The amendments made to give people the man they voted for

The Failure of the Founding Fathers - The Rise of American Democracy
September 8, 2006

These highly ambitious and well-researched books focus on the early flowering of constitutional government and democracy in the US. Those who like to think that the American Republic's political trajectory was carved in stone by the 1776 Declaration of Independence or the 1787 Constitution, or that American political development was a natural outcome of the founders' efforts, will not like either of these books, for the great value of both is their testimony to the essential fragility of constitutional and democratic development. Both authors demonstrate well how easily the US might have followed a different path but for the interplay between certain political ideas, popular political movements and political institutions and leaders at particular moments in time.

Of the two, Bruce Ackerman has a stronger, more intriguing thesis. Developing earlier work that began with his three We, the People volumes, he analyses forensically one of what Walter Dean Burnham has called America's "constitutional moments". These are particular situations, precipitated by crises, that might have been resolved differently from how they were but that propelled the American political system on to new constitutional equilibria or planes, and constitutional history and theory on to new trajectories. This volume focuses on the crisis of 1800-01, when the House of Representatives was deadlocked. Other constitutional moments will be the subject of at least one subsequent volume.

In the 1800 elections, the Republican Thomas Jefferson had won the popular vote for the presidency but tied 73-73 with the Federalist Aaron Burr in the electoral college. Under the 1787 Constitution, the contest was thrown into the House, highlighting a desperate constitutional anomaly or "blunder", as Ackerman insists, and precipitating a severe constitutional crisis: although the Republicans had also won a plurality of House seats in the same elections, it would be a Federalist majority in that chamber that would decide the outcome of the presidential elections. They wanted to award the election to Burr or, failing that, to the Federalist Chief Justice, John Marshall - anybody but Jefferson.

The problem lay in the Constitution of 1787, when the framers provided that each new Congress would convene on "the first Monday in December" unless it designated another day. Instead of designating the same day that the president and vice-president took office, the first Congress had set a precedent in 1790 and voted itself a third session, beginning in December, even though it meant that the members of that session were lame ducks because a new Congress had been elected. The consequence in 1800 was that the Congress elected in that year would not convene until December 1801, thereby ensuring a Federal majority to decide the 1800 presidential election. Nothing less than a legitimacy crisis threatened in 1801, and one not confined to the latter-day Washington Beltway: pro-Republican and pro-Federalist militias threatened to mobilise to reinforce their positions, and mobs surrounded the partly built Capitol. After 35 ballots, the House could not agree on who would be president.

Classical Republicanism, embodied in the 1787 document, did not anticipate a political system in which popular democratic political parties - "factions", in James Madison's famous characterisation - mediated between the governors and the governed. Rather, it was assumed that aristocratic elites would be selected to govern in the "public interest". This thinking explains why the Constitution's framers sought to insulate the president from the people by inventing an electoral college rather than provide for direct election. The emergence in the 1790s of modern ideas of popular sovereignty, partisan electorates and evenly balanced party competition effectively junked that older vision, overturned the narrow legalistic interpretation of the 1787 constitution, and precipitated the crisis of 1800-01.

The problem created by the electoral college remains today, as the outcome of the 2000 presidential election demonstrated, when a conservative Supreme Court intervened to deny the presidency to the (marginal) popular-vote winner, Al Gore. In 1800-01, however, the House elected Jefferson and, in a series of decisions, the Supreme Court - transformed by Republican appointments - effected a strategic retreat while maintaining its own mediating role and political independence. In essence, a new set of constitutional principles was created that in effect legitimised Republican claims but "synthesiz(ed) the principles of 1787 and 1800 in a way that neither Federalists nor Republicans could endorse, but both could live with". In future, the candidate who became president would enjoy a popular mandate, and the rug would be pulled firmly from under those arguing for the original Constitution "regardless of the extant political circumstances". Only in extreme circumstances would the House decide in future; and, under the 12th Amendment, each elector would cast separate ballots for president and vice-president, thereby reducing the probability that the opposition party's candidate would win second place in the presidential ballot.

The crisis could easily have been resolved differently, possibly with dire consequences. It was resolved in a way that accommodated the popular will through a combination of good luck and the astute actions of Jefferson, Burr, Marshall, John Adams and the Federalist Congressman James Bayard, who recognised the changing nature of the early republic's politics and successfully bypassed the "maladroit legalisms" of the Constitution.

