Dualist Constitutional Theory and the Republican Revolution of 1800
Janssen, John J., Constitutional Commentary
American constitutional development, Bruce Ackerman argues in his recent book, should be understood in terms of three regime-transformative moments: the Constitutional Founding, Reconstruction, and the New Deal.(1) The first moment, Professor Ackerman explains, sheds much light on how to interpret the subsequent moments.(2) Ackerman's book, the first volume of a proposed trilogy on constitutional development, may be, as some reviewers say, one of the most important works on constitutional theory to date.(3) Such praise, however, should be accorded only if the theory comports with historical fact.
This essay begins needed empirical inquiry into Ackerman's theory of constitutional development by assessing it in the context of a particular constitutionally significant historical moment: the rise of the Jeffersonian Republicans in 1800. In his book, Ackerman gives relatively little attention to this moment of constitutional development, which, by conventional historical accounts, resulted in a second American revolution.(4) The post-1800 Republican efforts, Ackerman explains, do constitute successful "constitutional politics," but the Republican regime neither fundamentally replaced the pre-existing principles of government, nor followed critical events of such force as the Civil War or Great Depression, and thus do not constitute a revolutionary or constitutionally significant moment. The 1800 revolution was "less sweeping" than both Reconstruction and the New Deal.(5) The less sweeping nature of the transformation results, Ackerman suggests, from Jefferson's reluctance to "trumpet his role as popular tribune very loudly."(6)
In Part I of this Paper, I first review the two basic postulates of Ackerman's constitutional theory: (1) that periodic moments of regime-transformative politics occur, and (2) that super-majorities, not typical policymaking majorities, demonstrably win these struggles. For purposes of testing these postulates at any historical moment, I then propose a set of criteria. A potentially transformative moment, I maintain, could be identified by any combination of (1) a highly mobilized electorate, (2) fundamentally opposed policy views across society, or (3) judicial decisions with major policy impact. For purposes of determining whether super-majorities win these transformative struggles, the sole criterion is widespread acceptance of the new, transformative, policy.
In Part II, I review Ackerman's interpretation of the 1800 Republican revolution and test it by applying the criteria specified in Part I, beginning with whether the Federalist-Republican conflict constitutes a transformative moment. To determine whether there were fundamental policy conflicts, I examine three controversies: the Alien and Sedition Acts and opposition to the federal government, anti-commercialism and civic virtue, and the federal judicial circuit. To determine whether the electorate was mobilized, I focus on studies of partisan realignment, with due attention to the fledgling nature of party machinery in 1800. An examination of contemporary judicial behavior implicates a review of Marbury v. Madison and other cases in their political context. The application of these first criteria leads me to the conclusion that Jefferson's campaign constitutes a moment of potentially transformative politics.
Part III applies the criterion for determining whether a super-majority wins the struggle. The establishment of a legitimized party system, retrenchment of commercialism, a new naturalization act, and reform of the federal judiciary support the conclusion that transformative policy was implemented successfully. But some transformative policies survived only a short while, and Republicans would ultimately revive selected Federalist programs. The party system endured as a manifestation of legitimate opposition, but the system's creation was meant to be temporary. Major ideological contours of the regime, however, endured until 1828, and the significance that Jeffersonians ascribed to the national election of 1800 for presidential authority would give rise to the Twelfth Amendment in 1804. …