Party as a "political safeguard of federalism": Martin Van Buren and the constitutional theory of party politics

Rutgers Law Review

Volumn 54, Issue 1, 2001, Pages 221-281

  Leonard, Gerald ^a  

^a BOSTON UNIVERSITY   (United States)

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EID: 0141636257     PISSN: 00360465     EISSN: None     Source Type: Journal    
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References (352)

1. Not entirely inconsequential, of course. It did, for example, save the country from a nationwide, precinct-by-precinct recount in the fall of 2000.
2. See Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543, 552-58 (1954).
3. A much more complete account of the emergence of the mass political party than is possible in this article will appear in GERALD LEONARD, THE INVENTION OF PARTY POLITICS: FEDERALISM, POPULAR SOVEREIGNTY AND CONSTITUTIONAL DEVELOPMENT IN JACKSONIAN ILLINOIS (forthcoming from University of North Carolina Press, Studies in Legal History).
4. See also DONALD B. COLE, MARTIN VAN BUREN AND THE AMERICAN POLITICAL SYSTEM 280-81 (1984) (explaining that Van Buren did more than anyone else to create a new political system in which two parties emerged with substantially different stances on the issues).
5. The Twelfth Amendment reduced the number of candidates who could go into the House to three. U. S. CONST. amend. XII.
6. JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 266 (1996).
7. Cf. Douglas W. Jaenicke, The Jacksonian Integration of Parties into the Constitutional System, 101 POL. SCI. Q. 85, 86 (1986) (explaining the acceptance of political parties "as Constitutional establishments necessary for the proper working of the constitution").
8. Here, I am preceded in some ways by, among others, BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991)
9. Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, 94 COLUM. L. REV. 457 (1994) [hereinafter Amar, Consent].
10. See, e.g., Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215, 234 (2000) [hereinafter Kramer, Putting the Politics Back] (explaining that the Founders believed judicial review and the political process would work together to achieve a balance "between federal and state powers");
11. Larry D. Kramer, We the Court, 115 HARV. L. REV. 4 (2001) [Kramer, We the Court].
12. See, e.g., Printz v. United States, 521 U.S. 898 (1997); New York v. United States, 505 U.S. 144 (1992).
13. 469 U.S. 528 (1985).
14. Id. at 546-54 (rejecting "a rule of state immunity from federal regulation that turns on judicial appraisal of whether a particular governmental function is 'integral' or 'traditional'").
15. Id. at 552 ("State sovereign interests, then, are more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power.").
16. See, e.g., LOUIS FISHER & NEAL DEVINS, POLITICAL DYNAMICS OF CONSTITUTIONAL LAW (1992);
17. HAROLD M. HYMAN & WILLIAM M. WIECEK, EQUAL JUSTICE UNDER LAW: CONSTITUTIONAL DEVELOPMENT, 1835-1875 115-146, 203 (1982) [hereinafter HYMAN & WIECEK, EQUAL JUSTICE];
18. WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE 27-34 (1988) (discussing antebellum federalism);
19. R. Kent Newmyer, JoHn Marshall and the Southern Constitutional Tradition in AN UNCERTAIN TRADITION: CONSTITUTIONALISM AND THE HISTORY OF THE SOUTH 105, 116 (Kermit L. Hall and James W. Ely Jr. eds., 1989);
20. KEITH E. WHITTINGTON, CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING (1999) [hereinafter WHITTINGTON, CONSTITUTIONAL CONSTRUCTION];
21. Neal Devins, How Constitutional Law Casebooks Perpetuate the Myth of Judicial Supremacy, 3 GREEN BAG 2D 259 (2000);
22. Mark A. Graber, Federalist or Friends of Adams: The Marshall Court and Party Politics, 12 STUD. IN AM. POL. DEV. 229 (1998);
23. Mark R. Killenbeck, Pursuing the Great Experiment: Reserved Powers in a Post-Ratification, Compound Republic, 1999 S. CT. REV. 81 (1999);
24. Kramer, Putting the Politics Back, supra note 8;
25. Bruce G. Peabody, Coordinate Construction, Constitutional Thickness, and Remembering the Lyre of Orpheus, 2 U. PA. J. CONST. L. 662, 663 n.4 (2000) (citing further sources);
26. Harry N. Scheiber, Federalism and the American Economic Order 1789-1910, 10 LAW & SOC'Y REV. 57, 72-86 (1975).
27. See generally RICHARD HOFSTADTER, THE IDEA OF A PARTY SYSTEM: THE RISE OF LEGITIMATE OPPOSITION IN THE UNITED STATES, 1780-1840 (1969) [hereinafter HOFSTADTER, IDEA OF A PARTY SYSTEM].
28. JAMES WILLARD HURST, THE GROWTH OF AMERICAN LAW: THE LAW MAKERS 56-62 (1950) (explaining that parties provided legislative direction and control over legislative machinery).
29. STEPHEN SKOWRONEK, BUILDING A NEW AMERICAN STATE: THE EXPANSION OF NATIONAL ADMINISTRATIVE CAPACITIES, 1877-1920 at 24-31 (1982).
30. Cf. Kramer, Putting the Politics Back, supra note 8;
31. Larry Kramer, Understanding Federalism, 47 VAND. L. REV. 1485 (1994); Wechsler, supra note 2.
32. HOFSTADTER, IDEA OF A PARTY SYSTEM, supra note 14, at 49-73.
33. 17 U.S. 316 (1819).
34. See, e.g., RICHARD L. MCCORMICK, THE PARTY PERIOD AND PUBLIC POLICY: AMERICAN POLITICS FROM THE AGE OF JACKSON TO THE PROGRESSIVE ERA (1986).