Out of this "presidentialist revolution of 1800", what Ted Lowi - and now Ackerman - call the "plebiscitary" presidency was born. Without any formal constitutional amendment, the political system was in effect launched into a new equilibrium. (Not until the passage of the 20th Amendment in 1933 was the interval abolished between the election of the president and the Congress and the beginning of their terms of office.) Jefferson's claim that he had a popular mandate provided future presidents with a highly potent source of legitimacy and power. Such claims are hardly unproblematic, as George W. Bush's presidentialist claims, in the context of his War on Terror, have vividly demonstrated. For, as Ackerman reminds us: "America doesn't have a presidential 'system'. All it has is a long history in which presidential claims of a mandate from the people have been repeatedly resisted and reshaped by the other branches."

Fuelled by the development of the plebiscitary presidency, presidential claims upset the separated system's delicate balances and checks designed by the framers, especially when other parts of the separated system do not jealously guard or assert their constitutional prerogatives. This important political and institutional consequence of the 1800-01 crisis has never been successfully addressed by the written Constitution. Notwithstanding Bush's contemporary presidentialism and the cowed acquiescence of Congress, careful analyses of historical patterns of congressional-presidential relations reveal a seesawing pattern. If Democrats regain control of at least one house of the Congress after the 2006 midterm elections, and split-party control is restored - as after 1968 - we should expect to see some rebalancing of the system, as the president finds out a little more about the power of the purse and other congressional tools to check and balance presidential claims to unilateral power.

Ackerman tells his story well and persuasively, albeit with a significant amount of hyperbole. The book is a tour de force that draws on an impressive amount of archival research. Yet its real value lies less within Ackerman's absorbing story of this dire political crisis and the political dynamics it precipitated than in his skill and imagination in advancing his theory of constitutional change in the US. His arguments are solid and remain refreshingly heretical in a milieu that typically lionises the framers without accepting their limitations and the need for subsequent institutional and constitutional adjustments to accommodate changing political realities.

Of course, even if we accept his theory of constitutional moments, scholars will still have lots of fun debating their number and timing, and whether or not the crisis of 1800-01 was really a continuation of that of 1787, or whether both were tied up with the continuing difficulties of establishing a new constitutional regime. There is also some discussion needed about the blame Ackerman heaps on the supposedly unseeing Madison and his fellow framers. The blame begins with the book's title and continues with harping on the framers' "mistakes". The charitable may blame the publishers' demand for hype. The author, however, would surely have done better to argue that the 1787 Constitution turned out to be flawed in some important respects; that politics within the early republic moved on and unanticipated events intervened, thereby producing new problems that were successfully resolved.

In support of such an exposition is the simple fact that the politicians who embraced party politics in the 1790s and the leaders who effected the resolution of the crisis were all members of the founding generation, which had experienced more than a century of colonial self-government and a shared political culture imbued with the Enlightenment concepts of liberty, rights and the rule of law. We should, then, take a healthy pinch of salt when Ackerman cautions that, had events turned out differently, the US might have followed the unstable pattern of Mexican constitutionalism or the upheavals of successive French republics.

Most professional historians will probably not like Ackerman's theory of periodic bursts of constitutional re-engineering, preferring instead an interpretation of constitutional development that allows for more chaotic, contradictory, incremental and meandering historical processes. They will probably prefer Sean Wilentz's study of the rise of US democracy.

Written by one of America's leading historians of the early republic, it provides a rich, detailed and lengthy narrative of the pre-Civil War period. The political history of the US from Jefferson to Lincoln has been told many times. However, the great strength of this new account is that democracy and its political contestation are placed centre stage. Wilentz recognises democracy as a major political transformation and a new departure in the Western tradition. Moreover, he does not see democracy's development in the US as a preordained phenomenon; rather, he sees it as a product of complex political, social and economic struggles by ordinary people as well as political leaders. Furthermore, he sees democracy's "rise" as a bitterly contested process.

Wilentz's sympathies clearly lie with the democrats, although his account also shows awareness of the contradictions and dilemmas of American democracy at different points in history. Thus, American democracy developed alongside the expansion of slavery and its entrenchment in the South. Those seeking more systematic explanations for the nature, extent, contradictions, dilemmas and limitations of democracy in America, however, are likely to find the book frustrating. For, by the end of this very long book, the reader is only a little wiser as to why a democratic political culture developed in the US and why it retained some significant undemocratic elements.

John E. Owens is professor of US government and politics , Westminster University.

The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy

Author - Bruce Ackerman
Publisher - Harvard University Press
Pages - 362
Price - £18.95
ISBN - 0 674 01866 4

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