefferson or Burr to be named president, and the Republicans controlled
only eight of them, the Federalists were in a position to deny either candidate
a majority. As the country confronted the prospect of no president being named
by March 4, the Federalists might have passed a new statute naming someone like
John Marshall as interim president; or they might have stretched existing statutory
authority to appoint the Federalist pro tem of the Senate as acting president.
"Unforgivably," writes Ackerman, the framers of 1787 had neglected
to say what would happen if the House failed to select a president by March
The crisis seemed severe. After thirty-five ballots, the House was deadlocked.
With eight states for Jefferson, six for Burr, and two not voting because of
ties in their delegations, it looked to some as if anything might happen. As
Jefferson informed Governor James Monroe of Virginia on February 15, 1801, the
Republicans warned the Federalists that if they sought to place the presidency
in the hands of some officer other than Jefferson or Burr, "the Middle
States would arm, and that no such usurpation, even for a day, should be submitted
to." As the sole congressman from Delaware, the Federalist James Bayard
was in an influential position, since Jefferson needed only one more state to
have a majority. Another mistake of the Founders was allowing "the fate
of the presidency to hang on the identity of the sole representative of a tiny
Apparently Bayard approached Burr, but, according to the Delaware congressman,
Burr "was determined not to shackle himself with federal principles."
Yet Jefferson was prepared to deal, at least according to Bayard. Although Jefferson
denied any deal, and the intermediary with whom Bayard dealt later said he was
speaking only for himself and not Jefferson, Bayard believed he had assurances
from Jefferson that he would preserve the Federalist financial program and refrain
from dismissing lesser Federalist officeholders except for cause. Consequently,
Bayard arranged for some of the Federalist congressmen to abstain from voting,
and on February 17, on the thirty-sixth ballot, Jefferson was elected president.
Ackerman is both fascinated and bewildered by the marvelous way these American
politicians in 1801 overcame the "maladroit legalisms" of the Constitution
to bring the country through the crisis without violence and a civil war. As
he points out, the Constitution was new and not yet iconic. "If hotheads
had had their way," he suggests,
the 1787 Constitution would have disintegrated. American history would have
moved in a Latin American direction. We would have seen military clashes,
ending, most probably, with another constitutional convention, this time with
Thomas Jefferson in the chair. Rather than proving an enduring feature of
the American order, written constitutions would have begun to seem ephemeral
things -- with the Constitution of 1802 replacing the Constitution of 1787,
which had only recently replaced America's first constitution: the Articles
of Confederation of 1781.
This seems overwrought. Surely Ackerman is exaggerating when he remarks that
"there is more than a whiff of the banana republic" in the story of
the election of 1800. Given his lack of confidence in the Constitution, he needs
to explain how these political leaders managed a peaceful transition of power
in 1800, perhaps the first such peaceful transition of power between opposing
parties in modern history. The secret, he says, was "a series of decisions
by different statesmen [that] created a whole that was larger than the sum of
its parts," but, he adds, "lots of luck was required as well."
Yet "truth to tell," he accurately admits, "I don't think I've
gotten to the bottom" of this problem.
Even though it occurred well before the election of 1800, the first statesman-like
act of the American republic, in Ackerman's view, was President John Adams's
courageous and lonely decision in 1799 to send another mission to France to
head off war -- a decision that led to the dissolving of the army that Alexander
Hamilton and the other high-toned Federalists had planned on using to resist
a French invasion. If this Federalist army had continued to exist, Ackerman
suggests, it might have been used on the Federalists' behalf to resolve the
presidential deadlock in 1801. As it turned out, Adams's action split the Federalist
party, making it impossible not only for Adams to win the presidency but also
for Hamilton and Adams to unite behind a coordinated strategy to deal with the
tie vote in the electoral college.
But it was not just Adams's action that destroyed the Federalist army. Once
word arrived in America of Admiral Nelson's smashing victory over the French
navy in the Battle of the Nile in October 1798, the threat of a French invasion
quickly evaporated, and the Federalists suddenly lost their rationale for the
army, which was largely on paper anyhow. Adams's decision to send a peace mission
was certainly courageous, but it contributed to ending the crisis of 1798-1799,
not the crisis of 1801. Indeed, if Adams had not sent his mission to France,
he very well may have been elected president in 1800.
So Adams's contribution to the peaceful transition of power in 1801 may not
have been as crucial as Ackerman suggests. But what about the other statesmen
who Ackerman thinks made the peaceful transition possible? Bayard, he says,
is one, and that makes sense; but Burr is another, and that does not make sense.
