The emergence of a vacancy on the U.S. Supreme Court just a few weeks before the general election, and the hasty efforts to fill that seat with Judge Amy Coney Barrett, has made constitutional interpretation a live political issue once again. Opinion pieces and pundits are arguing back and forth over the legitimacy of “originalism,” a constitutional doctrine that seeks to understand the Constitution in line with the original “public” meaning of the constitutional text.
This is far from the first-time constitutional questions have become mixed up in a presidential election. Nonetheless, with its focus on originalism, tensions around racial justice, an uncertain electoral outcome, and a divided nation, this election has echoes of the 1836 presidential election.
The 1836 presidential election was an unusual one. Coming after the decline of the earlier Federalist versus Jeffersonian-Republican party system, and just as the Democrat versus Whig party system was starting to take shape, the 1836 election saw five different candidates secure the Electoral College votes of at least one State. Martin Van Buren, the Democratic candidate won the election in the end with the backing of 15 States. But candidates associated with the Whig opposition divided the remaining States between them. William H. Harrison won seven States in the North and then-Midwest and Daniel Webster won in Massachusetts. In the southern States, Hugh L. White won in Tennessee and Georgia, while South Carolina gave its Electoral College votes to Willie P. Mangum.
The election was so complicated in part because the Whig’s adopted a strategy of running different tickets in different regions of the country. The Whigs hoped to gain enough support to stop Van Buren winning an outright majority and so throw the decision over the election’s outcome to the House of Representatives. Hugh L. White, an advocate of States’ Rights was seen as stronger in the South than Harrison. White’s advocacy of “States’ Rights” in 1836 signaled that he was a reliable defender of the institution of slavery. White was a stronger candidate in the South than Harrison because Harrison’s identity as a northerner encouraged the perception that he was unreliable on the issue of slavery.
As a result, Van Buren ended up fighting different opponents in the North and in the South – and so needed to adopt political positions that were effective in two different regional campaigns.
Defending slavery was a significant issue in the mid-1830s, especially in the South. The abolitionist movement had taken on greater prominence with petition campaigns aimed at Congress and the distribution of abolitionist literature through the mail. Defenders of slavery clamored for action against these abolitionist efforts, but the proposed actions – censoring the mail and refusing to discuss petitions – were of sufficiently dubious constitutionality that the measures pushed some politicians towards defending abolitionists. One flashpoint in these debates was the question of what, if anything, Congress should do about slavery in Washington, D.C. Abolitionists argued that Congress should use its constitutional authority to abolish slavery in Washington. But defenders of slavery believed that abolition there would be the first step to a wider abolition. Democrats, including Van Buren, feared that the issue would divide the country – and, more immediately, risked dividing the Democratic coalition they were attempting to forge into a sustainable political party.
Van Buren and similarly concerned Democrats wanted to address the issue of slavery in the District of Columbia, but in a way that both reassured southerners that they would not abolish slavery there and signaled to northerners that they were not willing to sacrifice the Constitution to defend slavery. The solution they came to was to argue that the original spirit of the founding was against abolition in Washington. That is to say, regardless of what the constitutional text could be read to say about slavery there, the constitutional action was to allow the practice of slavery to continue in the District of Columbia. Turning back to a supposed original “public” meaning of the constitutional document offered a way out of the different pressures Van Buren faced.
That perhaps indicates something about the gap between 1836 and today. While both elections were marked by a divided nation and tensions over racial injustice, in 1836 political elites saw interpreting the Constitution in the light of its original historical context as a way to paper over the differences between the various elements of a white, male electorate – albeit at the expense of Black liberation. The search for the original meaning of the Constitution was then motivated by political calculation – as a means to give constitutional legitimacy to the policies needed for party unity. Today, the fiercely polarized reactions to attempts to confirm Judge Barrett suggest that originalism has little capacity to sooth tensions or paper over divisions. But at the same time, one would be hard pressed to see the current confirmation hearings as motivated by something other than political interest. And that offers scant comfort as we head toward fraught presidential election that may require the intervention of an increasingly politicized the Supreme Court.