35. See HOFSTADTER, IDEA OF A PARTY SYSTEM, supra note 14, at 159-60;
36. Michael L. Wallace, Changing Concepts of Party in the United States: New York, 1815-1828, 74 AM. HIST. REV. 453 (1968) [hereinafter Wallace, Changing Concepts];
37. Michael L. Wallace, Ideologies of Party in the Ante-Bellum Republic (1973) (unpublished Ph.D. dissertation, Columbia University) (on file with author) [hereinafter Wallace, Ideologies]. These examinations of the origins of mass party politics explain the ideology that Van Buren and the Albany Regency developed in the 1820s as an effort to make sense of the new democratic politics of interest groups, not as a tool for bringing the Constitution under the control of "the democracy."
38. See, e.g., HOFSTADTER, IDEA OF A PARTY SYSTEM, supra note 14, at 252.
39. See HOFSTADTER, IDEA OF A PARTY SYSTEM, supra note 14, at 188-208, 253 (describing the strength of antipartyism into the 1820's).
40. The persistence of antipartyism even beyond the 1820s is suggested by a series of works by Ronald P. Formisano. RONALD P. FORMISANO, THE BIRTH OF MASS POLITICAL PARTIES: MICHIGAN 1827-1861 (1971);
41. Ronald P. Formisano, Federalists and Republicans: Parties, Yes - System, No, in THE EVOLUTION OF AMERICAN ELECTORAL SYSTEMS (Paul Kleppner ed. 1981) [hereinafter Formisano, Federalists];
42. RONALD P. FORMISANO, THE TRANSFORMATION OF POLITICAL CULTURE: MASSACHUSETTS PARTIES 1790s-1840s (1983) [hereinafter FORMISANO, TRANSFORMATION];
43. Ronald P. Formisano, Deferential-Participant Politics: The Early Republic's Political Culture 1789-1840, 68 AM. POL. SCI. REV. 473 (1974);
44. Ronald P. Formisano, Political Character, Antipartyism and the Second Party System, 21 AM. Q. 683 (Winter, 1969).
45. See, e.g., JEAN H. BAKER, AFFAIRS OF PARTY: THE POLITICAL CULTURE OF NORTHERN DEMOCRATS IN THE MID-NINETEENTH CENTURY 108-140 (1983);
46. JAMES W. CEASER, PRESIDENTIAL SELECTION: THEORY AND DEVELOPMENT 131-32 (1979);
47. Major Wilson, Republicanism and the Idea of Party in the Jacksonian Period, 8 J. OF THE EARLY REPUBLIC (1988).
48. This is the argument of the first half of MARK A. KISHLANSKY, PARLIAMENTARY SELECTION: SOCIAL AND POLITICAL CHOICE IN EARLY MODERN ENGLAND 3, 3-101 (1986).
49. HOFSTADTER, IDEA OF A PARTY SYSTEM, supra, note 14, at 12.
50. J. C. D. CLARK, ENGLISH SOCIETY 1688-1832 passim (1985) [hereinafter CLARK, ENGLISH SOCIETY].
51. See, e.g., id. at 201-16 (analyzing the theoretical defenses for early modern England's political structure); J. A. W. GUNN, FACTIONS NO MORE: ATTITUDES TO PARTY IN GOVERNMENT AND OPPOSITION IN EIGHTEENTH-CENTURY ENGLAND 11, 11-16 (1972);
52. HARVEY C. MANSFIELD, JR., STATESMANSHIP AND PARTY GOVERNMENT: A STUDY OF BURKE AND BOLINGBROKE (1965);
53. FRANK O'GORMAN, VOTERS, PATRONS AND PARTIES: THE UNREFORMED ELECTORAL SYSTEM OF HANOVERIAN ENGLAND 1734-1832 (1989);
54. J. H. PLUMB, THE ORIGINS OF POLITICAL STABILITY: ENGLAND 1675-1725 (1967);
55. J.C.D. Clark, A General Theory of Party, Opposition and Government 1688-1832, 23 HIST. J. 295 (1980);
56. J.A.W. Gunn, Influence, Parties and the Constitution: Changing Attitudes 1783-1832, 17 HIST. J. 301 (1974);
57. B.W. Hill, Executive Monarchy and the Challenge of the Parties, 1689-1832: Two Concepts of Government and Two Historiographical Interpretations, 13 HIST. J. 379 (1970).
58. ISAAC KRAMNICK, BOLINGBROKE AND HIS CIRCLE: THE POLITICS OF NOSTALGIA IN THE AGE OF WALPOLE 39, 39-83, 127-136 (1968).
59. Id. at 111-27.
60. Id. at 39-83.
61. Bolingbroke saw the estates as the operative units of politics and thus put them roughly in the place that parties would occupy, but he does not seem to have referred to them explicitly as parties. His allies and admirers, however, occasionally did use that label for them while rejecting the legitimacy of party within an estate. See GUNN, supra note 28, at 12-15. Hofstadter traces this identification of "party" with a socio-political "estate" back through Machiavelli to Aristotle as well. HOFSTADTER, IDEA OF A PARTY SYSTEM, supra note 14, at 51-52 & n.11.
62. KRAMNICK, supra note 29, at 137-46.
63. BERNARD BAILYN, THE ORIGINS OF AMERICAN POLITICS 14-23, 36-38 (1970);
64. HOFSTADTER, IDEA OF A PARTY SYSTEM, supra note 14, at 16-23.
65. See RICHARD L. BUSHMAN, KING AND PEOPLE IN PROVINCIAL MASSACHUSETTS 176-229 (1985);
66. JERRILYN GREENE MARSTON, KING AND CONGRESS: THE TRANSFER OF POLITICAL LEGITIMACY 1774-1776 (1987);
67. William D. Liddle, "A Patriot King or Noe": Lord Bolingbroke and the American Renunciation of George III, 65 J. OF AM. HIS. 95 (1979).
