Monday, September 19, 2005

Symposium Fetes and Dissects New Book by Prof. Bruce Ackerman

Sterling Professor Bruce Ackerman's forthcoming book, The Failure of the Founding Fathers, was the center of attention at the first Lillian Goldman Law Library New Book Symposium, on Friday, September 16.

Stephen Skowronek, the Pelatiah Perit Professor of Political and Social Science at Yale, moderated the discussion and started it off by summarizing some of Ackerman's arguments. As Skowronek read Ackerman: The Framers of the Constitution made several mistakes in crafting the presidency, and these mistakes quickly came to threaten the entire American enterprise of constitutional government. The election of 1800 exposed several of these flaws, including the fact that the Constitution originally didn't provide for the separate election of President and Vice President. Ackerman further argues that these mistakes reveal a conceptual deficiency in the Founding--the failure to anticipate the rise of a democratic understanding of the presidency and of a two-party political system. However, the failures were superseded by innovations in the party system and the Supreme Court during the Jefferson presidency.

"Ackerman is trying to reckon with the Constitution's limitations, as well as its merits," said Skowronek. Ackerman presents a view of the founding as an ongoing process, rather than "a moment in Philadelphia."

The first panelist was Robin L. West, a professor of law at Georgetown Law. "There is much here to celebrate," she said and particularly lauded Ackerman's efforts to recover "missing pieces of constitutional narrative."

West described the historical narrative of the The Failure of the Founding Fathers as being akin to a detective story, with cliffhanger chapter endings and a tone of high anxiety over what will happen next in the story. She reeled off a list of questions raised in the book, such as Will the young nation survive? Will constitutional legalism survive? "Bruce reinvigorates these stories with real narrative suspense. He makes clear how the endings could have been different," she said.

Turning to Ackerman's analytical method, West said that Ackerman regularly contrasts conventional wisdom about events with an overlooked historical footnote. He then investigates the footnote and finds that it is not insignificant at all, which leads to a new understanding of the events in questions. For instance, in the book, Ackerman contrasts Marbury v. Madison, the Supreme Court decision widely viewed as establishing the concept of judicial review, with Stuart v. Laird, a case decided by the same court that Ackerman considers to conflict with Marbury. From this contrast, Ackerman argues that political exigency played a role in the establishment of judicial review.

West closed with two questions. Harking back to her description of the book's high-anxiety narrative, with "constitutional order hanging in the balance," she asked, "What is the disaster we keep narrowly avoiding?" Her second question: "What is the moral of all these stories?" West suggested that Ackerman might be urging us to throw out founder worship in favor of an appreciation of the process of constitutional synthesization.

The next speaker, Thomas C. Grey, the Nelson Bowman Sweitzer and Marie B. Sweitzer Professor of Law at Stanford, praised the "fine historical detective work" in the book, particularly noting Ackerman's suggestion that John Marshall may have written an anonymous pamphlet during the election crisis of 1800. Grey added, "The good stories fit into [Ackerman's] approach to the Constitution.... The book is anti-originalist... an attempt to debunk the notion of the founding as a fount of wisdom." For instance, Grey said the book argues that the conception of the presidency changed from a disinterested administrator to a leader with a popular mandate.

Grey also said that the book's focus on a series of discontinuous and political events that changed the meaning of the Constitution was a part of a broader theme in Ackerman's work.

Grey added a few questions and criticisms. First, he questioned the contrast Ackerman drew between Marbury and Stuart, saying he didn't think they were obviously contradictory decisions. Also, Grey noted that the book stops around the year 1815--before many of the Marshall Court's major nationalizing decisions. "Why stop there?" he asked.

Grey closed with a comment that might surprise some of Ackerman's critics. Because the book celebrates how the art of compromise and muddling through have saved constitutional governance in the U.S., Grey argued, "The book is actually... very centrist and very pragmatist."

The final commentator was Steven Calabresi, the George C. Dix Professor of Constitutional Law at Northwestern and a onetime student of Ackerman's. He called The Failure of the Founding Fathers a "stunning book," with a "treasure trove of new information." However, Calabresi added, "Great history doesn't always lead to sound constitutional theory."

Calabresi noted that part of Ackerman's argument hinged on the idea that Jefferson's election in 1800 created a new model of the presidency, the plebiscitary presidency. However, Calabresi pointed out that the Twelfth Amendment, which addressed the problems in the election of 1800, didn't create a plebiscitary electoral process, nor did it create new powers for the president.

Calabresi also challenged Ackerman's assertion that the Jeffersonian, plebiscitary presidency was at odds with the founders' conception of the presidency. He noted that the founders chose to break with the weak executive of the Articles of Confederation. George Washington, who the founders assumed would be the first president, was a leader of a political party and tremendously popular. "Sounds like a plebiscitary president to me," said Calabresi. He also argued that the founders were familiar with the two-party system from English history, and that the Electoral College inevitably led to a system with an in party and an out party. The founders may not have understood this, but "laws and constitutions have unintended consequences all the time," said Calabresi.

What Ackerman characterizes as the failure of the Founding Fathers, according to Calabresi, "was actually a brilliant if at times unintended success."

After listening for over an hour, Ackerman had his opportunity to respond. "I'm an originalist in this sense: I'm redefining what the Founding is," he said. Looking at the Constitution, Ackerman said he saw "the birth of two engines of constitutional meaning, not one." One he identified generally as a vanguardist or revolutionary impulse, the other the impulse to put things back together once the revolution runs out of steam.

Ackerman's book deals in part with how the institutions of the presidency and the Supreme Court came to express and contain these two models. But he also posited that "The Framers only imagined one [model], self-consciously."

Ackerman said that the argument between these two models of constitutional interpretation continues into the present day and presents a "tremendous potential for community" by giving Americans a common topic for disagreement. "The Founding is the source of the living Constitution," he concluded.