Ackerman believes that "Burr has gotten a bum rap" from history. By
refusing to make a deal with the Federalists in order to become president, Burr
"saved the republic from a violent lurch in the Latin American direction."
Ackerman reckons that Burr's "restraint" was "the second most
important single factor in accounting for the peaceful transition of power"
after Adams's actions. But this suggestion that Burr "displayed a good
deal of statesmanship" during the deadlock is not very credible. Far from
easing the crisis, Burr's behavior in 1800-1801 contributed to it. Everyone
knew that the Republicans meant Jefferson to be president and Burr vice president.
If Burr wanted to be a statesman, all he had to do was declare that under no
circumstances would he accept the presidency.
Finally, Ackerman says, Jefferson "played his strategic cards well."
He hid from the public any "obvious signs of military coup or corrupt bargain.
As far as the broader public could see, the House of Representatives had, after
strenuous deliberation, selected the People's choice as president through constitutional
means." But Jefferson's election hardly satisfied the Republicans, who
believed quite rightly that the defeated Federalists in the eleventh hour had
taken over the courts as a means of thwarting the results of the popular election.
In the second section of his book, titled "The People and the Court,"
Ackerman details the monumental struggle Jefferson and his fellow Republicans
had with the federal judiciary.
The lame-duck Congress that decided the presidency was also capable of enacting
legislation. In February 1801, this Federalist Congress hurriedly passed a judiciary
act that radically altered the federal judicial system. The act eliminated circuit
court duty for the justices of the Supreme Court by creating six new circuit
courts with sixteen new judges. It broadened the original jurisdiction of the
circuit courts, especially in cases involving land titles, and provided for
the easier removal of litigation from state to federal courts. It also recognized
that the common law of crimes ran in the federal courts -- that is, that federal
judges could invoke the common law in addition to federal statutes in criminal
cases. This, above all, frightened the Republicans, because, as Madison declared,
with the "vast and multifarious" body of the common law at their disposal,
the federal courts might, "new model ... the whole political fabric of
the country." To add insult to injury, John Adams, before surrendering
the presidency to a Republican president, appointed a number of Federalist judges
to this newly enlarged federal judiciary, including John Marshall as chief justice
of the United States. All this by a legislature and a president that did not
represent the popular will.
What a mess, says Ackerman; and it was all the fault of James Madison, who
presumably should have anticipated the future and in 1787 eliminated all these
glitches in the Constitution. It was not Adams "but Madison who had contributed
to a document that allowed presidential elections to end in constitutional crises;
it was not he, but Madison, who had made it possible for the losers in national
elections to wield legislative and executive power in such an irresponsible
Jefferson and the other Republicans were furious at this egregious Federalist
behavior. Jefferson dreaded what Adams and the Federalists were doing because
he realized that the Federalist appointments to the judiciary were "in
the nature of freehold," which rendered "it difficult to undo what
is done." But the Republican Congress that convened in December 1801 was
determined to undo what was done, and after a long and bitter debate the Republicans
in 1802 repealed the Federalist judiciary act, thus at a stroke destroying the
newly created circuit courts and for the first and only time in American history
revoking the tenure of federal judges as well.
Since federal judges could not have their salaries diminished during their
continuance in office, most of the Federalists thought that this Republican
repeal of the judiciary act of 1801 was unconstitutional; and they urged Marshall
as head of the Supreme Court to declare it so. But Marshall decided to duck
this issue and, recusing himself, reluctantly pressed his Court in Stuart
v. Laird in 1803 to accept the constitutionality of the Republicans'
repeal of the judiciary act of 1801. Instead of confronting the Republicans
directly, he decided to assert the Court's authority indirectly in Marbury
William Marbury was one of the "midnight judges" appointed at the
last minute by President Adams to be a justice of the peace for the District
of Columbia. Adams left office before Marbury's commission could be delivered,
and Jefferson, when he became president, refused to deliver it. Marbury brought
suit in the Supreme Court, seeking a writ of mandamus commanding Secretary of
State Madison to deliver his commission. It looked to many that the Court might
openly challenge the authority of the president. Yet the Marshall Court could
only lose a direct contest with the president: if the Court refused to order
Jefferson to deliver the commission, the Republicans would win by default, but
if the Court did order the president to do so and he refused, the Court would
be humiliated. Thus the Court had to move in a roundabout way to assert its
The Court's opinion set forth in 1803 answered several key questions. Was Marbury
entitled to his commission? And if so, did the law afford him a remedy? Yes,
answered Marshall to both questions. Marbury had a vested right in the office
for the term fixed by statute, and the law had to provide a remedy for a violation
of a vested legal right. A collision with President Jefferson seemed imminent,
but when Marshall asked and answered his third question he wisely evaded it.
