Three Moments of Reconfiguration

A. The Electoral Crisis of 1800-01

The 1800 presidential election exposed a weakness in the US Constitution. As the Electoral College ballots were opened, they revealed an equal number of votes for the Republican candidates for president and vice president, Thomas Jefferson and Aaron Burr respectively.

The newspaper debate over the election was broadly divided along party lines. On the one hand, Mel Laracey has characterised the arguments offered by the Jeffersonian National Intelligencer during this period as marked by a constitu­tional interpretation rooted in ideas of popular will.^[371] Writing pseudonymously Aristides' argued that the Constitution derived its powers from a popular and express grant of the people themselves. As ‘ [t]he Federal Constitution was the act of the people of the United States', the only way to address gaps in the Consti­tution was through an overt intervention by the people themselves.^[372] Without such an intervention or congressional action, Aristides' suggested that the office of the president would remain vacant after the expiration of Adams' term. In the same newspaper, An American' argued that contemporaneous constitutional practice and understandings ought to be considered in interpreting the Constitu­tion.

On the other hand, the Federalist presses resisted (in line with the political divide of the period) the authority of the people and instead sought to find a solu­tion to the electoral crisis within the extant constitutional text. While adhering to Blackstonian ideals of intent as defined by the ‘reasonable and legal meaning’ of the text, Federalist writers argued that a constitutional document could not fail to provide for all eventualities. In marrying the commitments to intent-via-text and the completeness of the constitutional document, writers such as ‘Civilis’ suggested ‘that construction shall be given which is indispensably necessary to preserve the existence of the government’. ^[376] Such an approach had the desirable consequences of preserving interpretative authority to those trained in legal meth­ods, while simultaneously denying the people an opportunity for contemporary constitutional revision.

One significant example of this came in the form of an essay series published under the pseudonym ‘Horatius’^[377] Arguing that a constitution’s fundamental commitment must be self-preservation, the author posited that the Constitution must contain a solution to the crisis at hand:

For such a state of things the constitution ought not to be understood to be unprovided, or it will be understood to be without the means of self preservation.

From this perspective, Horatius identified the clause concerned with the power of removal as the relevant part of the constitution text^[378] and reasoned that the order of presidential succession required that an ‘officer’ of the executive branch act as President after the expiration of Adams’ term. The logical choice for such an officer was the most senior executive office holder - the Secretary of State. Bruce Ackerman has suggested that Horatius may well have been John Marshall, then Secretary of State, later the Chief Justice, providing something of a conveni­ent conclusion for Horatius.^[379] Nevertheless, the actual solution was perhaps less important than the commitment to the idea, shared by other Federalist writers, that the constitutional text necessarily contained a response to any constitutional crisis when examined by a suitably trained legal mind.

The consequences of this approach for understandings of the founding varied amongst this Federalist grouping. For some Federalists, these textual commitments led to a view of the Constitution as particularly tied to the intentions of the actors of 1787-88. Among this group, ‘Eumenes’ characterised interpretation as assess­ing the contemplations of ‘the general convention, who framed... [and] the state conventions, who ratified the constitution’. ^[380] However, other Federalists seemed largely uninterested in how the Constitution came into being or by what authority it operated. Indeed, for ‘Horatius’, it was crucial to understand intention as derived solely from the document and wholly distinct from the question of the intention of the parties to the document. This latter (and larger) bloc agreed on constitutional premises with their erstwhile Jeffersonian opponents in some significant ways. Both disavowed - openly or through omission - a requirement to return to the actors of 1787-88 in order to garner constitutional insight. Equally and perhaps consequently, they both presented the Constitution as radically immediate.

