The Constitution in Congress: Democrats and Whigs

Vol. 15 No.11 (November 2005), pp.954-958

THE CONSTITUTION IN CONGRESS: DEMOCRATS AND WHIGS, 1829-1861, by David P. Currie. Chicago: The University of Chicago Press (2005), 344pp. Cloth $39.00. ISBN: 0226129004.

Reviewed by J. Mitchell Pickerill, Department of Political Science, Washington State University. Email: mitchp [at] wsu.edu

THE CONSTITUTION IN CONGRESS: DEMOCRATS AND WHIGS is the third installment in University of Chicago law professor David Currie’s ongoing study of the history of constitutional deliberation in Congress. Each of these volumes sets out to explore constitutional debate and construction outside the Court generally, and within Congress specifically. The first volume gives an account of “the Federalist period, 1789-1801” (Currie 1997), and the second volume covers “the Jeffersonians, 1801-1829” (Currie 2001). Each of these works, including the present one, is the result of Currie’s having immersed himself in the congressional record from distinct historical periods and reporting extensively on the wide-ranging constitutional debates that took place in Congress during the period in question. Like its predecessors, DEMOCRATS AND WHIGS is mostly descriptive and will be most useful – perhaps indispensable - as a resource for the increasing number of scholars interested in the Constitution outside the Court.

According to the Preface, Currie initially intended to cover the “period between the inauguration of Andrew Jackson and that of Abraham Lincoln—from the Jacksonian revolution of 1829 to the outbreak of the Civil War” in a single volume, until he determined that he could “no longer carry it” (p.xi). He thus decided to report on this period in two volumes instead of one. There are two primary – and familiar – themes that emerge from the constitutional debates he encountered during this period: those involving national growth and economic matters on the one hand, and slavery on other. Currie found that most issues involving the former arose between 1829 and 1845, and most issues involving the latter between 1845 and 1861. Yet, as Currie illustrates throughout this book (and presumably in the forthcoming fourth volume as well), those chronological divisions are “not exact” (p.xi), and importantly, Currie recognizes that issues involving national growth and economic matters were hardly unrelated to those involving slavery (p.279). The choice itself says much about the constitutional issues facing the nation throughout the middle part of the nineteenth century, and the division along these categorical lines is vindicated by Currie’s able execution in this volume.

In any event, most of the constitutional controversies in DEMOCRATS AND WHIGS do occur during roughly the first half of the “Jacksonian period,” a period characterized by the partisan attempts of Democrats in both Congress and the White House to disassemble the “American System.” The American System, championed by Henry Clay and other nationalistic Whigs, consisted of a [*955] set of federal policies designed to promote and grow the U.S. economy, including among others, the national bank, protective tariffs, the disposition of public lands and improvements in infrastructure. By the time Andrew Jackson was sworn in as the seventh President of the United States, the American System was “in full flower . . . . Before Jackson left office in 1837, Clay’s entire system was in shambles” (pp.3-4). What is important for Currie’s project is that the dismantling of the American System was not simply the result of the Democrats’ ideological opposition to, or policy disagreements with, the Whigs and other nationalists – although those were surely at the root of the matter. Rather, the Jacksonian opposition was articulated in terms of constitutional principles and hence structured by the language of various constitutional provisions. In short, the Jacksonian Democrats articulated their opposition to the American System and Whiggish nationalism as part of a constitutional vision.