68. HOFSTADTER, THE IDEA OF A PARTY SYSTEM, supra note 14, at 40.
69. Among historians the idea is so well known that it is not worth citing particular writers. The same might be said of legal scholars, but one seminal article is Cass R. Sunstein, Interest Groups in American Public Law, 38 STAN. L. REV. 29 (1985).
70. HOFSTADTER, THE IDEA OF A PARTY SYSTEM, supra note 14, at 40.
71. GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787 at 430-67 (1969) ; RAKOVE, supra note 5, at 30-31 ;
72. HOFSTADTER, IDEA OF A PARTY SYSTEM, supra, note 14, at 40;
73. STEPHEN E. PATTERSON, POLITICAL PARTIES IN REVOLUTIONARY MASSACHUSETTS 220-226 (1973);
74. George Dargo, Parties and the Transformation of the Constitutional Idea in Revolutionary Pennsylvania , in PARTY AND POLITICAL OPPOSITION IN REVOLUTIONARY AMERICA 98, 99-100 (Patricia U. Bonomi ed., 1980).
75. See generally JACKSON TURNER MAIN, POLITICAL PARTIES BEFORE THE CONSTITUTION (1973).
76. RAKOVE, supra note 5, at 30.
77. HOFSTADTER, IDEA OF A PARTY SYSTEM, supra note 14, at 53.
78. RAKOVE, supra note 5, at 214-227; see also JENNIFER NEDELSKY, PRIVATE PROPERTY AND THE LIMITS OF AMERICAN CONSTITUTIONALISM: THE MADISONIAN FRAMEWORK AND IT LEGACY 49-52 (1990).
79. RAKOVE, supra note 5, at 46-56.
80. THE FEDERALIST NO. 10 (James Madison).
81. See Larry D. Kramer, Madison's Audience, 112 HARVARD LAW REVIEW 611, 612-15 (1999).
82. Kramer, however, sees this elevation of Federalist 10 as misguided, since, he argues that, in fact, the influence of that document was essentially nil in its own time. Assuming that Kramer is right about the still-born quality of Madison's argument regarding the optimum size of an antiparty republic, however, Federalist 10 remains an appropriate emblem of a kind of moderately elitist, republican antipartyism that constituted a central strain of constitutional thought at the Founding. See generally HOFSTADTER, IDEA OF A PARTY SYSTEM, supra note 14.
83. THE FEDERALIST NO. 10 (James Madison).
84. See Sunstein, supra note 37 at 38-45.
85. THE FEDERALIST NO. 10 (James Madison).
86. Id.; NEDELSKY, supra note 43, at 46-66.
87. NEDELSKY, supra note 43, at 52-55.
88. Id. at 55-57.
89. Id. at 57-61. As Nedelsky notes, Madison had little faith in judicial review as a practical obstacle to congressional action, preferring instead a Council of Revision, but he certainly accepted it as better than nothing. Id.
90. WOOD, supra note 39, at 471-518.
91. Id. at 503-518; HOFSTADTER, IDEA OF A PARTY SYSTEM, supra note 14, at 40-73.
92. WOOD, supra note 39, at 496.
93. GERALD STOURZH, ALEXANDER HAMILTON AND THE IDEA OF REPUBLICAN GOVERNMENT 39 (1970).
94. WOOD, supra note 39, at 496.
95. Id.
96. Quoted in HOFSTADTER, IDEA OF A PARTY SYSTEM, supra note 14, at 17 (citation omitted).
97. STOURZH, supra note 57, at 82-85; WOOD, supra note 39, at 551.
98. STOURZH, supra note 57, at 112..
99. Id. at 113 ("[L]ocal interests of a state ought in every case to give way to the interests of the Union."). (citation omitted).
100. LANCE BANNING, THE JEFFERSONIAN PERSUASION: EVOLUTION OF A PARTY IDEOLOGY 137 (1978).
101. Id. at 141.
102. BANNING, supra note 64, at 129, 135-140, 208-270; STOURZH, supra note 57, at 76-125.
103. HOFSTADTER, IDEA OF A PARTY SYSTEM, supra note 14, at 127.
104. See id. at 123-28; Louise Burnham Dunbar, A Study of Monarchical Tendencies in the United States from 1776 to 1801 in UNIVERSITY OF ILLINOIS STUDIES IN THE SOCIAL SCIENCES 10, No. 1 (1922); BANNING, supra, note 64, at 110-113, 119-120, 265-266.
105. RALPH KETCHAM, PRESIDENTS ABOVE PARTY: THE FIRST AMERICAN PRESIDENCY 1789-1829 at 100-113 (1984);
106. HOFSTADTER, IDEA OF A PARTY SYSTEM, supra note 14, at 123-128;
107. Jeffrey L. Pasley, 'A Journeyman, Either in Law or in Politics': John Beckley and the Social Origins of Political Campaigning, 16 JOURNAL OF THE EARLY REPUBLIC 531 (1996).
108. HOFSTADER, IDEA OF A PARTY SYSTEM, supra note 14, at 122-28.
109. BANNING, supra note 64, at 194-200; HERBERT J. STORING, WHAT THE ANTI-FEDERALISTS WERE FOR 48-63 (Murray Dry ed., 1981).
110. Quoted in BANNING, supra note 64, at 194-95.
111. A version of this argument can be found in JAMES L. HUSTON, SECURING THE FRUITS OF LABOR: THE AMERICAN CONCEPT OF WEALTH DISTRIBUTION, 1765-1900 at 29-58 (1998).