B. The People and the States: McCulloch v Maryland

The ‘Great Bank Case’ of 1819, McCulloch v Maryland, is often depicted as one of the central decisions of the Marshall Court, placing on record the supremacy of the federal government. Marshall’s biographer Albert Beveridge overstated his case when he stated that McCulloch ‘is considered as only second in importance to the Constitution itself’, but the case is certainly a fixture in the pantheon of landmark Supreme Court cases.^[382] Concerned with the ability of Maryland to place a tax on the transactions of the Bank of the United States, the case reached the Supreme Court as discontent with the Bank peaked and questions of federal authority became embroiled with the contentious topic of slavery. In such a context, the opinion offered an ‘extremely nationalist interpretation of the Constitution’.^[383] As might be expected, such a strident defence of the federal government attracted equally strident criticism. At one level, these critiques engendered a debate about the very nature of constitutional authority within a democratic polity, but inter­twined with these debates was a more historically grounded debate about what had actually taken place in 1787-88.

In his opinion, Marshall offered a narrative of the founding which rested firmly on the people's participation in ratification. Referring back to a model of constitution-making advocated during the Ratification by the Federalists, Marshall emphasised that the document was only a proposal until it received popular sanction.^[384] While the Philadelphia Convention was indeed elected by the states, ‘the instrument, when it came from [the Convention's] hands, was a mere proposal, without obligation, or pretensions to it'.

This famous line drew on the arguments offered by William Pinkney in defence of the Bank, but in Marshall's hands, they were made to map onto a popu­lar mode of ratification. Pinkney had argued that the impossibility of including every eventuality in the Constitution text had led the framers to rely upon the implication of powers not specified in the text. Pinkney had suggested that the brevity of the Constitution reflected the impossibility of producing a comprehen­sive document.^[390] Adapting Pinkney's argument, Marshall utilised the brevity of the Constitution in his argument against state regulation of the Bank, but crucially reworked the meaning of it. In the opinion, Marshall wrote:

A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they would be carried into execu­tion, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked.^[391]

As with Pinkney, the argument here suggested that the absence of a directly stated power in the constitutional text ought not to be understood as an absence of that power.

[I]s the act of a people, creating a government, without which they cannot exist as a people. The object of the instrument is not a single one which can be minutely described, with all its circumstances. The attempt to do so, would totally change its nature, and defeat its purpose.^[393]

In this telling, the Constitution's brevity - and thus the doctrine of implied powers - is linked to public support for and understanding of the document. Marshall locates the authority of the document in its popular acclamation and sees its nature as a result of this necessity.

As well as establishing the claim to implied powers, the Constitution's basis in popular authority also served to support another pillar of Marshall's opinion. At its heart, McCulloch v Maryland was a case about the relative authority of the federal and state governments. Included within this discussion was the question of whether the Supreme Court itself could legitimately adjudicate a dispute between the states and the federal government. Critics of the Court, such as Spencer Roane of the Virginia Supreme Court of Appeals, argued that the Supreme Court of the United States was usurping authority in rendering a decision in McCulloch. Pushing back against this argument, Marshall once again used the popular basis of the Constitution to argue that the people had chosen the Supreme Court as the apparatus of federal-state adjudication:

It is the plain dictate of common sense, and the whole political system is founded on the idea, that the departments of government are the agents of the nation, and will perform within their respective spheres, the duties assigned to them.^[394]

The judicial department was assigned the role of rendering decisions in such cases as a consequence of the Constitution - ‘this is not now a question open for

And Then They Begin to Look after the History of Their Founders’ 103 consideration. The constitution has decided it' ^[395] - and as the Constitution draws its authority directly from the people as an ‘act of the people themselves, and not the act of their governments,^[396] the state governments have no authority by which to challenge this. As with the doctrine of implied powers, Marshall made recourse to the popular ratification of the Constitution as the basis for the Supreme Court's authority.

