THE FAILURE OF THE FOUNDING FATHERS: JEFFERSON, MARSHALL, AND THE RISE OF PRESIDENTIAL DEMOCRACY

Vol. 16 No. 7 (July, 2006) pp.524-527

THE FAILURE OF THE FOUNDING FATHERS: JEFFERSON, MARSHALL, AND THE RISE OF PRESIDENTIAL DEMOCRACY, by Bruce Ackerman. Cambridge: The Belknap Press of Harvard University Press, 2005. 400pp. Hardcover. $29.95 / £18.95 / €27.70. ISBN 0-674-01866-4. Paper. ISBN: 0-674-02395-1.

Reviewed by Kathleen S. Sullivan, Department of Political Science, Ohio University. E-mail: sullivak [at] ohio.edu

Bruce Ackerman still has a third volume to add to his WE THE PEOPLE trilogy, but in the process of completing it, he grew distracted by the election of 1800. In THE FAILURE OF THE FOUNDING FATHERS, his account of that election and its aftermath fills a book that views the founders as having committed blunders and failures. THE FAILURE OF THE FOUNDING FATHERS contains the familiar dynamics of institutional triggers, synthesis of orders, and the nonlegal processes that play an important role in the American constitutional order, but it also offers new surprises, promising to change the way readers think about the date of the founding, MARBURY v. MADISON, and John Marshall.

Ackerman sets up the book with a crisis—America veered on the brink of disaster in the midst of the uncertainty of the results of the Election of 1800, when an Electoral College tie sent the presidential race to the House of Representatives. Was it really a crisis? It is important for Ackerman to make that case in order to make his larger point—the Constitution did not sufficiently provide for the resolution of such crises. That the constitutional order did survive the uncertainty following the election was a testament to statesmanship and politics. The resolution of this crisis extends the date of the original constitutional founding. The plebiscitary presidency emerged, with Jefferson coming to office legitimated by a mandate from the People. We cannot understand the Constitution simply from the document drafted in 1787, Ackerman urges, because we must attend to the use and development of the institutions wrought by response to this crisis.

Among the founders’ failures was their obliviousness to the role that political parties would play in presidential elections. The framers expected that the primary problem facing selection of a national leader would be localism, and so they designed the Electoral College so that a state elector could cast only one vote for a candidate from that state. Because they did not approve of parties, they did not anticipate the organizational role that parties would play in elections by producing national leaders on their own. The founders overlooked the possibility that parties would produce two presidential candidates who would arrive in a dead heat in a presidential election, which happened in the third election, when Jefferson and Burr each received 73 electoral votes. Although the Republicans won control of the legislature in 1800, another founding blunder allowed for ten weeks of a lame-duck, Federalist-controlled Congress, which could retain control while the [*525] search was on for the unconventional solution.

Various politicians leapt into the power vacuum to define the vague procedures and to offer their own solutions, which would, unsurprisingly, favor their own parties. One notable commentator, writing, under the pseudonym Horatius cast himself as a “cool legalist.” Horatius suggested that, if the House should deadlock in its determination, Congress should pass a statute naming an “officer of the United States” to serve as President. While Horatius did not recommend who that officer should be, John Marshall was the senior public official and, presumably, the most likely choice. Ackerman engages in a bit of “detective work,” examining Marshall’s opportunities, writing style, and political gossip and rumors, concluding with a fair amount of certainty that Marshall himself was Horatius. Where Robert McCloskey presented a political Chief Justice Marshall, Ackerman presents a career politician whose ability to seize the opportunity for his party and his own advancement offers a new appreciation for the meaning of judicial politics.

Another leading figure in the crisis was Thomas Jefferson who, in his capacity as President of the Senate, officially counted the Electoral College votes. Among the entries was an irregular ballot from Georgia. The ballot should have contained an electoral vote and a separate certificate of ascertainment. Both should have been placed in an envelope, sealed, with a certification on the outside of the envelope certifying that a list of votes was contained. Georgia’s envelope contained only a single sheet of paper with the electors’ choices printed on the other side. Jefferson simply opened the envelope, announced the choices, and moved on. There was a possibility that the envelope was intercepted en route and a new list written on the back of the certificate of ascertainment. Jefferson could have called attention to the possibility of fraud, but as Ackerman points out, formalism has the vices of its virtues, and the disqualification of an entire state could have initiated a new crisis. By recognizing Georgia’s submission as legitimate, Jefferson made a quick decision in statesmanship, saving the country from a worse predicament. Without clear rules from the founders resolving such a dispute, the matter could have devolved into a clash of legal formalisms. By making a decision, Jefferson exercised creative statesmanship in a moment when the written rules were not going to come to the rescue.