112. Aristocracy is there identified as the possession of governmentally protected special privileges that reflect and perpetuate an inequality of political power. Id. at 33; see also 1 JOHN ASHWORTH, SLAVERY, CAPITALISM, AND POLITICS IN THE ANTEBELLUM REPUBLIC 23-24 (1995).
113. On the use of "aristocrat" and "democrat", see R. R. Palmer, Notes on the Use of the Word 'Democracy' 1789-1799, 68 POL. SCI. Q. 203, 205-06 (1953).
114. HOFSTADTER, supra note 14, at 122-28; PETER S. ONUF, JEFFERSON'S EMPIRE: THE LANGUAGE OF AMERICAN NATIONHOOD 85-88 (2000).
115. See Formisano, Federalists, supra note 23(discussing the essentially antiparty character of the so-called "First Party System").
116. WOOD, supra note 39, at 354-63.
117. FORREST MCDONALD, STATES' RIGHTS AND THE UNION: IMPERIUM IN IMPERIO 1776-1876 at 15-16 (2000).
118. RAKOVE, supra note 5, at 51-53, 62, 81-82.
119. SAUL CORNELL, THE OTHER FOUNDERS: ANTI-FEDERALISM AND THE DISSENTING TRADITION IN AMERICA 1788-1828 at 19-120 (1999).
120. WOOD, supra note 39, at 536-43; CORNELL, supra note 80, at 162-66.
121. WOOD, supra note 39, at 543.
122. ONUF, supra note 75, at 75.
123. Quoted in id. at 120. (citation omitted).
124. Id. at 8-10, 64-79, 120-21.
125. RAKOVE, supra note 5, at 142-44; CORNELL, supra note 80, at 58; WOOD, supra note 39, at 537-42.
126. WOOD, supra note 39, at 538-43.
127. See generally AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION (1998).
128. CORNELL, supra note 80, at 172-75, 187-94; MCDONALD, supra note 78, at 28-33.
129. 2 U.S. 419 (1793).
130. MCDONALD, supra note 78, at 35.
131. U.S. CONST. amend XI.
132. MCDONALD, supra note 78, at 34-36. See generally CLYDE E. JACOBS, THE ELEVENTH AMENDMENT AND SOVEREIGN IMMUNITY (1972);
133. WILLIAM R. CASTO, THE SUPREME COURT IN THE EARLY REPUBLIC: THE CHIEF JUSTICESHIPS OF JOHN JAY AND OLIVER ELLSWORTH 184-212 (1995);
134. William A. Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35 STAN. L. REV. 1033 (1983).
135. MCDONALD, supra note 78, at 40-43; CORNELL, supra note 80, at 240-42, 230-45.
136. ONUF, supra note 75, at 93-98.
137. MCDONALD, supra note 78, at 44-46.
138. Id. at 58-59.
139. See ANDREW C. LENNER, THE FEDERAL PRINCIPLE IN AMERICAN POLITICS 1790-1833, at 45-112 (2001). Lenner argues that the Jeffersonians insisted on strict construction of the constitutional enumeration but that they were happy to acknowledge broad federal power within areas clearly committed to the federal government, such as international relations. Id.
140. Marbury v. Madison, 5 U.S. 137 (1803).
141. RICHARD E. ELLIS, THE JEFFERSONIAN CRISIS: COURTS AND POLITICS IN THE YOUNG REPUBLIC 36-107 (1971);
142. ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT 26-53 (1960).
143. Note that the Court's arguably nationalist decision in Fletcher v. Peck, 5 U.S. (6 Cranch 87) (1810) was actually a politically safe decision, since it was clear that a large part of the Republican party would endorse the substantive outcome of the case. See C. PETER MAGRATH, YAZOO: LAW AND POLITICS IN THE NEW REPUBLIC (1966).
144. MCDONALD, supra note 78, at 71-76; see also BANNING, supra note 64, at 279-280 & n.19 (discussing Madison's support of the national bank).
145. MCDONALD, supra note 78, at 91.
146. Id. at 92-93.
147. 17 U.S. 316 (1819).
148. Id. at 435; MCDONALD, supra note 78, at 81.
149. CORNELL, supra note 80, at 278-288.
150. 14 U.S. 304 (1816).
151. Id. at 339.
152. R. Kent Newmyer, John Marshall, McCulloch v. Maryland, and the Southern States' Rights Tradition, 33 J. MARSHALL L. REV. 875, 903 (2000).
153. U.S. CONST. art. III.
154. F. THORNTON MILLER, JURIES AND JUDGES VERSUS THE LAW: VIRGINA'S PROVINCIAL LEGAL PERSPECTIVE 1783-1828 at 74-86 (1994).
155. See, e.g., id. at 83.
156. See HOFSTADTER, IDEA OF A PARTY SYSTEM, supra note 14, at 150-169.
157. See Formisano, Federalists, supra note 23, at 70-83; FORMISANO, TRANSFORMATION, supra note 23, at 9.
158. For Van Buren's boundless worship of Jefferson, see MARTIN VAN BUREN, INQUIRY INTO THE ORIGIN AND COURSE OF POLITICAL PARTIES IN THE UNITED STATES, 424 (1867) (demonstrating Van Buren's boundless worship of Jefferson) [hereinafter VAN BUREN, INQUIRY];
159. 1 MARTIN VAN BUREN, THE AUTOBIOGRAPHY OF MARTIN VAN BUREN 188 (John C. Fitzpatrick, ed. 1973) [hereinafter VAN BUREN, AUTOBIOGRAPHY];
160. see also HOFSTADTER, IDEA OF A PARTY SYSTEM, supra note 14, at 241-242 (discussing other Jeffersonians).