The use Marshall made of popular ratification contrasted with the understand­ing of the Constitution's creation offered by his opponents. In writing A Friend of the Constitution' and his earlier essays A Friend to the Union’, Marshall was seeking to primarily address his Virginian critics.^[397] Two series of essays emanat­ing from the Richmond Republican Junto, Amphictyon' and ‘Hampden’ appeared in the Richmond Enquirer in the first half of 1819 to attack the McCulloch opin­ion from the position of states' rights advocacy. The authorship of Amphictyon' is unsettled, but ‘Hampden' was almost certainly Spencer Roane and both shared an understanding of the founding as a process of confederation. While both implic­itly agreed with Marshall that the authority of the constitutional order rested on the process of ratification, they understood that process to have played out in a manner supportive of states' rights rather than federal supremacy.

Amphictyon's essays appeared in the spring of1819 and were framed as a direct response to Marshall's McCulloch opinion.^[398] Seeking to challenge the idea that the federal government could claim implied powers, the essays quickly turned atten­tion to offering a rival interpretation of the Constitution's creation. Early in the first essay, Amphictyon offered an account of the period 1787-88:

Who gave birth to the constitution? The history of times, and the instrument itself furnish the ready answer to the question. The federal convention of 1787 was composed of delegates appointed by the respective state legislatures; and who voted by states; the constitution was submitted on their recommendation, to conventions elected by the people of the several states, that is to say, to the states themselves in their highest political, and sovereign authority: by those separate conventions, representing not the whole mass of the population of the United States, but the people only within the limits of the respective sovereign states, the constitution was adopted and brought into existence.^[399]

In case the contrast with Marshall was missed, Amphictyon then denied that the Constitution had emerged as a ‘grant of the people, without regard to the distinc­tive features of the states’.^[400]

For Hampden too, the role of the states in the creation of the Constitution was of profound significance. While initially arguing against implied powers on the basis of the constitutional text and the expectations of the document at the time of its ratification, when arriving at the question of the Supreme Court’s authority, Hampden, like Amphictyon, turned to a history of the founding to support his assertions. Beginning with the statement ‘ 'The constitution of the United States was not adopted by the people of the United States, as one people’, Hampden offered an account of the ratification that had much in common with Amphictyon’s:

[R]atification results not from a majority of the people in the union, nor even from that of a majority of the states; but that it must result from the unanimous assent of all the states that are parties to it, differing no otherwise from their ordinary assent, than its being expressed, not by the legislative authority, but by the people themselves.^[401]

Citing with approval Madison’s Report of 1799, Hampden concluded that ‘the powers of the general government result from a compact, to which the states are parties’.^[402] Understanding the creation of the federal government in this manner, Hampden argued the Supreme Court could not be regarded as holding the power to adjudicate between the states and the federal government. Where Marshall claimed the people have devolved this authority to the Supreme Court, Hampden insisted that the ‘compact’ meant that the parties (the states) alone ‘must be the rightful judges... and that, in this respect, there can be no tribunal above their authority’.^[403] As with Amphictyon, the ratification of the Constitution by the states worked to deny the authority of the US Supreme Court in this matter.

For both Marshall and his interlocutors, the crucial question for contemporary political authority was the character of the actors during the process of ratifica­tion. In Marshall’s view, it was the people themselves acting in a sovereign capacity that underpinned the Supreme Court’s authority. For the Virginia Republicans, the states had acted in 1787-88 to create a compact, extending the powers of the general ‘government’ under the Articles of Confederation. As such, the Supreme Court was not recognisable as a tribunal for conflicts between the states and the federal government. However, crucially from the perspective of this chapter, all the parties in this exchange of essays shared an understanding of the pivotal moment of constitutional creation as the process of ratification. Marshall looked to the people, while Amphictyon and Hampden looked to the states, but they all conceived of the founding as a moment of sovereign action. In contrast to the immediacy of 1800-01 and (as we shall see) the centrality of compromise in the 1830s, the founding moment in the debates surrounding McCulloch is commonly held as an instance of sovereign delegation enacted through the process of approval of a constitutional text.

