Customer Reviews

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

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At first glance many people say: "Not another book on the election of 1800!" Yet Bruce Ackerman is not simply another historian; he specializes in a fascinating combination of constitutional history and theory meant to reevaluate common myths and misunderstands regarding our constitutional history.

The standard story of 1800 is that it demonstrates the strength of the Founders' Constitution in that a bitterly contested contest ended with peaceful transition of power. Ackerman demonstrates that the Constitution was fatally flawed because of the Founders' failure to anticipate the growth of party based electoral contests and a variety of (seemingly) small technical errors. Ackerman argues that the Constitution survived more from dumb luck and timely statesmanship then from the brilliance of the original text. Ackerman does not stop with 1800; he continues into the period following and chronicles the institutional struggle between the Federalist judiciary and the Jeffersonian presidency and Congress. While the Federalists relied upon the constitutional moment of 1787, Jefferson relied upon the repudiation of those principles by the people (the plebiscitarian presidency). Rather than focus solely on Marbury, as most accounts do, Ackerman interweaves this famous case with an almost unknown case, Stuart v. Laird. Stuart represented a strategic withdrawal in the face of what today would be considered a clearly unconstitutional law, the repeal of judicial offices. Ultimately these judicial concessions to the Jeffersonian revolution weakened the political support for Jefferson's attack, and the passage of time helped defeat the attempted purge of the bench. Ultimately, Ackerman argues that the Court, transformed by republican appointments, synthesized and interwove the constitutional principles of 1800 into the Constitution of 1787.

Ackerman brilliantly argues that new forms of popular sovereignty arose in 1800 and the Court assumed its modern function of weaving these types of unanticipated developments into our constitutional structure. He concludes that the U.S. achieved a constitutional equilibrium that saved the republic by balancing the new plebiscitarian presidency with judicial preservation of pre-existing constitutional values. Ackerman's arguments will surely invite debate, something he is used to, but no one could deny his persuasiveness. While this is a fascinating book, anyone looking for a simply history of the election should look elsewhere. This is a complicated work mixing constitutional history and theory, thus it is best for individuals possessing some degree of prior knowledge regarding constitutional law and history.

p.s. While I usually do not mention other reviews, I feel it is necessary to reply to William Henning's review. He bases his poor review on two factual "mistakes." Yet neither of the two things he cites are actually errors. First, Ackerman correctly states the number of states necessary to elect a president out of the House was 9. This is because in the House, states received equal votes with an absolute majority (50%+1) of the total number of states, not just the number voting. There were 16 states which makes 9 states necessary to win (16/2 + 1=9). The second supposed error is perplexing because Ackerman states on p. 104 that the two states were not voting because of ties in their delegations. Because the states voted as a whole, a majority of the representatives had to support a course of action, and an equal division lacks a majority, hence the states did not cast a vote; they were "non voting" because of an equal division. The only part of Henning's review I agree with is that Ackerman's writing is lively and clear.

I very much enjoyed "The Failure of the Founding Fathers" by Bruce Ackerman. His research into the contemporary controversies and arguments made during the contentious 1800 election was refreshing. Too many writers rely on later day, secondary sources which leaves unsaid too much of what they then said about their own conflagrations and machinations. Nuance is lost using secondary sources, all too often.

Ackerman's discussion of the authorship of the Horatius letter, is a prime example of his harkening back to primary sources. Was the letter written by Marshall? Later researchers say no, but Ackerman puts forth a convincing case that Marshall might have been the author, a case filled with thoughts that secondary sources never seem to have even considered.

I have but one problem with Mr. Ackerman's work. It appears he has let his zeal to be a "controversialist" get the better of him a bit too often. He repeats his mantra of the "Founder's failures" over and over and, while his points are convincing enough that the Constitution had some problematic aspects where it concerns a strict description of procedure which came into stark light during the raucous 1800 election, his constant use of verbiage like "blunders" and "failures" belabors the point.

Ackerman seems all to often to have drawn a bold separation between the "Founders" who created the Constitution and those common everyday politicians who fought the Party battles of the 1800 election. But, my problem arises when one realizes that the "Founders" of 1780s Constitutional creation era and those politicians involved in the 1800 election fight were nearly to a man ONE and the SAME!

The "Founders " had not simply returned to their perch upon Mount Olympus like some coterie of ancient Gods after handing a grateful nation the Constitution fully formed. No, those same Founders were still around to further delineate and rectify the errors made in the creation when they were faced with the procedural problems that the 1800 election revealed. And faced with the nearly insurmountable problems the Founders faced, we should be amazed that they got as grand a document as they did when finished.

In other words, the 1800 election was just a continuation, a sequal if you will, for the "Founder's" creation of the Constitution. They created the Document in the 1780s, got it passed, and by the 1790s they began to try and live with it, thereby seeing where they missed a thing or two and then attempting to set it aright.

Lastly, I always think it a bit of an overstatement to say that the Founders never "saw" the idea of Party as possible. The Federalist Papers even discusses it. Sure they were against the idea of Parties on principle of public virtue, but they were aware it was probable even, perhaps, unavoidable. And last but not least, it was those very Founders who became INSTANLTY involved in that same creation of Parties less than a decade after the Constitution was ratified.