Was the remedy for this violation of Marbury's right a writ of mandamus issued
by the Supreme Court? No, said Marshall. The Supreme Court could not issue such
writs because Section 13 of the original judiciary act of 1789, which authorized
the power to issue writs was unconstitutional: Congress did not have the authority
to alter the original jurisdiction of the Supreme Court contained in Section
III of the Constitution. By posing the questions in this unusual order, Marshall
was able to make his point that the Court had the authority to declare acts
of Congress unconstitutional without having to suffer the consequences of it.
As Jefferson and other Republicans complained, the Court, in its final question,
disclaimed all cognizance of the case, but in the first two questions declared
what its opinion would have been if it had been cognizant of it.
Ackerman quite rightly argues that the Stuart decision, which upheld
the constitutionality of the Republicans' repeal of the Federalists' judiciary
act of 1801, was far more important at the time than the Marbury decision,
and that the two cases should be seen together. Marbury had "no
real-world effect" in 1803; indeed, most Republicans said that if Marshall
wished to reduce the jurisdiction of his Court, so be it. But Stuart
actually legitimated the new constitutional order that the Republican victory
created. (Ackerman is one of many scholars who believe that Marbury gained
its modern significance only in the late nineteenth century.)
Ackerman considers Marshall's behavior throughout the whole business to have
been outrageous. Not only does he accuse Marshall of promoting himself as the
person to become interim president in 1801, but he also charges him with the
grossest sort of judicial misbehavior. Marshall continued to act as Adams's
secretary of state after being appointed chief justice, but worse, he "blundered
forward" in "ridiculous" circumstances and refused to recuse
himself from the Marbury case even though it was he who, as secretary
of state, had failed to deliver Marbury his commission as justice of the peace;
and then he assigned himself the opinion "so that he might better flaunt
his involvement in the face of his Jeffersonian opponents," Ackerman writes.
"If there is another case in the annals of the Supreme Court that reveals
such grotesque forms of judicial impropriety," says Ackerman, "I have
yet to come across it."
Although Ackerman admits that Marshall adopted a conciliatory strategy in order
to save the Court from the Republicans, he does not evince sufficient sympathy
for Marshall or his strategy. Ackerman concedes that the situation was serious.
Many Republicans were bent on diminishing the role of the courts; some wanted
to make judges removable by a joint address of the majority of the Congress,
while others wanted to do away with the federal courts altogether. The Republican-dominated
House's impeachment of Associate Justice Samuel Chase in 1804-1805 was presumably
the first step in cleaning out the Court. Many thought that Marshall would be
next. In the end it was the concern of six Republican senators to maintain the
independence of the judiciary that prevented Chase's conviction, but Marshall's
accommodating behavior was crucial throughout.
From the beginning of his tenure as chief justice, Marshall had sought to save
the Court's existence in a hostile Republican climate; and these efforts are
not fairly or fully described by Ackerman. Marshall began by changing the high-toned
image of the Court. Under the Federalists, the justices had tended to wear either
individual academic gowns or robes of scarlet and ermine in imitation of the
king's bench of England -- dress that one Republican senator described as the
"party-colored robes" of an oppressive judiciary. Instead, Marshall
induced his colleagues into wearing the plain black republican-style robes that
the Virginia judge used. And this symbolic rejection of monarchism was only
the first step in Marshall's efforts to escape from the partisan politics of
the 1790s. He strenuously sought to reach some sort of accommodation with the
other branches of the government, and in the years before the War of 1812 he
tried to avoid any direct confrontation with the Republicans. All of his evasion
and his caution, as he later told Justice Joseph Story, was based on a quite
sensible fear that the justices might be "condemned as a pack of consolidating
The Stuart decision to legitimate the Republicans' repeal of the Federalist
judiciary act of 1801 was the most obvious act of accommodation, and Ackerman
correctly emphasizes its importance. But equally important in pulling in the
exposed Federalist horns was Marshall's rejection of the prevailing Federalist
claim that the common law of crimes ran in the federal court system. Although
this rejection was not formally endorsed by the Supreme Court until the decision
of United States v. Hudson and Goodwin in 1812, Marshall had suggested
as early as 1800 that the English common law was no part of American law, and
had blamed the currency of "this strange & absurd doctrine" on
"some frothy newspaper publications." Indeed, in the period up to
1812 his Court whittled away at the Federalist claim. Although Ackerman mentions
the decision in United States v. Hudson and Goodwin, he wrongly
interprets it as a defeat for Marshall and presents no context for the Court's
statement in 1812 that the issue had been "long settled in public opinion."