161. VAN BUREN, AUTOBIOGRAPHY, supra, at 303.
162. See KETCHAM, supra note 69, at 121.
163. See Harvey C. Mansfield, Jr., Thomas Jefferson, in AMERICAN POLITICAL THOUGHT: THE PHILOSOPHIC DIMENSION OF AMERICAN STATESMANSHIP 44-49 (Morton J. Frisch & Richard G. Stevens eds., 1971) (discussing this aspect of Jefferson's views).
164. CEASER, supra note 24, at 131-132.
165. COLE, supra note 3, at 431; HOFSTADTER, IDEA OF A PARTY SYSTEM, supra note 14, at 212-71; KETCHAM, supra note 69, at 141-50;
166. JOHN NIVEN, MARTIN VAN BUREN: THE ROMANTIC AGE OF AMERICAN POLITICS (1983);
167. ROBERT V. REMINI, MARTIN VAN BUREN AND THE MAKING OF THE DEMOCRATIC PARTY 197-198 (1951) [hereinafter REMINI, VAN BUREN]; Wallace, Ideologies, supra note 21;
168. Wallace, Changing Concepts, supra note 21, at 462-65. There are modifications of the standard view. See Wilson, supra note 24, at 419-20; CEASER, supra note 24, at 51-68; BAKER, supra note 24, at 108-40.
169. Martin Van Buren, Thoughts on the Approaching Election in New York, Papers of Martin Van Buren, Library of Congress [hereinafter Van Buren, Thoughts].
170. See, e.g., WILLIAM R. BROCK, PARTIES AND POLITICAL CONSCIENCE: AMERICAN DILEMMAS 1840-1850 at 4-5 (1979).
171. Van Buren, Thoughts, supra note 121, at 33.
172. Id. at 34-39.
173. HOFSTADTER, IDEA OF A PARTY SYSTEM, supra note 14, at 188-200, 226-231; REMINI, VAN BUREN, supra note 120, at 29-68; KETCHAM, supra note 69, at 124-130.
174. Noble E. Cunningham, Jr., The Jeffersonian Republican Party, in 1 HISTORY OF U.S. POLITICAL PARTIES 239, 250-54 (Arthur M. Schlesinger, Jr. ed., 1973).
175. REMINI, VAN BUREN, supra note 120, at 48.
176. Id.
177. Id. at 43-84.
178. According to Van Buren, all three of the other candidates that year, Andrew Jackson, William Crawford, and Henry Clay, who later turned out to be a constitutional aristocrat, were then generally acknowledged to be old republicans. Jackson won a national plurality in the election, and together the three "democratic" candidates polled a large majority for, as Van Buren saw it, democracy. See id. at 83-84.
179. Van Buren, Thoughts, supra note 121, at 34-39.
180. JAMES S. CHASE, EMERGENCE OF THE PRESIDENTIAL NOMINATING CONVENTION 1789-1832 at 110-11 (1973);
181. HOFSTADTER, IDEA OF A PARTY SYSTEM, supra note 14, at 195.
182. CHASE, supra note 132, at 110-11.
183. REMINI, VAN BUREN, supra note 120, at 130 (quoting Van Buren).
184. See RICHARD B. LATNER, THE PRESIDENCY OF ANDREW JACKSON: WHITE HOUSE POLITICS 1829-1837 at 126-29 (1979) (discussing Jackson's gradual conversion to partyism).
185. See generally REMINI, MARTIN VAN BUREN, supra note 120, at 186-98; ROBERT V. REMINI, THE ELECTION OF ANDREW JACKSON 51-120 (1963) [hereinafter REMINI, ELECTION].
186. REMINI, MARTIN VAN BUREN, supra note 120, at 196-98.
187. VAN BUREN, INQUIRY, supra note 115. Van Buren wrote INQUIRY INTO THE ORIGIN AND COURSE OF POLITICAL PARTIES IN THE UNITED STATES and his autobiography, THE AUTOBIOGRAPHY OF MARTIN VAN BUREN, in his retirement in the 1850s.
188. Id.
189. VAN BUREN, INQUIRY, supra note 115, at 11-12.
190. Id. at 24.
191. Id. at 24-25.
192. Id. at 27-28.
193. Id. at 33.
194. Id. at 34.
195. Id. at 35.
196. Id. at 38.
197. Id. at 39.
198. Id. at 50-56.
199. Id. at 56.
200. Id. at 261-62.
201. Id. at 201.
202. Id. at 271.
203. Id. at 161.
204. Id. at 180.
205. Id. at 160-66.
206. Id. at 140.
207. Id. at 141-42.
208. Id. at 166.
209. Id. at 212; see also id. at 223-26.
210. Id. at 223-24; see also id. at 413-22.
211. See generally id. at 247-58 (discussing the ideologies of Hamilton and Adams).
212. Id. at 246-47.
213. Id. at 259.
214. Id. at 263.
215. See id. at 263-65.
216. Id. at 268.
217. See id. at 260-272.
218. Id.
219. Id.
220. This aspect is developed at much greater length in LEONARD, supra note 3, passim.
221. See, e.g., THE FEDERALIST No. 78 (Alexander Hamilton).
222. Max M. Mintz, The Political Ideas of Martin Van Buren, 30 NEW YORK HISTORY 422, 443 (1949).
223. See, e.g., DONALD J. RATCLIFFE, PARTY SPIRIT IN A FRONTIER REPUBLIC: DEMOCRATIC POLITICS IN OHIO 1793-1821 at 125-27 (1998) (discussing the centrality of the convention system to early party organization in Ohio).