As its title indicates, much of the institutional focus of the book is on constitutional debates and deliberation in Congress. In some instances, Congress appears to be leading the constitutional debate and is followed by other institutions. For example, consider the case of the Wheeling Bridge. In PENNSYLVANIA v. WHEELING & BELMONT BRIDGE CO. (1852), the Supreme Court held that because the tallest steamboats licensed under federal law to navigate the Ohio River were unable to pass under the bridge at Wheeling during high floods, the bridge interfered with interstate commerce. The Court ordered that the bridge over the Ohio River at Wheeling be raised to accommodate those steamboats, or else it must be demolished. The bridge company turned to Congress and asked that the bridge be legalized through federal legislation. Rather than defer to the Court, Congress wasted no time taking up the issue and debating its own power to save the bridge. Congressional opponents made numerous arguments that Congress did not have the power to undertake “internal improvements,” that authorization of the bridge would benefit Virginia at the expense of Pennsylvania, and that Congress did not have the authority to override the Court decision (p.193). Nonetheless, later in 1852, Congress saved the bridge as part of a “postal appropriation law,” writing into the statute that the bridge was an “established post-road for the passage of the mails of the United States” (as quoted in Currie 2005, p.192). Rather than debate its commerce power, members of Congress viewed authorization of the bridge as a clear exercise of Congress’s power “To establish Post Offices and Post Roads,” under Article I, Section 8 of the Constitution. Pennsylvania challenged the congressional enactment, but the Supreme Court upheld the statue in a 6-3 decision (PENNSYLVANIA v. WHEELING & BELMONT BRIDGE CO. (1856)). Importantly, the justices “repeated” the constitutional arguments made in Congress in both the majority and dissenting opinions (p.193); thus, it was members of Congress who led the constitutional debate over federal power, and the Court followed.

While Currie keeps much of the focus on the role of Congress and the debates among members of Congress, it is striking how much of the book really describes constitutional deliberation in [*956] Congress as part of a dynamic and broader inter-institutional process. Many of the constitutional controversies in Congress were also being addressed by presidents and occasionally the Supreme Court. Clearly the expansion of federal power and the proper constitutional role of the national government in the economy were matters debated by members of all three branches of the federal government. Most importantly, from the moment Andrew Jackson was sworn into office in 1829, he led the Democrats’ efforts to scale back the role of the federal government, and he articulated the Democrats’ constitutional vision: halting the unconstitutional growth of the federal government by reducing its role in the national economy. Familiar to most is the battle over the national bank, with Jackson vetoing legislation that would have extended the charter of the Second national bank in 1832 (Chapter 3). Currie characterizes Jackson’s veto message as “uninspiring and bizarre” (p.60), but one in which several constitutional arguments were laid out against the bank. And, when Currie describes constitutional debates regarding the scope of congressional power over internal improvements such as the building the Maysville Road and improving rivers and harbors (Chapter 1), the manner of disposing of federal lands (Chapter 2), or the imposition of protective tariffs (Chapter 4), presidents (Jackson as well as his successors) were often, if not usually, leading the debates and framing the constitutional issues. Indeed, much of the constitutional debate described by Currie in this book is initiated or led by Presidents Jackson, Van Buren, Tyler, Polk, Taylor and Fillmore, with members of Congress following suit or standing in opposition. In some ways then, the title of this book is slightly askew – it is as much about how Congress participated in an inter-institutional process of constitutional deliberation and construction as it is about the Constitution in Congress only.

DEMOCRATS AND WHIGS is a first rate descriptive account of constitutional debates during the middle part of the nineteenth century. Hence, Currie succeeds once again. However, as a political scientist, I could not help wanting a lengthier conclusion (the concluding chapter is two pages long, pp.278-79). Although Currie’s purposes may not require additional analysis, there are many parallels that can be drawn between the constitutional developments and debates in (and out) of Congress during the Jacksonian regime and those during the current regime – parallels that cry out for considering Currie’s observations from a variety of analytical and theoretical frameworks of recent research from political science. Currie’s account fits quite well with recent works on “political regimes” and “political time” (e.g., Clayton and Pickerill 2004; Gillman 2004; Skowronek 1997; Whittington forthcoming 2006) and American Political Development and historical institutionalist approaches (e.g., Gillman and Clayton 1999; Orren and Skowronek 2004; Kersch 2004; Smith 1988). The relative roles of the Court and of extrajudicial institutions in shaping constitutional meaning and change have also been the subject of a growing political science literature (e.g. Gillman 2002; Graber 1993, 1999; McMahon 2004; Whittington 1999). In fact, Currie’s findings that Congress played an active and often times leading role in constitutional construction is in stark [*957] contrast to recent studies of the Constitution in Congress during more modern historical periods, including my own, in which members of Congress are found to be mostly deferential to the Court’s legalistic interpretations of the Constitution at the beginning and end of the twentieth century (Lovell 2003; Pickerill 2004). Undoubtedly, others will make even more connections to political science research on constitutional meaning and American political development.