C. Abolition, the District of Columbia and the ‘Compact’

The early 1830s were marked by the emergence of a strident movement against slavery. The Abolitionist movement coalescing around William Lloyd Garrison in this period made abolition in the District of Columbia a focal point. Arguing that Congress had constitutional authority over this territory, the Abolitionists called for immediate abolition in the nation’s capital. In resisting this call, slaveholders and their supporters came to articulate an understanding of the founding that precluded such action. Conceiving of the founding as centred on the Philadelphia Convention and the bargains struck therein, pro-slavery advocates articulated a narrative of the founding that emphasised spirit and consensus, and appealed to a historical ‘Compact’ as the touchstone of American constitutional identity.

In late 1833, news reached the US of the British Parliament’s abolition of slavery in the British colonies. American proponents of abolition digested this information with mixed feelings. On the one hand, this act of abolition marked a significant advance in the Atlantic abolitionist movement, but on the other, it left the US alone in the English-speaking world in sustaining slavery. As The Abolitionist noted: ‘This glorious act of the British nation, presents a mortifying contrast to the conduct of our own.’^[404] In the face of this new reality, Abolitionists would increasingly come to see slavery as a peculiarly American sin, one given form in the continuation of the slave trade through the nation’s capital Washington DC To address this, they undertook an aggressive petitioning campaign organised through the emerging network of Abolitionist societies.

Changes in Southern society meant that by the 1830s, slavery was more ferociously defended than it had been during the earlier unsuccessful attempts at abolition in the District of Columbia. The ending of the (legal) foreign slave trade after 1808 and the American cotton boom had the effect of making slaves more expensive.^[405] During the same period, ideological support for slavery became more forthright. Arguments grounded in the positive advantages of slavery rather than the difficulties of safely ending it became more common.^[406] The Charleston Courier argued that slavery was ‘neither a sin nor a curse... [but] a practical blessing’. ^[407] Seeing abolition in the District as the first step towards national emancipation, slaveholders sought not merely to argue against the advisability of abolition in Washington, but to decisively shut down discussion of it.^[408]

To shut down such discussion, advocates of slavery (and those opposed to the Abolitionists) advanced a vision of the founding denoted by the idea of the ‘Compact’. The American tradition of constitutional settlements as compacts has a lineage stretching back to the Mayflower Compact, but the 1830s Compact placed special emphasis on the mode of compacting rather than the binding consequences of the compact. The citizens of Albany explained the commitment involved in the Compact in the following way:

[T]he constitution of the United States carries with it an adjustment of all questions involved in the deliberations which led to its adoption, and that the compromise of interests in which it was founded, is binding in honor and good faith, independently of the force of agreement, on all who live under its protection and participate in the benefits of which it is the source.^[409]

The Compact of the 1830s articulated not merely fidelity to the Constitution, but also to the spirit of compromise and to the assumptions and understand­ings that enabled that compromise to take place. In other words, the Compact encompassed the attitude of Federalists in 1787-88 in addition to the text that they produced.

Developed systematically by Henry Laurens Pinckney in his Report... Upon the Subject of Slavery in the District of Columbia for the House of Representatives in 1836, the Compact sought to draw equivalency between federal regulation of slavery in the District of Columbia and in the states.^[410] Recognising that there was no textual basis for arguing against abolition in the District, Pinckney argued that there was something more fundamental than the constitutional text - a spirit that enabled the agreement it represented. Seeing the cession of the territory of the District of Columbia as a central part of the constitutional agreement, Pinckney saw attempts to address slavery there as a violation of public faith. To the extent that the Constitution was itself predicated on such faith, abolition in DC was a direct attack on the constitutional settlement:

Why are all compacts or promises made by Governments held to be irrevocably binding? Why, but because they cannot break them without committing perfidy, and destroying all confidence in their justice and integrity?^[411]

In light of this, Pinckney concluded that ‘the obligations of Congress not to act on [slavery in DC] are as fully binding and insuperable as a positive constitu­tional interdict, or an open acknowledgement of want of power’. ^[412] The argument here - that a spirit of agreement and the intentions infused with it trump the actual content of the agreement - formed the basic commitments of the ‘Compact’

While the Compact provided a useful response to Abolitionist pressure, it also contained within it a particular understanding of what the founding actually was. At the core of the Compact was a commitment to the idea that the founding was a deeply historicised compromise. As the idea of the Compact spread and gained purchase in different parts of the US, it was couched in a commitment to this idea that was not evident in 1819 or 1800. Where the debates of 1819 had emphasised the process of ratification and its democratic basis, and those of 1800 had sought to comprehend constitutional action in contemporary moments, the 1830s were marked by a desire not to betray the negotiation of interests achieved in the consti­tutional settlement.