224. HOFSTADTER, IDEA OF A PARTY SYSTEM, supra note 14, at 243-45 (recognizing the authority of "party conclaves" over party leaders and the centrality of strict party loyalty);
225. GLEN C. ALTSCHULER & STUART M. BLUMIN, RUDE REPUBLIC 20 (2000);
226. FORMISANO, TRANSFORMATION, supra note 23, at 245-46, 258-60; ""RATCLIFFE, supra note 175, at 125-27, 132-35, 196, 213-14, 242-43;
227. JOEL H. SILBEY, THE AMERICAN POLITICAL NATION 1838-1893 at 59-69 (1991);
228. Wallace, Changing Concepts, supra note 21, at 468 n.50.
229. See HOFSTADTER, IDEA OF A PARTY SYSTEM, supra note 14, at 244-245; Silbey, supra note 192, at 65-69.
230. Wallace, Changing Concepts, supra note 21.
231. See, e.g., VAN BUREN, AUTOBIOGRAPHY, supra note 115, at 123-24.
232. It is entertaining to observe here that Van Buren himself, of course, bolted the Democratic presidential nominee in 1848, running for president himself on the Free Soil ticket. Without trying to evaluate the integrity of Van Buren's conduct that year, it should be understood that his rationale was that Democratic party procedures had been so perverted as to justify his candidacy not as a real run for the presidency but as a measure for disciplining his party and insisting on adherence to genuinely democratic procedure. See, e.g., Mintz, supra note 174 , at 443-444.
233. STOURZH, supra note 57, at 111; HOFSTADTER, IDEA OF A PARTY SYSTEM, supra note 14, at 22.
234. See Wilson, supra note 24, at 432-36.
235. VAN BUREN, INQUIRY, supra note 115, at 271.
236. Id. at 5.
237. Id. Van Buren acknowledged that there had been one exception to this pattern, presumably his own defeat in 1840, but insisted that that isolated instance was "susceptible of easy explanation." Id. at 5. He did not go on to offer the easy explanation in full, but he had in mind the terrible depression the country faced during his administration, produced by the banks he thought, but plausibly blamed on him. Id. at 228-29. The people then went on to vindicate him and his party by their "sober second-thought" in the 1844 election of James K. Polk. See id. at 231.
238. Id. at 226.
239. Id. at 3.
240. Id.
241. Id.
242. Id. at 4.
243. VAN BUREN, AUTOBIOGRAPHY, supra note 115, at 234.
244. Id. at 303.
245. Id.
246. Id.
247. VAN BUREN, INQUIRY, supra note 115, at 229.
248. VAN BUREN, AUTOBIOGRAPHY, supra note 115, at 193-95.
249. Id. at 195.
250. When Monroe won the presidency nearly by acclamation in 1816, Jackson wrote the new president, urging him to disregard political affiliations when making appointments so as to put down the "monster" that was party, a position that Van Buren, of course could not endorse. Id. at 234.
251. REMINI, ELECTION, supra note 137, at 55.
252. VAN BUREN, AUTOBIOGRAPHY, supra note 115, at 198.
253. On the constitutional theory of "coordinacy," including some of its early history, see Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 GEORGETOWN L. J. 217, 221-23 (1994).
254. Less directly on point here, but quite incisive in its characterization of the constitutional responsibilities of the different branches, is James B. Thayer's great essay, The Origin and Scope of the American Doctrine of Constitutional Law, 7 HARVARD L. REV. 129, 153-56 (1893).
255. Revising Thayer in important respects is Kramer, We The Court, supra note 8. Kramer convincingly argues that the judicial role in constitutional review was originally intended and expected to be quite small in light of the active role the people as a whole had taken and were expected to take in constitutional enforcement. Id. Van Buren would, of course, have agreed.
256. VAN BUREN, INQUIRY, supra note 115, at 277-78.
257. Id. at 383.
258. 17 U.S. 316 (1819).
259. 14 U.S. 304, 381-82 (1816).
260. VAN BUREN, AUTOBIOGRAPHY, supra note 115, at 184-185.
261. VAN BUREN, INQUIRY, supra note 115, at 293.
262. Id. at 295.
263. Id. at 301.
264. Id. at 297.
265. 17 U.S. 122 (1819). Van Buren's reference to this case is only implicit but, I think, clear enough.
266. Id. at 197-203.
267. VAN BUREN, INQUIRY, supra note 115, at 294. It should be noted that Sturges came up through the federal courts, but that does not undermine Van Buren's point that the states' powers to use their own courts to resist federal supervision of state law was formally eliminated by Martin's subjection of the state courts to federal appellate authority. Van Buren could as easily have used McCulloch, of course, which did come to the Supreme Court from state court and which resulted in the invalidation of state law.
268. RAKOVE, supra note 5, at 51-53, 81-82. Van Buren ignored Madison's leading role in that episode, preferring to pin it on Hamilton. See VAN BUREN, INQUIRY, supra note 115, at 294.
269. VAN BUREN, INQUIRY, supra note 115, at 294. Van Buren acknowledged that in 1789 Congress could constitutionally have consolidated the state and federal judicial powers although only on questions of federal law - and only as long as the states had consented. See id. That is, while the Constitution explicitly contemplated the possibility of inferior federal courts, it did not rule out the alternative that the role of inferior federal judiciary might be played by the state courts. In that case, the formal, institutional merger of the state systems and the constitutionally required Supreme Court would have rendered the latter the appropriate appellate body on questions within the constitutional categories of federal judicial power. Id. at 296-97.
270. Id. at 285-92.
271. Id. at 311-16 (describing President Jackson's veto of the bill to incorporate the national bank as an example of independent branches' independent construction of the Constitution). Id. at 328-52 (claiming that constitutional questions of limits of power should be determined by the vote of the people, not by one branch of government exercising power over the others).
272. Id. at 312-13.
273. Id. at 330 (quoting Hugh Lawson White). Cf. Amar, Consent, supra note 7, at 458-59 (arguing "that We the People of the United States - more specifically, a majority of voters - retain an unenumerated, constitutional right to alter our Governement and revise our Constitution in a way not explicitly set out in Article V").
