Book Review – The Constitution Before the Judgment Seat: The Prehistory and Ratification of the American Constitution, 1787-1791

The Constitution Before the Judgment Seat: The Prehistory and Ratification of the American Constitution, 1787-1791, by Jürgen Heideking. Edited by John P. Kaminski and Richard Leffler. University of Virginia Press, 2012. Hardcover, 552 pages, $45.  

Originally published in 1988 as Die Verfassung vor dem Richterstuhl: Vorgeschichte und Ratifizierung der Amerikanischen Verfassung, 1787-1791.

Constitutional analysis often starts with asking what the founders thought. We are familiar with the Federalist Papers and the letters of well-known figures. Jürgen Heideking drew the title for this volume from such a letter. George Washington wrote to Henry Knox:  “The Constitution is now before the judgment seat.—It has, as was expected, its adversaries, and its supporters, which will preponderate is yet to be decided.” The Constitution Before the Judgment Seat seeks to capture the debate Washington acknowledges as the country moved from the Articles of Confederation to the Constitution and the Bill of Rights.  The outcome:  a meaty account of the ratification process from “political, intellectual, and cultural” perspectives, presenting a dynamic that stretches beyond the familiar source material. 

The University of Wisconsin’s Merrill Johnson had spearheaded the collection of primary documents resulting in Documentary History of the Ratification of the Constitution, a project taken over by the current editors, and Heideking was encouraged to examine these documents. Heideking’s analysis benefits from the breadth and depth of this source material, with citations spanning some 80 pages. He discusses not only a wide range of print media—primarily newspapers and pamphlets—but also private correspondence (like the letter from George Washington) to weave a multilayered synthesis of the competing ideas about government, the ways various circles carried out internal discussions and exerted influence over the debate, and the successes and failures of these ideas and methods in the public square. In exploring these layers, Heideking’s analysis draws together many motifs—the booming newspaper business, differing economic interests of rural and urban populations, and the developing rituals of patriotic celebration. In short, it is a very dense read.

Chapters help to channel the argument by focusing on one aspect of the ratification movement at a time, such as “Public Discourses and Private Correspondence” or “State Ratifying Conventions.” This format allows Heideking to thoroughly examine each distinct layer, but it hinders a full exploration of how these layers might interrelate. At just over 10 pages, the final chapter can but hint at Heideking’s thoughts on the overarching theory at work.

Ultimately, Heideking revels in how, despite the underlying complexities and adversarial environment, this country adopted a new governing document and generated a new political process in a peaceable manner. One of the concluding sentences sums up this view: “Far from being an obstacle to change, contrast, contradiction, and conflict proved a catalyst for intellectual achievement and were indispensable to the success of the movement.”

The astute reader will note a lengthy gap between the German edition and this one—24 years. Reviewers of the German text called for a condensed English version. Heideking himself undertook the translation, which was later refined, but he did so only after making “substantial deletions.” This authorial editing and translation process was cut short by Heideking’s death in a car accident in 2000. As the preface explains, the “manuscript lay dormant for several years,” and the publishing house changed hands, but the work of the editors, the German Historical Institute, and the University of Virginia Press completed what Heideking began. 

What did Heideking remove from the over 1,000-page original edition? The editors report that shortening and simplifying footnotes saved space; for example, more documents have been added to the Documentary History of the Ratification of the Constitution, whose abbreviated form dominates the notes. The original also apparently contained a number of images, while the English edition has none. I regret I am not fluent enough in German to offer a more complete account of the differences.

Even so, I can recommend this volume highly, especially for academic law libraries. Professor Christof Mauch, eulogizing his fellow German historian in 2000, called the original work “magisterial.”  The abbreviated English version remains a compelling account of a crucial period in American history, whose products, the Constitution and the Bill of Rights, remain subject to the complexities of which Heideking was so admiring.

 Susan Azyndar is a reference librarian at Ohio State University’s Moritz Law Library in Columbus.