Chapter 4 focuses on democracy, specifically the creation of a violent American political process. By the 1840s, the right to vote expanded to include nearly all White men in the United States. The establishment of this racialized and gendered space put the nation at the global forefront of White male political participation. These voters elected militant candidates, used violence to set boundaries around the electorate, and physically intimidated political opponents. They demonstrated the import of Whiteness and violence to democratic development. The chapter covers Tocqueville’s Democracy in America, the election of 1828, the Compromise of 1850, the Fugitive Slave Act, and Bleeding Kansas.

The electoral college’s provisions for contingent elections of the president and vice president blatantly violate political equality, directly disenfranchise hundreds of thousands of Americans, have the potential to grossly misrepresent the wishes of the public, make the president dependent upon Congress, give a very few individuals extraordinary power to select the president, have the potential to select a president and vice president from different parties, and fail to deal with a tie for third in the electoral college. In addition, any resolution of a congressional choice of the president is likely to be tainted with charges of unsavory transactions. It is no wonder that even the most stalwart defenders of the electoral college choose to ignore contingent elections in their justifications of the system of electing the president.

The case of internal improvements at the federal level from 1787 to 1837 suggests that American governance patterns were pragmatic and utilitarian, rather than committed to laissez-faire theory of the small state. Federal power can be used in a variety of ways to create a liberal capitalist state by building transportation and communication infrastructures. While the concessions in America’s constitutional model to small-state Republicans often thwarted the more ambitious plans, it was not laissez-faire theory that prevented the use of federal power for nation-building projects. When government in the first half of the century wanted to promote economic development, “no overriding theory held government back.” The liberal forms of governance that developed in America were not the Lockean minimal state that Louis Hartz famously imagined to be America’s continuous laissez-faire tradition. Rather, the American experience of internal improvements reveals the complicated entanglements of state, law, and capitalism in the nineteenth century and illustrates the continuing problems with neat categories of state and market, public and private, to describe the political economy of capitalism.

Taking up the cases of America and France in the middle third of the nineteenth century, this chapter demonstrates that long-term changes to the organization of a society – demographic growth, territorial expansion, industrialization, etc. – affect the relative costs and benefits of different political strategies. With America’s expansion west and south in the early nineteenth century, millions of new voters, only weakly attached to existing political parties, were available for mobilization. Andrew Jackson took advantage, combining the use of patronage and populism to become the first outsider to win the presidency. In France, political participation remained highly constrained in the wake of the monarchical restorations of the early nineteenth century. When the Orléanist monarchy was overthrown in 1848, Louis Napoleon used his illustrious name to win elections for the new office of president. With Jackson’s administration, a new, more expansive spoils system was introduced. Allegiance to the Democratic and Whig parties was almost total, rendering direct populist mobilization of the masses an unlikely route to power. The populist strategy in America began instead to be aimed at winning the leadership of a mass party.

President Andrew Jackson’s Proclamation of 1832 rejected the South Carolina Ordinance of Nullification and rejected secession as a constitutional right. South Carolina’s legislature passed a Counter-Proclamation that citizens of states owed their chief allegiance to their sovereign state and not the national government and were duty-bound to maintain sovereign states’ rights. Increasingly, Americans failed to find common ground in their understanding of constitutional history. Enforcement of the Constitution’s Fugitive Slave Clause generated important Supreme Court cases such as Prigg v. Pennsylvania (1842) and Ableman v. Booth (1859) as Southern states sought to enforce the Slave Clause through federal legislation such as the Fugitive Slave Act of 1850. Northern states responded by passing personal liberty laws to resist the enforcement of federal laws that would extend the authority of enslavers beyond the South. Southern states considered these personal liberty laws a nullification of federal law and as intended to eradicate slavery. The Kansas–Nebraska Act of 1854 and the election of Abraham Lincoln in 1860 moved the nation beyond interposition towards secession and civil war.

This chapter surveys the legal history of the term the "protection of the laws," from the writings of the early natural rights thinkers, the American Founders, and Blackstone to Andrew Jackson and antebellum state-level court cases. It argues that the concept of the "protection of the laws," including the "equal protection of the laws," was narrower thanmodern-day courts maintain: it was about the remedial and protective services supplied by the government and the laws aiming to protect individuals in the exercise of their rights against private interference and private violence.

Chapter 8 examines presidential remarks concerning Court cases prior to the modern presidency. This chapter enables us to place modern presidents in historical perspective and to illuminate how constitutional and political concerns motivated early presidents to discuss Court decisions. We examine all presidential remarks related to Supreme Court cases from 1789 through 1953 (Washington to Truman). We show that historic presidents rarely discussed the Court’s cases in their public rhetoric, choosing instead to share their opinions about the Court’s cases in their private correspondences. However, Theodore Roosevelt’s tenure marked the end of this norm, which was eviscerated by Franklin Delano Roosevelt, who was in regular conflict with the Court.