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

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.

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.

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.

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 tha

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 t