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A government that works, despite the Founders

The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy
By Bruce Ackerman
Harvard University, 384 pp., $29.95

Have the Founders become so fashionable as to verge on passé? Not yet. Luckily for the publishing houses, there are enough of them for fashions to merely shift a bit. What began with a Ken Burns mini-series and a biography of Thomas Jefferson in 1996 soon transmuted, with the help of some nettlesome DNA, into a passion for Jefferson's sometime critic and rival, John Adams. More recently it has been Benjamin Franklin, Alexander Hamilton, and George Washington topping the pedestals and the bestseller lists.

Bruce Ackerman, who teaches at Yale Law School, might be expected to advocate for either the Jeffersonians or their opponents, the Federalists. Instead he dishes blame all around to make the point that the mistakes of 1787 have shaped our politics. He sees American constitutionalism as a work in progress over two centuries. This liberal jurisprudence opposes the originalism of Antonin Scalia and other conservative jurists who insist that the true meanings of a law or decision are simply the literal ones right there in the text if you read them the right (Right?) way. The historical approach favored by Ackerman stresses continual reinterpretation of constitutional articles, legislation, presidential orders, and judicial decisions. Like the landmark Brown v. Board of Education decision that still inspires its practitioners, it needs a lot of detailed history to back up the argument.

And that's what we get in ''The Failure of the Founding Fathers." Fortunately, Ackerman can tell a story as well as score points against originalists. The story here begins with the ''alarming number of technical mistakes" made by the Constitution's framers, especially as they rushed to complete the articles establishing the presidency, which they imagined would always be subordinate to the Congress. The jerry-rigged Electoral College failed to anticipate the rise of political parties during the 1790s, and the problems that resulted when there were no formal presidential tickets or votes too close for a majority among the candidates. The result was the accidental election of Jefferson as Adams's vice president in 1796 and then the nearly revolutionary election of 1800, in which Jefferson almost lost the presidency he'd won at the polls to Federalist maneuvering.

Half a dozen books have told this story since the 2000 debacle reawakened interest. Where it really gets interesting is in Ackerman's description of Jefferson's restraint in waiting for the wheeling and dealing to stop. He realized that if he forced the issue, the result would be a ''pseudo-presidency" and the loss of his mandate. Once in office, though, Jefferson tried to make good on his mandate by purging as many as possible of the judges and other officers whom Adams appointed in the waning hours of his administration. The heart of the book is a blow-by-blow of the ensuing controversies over the judiciary and appointments.

Enter John Marshall, one of Adams's midnight judges. Conventional wisdom has Marshall issuing a striking blow in favor of judicial review in Marbury v. Madison, the famous case of 1803. Ackerman convincingly argues that there was a lot more going on. Actually, Marbury was a minor case because Mr. Marbury's last-minute commission was merely as a justice of the peace. He wasn't a judge, so he wasn't an issue. In an almost simultaneous ruling, though, with the brilliant Marshall remaining conspicuously silent, the Supreme Court backed off from a confrontation with the president over the elimination of a lower tier of federal circuit courts.

After the Jeffersonian Congress abolished the circuit court, the Supreme Court judges had to ride around large districts on horseback for more than another half-century, a fact that itself sank their prospects as august statesmen of higher law. Ackerman has a good time with the Constitution's failure to give us a workable federal court system.

But he gives Marshall and his colleagues due credit for waiting to fight the battle for judicial power until another day, when Jefferson and his successor were not as politically strong.

Our cherished traditional balance of executive, legislative, and judicial powers is not simply there in the US Constitution, but rather emerged from the hard-fought politics of the early republic. Down to our time, a Constitution of 1787, in which judges can insist on the original meaning of the people's ratifying mandate, battles with a shadow constitution of 1800, in which presidential democracy reigns regardless of past precedent or fundamental law. More than once, the Constitution's silences, when combined with party politics, sent the nation to the brink of extreme solutions, revolution, or civil war, only to be pulled back by statesmanship and luck.

So instead of giving all the credit to the great design of the Founders, Ackerman gives it to politics, to leadership, to luck -- to history. If America did not turn out to be a banana republic rewriting its constitution all the time, that doesn't mean it couldn't have turned out that way. At times this seems like so much lawyerly rhetoric, as when he roguishly denounces the ''misdesign," the ''technical mess," the ''silly" and even ''pathological" qualities of the Electoral College. Discount the jury-swaying rhetoric, and you get thought-provoking history for ''these hagiographic times." Maybe there are founding blunders and heroics enough for everyone, even lawyers.

David Waldstreicher teaches history at Temple University and is the author of ''Runaway America: Benjamin Franklin, Slavery and the American Revolution" (Hill and Wang).

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