The Other Founders: Anti-Federalism and the Dissenting Tradition in America, 1788-1828. (Book Reviews).

The Other Founders: Anti-Federalism and the Dissenting Tradition in America, 1788-1828. By Saul Cornell. (Chapel Hill and London: Published for the Omohundro Institute of Early American History and Culture by the University of North Carolina Press, c. 1999. Pp. xviii, 327. Paper, $19.95, ISBN 0-8078-4786-0; cloth, $55.00, ISBN 0-8078-2503-4.)

The most misleading feature of Saul Cornell's book is its subtitle. What Cornell has revealed and explored is by no means the "Dissenting Tradition in America." It is true that most Anti-Federalists became central actors in a "loyal opposition" that eventually became the Jeffersonian Republican party. Many Anti-Federalists surely thought of themselves as creating a constitutional dissenters' stance, in opposition to a dominant Federalist political hegemony. And later southern localists and nullification advocates (as well as others throughout American history who have understood themselves to be at war with a dominant "liberal" political tradition) may have made connections to some of the themes that Anti-Federalists first set out polemically. But what is most novel and important in Cornell's book is what it shows about the Anti-Federalist contribution to the mainstream of American political thought and practice, not what it shows about Anti-Federalism as a source for opposition to American liberalism. I think Cornell knows this: in his epilogue he argues for a reconception of the "mainstream" as an "open-ended conversation about the nature of American politics and constitutionalism" (p. 303). Yet my reading of his book leads me to want to push him farther, towards a concession that what he is actually describing (what should have been his subtitle) is something along the lines of "the Anti-Federalist contribution to American liberalism."

From my standpoint as a legal and constitutional historian, the core insight of the book is rooted in Cornell's exploration of how "middling" Anti-Federalists in particular articulated and developed an expressive nationalized conception of a public sphere filled with newspapers, pamphlets, broadsides, and speeches, while maintaining their commitment to a domain of law and regulation (the police power) located in the states. As Cornell writes, "[o]ne of the most interesting but least appreciated aspects of Anti-Federalist thought" was "its effort to grapple with the problem of the public sphere" (p. 306). For middling Anti-Federalists, sovereignty, such as it was, would remain in the states, but public opinion and public debate would all become distinctive attributes of the American nation. They imagined a form of robust politics defined by a free press and free speech that would extend across the whole of America. And they were, as a result, quick to challenge efforts to mobilize traditional legal roles of libel, sedition, and prior restraint. Cornell draws on the theoretical writings of Jurgen Habermas in elaborating this insight, but his understanding is founded on hard empirical work, on his careful and convincing reading of language and arguments first made in the late 1780s and then adopted quietly but forcefully by Madison and others, notably during the struggle over the Alien and Sedition Acts.

What Cornell never quite concludes--but is nonetheless implicit in his narrative--is that this conception of a vibrant public sphere located within a federal constitutional order profoundly modified by the Anti-Federalist critique won the day around 1800 and soon became something close to the hegemonic understanding of liberty within American political culture. That triumph lasted at least until the Civil War (in part, of course, because Federalists like Madison adopted this conception and made it their own). After the Civil War, the U.S. Supreme Court refashioned much of that understanding in decisions like the Slaughter-House Cases (1873). And even today, aspects of that conception live on in our continuing understanding of the "primacy" of the First Amendment and in our more diffuse and contested but still regnant understanding that political civil rights and civil liberties are the special obligations of a national government, while ordinary legal life is lived in the states. In this way The Other Founders sheds an ironic light on the demands of modern conservatives for an "originalist" reading of the Constitution.

My triumphalist reading of Cornell's middling Anti-Federalism may not be widely shared among historians. Many specialists will conclude that Cornell's own core contribution is his comprehensive survey of the varieties of Anti-Federalist writing, marked by his schematic division of Anti-Federalists into "elite," "middling," and "plebeian." The work he has done in completing that survey and in tracking the appearances and reappearances of Anti-Federalist arguments over the early national period is extraordinary and exhausting. All historians of the early republic are in his debt, and they will henceforth turn to The Other Founders as the essential starting point for work on the specific ideas of those who opposed the federal Constitution.

Viewed in that light, though, Cornell's presentation has the defects of its virtues. In sustaining his commitment to a comprehensive survey, he has imposed a schematic structure that is irritating and difficult. He has also produced a work that is fully comprehensible only for readers who are already conversant with the main events and controversies of the early republic. Still, this is a transformative work of constitutional history, a work that situates Anti-Federalism both in terms of what came before and what came after. Cornell allows us to see how the common law constitutionalism of the American revolutionaries became the rigid originalism of the Jeffersonian Republicans. And he sketches a dramatically new understanding of the significance of public debate within our constitutional narrative of origins, an understanding that scholars will debate for the next generation and more.