At Prawfsblawg, Rick Hills (NYU): Is Aaron Burr is one of our Constitution’s Most Important Founding Fathers? The Legitimacy and Ubiquity of Partisan Constitutional Interpretation (commenting on Saul Cornell and Gerry Leonard's The Partisan Republic: Democracy, Exclusion, and the Fall of the Founder's Constitution, especially its relationship to originalism). From the introduction:
With The Partisan Republic: Democracy, Exclusion, and the Fall of the Founder's Constitution, Saul Cornell and Gerry Leonard have produced a tour de force of constitutional history, the central gist of which is that the constitutional founders failed to achieve their vision. According to Saul and Gerry, the founders aspired to create a republican regime in which elites ruled without political parties, governing with the consent, but not under the control, of non-elite voters. By 1832, this genteel model of popular government was swept away by the rise of Andrew Jackson’s and Martin Van Buren’s rival model of partisan democracy. In the partisan republic, nonelite but propertied white men ruled the roost, excluding not only the pretensions of what Federalist framers would call the “natural aristocracy” but also women, Indians, and African-Americans. Aside from advancing an important thesis, the book is an addictively good read that encapsulates an action-packed period, from the 1780s to the Cherokee Nation's forlorn litigation of the early 1830s, in briskly elegant prose.
Although Partisan Republic is essential reading for historically minded constitutional scholars, I imagine that many legal scholars wedded to one or another form of originalism might be confused by the reference to a “Fall of the Founders’ Constitution” in the title. If one concedes that the Constitution contains gaps, then it should be no surprise that the struggle over how to fill those gaps became the occasion for fierce debates. Providing a space for such politics, our originalist might argue, is precisely the point of the original document’s gaps. It does not contradict the “Founders’ Constitution” for lots of partisan debates to occur where the Constitution’s original public meaning does not specify any rule. The elite, mostly Federalist, founders may themselves have fallen from power – but their Constitution, ambiguous as it is, still rules us all where its language is plain.
I think this sums up a likely originalist reaction to the book pretty well (although Professor Hills goes on to argue why it is mistaken, drawing on his important article on constitutional ambiguity). The Constitution doesn't specify everything. What it does not specify is left to the political branches. Often the political branches can act within the letter of the Constitution to produce results not anticipated (and perhaps actively opposed) by its framers. I think many of the developments discussed by Professor Hills in connection with the Cornell and Leonard book fall into this category.
The electoral college is an example. At least some of the framers thought the college would be a deliberative body that selected the President, insulating the selection from the direct democratic process. But Burr and others figured out how to work around that design to direct the electors' votes in advance (giving us an early form of the more democratic system we have now). This innovation might be described as part of the fall of the framers' hopes for the constitutional order (and, certainly, as part of the fall of the Federalist Party). But it shouldn't be described as part of the fall of the framers' Constitution because Burr's approach to the electoral college wasn't contrary to the Constitution's original meaning. The Constitution's text allows a deliberative electoral college but it doesn't require one.
RELATED: As noted earlier, Balkinization has an ongoing symposium on the book.
Posted at 6:35 AM