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Moving beyond the current flaws in originalism will require developing a genuinely historical approach to reading Founding era texts that draws on the best inter-disciplinary methods available. Reading legal texts historically will require originalism adopt standard historical practices, not reject them. Scholars must get the history right before deciding if any of the historical meanings recoverable from a careful study of the original debate over the Constitution might be relevant to modern law. Determining which meanings might be probative or dispositive for modern legal issues is a separate task from the process of uncovering the legal meaning of Founding era constitutional texts. Deciding what, if any relevance, such historical meaning ought to have in contemporary law is at its core a legal question, and not one that history can answer. Still, if legal scholars are going to cite history as authority, they have an obligation to get the history right.
After the War of 1812, the ascent of democratic culture foreshadowed the triumph of democratic constitutionalism. But the constitutionalization of democracy generally meant the enfranchisement of the white democracy alone and even firmer subordination of black Americans. Southern states insisted on solid guarantees of their right to hold black Americans in slavery. Northern states widely deprived their black citizens of the vote and other civil rights, just as they expanded such rights among white men. The Missouri Crisis and the New York Constitutional Convention of 1821 demonstrated the growing dominance of anti-black racism in American constitutionalism. But they also showed that questions of race would durably complicate the established constitutional conflicts among white men over states’ rights and national power, pitting the white-supremacist, states-rights Democratic Party against the weakening advocates of national power and slavery-abolition.
Chapter 4 focuses on the nearly two decades of Jeffersonian rule beginning with the election of 1800. Jefferson began his presidency hoping to dismantle the worst excesses of Federalist rule, but was confronted by a series of unexpected challenges and opportunities. The acquisition of Louisiana and the challenges of integrating it into Jefferson’s vision of an expanding empire of liberty were daunting, particularly in the case of the Black population of New Orleans. War in Europe led Jefferson to impose an embargo that fueled popular resentment and revived the failing fortunes of the Federalists in the commercial Northeast. As president, James Madison was ultimately drawn into war with Great Britain. The economic difficulties posed by the war led Madison and his successor, James Monroe, to accept the importance of internal improvements, but they insisted that a constitutional amendment was needed to implement this agenda. Rather than reconcile Hamiltonian economics and Jeffersonian politics, Monroe’s solution only intensified partisan division, dashing hopes for a new era of good feelings.
The narrative concludes with the creation and entrenchment of the Democratic Party – the world’s first mass political party – by Martin Van Buren and other leaders of the democratic movement. This party would have been anathema to the framers of the Constitution and to nearly all of the ratifiers, both because of the simple fact that it was a permanently organized party and because it stood for a kind of radical democratic control and states’ rights that seemed directly contrary to the foundational principles of the Constitution. But the invention of the mass political party of the democracy and the ascendancy of the Jacksonian Democrats decisively concluded the transformation of a republican, legalist Constitution of enhanced central power into a Constitution of radical democracy, states’ rights, and white supremacy. That new Constitution would have its own complicated history, reaching its nadir in the Dred Scott case, but the Framers’ vision of 1787 was permanently eclipsed.
Chapter 1 describes the origins of the U.S. Constitution Rather than revise the Articles of Confederation, the Constitution changed the trajectory of American political and legal l development. In a wide-ranging public debate over ratification, two heterogeneous, but opposing political movements emerged, Federalists and Anti-Federalists. Neither group was an organized modern-style party, but each developed their distinctive visions of America’s constitutional future, one decidedly nationalist and the other more state-centered. No permanent Anti-Federalist party emerged after the adoption of the Constitution. The strong antiparty feeling of the time and the recognition that the amended Constitution could be used effectively as a barrier against further concentration of power in the federal government militated against the creation of such an opposition. Although he had originally opposed amendments to the Constitution, the arch-Federalist James Madison was tasked with digesting the many proposals for amendments and whittling them down to a list of twelve. Although modern Americans are apt to see the first eight amendments as the core of the Bill of Rights, it was the Tenth Amendment’s protections for federalism that were seen as the most important at the time
During the years of Federalist dominance in the 1790s, the federal courts played a limited role in legitimating the Federalist reading of the Constitution. After Jefferson’s election in 1800, the defense of Federalist constitutionalism fell to the Supreme Court under Chief Justice John Marshall. Marshall’s Court defended broad federal power and, as importantly, promoted a distinctively legalist understanding of the Constitution. In the face of rising movements for states’ rights and democratic control, the Court defended the judiciary’s supremacy over the other branches and even over the sovereign people in interpreting the Constitution. It further insisted that the Constitution embraced judge-made, common-law principles of contract and property at the expense of the policies of the states and the people. But Marshall’s and the Court’s legalism faced resistance from the more-radical Republicans, who believed that the people held the final and sovereign word on the meaning of the Constitution.