Marshall was a shrewd politician, and he knew what had to be done to save the
courts. In a series of decisions, the Marshall Court asserted the authority
of the president and the Congress over foreign affairs and matters of war and
retreated from the advanced positions the Federalists had tried to establish
for the judiciary and federal law in the 1790s. In the trial of Aaron Burr in
1807, Marshall rejected the broad definition of treason the Federalists had
used in the 1790s during the Whiskey and Fries rebellions, and instead interpreted
the Constitution's definition of treason very strictly and narrowly.
There is a lot to be said for Ackerman's revisionist account of the early Marshall
Court, especially in his emphasis on the significance of the Stuart decision.
But when he declares that "by 1812 Marshall had lost control of his Court,"
he goes too far. It is true that by 1810 there were more Republicans than Federalists
on the Court, but Marshall's amiable dominance continued. His convivial and
robust personality, and his instinct for compromise, helped him to maintain
his extraordinary influence. His practice of having the Court speak with one
voice (usually his) built consensus and enhanced the authority of the institution.
Although Ackerman concedes that the Marshall Court wove popular mandates into
America's constitutional order, he does not do justice to Marshall's achievement.
Ultimately, Ackerman is less interested in the story of the Court and judicial
review than he is in the rise of new forms of popular sovereignty in 1800. And
on this point he has made a substantial contribution to our understanding of
the early Republic. His account helps to make sense of the conflict between
the Federalists' aristocratic and legalistic approach to politics and the Republicans'
modern belief in having a mandate to carry out the will of the people. Jefferson's
election as president in 1801, he says, marked "the birth-agony of the
plebiscitarian presidency: for the first time in American history, a president
ascended to the office on the basis of a mandate from the People for sweeping
transformation." But the Constitution of 1787 was not designed for such
a plebiscitarian presidency, nor was it compatible with the development of parties.
In fact, not only were the Founders opposed to parties, they struggled to prevent
their development. It was the unanticipated emergence of political parties that
created most of the difficulties with the electoral system that Ackerman dwells
Ackerman understands that parties were the source of most of the problems,
but he cannot help anachronistically criticizing the Founders for their many
failures. His overemphasis on the Founders' blunders and mistakes, reflected
in his hyperbolic title, skews his account and diminishes the significance of
his often well-crafted historical scholarship.
Ackerman sees his book as "a cautionary tale," a warning to us that
we have no substantial means of controlling the plebiscitarian presidency. Certainly
worshipping "at the shrine of the Philadelphia Convention" will not
help us. Not only did the Founders offer no answer to the problems of presidents'
claiming popular mandates, but in 1801 they evaded re-thinking the issue of
presidential selection (as we did in 2000). Consequently, he concludes that
"we have never recovered from the early Republic's failure to undertake
a thoroughgoing redesign of the presidential selection."
Ackerman is too preoccupied with the letter of the Constitution and so he misses
its spirit. He considers the Constitution to be a "technical mess"
that still plagues us: the document, in his view, should have been longer and
more detailed. He believes the Founders should have anticipated many of the
technical problems that arose in the following decades, and drafted the Constitution
better. He implies that it was mainly a few serendipitous acts of statesmanship
and "dumb luck" that kept the new nation from going the way of nineteenth-century
Mexico or France, with constitutions following one upon another and no constitutional
All this is not persuasive. The American leaders in 1801 were not Mexicans
or Frenchmen, all of whom at the time had little or no experience with selfgovernment.
For the most part, the American leaders were former Britons with an acute sense
of the English conceptions of law, liberty, and rights, and with a century or
more of experience with elections and self-government. That heritage made all
the difference. They were what got the United States through the crisis
of 1801 and kept it from becoming another banana republic. No written constitution,
even a long one with all the technical problems foreseen, can establish order
and guarantee good government. Order and good government come from the experience
and the common sense of the people, not from some cleverly crafted legal document.
four weeks of the New Republic Digital absolutely free
For nearly 90 years, the New
Republic has provided its readers with an intelligent and rigorous
examination of American politics, foreign policy, and culture. Today,
we're proud to offer a faster, easier, and more economical way to enjoy
the magazine TNR Digital. Subscribe today and we'll give
you 4 weeks absolutely free. That's less than 36 cents/week for every
word of content available in the print version, a downloadable replica
of the print magazine, and an array of special online-only features!
to sign up.