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- The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy
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The opening four chapters of part 2 consider the aftermath of the elections, which resulted in the ousting of the Federalists from the presidency and so the cabinet , as well as from most of their seats in Congress. John Adams then used the months of his lame-duck term of office, with the complicity of the lame-duck Federalist congress, to flood the bench with Federalists, the most visible being John Marshall, Adams's secretary of state.
Once Jefferson arrived, Ackerman focuses on the maneuvering between the judges and the Republicans. These maneuvers, including the dissolution of courts and denial of judgeships, with the occasional impeachment thrown in, derived not only from raw political contest, but also from a clash of philosophy between the Federalists' adherence to the constitutional settlements of and the Republicans' promotion of a new populism by which they had been elected to office.
As Ackerman tells it, this tussle of ideas between the settled principles of law and the transient obligations of direct democracy, was both tool and product of the power plays of Jefferson, Marshall, and their allies. Such a brief overview does little justice either to Ackerman's ability to tell a good story or to the depth and imagination of his research.
Both accent the narrative, which Ackerman rightly argues should be better known. He offers some fresh insight, raising or reviving interesting questions, such as how far Marshall promoted his own presidential candidacy, whether Jefferson fudged the counting of his own votes, why James Bayard ended a congressional impasse to allow Jefferson's election and his party's loss, and the extent Marbury ushered in a new constitutional balance between the Court and the Congress. Granted, much of this ground has been covered elsewhere.
Recent nice additions by political and legal historians have added to the standard histories both of the era and of these contests. The election is lately chronicled in John Ferling's Adams vs. Yet novelty is not Ackerman's goal. As with all of Ackerman's writing, he makes no bones about a contemporary aim, a live political agenda, in his work. He challenges the hypocrisy of those in modern constitutional arguments who tout the glory of the text of while ignoring its requirements, who argue for the purity of the framing while working in a system that, at least, incorporates two hundred years of compromise and experience that cannot be undone.
As he writes in "Reverberations," in essence his epilogue, "the Constitution is not a miraculous 'machine that would go of itself. This is the Founding inheritance, and we abandon it at our peril" p.
The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy
Ackerman is keen to remind us that, since , the dialogue has persisted between those who look to the text and the structure it represents, and those who look to the people and the legitimacy their plebiscites convey. At times, he sees it as perilously close to collapse owing to the ascendancy of one side of that dialogue over the other.
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It is the tension that keeps the machine going--a tension not foreseen by the founders nor admitted by many of their successors. At this level of abstraction, Ackerman's book is profound and useful. It is a helpful corrective to the screeds of originalists, and it is a thoughtful balance to interpretavists.
In the light of such utility, it seems almost churlish to warn the reader of a few less successful departures, but that is, after all, one function of a review. Ackerman makes a bit more of some of his evidence than some observers might think it will hold. His speculations of anarchy and rebellion had the Federalists "stolen" the election are a bit breathless, as his comparisons of this alternate future with Latin America might suggest. His anguish at Marshall's many offices in the Adams administration is a bit overdone, given that a strict sense of separation of office was then far from the norm.
His questions for Jefferson's counting of the Georgia vote seem more of a curiosity than an indictment, since it seems quite unlikely that Georgia would have voted any other way. To me, the big question is how a law professor could so ignore the influence of the law. To read Ackerman's narrative of Marshall is to read of a skillful politician, indeed a politician so sneaky that his most political moves went undetected by his contemporaries. As seen here, William Marbury's and Hugh Stuart's cases were not really questions of law but vehicles for political maneuver and compromise.
Yet, there is much room for seeing their causes as law cases, plenty of precedent for Marbury's result and a real argument for the Constitution as applied to Stuart's claim according to law. Ackerman all but ignores Marshall's consideration of such questions as the role of a federal common law, the arguments ongoing over reception, and the fundamental questions of the degree to which custom or common law could provide rules of decision in constitutional cases. Various politicians leapt into the power vacuum to define the vague procedures and to offer their own solutions, which would, unsurprisingly, favor their own parties.
While Horatius did not recommend who that officer should be, John Marshall was the senior public official and, presumably, the most likely choice. Where Robert McCloskey presented a political Chief Justice Marshall, Ackerman presents a career politician whose ability to seize the opportunity for his party and his own advancement offers a new appreciation for the meaning of judicial politics.
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Another leading figure in the crisis was Thomas Jefferson who, in his capacity as President of the Senate, officially counted the Electoral College votes. Among the entries was an irregular ballot from Georgia. The ballot should have contained an electoral vote and a separate certificate of ascertainment. Both should have been placed in an envelope, sealed, with a certification on the outside of the envelope certifying that a list of votes was contained.enter site
Jefferson simply opened the envelope, announced the choices, and moved on. There was a possibility that the envelope was intercepted en route and a new list written on the back of the certificate of ascertainment. Jefferson could have called attention to the possibility of fraud, but as Ackerman points out, formalism has the vices of its virtues, and the disqualification of an entire state could have initiated a new crisis. Without clear rules from the founders resolving such a dispute, the matter could have devolved into a clash of legal formalisms.
By making a decision, Jefferson exercised creative statesmanship in a moment when the written rules were not going to come to the rescue. Ackerman reserves his treatment of the election of to consideration of a flawed electoral system. Statesmen acting at the right moment were the key to weathering the first constitutional crisis.
The founders had designed an electoral system without providing guidelines for treatment of defective ballots, the self-interest of the Senate President, the dangers of a lame duck Congress, voting rules for the House runoff election, and the possibility that a President would not be selected by the inaugural date. Statesmanship, not legalism, was the way out. John Adams proved to exercise the statesmanship that avoided a military temptation, with a mob that had descended upon the District of Columbia, by purging his cabinet of two Hamiltonians.
The statesmanship of all of these actors resulted in a victory for Jefferson, and a victory for the constitutional order with a peaceful resolution struck without constitutional or military crisis.
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Once in office, the Republicans aimed for repudiation of the Federalist past, and the plebiscitary president triggered confrontations with the predominantly Federalist judiciary. The Federalists had packed the federal court system before their departure, and the Jeffersonians reacted with the Repeal Act, revoking the offices of judges who had been appointed with life tenure. The Supreme Court threatened to resist by refusing to ride circuit again, and Marshall gave every sign of leading this strike.