In 1836, the governments of the various states issued a series of communi­cations condemning abolition and articulating the basis for their condemnation. These communications shared a commitment to the Compact. In Maine, the Legislature located the origin of the compact in ‘the spirit of deference, concilia­tion and mutual forbearance, which pervaded the then independent States’. ^[413] The General Assembly in Kentucky resolved that the creation of Abolitionist societies was ‘a violation of the original basis of the federal compact, and Michigan followed suit, finding them to be ‘in direct violation of the obligations of the compact of our Union’.^[414] Martin Van Buren would suggest during his 1836 presidential campaign that abolition in DC would ‘destroy at once that compromise of interests which lies at the basis of our social compact’^[415] and in his inaugural address that blocking such attempts would be ‘in accordance with the spirit that actuated the venerated fathers of the Republic’^[416]

Once made rhetorically available, these appeals to the negotiations of 1787 were hard to resist, and even the Abolitionists succumbed. To an increasing extent, debates over constitutional meaning became centred on what the intentions of the framers had been and, as they did, they privileged the actors and exchanges engaged with forming the constitutional document rather than ratifying it. In place of the robust exchanges in 1819 over who had authorised the Constitu­tion, Abolitionists and their opponents came to understand constitutional debate as, in the words of Rhode Island Abolitionists, an ‘effort... to regain the ground which liberty occupied in 1787’.^[417] Within this founding imaginary, the debates of the Philadelphia Convention were the historical moment of founding which could be tapped for a greater understanding of legitimate framework of contemporary political action.

D. Reconfiguring the Founding

The idea of subsequent generations revisiting a moment of founding in the service of their own political ends is not an alien one. As noted at the outset, a motif of contemporary American constitutionalism is the urge - verging on a civic reli­gious need^[418] - to return to the founding for legitimisation. While the originalist project has made a return to the founding its overt aim since Edwin Meese's prom­ise ‘to press for a Jurisprudence of Original Intention',^[419] countervailing attempts to render the Constitution more open-ended have been equally drawn to the found­ing, even if only to problematise or attempt to recast it. Nonetheless, I would like to suggest that the three moments traced here reflect a somewhat different inter­action with the founding than we are used to seeing today or has been theorised above.

The debates of 1800-01, 1819 and the 1830s did not follow the democratic- republican societies documented by Jason Frank in advancing a radically democratic vision of the founding.^[420] Indeed, each debate was marked by the pres­ence of actors seeking to limit the voice of proponents of a larger democratic space. Moreover, the debates did not rely or centre upon the same founding moment as a touchstone of authority. Instead, they invoke wholly distinct configurations of the founding moment that reflect the ideational imperatives of their time. The debates equally provide scant evidence of the conquest of the present by the past sketched out by Anne Norton. Instead, even over the relatively short period from 1800 to 1836, ideas about the nature of the American founding varied significantly in rela­tion to the politics of the day. As the terrain of political conflict moved between partisan, governmental and material-ideological rivalries, so too did the reigning understandings of what the founding was within political debate.