Chapter 2 focuses on the decade after the adoption of the Constitution and the first ten amendments, a pivotal era in which constitutional tensions rose and Americans grappled with a host of problems, both domestic and foreign. The ambitious agenda of Washington’s Secretary of the Treasury, Alexander Hamilton, sought to put America on a course of constitutional development similar to Great Britain, whose powerful fiscal-military state included a centralized bank, permanent national debt, and a powerful army and navy. Resistance to the Federalists was intense, and the opposition to this agenda coalesced around Hamilton’s former ally, James Madison, and Thomas Jefferson. Together with elements of the former Anti-Federalist opposition, the two Virginians led a Republican movement committed to limiting further centralization of power and opposing the creation of a powerful fiscal-military state. A vibrant popular opposition to Hamiltonian Federalism also emerged and occasionally turned violent, as in the Whiskey Rebellion in western Pennsylvania. In virtually all of the major political conflicts of the era, including the Jay Treaty and the Alien-Sedition crisis, constitutional issues were central. Finally, the Republicans ousted the Federalists and elected their leader, Thomas Jefferson, in the bitterly contested election of 1800.
The great Marshall Court cases from 1815 to 1832 struggled to maintain a Constitution of centralized power and legalism. The Court defended federal power to make national economic policy (for example, McCulloch v. Maryland), defended common law contract and property rights against state bankruptcy laws, and defended a measure of constitutional independence for Indian nations against the aggressions of the white democracy (the Cherokee Cases). The story of Indian status under the Constitution especially reveals the weakness of the Court’s claim to be the final word on the meaning of the Constitution, as against the rising movement for a democratic, states’-rights reading of the Constitution. The climactic defeat of the Marshall Court occurred in 1832 when the Court tried to defend the residue of rights claimed by the Cherokee Nation against the aggressions of Georgia’s people and government. In the teeth of a holding of the Supreme Court, President Andrew Jackson and the State of Georgia made clear that the Constitution and the laws would mean what the (white, male) people, not the Court, said they meant, not only with respect to Indian removal but also across the policy spectrum.
The Introduction explains the chronological and thematic structure of the book. It summarizes the interaction over time between democratization of the U.S. Constitution and increasingly firm exclusions of most Americans from public life between the 1780s and 1830s.
The Partisan Republic is the first book to unite a top down and bottom up account of constitutional change in the Founding era. The book focuses on the decline of the Founding generation's elitist vision of the Constitution and the rise of a more 'democratic' vision premised on the exclusion of women and non-whites. It incorporates recent scholarship on topics ranging from judicial review to popular constitutionalism to place judicial initiatives like Marbury vs Madison in a broader, socio-legal context. The book recognizes the role of constitutional outsiders as agents in shaping the law, making figures such as the Whiskey Rebels, Judith Sargent Murray, and James Forten part of a cast of characters that has traditionally been limited to white, male elites such as James Madison, Alexander Hamilton, and John Marshall. Finally, it shows how the 'democratic' political party came to supplant the Supreme Court as the nation's pre-eminent constitutional institution.
To celebrate the ratification of the new Federal Constitution, Federalist Francis Hopkinson composed “The Raising: A New Song for Federal Mechanics.” In one verse he exhorted America’s artisans to rally to the Constitution’s standard. In Hopkinson’s musical ode, citizens mustered with their tools, not muskets.
COME muster, my lads, your mechanical tools,
Your saws and your axes, your hammers and rules;
Bring your mallets and planes, your level and line,
And plenty of pins of American pine:
For our roof we will raise, and our song still shall be
Our Government firm, and our citizens free.
Hopkinson also helped stage Philadelphia’s elaborate procession in honor of the Constitution. As many as 5,000 marchers representing the city’s many trades, professions, and different religious denominations assembled to demonstrate their support. Similar but less elaborate parades and celebrations occurred in other cities and towns. These carefully staged rituals were designed to symbolize harmony and promote consensus in the wake of the sometimes bitter ratification debates. Although these public displays of consensus never managed to obliterate fully the lingering traces of Anti-Federalist antagonism and suspicion, the rapid acceptance of the Constitution was nothing short of remarkable given the rancor of the ratification process. Even in Rhode Island, a strongly Anti-Federalist state that would not ratify the Constitution for almost two years, the new language of American constitutionalism permeated public discourse. Thus, one commentator observed that in Rhode Island “every friend of liberty” was “putting on the appearance of Federalism.”
The scholarly debate over the meaning of the Second Amendment and the scope of gun regulation has been marred by ideological distortions. Michael Bellesiles, an ardent supporter of collective rights theory, argued that state control over weapons was virtually unlimited. Now Robert Churchill, a champion of individual rights theory, stakes out an equally bold position. In his view, a distinct and separate right to keep arms evolved under American law. According to this new variant of individual rights theory, the state might regulate bearing arms, but it was prohibited from regulating the right to keep arms.
Second Amendment scholarship has become mired in an intellectual quagmire. Contemporary debate over this provision of the Bill of Rights has been cast in terms of a simple dichotomy: either the Second Amendment protects an expansive individual right similar in nature to freedom of the press or it protects a narrow right of the states to maintain a well-regulated militia. Partisans of the individual rights view argue that the Second Amendment was designed to affirm a basic individual right to own firearms for hunting, recreation, and personal protection. The other view of the amendment, often described as the collective rights view, argues that the amendment was about the allocation of military power in the federal system. According to this view, the Second Amendment was a modest concession to moderate Antifederalists who feared the power of the new federal government. By affirming the right of the people to bear arms as part of a well-regulated militia, Federalists assuaged lingering Antifederalist qualms about the future of the state militias.