Still, a great book that everyone interested in the early days of the republic should read. Also one that makes the lie to the lament that "Politics today is worse than it's ever been". Even cursory study of the knock-down and drag-out fights in 1800 puts the lie to that one!

Here's the problem. Professor Ackerman has some original and thought-provoking ideas on the development of constitutional law by the Marshall Court and American history in the wake of the disputed election of 1800. He correctly points out that the trouble with most legal or historical analysis of this time period is that it passes through the imperfect prism of each writer's point of view, and that there is insufficient attention paid to how the participants viewed events as they occured. It correctly points out how the Constitution of 1787 was markedly and significantly changed in practice by the fallout from the election of 1800 and our own Jeffersonian "regime change." HOWEVER, this reads like a law review article that got out of hand and is filled with extraneous material that does not advance the central points of his thesis. I really enjoyed the book, but it really could have been edited better.

It's hard to imagine an author covering the 1800 election, the Marbury v. Madison Supreme Court decision, and several other topics that this book treats and coming up with something coherent. But Ackerman does just that. I came to this book after reading another book by the same author dealing with the nomination, election, and assassination of James Garfield ("Dark Horse," reviewed by me earlier) and I am impressed by Ackerman's ability to write a book on political history that is almost impossible to put down. He puts in all sorts of information that is essential for a modern reader to follow the happenings of a different era with understanding, while never letting his writing become too tedious.

The Constitution was not written with an eye toward the political party system that soon developed, and the constitutional mechanism for election of the Presidency soon developed obvious flaws as soon as Washington retired. Ackerman does not go much into the 1796 election, which already unmasked problems (leading to a President and Vice-President of opposite parties) but begins with the 1800 election, which almost led to a total breakdown.

The main thrust of the book is that out of this election and the ensuing competition between Federalist ideas of the Constitution (exemplified by John Marshall in the Chief Justiceship) and the ideas of Jefferson and his allies (especially James Madison) came a synthesis which has lasted. And I think that to a large extent he makes his case.

I do want to say that another reviewer's comment that Ackerman overly adulates Jefferson and denigrates Marshall does not appear to me to be the case. He points out errors made by both men, though he says at one point that a selfish action made by Jefferson as President of the Senate probably had consequences that were in the nation's best interest, and that may be what the reviewer had in mind. I think the book is actually rather balanced.

This superb book begins with a description of how the US stood on the razor's edge in early 1801 as the deadlocked Congress chose between Jefferson and Burr. Ackerman describes the scheming and politicking by the Republicans and Federalists in the weeks before inauguration day (Marshall's wheeling and dealing most especially), and how a combination of luck and the restraint of some of the founding fathers resulted in the republic's first peaceful transition from one party to the other. The beginning of Ackerman's book provides a background for a discussion Marshall's strategic thrusts and withdrawals in the face of Republican dominance in the two other branches. The central role of Marbury as the touchstone of constitutional law proves to be the product of strategy and historical contingency. Ackerman provides a sense of how often things might have unfolded in different ways, making this a page-turner, even for those who know the plot-line. Ackerman "scolds" the founding fathers for some crucial errors in the election sections of the Constitution. He supports a number of intriguing propositions, as he tells us what happened and what might have happened.

Bruce Ackerman has taken the election of 1800 and declared it to be the turning point in early American Constitutional history. His title "The Failure of the Founding Fathers" does a good job of setting the stage for his thesis that the founding fathers creating the electoral crisis of 1800 by not contemplating the rise of political parties.

The tie between Jefferson and Burr led to a partisan battle led by Jefferson himself. This, in turn, led to the "Republican revolution" of 1800, and an ongoing battle between the Republican led executive branch of the government (embodied by both Jefferson and Madison) and the Federalist led judicial branch (led by John Marshall).

Probably the most intriguing part of the book to me was Ackerman's claim that the case of Stuart v. Laird was equally important (or perhaps more important) than Marbury v. Madison in the way that the judiciary moved forward in the early 19th century.

Overall, this is a masterful piece of Constitutional theory intertwined with historical analysis of the times. I believe that Ackerman has opened the doors for a lot more analysis of the Marshall court and any ongoing struggles it may have had with the Republican administrations of Madison, Monroe, and J.Q. Adams - especially as the court was transformed from a Federalist dominated court to a Republican dominated court.

A very detailed look at the political and legal fallout from the contentious election of 1800. Having read a fair amount of Amer. Hist., Ackerman covers in detail that I found illuminating- never count out the role of fortune in history is one of the lessons to take from his book. Be prepared for some fine legal wrangling in the later chapters!

Federalists ruled America the first thirteen years after the Philadelphia Convention of 1787 at which the Constitution was framed. The Founding Fathers made "an alarming number of technical mistakes that invited partisans to inflame an already explosive situation." It failed to foresee the development of democratic party competition. It sought to create a republic, not a democracy in which parties rotated in office.