REFERENCES:

Clayton, Cornell W. and J. Mitchell Pickerill. 2004. “Guess What Happened on the Way to the Revolution? Political Precursors to the Supreme Court’s Federalism Revolution.” 34 PUBLIUS 425-51.

Currie, David P. 1997. THE CONSTITUTION IN CONGRESS: THE FEDERALIST PERIOD, 1789-1801. Chicago: University of Chicago Press.

Currie, David P. 2001. THE CONSTITUTION IN CONGRESS: THE JEFFERSONIANS, 1801-1829. Chicago: University of Chicago Press.

Gillman Howard. 2002. “How Parties Can Use the Courts to Advance their Agendas: Federal Courts in the United States.” 96 American Political Science Review 511-24.

Gillman Howard. 2004. “Courts are More Interesting than We Think: Elements of a New ‘Regime Politics’ Tradition in Public Law Scholarship.” Paper presented at the Annual Meeting of the American Political Science Association, Chicago, Illinois.

Gillman, Howard, and Cornell Clayton (eds). 1999. THE SUPREME COURT IN AMERICAN POLITICS: NEW INSTITUTIONALIST INTERPRETATIONS. Lawrence: University Press of Kansas.

Graber, Mark A. 1993. “The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary.” 7 STUDIES IN AMERICAN POLITICAL DEVELOPMENT 35-73.

Graber, Mark A. 1999. “The Problematic Establishment of Judicial Review.” In Gillman and Clayton (eds). THE SUPREME COURT IN AMERICAN POLITICS: NEW INSTITUTIONALIST INTERPRETATIONS. Lawrence: University Press of Kansas, 28-42.

Kersch, Ken. 2004. CONSTRUCTING CIVIL LIBERTIES: DISCONTINUITIES IN THE DEVELOPMENT OF CONSTITUTIONAL LAW. Cambridge: Cambridge University Press.

Lovell, George. 2003. LEGISLATIVE DEFERRALS. Cambridge: Cambridge University Press.

McMahon, Kevin. 2004. RECONSIDERING ROOSEVELT ON RACE: HOW THE PRESIDENCY PAVED THE WAY TO BROWN. Chicago: University of Chicago Press. [*958]

Orren, Karen, and Stephen Skowronek. 2004. THE SEARCH FOR AMERICAN POLITICAL DEVELOPMENT. Cambridge: University of Cambridge Press.

Pickerill, J. Mitchell. 2004. CONSTITUTIONAL DELIBERATION IN CONGRESS: THE IMPACT OF JUDICIAL REVIEW IN A SEPARATED SYSTEM. Durham: Duke University Press.

Skowronek, Stephen. 1997. THE POLITICS PRESIDENTS MAKE: LEADERSHIP FROM JOHN ADAMS TO BILL CLINTON. Cambridge: Belknap Press of Harvard.

Smith, Rogers M. 1988. “Political Jurisprudence, the ‘New Institutionalism,’ and the Future of Public Law.” 82 AMERICAN POLITICAL SCIENCE REVIEW 89-108.

Whittington, Keith. 1999. CONSTITUTIONAL CONSTRUCTION. DIVIDED POWERS AND CONSTITUTIONAL MEANING. Cambridge: Cambridge University Press.

Whittington, Keith. 2006 (forthcoming). POLITICAL FOUNDATIONS OF JUDICIAL SUPREMACY: THE PRESIDENCY, THE SUPREME COURT, AND CONSTITUTIONAL LEADERSHIP IN U.S. HISTORY. Princeton: Princeton University Press.

CASE REFERENCES:

PENNSYLVANIA v. WHEELING & BELMONT BRIDGE CO., 54 U.S. 518 (1852).

PENNSYLVANIA v. WHEELING & BELMONT BRIDGE CO., 59 U.S. 421 (1856).

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