274. See, e.g., VAN BUREN, INQUIRY, supra note 115, at 346-48.
275. Id. at 348-49; see also Van Buren, Thoughts, supra note 121.
276. VAN BUREN, INQUIRY, supra note 115, at 352.
277. For a more general account of the emergence of the doctrine of judicial supremacy against a constitutional tradition of active popular supremacy in constitutional interpretation, see Kramer, We The Court, supra note 8.
278. REMINI, MARTIN VAN BUREN, supra note 120, at 123.
279. Id. at 228.
280. See id. at 260-61.
281. Id. at 261.
282. See id. at 261.
283. MICHAEL F. HOLT, THE RISE AND FALL OF THE AMERICAN WHIG PARTY 15-16 (1999).
284. McCulloch v. Maryland, 17 U.S. 316, 400-01 (1819) (suggesting that the Supreme Court has special charge of the Constitution). Id. at 406-21 (arguing that Congress has implied powers). See also G. EDWARD WHITE, THE MARSHALL COURT AND CULTURAL CHANGE 1815-1835 at 546-47, 544-50 (1988).
285. HOLT, supra note 228, at 16.
286. HYMAN & WIECEK, EQUAL JUSTICE, supra note 13, at 59-60.
287. 17 U.S. at 400-401.
288. Andrew Jackson, Veto Message to the Senate (July 10, 1832), in 2 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 1789-1897 at 582 (James D. Richardson ed., 1896).
289. Id. at 586.
290. Id. at 586-89.
291. See, e.g., ROBERT V. REMINI, DANIEL WEBSTER: THE MAN AND HIS TIME 366-72 (1997) (describing Webster's attack and Jackson's victory).
292. See, e.g., JEAN E. FRIEDMAN, THE REVOLT OF THE CONSERVATIVE DEMOCRATS: AN ESSAY ON AMERICAN POLITICAL CULTURE AND POLITICAL DEVELOPMENT 1837-1844 at 1-23 (1979) (discussing the steady drain of antiparty Jacksonians from the party after the early 1830s).
293. Thomas Brown, From Old Hickory to Sly Fox: The Routinization of Charisma in the Early Democratic Party, 11 JOURNAL OF THE EARLY REPUBLIC 339, 342 (1991).
294. WILLIAM W. FREEHLING, THE ROAD TO DISUNION: SECESSIONISTS AT BAY 1776-1854 at 277 (1990).
295. See id.
296. Id. at 277-286.
297. See, e.g., HOLT, supra note 228, at 20-23.
298. RICHARD E. ELLIS, THE UNION AT RISK: JACKSONIAN DEMOCRACY, STATE'S RIGHTS, AND THE NULLIFICATION CRISIS 178-99 (1987).
299. See id. at 170-77.
300. VAN BUREN, AUTOBIOGRAPHY, supra note 115, at 549-53.
301. Van Buren, Resolves of the Legislature of New York 1833, in STATE PAPERS ON NULLIFICATION 136 (De Capo Press 1970) (1834).
302. Id. at 138-46.
303. Id. at 149-51.
304. VAN BUREN, AUTOBIOGRAPHY, supra note 115, at 198; see also REMINI, VAN BUREN, supra note 120, at 102.
305. COLE, supra note 3, at 261-62.
306. STATEMENT BY THE DEMOCRATIC REPUBLICANS OF THE UNITED STATES (July 31, 1835), reprinted in 1 HISTORY OF AMERICAN PRESIDENTIAL ELECTIONS 1789-1968 at 616-38 (Arthur M. Schlesinger, Jr. ed., 1971) [hereinafter STATEMENT BY THE DEMOCRATIC REPUBLICANS].
307. Id. at 618-19 (emphasis in original).
308. Id. at 617.
309. Id. at 617.
310. Id.
311. Id. at 620.
312. I do not mean to imply that the adoption of these provisions was unproblematic, only that their virtues were thought to include the usual virtues of federal representation, centrally the delivery of crucial decisions into the hands of representatives of national vision. Although some, including Madison, preferred election by the people rather than permitting the president to become dependent on Congress, the prevailing principle at the convention remained government by elitist "filtration," not direct democracy. See RAKOVE, supra note 5, at 89-90, 214-27, 259-60, 264-68; NEDELSKY, supra note 43, at 58.
313. The beginning of this quotation is in STATEMENT BY THE DEMOCRATIC REPUBLICANS, supra note 251, at 620-621. The balance is omitted in that version but can be found in the Washington Globe, August 6, 1835.
314. STATEMENT BY THE DEMOCRATIC REPUBLICANS, supra note 251, at 621.
315. Id. at 621-22.
316. Id. at 634.
317. See Richard P. McCormick, Was There a "Whig Strategy' in 1836?, 4 JOURNAL OF THE EARLY REPUBLIC 47, 47-48 (1984); HOLT, supra note 228, at 38-45.
318. HOLT, supra note 228, at 45. Holt calls Van Buren's 51% majority narrow, but even apart from the fact that his electoral college majority was much wider, this popular vote was achieved against a collection of regional candidates, each of whom had great regional advantages over him. Id. Van Buren's clear, if narrow, majority of the popular vote, then, represented a remarkable achievement and a substantial vindication of his theory.
319. Martin Van Buren, Inaugural Address (Mar. 4, 1837), in INAUGURAL ADDRESSES OF THE PRESIDENTS OF THE UNITED STATES OF AMERICA FROM GEORGE WASHINGTON 1789 TO LYNDON BAINES JOHNSON 1965 at 61-62 (1965).