This radical ‘availability' of the founding moment to the contemporary genera­tion suggests that too great a focus on founding moments as authoritative points may be misleading. In a variety of ways, the contributors to this collection have highlighted the instability of the category of ‘founding moments’. Maryam S Khan has highlighted Pakistan's ‘Permanent Constitution' of 1973 as a founding moment not in the form of a stabilised constitutional settlement, but rather as a ‘site of struggle’,^[421] while Juliano Zaiden Benvido has pointed to the potential for incre­mentalism to characterise founding ‘moments’^[422] Mel A Topf's discussion of the American founding similarly moves away from seeing significance in a moment of rupture, but instead in the practices of consolidation enabled by that moment.^[423] Shorn of clarity and stability, and thus predictability, it is perhaps the case that founding moments should be treated as less constitutionally authoritative than current practice suggests. This unsettling of founding moments suggests that founders themselves should perhaps be more cognisant of the limits of their power to constrain the future.

Indeed, one conclusion that we might draw from the historical accounts offered here is that it is not foundings that present us with a paradox, but endings. The instability of founding moments as points for the initiation of a constitutional order begs the question of what must occur for an order to come to an end; if the present is substantially free to reconfigure the founding, then why not always reconfigure rather than found anew? Here a return to Cover might be of use. Cover's suggestion that the state plays a ‘j urispathic' role in killing rival nomoi through the courts reinforces the claim that the focus of inquiries into constitu­tional founding ought to be the present rather than the recapturing of a past.^[424] But it also highlights the manner in which the continuation of a constitutional order relies upon the state's capacity to ‘prune' the various potentialities arising from a jurisgenerative founding. Positing the problem of ‘too much law' as the challenge emerging from the ability of narration to generate new nomoi, Cover characterises the role of the courts as identifying a legal tradition from the emergent multitude and ‘assert[ing] that this one is law and destroying] or try[ing] to destroy the rest' (emphasis in original).^[425]

However, such action raises the prospect of rival constitutional nomoi claiming sufficient strength and institutional support that the courts are unable to decisively adjudicate between them. A present dominated by two (or more) constitutional nomoi that defy any jurispathic mechanism would represent a moment in which the jurisgenerative potential of a constitutional order comes to threaten ‘the found­ing' itself. Arguably, the collapsing of the first constitutional order of the US in the run-up to the Civil War reflects such a tendency. One can see the weak power of the Supreme Court in adjudicating n omoi in the response of critics of slavery to the Dred Scott decision. While not defying the Court in its proximate decision, Abraham Lincoln's speech at Springfield on 26 June 1857 indicates no recognition of its authority to settle the legal tradition of the US in favour of slavery. Indeed, the speech makes explicit Lincoln's belief that absent a compelling claim to be part of a shared and established legal nomos, critics of the decision are under no obliga­tion to give up opposition to it:

If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expecta­tion, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if want­ing in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.

But when, as it is true we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country^[426]

Absent the Court's ability to kill one of the rival conceptions of the constitutional order - pro-slavery or anti-slavery - resolution of the crisis was reached through overt violence and an enforced renewal of the constitutional order on the basis of a rewritten text and the legitimacy of the Union's victory.

It is worth noting that this possibility brings us full circle to a new moment of founding. But it is a moment of founding that is obscured by the Civil War and continuity from the previous constitutional order. From when in the mid-nineteenth century should we date the new constitutional order? The final defeat of the South? The ratification of the Fourteenth Amendment? The re-entry of the seceded states into the Union? Or the collapse of the old order? In the midst of modern records and a highly bureaucratised state, we meet with imprecision on a foundational moment. Here we can see the origin of that obscurity not in the nature of the founding, but in the difficulty of identifying the ending of the older order. Recognition of a precise moment of death eludes us, given the extent to which a regime does not instantaneously expire, but rather gradually deflates. This difficulty is perhaps the very reason most Americans continue to date their consti­tution from 1787-88, despite its abject failure to hold the Union together between 1861 and 1865. The difficulty of locating an end of the previous order tempts us to obscure the extent to which a founding took place. Once again, we see the present reconfiguring the founding in order that it might make sense to the politics of today. Here we are returned to that state sketched out by Locke above - heirs to a founding only to the extent that we have difficulty in readily identifying it.^[427]

III.