Contesting the Constitution: Constitutional Politics, Then and Now

U.S. historians have something of a fraught relationship with the Supreme Court. Many of us are active Court watchers (perhaps some of us more obsessively than others); as decisions are released, we celebrate those we agree with and worry about the effects of those we don't. Yet even when cases have outcomes we like, those opinions often come with a side of bad history.

This is not a new problem. Despite historians' long track record of submitting amicus briefs in cases with historical import, members of the Court have never been particularly concerned about grounding their decisions in accurate historical context or analysis. (As Eric Foner has pointed out, even in the twenty-first century, justices have continued to rely on Dunning-era Reconstruction scholarship in cases involving race.¹) The Court's general lack of interest in academic history has been compounded by the growth of "originalism"—a theory that has evolved in recent years to mean a reliance on the "original public meaning" of the Constitution's text. Both on the Supreme Court and the federal courts more generally, an increasing number of judges subscribes to originalist thinking. Originalism may sound on its face like a call to history, but its proponents have no use for historical methodology; as Jonathan Gienapp has argued, originalists actually challenge the very essence of the historical discipline.² So historians may follow the courts, but the courts do not follow us back.

Perhaps it is no surprise, then, that in the past several decades, historians have been less inclined to write constitutional histories. Scholarship exploring constitutional origins and interpretation—especially by the courts—has found a more comfortable home in political science departments and law schools. While never completely ignoring top-down constitutional development, political and legal historians have instead focused their efforts on bottomup stories of people who typically operated outside the power structures of federal governance. The resulting scholarship has been nothing short of revolutionary. By decentering the role of the federal government, historians have shown how critical local, state, and unofficial legal and political arenas were to American life. Black Americans—both enslaved and free—women, and Indigenous people feature prominently in these studies; these works often demonstrate how those who were marginalized could shift public policy and even constitutional meaning through both activism and everyday engagement with the American legal system.³

In The Partisan Republic, Gerald Leonard and Saul Cornell bring the insights of this bottom-up scholarship to bear on a reemerging field of Early American political and constitutional history. The authors are among a handful of political historians who have recently begun to revisit constitutional history from new perspectives. Partially (and sometimes explicitly) responding to originalism's ahistoricism, these scholars emphasize the contingent and contested nature of the Constitution in the first one hundred years of the nation. Central to these works is just how often Americans worked out matters of constitutional structure, meaning, and development through political practice. Early Americans not only debated and interpreted the articles and amendments, they created what the Constitution was over time.⁴ By combining this new constitutional history with the past several decades of bottom-up political and legal scholarship, The Partisan Republic not only provides a new way of thinking about the Constitution itself but reimagines the relationship between politics, constitutionalism, and especially the courts in the early years of the nation. The result is an important and timely contribution to early American history and a powerful argument that more of us should turn our attention to constitutional history.

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The Partisan Republic argues that the Constitution transformed over the course of the Early Republic from a republican document in the early years of the nation to "a charter of democracy (of a sort)" fifty years later (p. 2). Although the Founders differed in their individual views of constitutional meaning, they collectively promoted a republican vision of...