320. Id. at 63.
321. Id. at 67.
322. Martin Van Buren, Fourth Annual Message (Dec. 5, 1840), in THE STATE OF THE UNION MESSAGES OF THE PRESIDENTS 1790-1966 at 543, 546-47 (Fred L. Israel ed., 1967) [hereinafter Van Buren, Fourth Annual Message]; VAN BUREN, INQUIRY, supra note 115, at 349.
323. Van Buren, Fourth Annual Message, supra note 267, at 548.
324. Id. at 549-56.
325. Id.
326. BROCK, supra note 122, at 82.
327. Id. at 91-98. The chief, unexpected event was the death of the new president, William Henry Harrison, after only a month in office. He was succeeded by the "old republican" vice president, John Tyler, who vetoed the two bank bills of the Whig congressional majority. Id. at 95.
328. VAN BUREN, AUTOBIOGRAPHY, supra note 115, at 8.
329. VAN BUREN, AUTOBIOGRAPHY, supra note 115, at 8, 226-27, 393-94; VAN BUREN, INQUIRY, supra note 115, at 349.
330. HOLT, supra note 228, at 173-74, 195.
331. See, e.g., EDMUND S. MORGAN, INVENTING THE PEOPLE: THE RISE OF POPULAR SOVEREIGNTY IN ENGLAND AND AMERICA 280-83 (1988).
332. VAN BUREN, INQUIRY, supra note 115, at 348-49;
333. Van Buren, Thoughts, supra note 121.
334. For Van Buren's view that the slavery controversy was distorting the proper constitutional structure of American politics, see, e.g., VAN BUREN, INQUIRY, supra note 115, at 223, 369-76; Mintz, supra note 174, at 443-44;
335. Douglas Jaenicke, American Ideas of Political Party as Theories of Politics: Competing Theories of Liberty and Community (1981) (unpublished Ph.D. dissertation, Cornell University); NIVEN, supra note 120, at 604-07.
336. Dred Scott v. Sandford, 60 U.S. 393 (1857); VAN BUREN, INQUIRY, supra note 115, at 356.
337. VAN BUREN, INQUIRY, supra note 115, at 356-58.
338. Id. at 353.
339. VAN BUREN, AUTOBIOGRAPHY, supra note 115, at 184-85, 219;
340. VAN BUREN, INQUIRY, supra note 115, at 363-66. Of course, Taney himself had begun public life as a Federalist, and Van Buren did not overlook that fact as part of the explanation for Taney's actions. Id. at 362-363.
341. VAN BUREN, INQUIRY, supra note 115, at 358-66.
342. Id. at 374. See also Keith E. Whittington, The Road Not Taken: Dred Scott, Judicial Authority, and Political Questions, 63 J. OF POL. 365, 365-66 (2001) (arguing that Justice Curtis, in dissent, had a view of constitutional decision-making much like the one I attribute to Van Buren). Whittington, too, sees Dred Scott as a kind of revival of McCulloch. Id.
343. VAN BUREN, INQUIRY, supra note 115, at 366-376.
344. DAVID CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE FIRST ONE HUNDRED YEARS 271 (1985).
345. See, e.g., WILLIAM W. WIECEK, THE LOST WORLD OF CLASSICAL LEGAL THOUGHT 124-25 (1998).
346. For chastened, pragmatic revisions of the supposed supremacy of the Court, see, e.g., Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J. OF PUB. L. 279, 279-95 (1957).
347. Barry Friedman, Dialogue and Judicial Review, 91 MICH. L. REV. 577, 653-80 (1993);
348. Michael J. Klarman, Rethinking the Civil Rights and Civil Liberties Revolutions, 82 VA. L. REV. 1, 31-67 (1996).
349. For studies of the ways in which the Constitution gets interpreted and constructed in electoral and legislative politics, see, e.g., WHITTINGTON, CONSTITUTIONAL CONSTRUCTION, supra note 13, at 1-19.
350. Whittington argues that much of the development of "constitutional meaning" in America has gone unobserved because it happens outside the courts in the course of apparently normal policy debates. Id. at 1-2. Such debate can truly be constitutional insofar as it successfully establishes "authoritative norms of political behavior" and thus "constrain[s] future political debate." Id. at 6, 8. Among the many constitutional issues that are often dealt with by "political" rather than judicial actors are the "structures of political participation," which certainly include the place of political parties in American governance. Id. at 9. Whittington concludes that the "meaning of the Constitution is . . . a very real prize of political struggle," as Van Buren and all of the politicians of his generation would certainly have affirmed. Id. at 18. Of course, Bruce Ackerman too has famously argued firmed. Id. at 18. Of course, Bruce Ackerman too has famously argued that the Constitution's meaning has been developed in most fundamental ways in the course of party politics. See ACKERMAN, supra note 7. But Ackerman, unlike Whittington, largely but not entirely confines this constitutional politics to rare constitutional moments. See ACKERMAN, supra note 7, at 196; see also WHITTINGTON, CONSTITUTIONAL CONSTRUCTION, supra note 13, at 217 & n.8.
351. With respect to federalism in particular, Larry Kramer argues that, historically, American courts have almost never enforced constitutional federalism (states' rights) as a legal principle but have left its vindication to the political process. See Larry Kramer, But When Exactly Was Judicially-Enforced Federalism 'Born' in the First Place?, 22 HARVARD J. OF L. AND PUB. POLICY 123, 130-34 (1998) [hereinafter Kramer, But When Exactly];
352. Kramer, Putting the Politics Back, supra note 8, at 287-93. Effective defense of that constitutional principle was, of course, exactly the function that the partyists expected democratic party organization to serve, in the face of "aristocratic" efforts to consolidate power in the federal government. Kramer, But When Exactly, supra, at 130-34. More generally on the importance of party politics to constitutional development, see the sources cited in supra note 15.