Ackerman makes the case for Jefferson’s discretion even though Jefferson was an interested party, a situation that evokes memories of the election of 2000. Could Ackerman’s approval of “statesmanship” include the irregularities of 2000 as well? Ackerman’s study is careful to praise statesmanship where legalistic directions would lead to further crisis, and 1800 was a case in which retrospect proved that Jefferson did the right thing. Ackerman reserves his treatment of the election of 2000 to consideration of a flawed electoral system. Supreme Court intervention in 2000 averted direct confrontation with the system’s flaws, saving a constitutional crisis for a future event. In 1800, crisis was averted by the [*526] appropriate assertiveness and reserve of statesmen. If there was any founding miracle, Ackerman suggests, it was not the romanticized “Miracle at Philadelphia” in 1787 but the miraculous avoidance of crisis in Washington, D.C., in 1801. Statesmen acting at the right moment were the key to weathering the first constitutional crisis. The founders had designed an electoral system without providing guidelines for treatment of defective ballots, the self-interest of the Senate President, the dangers of a lame duck Congress, voting rules for the House runoff election, and the possibility that a President would not be selected by the inaugural date. Statesmanship, not legalism, was the way out. John Adams proved to exercise the statesmanship that avoided a military temptation, with a mob that had descended upon the District of Columbia, by purging his cabinet of two Hamiltonians. Meanwhile, Burr dropped the ball by traveling to Albany to attend his daughter’s wedding, and James Bayard of Delaware struck a deal to put in his vote for Jefferson, avoiding a deadlock in the House. The statesmanship of all of these actors resulted in a victory for Jefferson, and a victory for the constitutional order with a peaceful resolution struck without constitutional or military crisis.

Once in office, the Republicans aimed for repudiation of the Federalist past, and the plebiscitary president triggered confrontations with the predominantly Federalist judiciary. MARBURY is often presented as the origin of the story of judicial review and judicial power, but Ackerman’s narrative couples MARBURY with STUART v. LAIRD, and the Court’s politics indicate a capitulation to the Republican regime. The Federalists had packed the federal court system before their departure, and the Jeffersonians reacted with the Repeal Act, revoking the offices of judges who had been appointed with life tenure. The Supreme Court threatened to resist by refusing to ride circuit again, and Marshall gave every sign of leading this strike. Republicans indicated they would not tolerate any resistance, and Marshall could not garner the support he needed on the Court. Marshall engaged in his sideways politics in MARBURY, but the telling decision is STUART v. LAIRD, in which the Court upheld the constitutionality of the Repeal Act. Although Marshall considered circuit riding to be unconstitutional, he held his tongue in STUART v. LAIRD, recusing himself and thereby averting another constitutional dialogue and, possibly, crisis. Ackerman demotes MARBURY to a simple episode of conservative resistance, but coupling it with STUART and lingering impeachment threats, he locates the moment of judicial accommodation to the Republican regime. This accommodation is not the end of the story, however; the Court’s strategic retreat in STUART paid off, allowing it to survive within this new regime. The Court proved strong enough to fend off Chase’s impeachment and continue to operate in the new institutional equilibrium.

Ackerman concludes that the events surrounding the election of 1800 constitute a constructive period in the founding era. The Election of 1800 precipitated a new moment in the founding, one that saw a plebiscitary [*527] presidency, a two-party system in governance, and practices of statesmanship to give meaning to processes where the written Constitution failed. When the founding is considered as a “moving picture” rather than a “single epic painting,” a synthesis of 1787 and 1800 incorporates both the Federalist and Jeffersonian Republican elements of the founding.

One cannot take leave of this book without noting what a fun read it is, with Ackerman acting as the armchair narrator leading the reader through events. Filled with questions of “who dunnit?” with the machinations of “crafty” and “sensible” politicians, as well as the author’s own “detective” work, this book never lets the reader forget the thrills to be found in constitutional history.

REFERENCES:

Ackerman, Bruce. 1991. WE THE PEOPLE: FOUNDATIONS. Cambridge: Harvard University Press.

Ackerman, Bruce. 1998. WE THE PEOPLE: TRANSFORMATIONS. Cambridge: Harvard University Press.

McCloskey, Robert. 2004. THE AMERICAN SUPREME COURT (4th ed), Sanford Levinson (ed). Chicago: University of Chicago Press.

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