The Failure of the Founding Fathers Jefferson, Marshall, and the Rise of Preside

by Bruce Ackerman

The ink was barely dry on the Constitution when it was almost destroyed by the rise of political parties in the United States. As Bruce Ackerman shows, the Framers had not anticipated the two-party system, and when Republicans battled Federalists for the presidency in 1800, the rules laid down by the Constitution exacerbated the crisis. With Republican militias preparing to march on Washington, the House of Representatives deadlocked between Thomas Jefferson and Aaron Burr. Based on seven years of archival research, the book describes previously unknown aspects of the electoral college crisis. Ackerman shows how Thomas Jefferson counted his Federalist rivals out of the House runoff, and how the Federalists threatened to place John Marshall in the presidential chair. Nevertheless, the Constitution managed to survive through acts of statesmanship and luck. Despite the intentions of the Framers, the presidency had become a plebiscitarian office. Thomas Jefferson gained office as the People's choice and acted vigorously to fulfill his popular mandate. This transformation of the presidency serves as the basis for a new look at Marbury v. Madison, the case that first asserted the Supreme Court's power of judicial review. Ackerman shows that Marbury is best seen in combination with another case, Stuart v. Laird, as part of a retreat by the Court in the face of the plebiscitarian presidency. This "switch in time" proved crucial to the Court's survival, allowing it to integrate Federalist and Republican themes into the living Constitution of the early republic. Ackerman presents a revised understanding of the early days of two great institutions that continue to have a major impact on American the plebiscitarian presidency and a Supreme Court that struggles to put the presidency's claims of a popular mandate into constitutional perspective.

Genres: History, Politics, American History, Nonfiction, Law, American Revolution

Hardcover

First published October 28, 2005

Reviews

[Bruce · Rating 5 out of 5]

As one delves deeper into portions of American history what we were taught in El-Hi and college intro courses is revealed as, to be gentle, not the whole truth. In this work Prof. Ackerman discusses the issue of electoral processes designed by the 'founding fathers'. In the first instance, until 1933 there was a long lame duck session during which damage could be done making the incoming President's job that much harder and hardening the out-going administrations policies against possible change. The election of 1800 saw the presidential election thrown into the House of Representatives because of flaws in the electoral college process. This was combined with the stacking of the judicial system by the Federalists during their lame duck session. While Marbury v. Madison is now considered the case that established judicial review, the author argues it should be combined with Stuart v. Laird and not necessarily viewed as the basis for judicial review. In fact, Chief Justice Marshall should have recused himself from the case of Marbury v. Madison because he was the one that caused Marbury's problem and thus had a vested interest in the case. I found the work enlightening and further substantiated the idea that original intent can not be established with any real certainty. Especially if one takes into consideration the contexts during which the various documents and cases were developed.

[Riq Hoelle · Rating 5 out of 5]

Of all the many books I have read about the founders, this is my current favorite because of the way it tells stories -- including images of actual historical documents -- and analyzes what happened. If only there were more books like this one.

This book has so many great features
- includes the actions and writings of so many of the interesting founders: Adams, Jefferson, Burr, Hamilton Monroe, Marshall and Bayard
- delves into the psychology of the situation (the 1800 election and following)
- explains the reasoning behind the mysteries of why some did the things they did -- for example, why did Burr do nothing to advance his cause with House Federalists in the tied election?
- discusses in some depth the alternate historical paths that could have been taken
- has a good and believable thesis about how this was the moment when the understanding of the US government changed from legalistic to plebiscatory
- reveals meetings and writings, such as the post-election meeting between Jefferson and Adams and the provocative anonymous writings of Marshall that are just not discussed elsewhere

Even one of these things would cause me to give a book five stars, but here there are, count 'em, six!

[Kerry Price · Rating 3 out of 5]

A well written history book, but suffers from Ackerman's somewhat myopic constitutional theory. He places too much emphasis on the accidental nature of the United State's development, assuming that the Founding Fathers could have structured a better founding document. He stretches this to the point of arguing that the country has more or less held itself together via good statesmanship and a whole lot of luck. - and sees on the horizon a constitutional crisis that may shake the nation irreparably. He may have a point there, but the story is broader and longer than this book makes it out to be.

[Solomon Bloch · Rating 5 out of 5]

In a way provided comfort, surprisingly. to read his conclusion that executive pushing the constitution leads to partial Supreme Court capitulation lead to losing some senate support leads to a new constitutional equilibrium. I would expect Professor Ackerman agrees that it doesn’t feel so good to live through.

[Steven · Rating 5 out of 5]

This book is a trip. If even vaguely interested in constitutional law, you must read it. Twice.

[Leon Olivier, Jr · Rating 4 out of 5]

A good history of the judicial and executive struggles within the early republic and how the concept of judicial review was tempered by other rulings relegating the court to the supporting the elected representatives of the government. The changing role of the presidency is also discussed.

[Kyle · Rating 4 out of 5]

An excellent and at times exciting account of the controversies surrounding the 1800 presidential election and Adams' subsequent judicial appointments. Ackerman's overall thesis that this incident represented a critical failure on the part of the Framers is not as strong, but the story is excellent and excellently researched.

[Phillip · Rating 5 out of 5]

A most excellent study of the circumstances surrounding the election of 1800 and its profound subsequent consequences on American government. The are many parallels between the 1800 election and that of 2000- and many of the same issues remain unsettled.

[Paul · Rating 4 out of 5]

In-depth history for the election of 1800 and the Jefferson Presidency from the point of view of Constitutional law.

[Craig Bolton]

"The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy by Bruce Ackerman (2007)"

[Blair Hodges · Rating 3 out of 5]

An interesting look at some of the unforeseen problems the authors of the US Constitution didn't account for.