Two-party competition is at the core of modern democracy. The Articles of Confederation in 1781 replaced America's first Constitution. In 1800, 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." The "revolution of 1800," when Thomas Jefferson was elected by Popular vote of the people, the six Federalists sitting on the Supreme Court led by John Marshall (who might have been selected president), called Jefferson's "mandate from the People" demagoguery. John Adams retaliated by filling the new and powerful courts throughout the nation with dedicated Federalists to "fulfill their nationalizing mission." Within weeks, the new congressional majority was pushing through legislation that would destroy the new courts and purge the 'midnight judges' from office.

With Jefferson at the helm, a new constitution took effect in 1802, which made three consittutions in twenty years. "The Jeffersonians' struggle with the Marshall Court inaugurated a complex institutional dance that can be seen as one of the great leitmotivs of American constitutional development. Over the next two centuries there would be many presidents who would claim a mandate from the People on the basis of their party's victory at the polls; and there would be many Courts that would look upon these large claims with skepticism, seeking to put the president in his place even when his plebiscitary authority was backed by sweeping majorities in Congress."

Tennessee was the only other state with a single Representative, William Claiborne. Federalist leaders tried to seduce him with an offer of a military position, but he stood firm. In 1792, the Senate refused to impeach one of its colleagues, William Blount of Tennessee, on the ground that he was a member of Congress and not an "officer of the United States" as required by the impeachment clause. "A serious doubt is entertained whether this provision of the act be constitutional upon the impeachment of William Blount, a distinction was taken between an officer and a Member of Congress, and therefore was not liable to impeachment. Upon this ground the Majority of the Senate would not hold cognizance of that impeachment." It was said in Blount's case that 'the officers' of the United States receive their commissions and appointments from the President, according to which criterion the President of the Senate protempore is not an officer.

"In both 1800 and 1932, the presidency was the focus of two-party competition of a kind the Framers had not anticipated. In contrast to Jefferson, Roosevelt could not rely on his collaborators in Congress to provide ideological coherence for the New Deal. The Democrats who swept into power in 1933 did not resemble the Republicans of 1801. They were not members of a movement-party but aof a 'patronage-party.' Both Southern white supremacists and Northern party bosses called themselves Democrats." In contrast to Jefferson, he was nobody's idea of an intellectual; in fact, "he was often compared unfavorable in this respect with Herbert Hoover. As president, Roosevelt provided an institutional home for a 'Brains Trust,' a gathering togethre of leading academics and policy entrepreneurs to organize his reforem initiatives. And he regularly projected his voice into the nation's living rooms in fireside chats, serving as the principal interpreter of his party's promise of a 'New Deal' for the American people."

In both 1800 and 1932, two-party competition transformed the race for the presidency and "an ideological contest that shattered the Framers' expectations. In both cases, the out-party's victory was popularly understood as a mandate for a fundamental challenge to the 'status quo.' In 1932, the president would be taking a much more public role in the contest over constitutional meaning."

Bruce Ackerman has written WE THE PEOPLE, VOLUMES 1 & 2, SOCIAL JUSTICE IN THE LIBERAL STATE, and his new one out in April, 2006, BEFORE THE NEXT ATTACK. This book started out as a chapter of WE THE PEOPLE and expanded into a scholarly research project of its own. He is associated with Yale University. The copyright on this book is by the "President and Fellows of Harvard College."

The election of 1800 posed fascinating and knotty problems. Unfortunately, Ackerman fails to deliver to a complete and accurate description of events. Ackerman misstates the number of votes necessary to elect either Burr or Jefferson (hardcover, p. 77; majority, not nine), and the nature of the votes from two states, Maryland and Vermont (p. 104; voted in deadlock, as opposed to "not voting"). While those unfamiliar with the election (which included me until today) may find my corrections to be quibbling, these errors made it impossible to make sense of the result without consulting another, more authoritative text. For me to understand the mechanics of the election, I turned to John Ferling's Adams vs. Jefferson, which I would thus recommend.

I found Ackerman often petulant in his attack on the founders, but this more subjective criticism pales in comparison to his crucial misunderstandings of fact that mar the credibility of the remainder of his work. The second star is for his writing style, which is lively and clear.

Reading this book is like attending a required college class and being forced to listen to the Ivy League educated professor soar into flights of rhetoric on his personal pet theory arising from a somewhat obscure historical event. He uses language no human utters in real life, like "plebiscitarianism" and "intertemporal synthesis."

He, with a straight face, cites the New York Times as an example of a present day "impartial voice."

On substantive grounds, Professor Ackerman's view is almost uniformly positive as to Jefferson and negative toward John Marshall. While I admire many things about Thomas Jefferson, I think Chief Justice Marshall was a very great American and believe accepted history is on my side. The professor's general theory seems to be that blockheads drafted the Constitution and that only blind luck has kept our country from spinning into Latin American-style political disorder. While it is not stated overtly, the book is clearly aimed at presenting a constitutional analysis that argues against the current thinking of such jurists as Justice Scalia.