8

Constitutional and Legal History in the 1980s: Reflections on American Constitutionalism

As communist governments in the late twentieth century become subject to disintegration under the aspiration for human freedom, we are reminded once again of the practical importance of constitutionalism.¹ Fortunately the American people have enjoyed the benefits of constitutionalism from the beginning of their historical existence.² Even in our Revolution, because of the persistence of community self-government under the rule of law, we avoided regression into pre-political revolutionary violence.³ Accordingly, whereas other nations have struggled to achieve constitutional government, maintaining the Constitution has been a principal purpose of American politics.

Americans require knowledge and understanding of the Constitution to carry on their political life. To a significant extent this knowledge and understanding are historical. It would be reassuring to think that our long if not yet ancient experience in constitutionalism, commemorated in the recent bicentennial, provides guidance for dealing with problems in contemporary political life and a safeguard against the erosion of essential constitutional principles.⁴ In fact, however, our constitutional history has become so contested that it may not provide the usable past that our constitutionalism requires.

The relevance of history to our constitutional system is widely attested. It appears to have become more pertinent in light of recent controversy over original-intent jurisprudence. Explaining the "rediscovery" of constitutional history, Harry N. Scheiber states that political and ideological confrontation in the 1970s and 1980s stimulated constitutional and legal studies. The debate over original intent gave an additional sharp edge to public sensitivity on matters relating to constitutional law and history.⁵ Political scientist Stanley C. Brubaker points out that a proper understanding of the role of the courts requires historical inquiry into the emergence of judicial review.⁶ Legal scholar Robert N. Clinton observes that the original-intent debate has created a political schism over the value of constitutional history in constitutional interpretation.⁷ And historian Michael Kammen, asserting that the American people have failed to understand the Constitution, more broadly attributes this result in part to the failure of constitutional historians to perform their proper educational function.⁸ In view of renewed recognition of the significance of history in American constitutionalism, it is pertinent to examine recent tendencies in constitutional and legal history. The present inquiry will focus first on how scholars conceive of the nature and purpose of constitutional and legal history. Discussions of this question necessarily transcend the issue of historical method to consider the substantive question of the nature of the Constitution and American constitutionalism in general. In order further to pursue this issue we shall consider recent writings on the three most important events in American constitutional history: the founding of the republic and the framing and ratification of the Constitution; the amendment of the Constitution during the Civil War and Reconstruction; and the transformation of judicial review as an aspect of New Deal and post-New Deal governance. Our survey indicates deep scholarly division on whether continuity or discontinuity characterizes American constitutional development; on the effect of the Constitution and constitutionalism on American politics and society; and on the extent to which constitutional government may truly be said to exist in the United States.

I

Constitutional and legal historians in the 1980s believe that history has practical and normative significance for American society. In holding this view they share the outlook of historians, philosophers, and statesmen of earlier ages who regarded history as having a morally didactic purpose. Within the tradition of modern scholarship a similar conception of history guided the writings of historians who took as their purpose to explain how human liberty had advanced, and to teach that reason and liberty were essential to human progress.⁹ In the field of constitutional history this approach guided the efforts of scholars in the late nineteenth and early twentieth century who sought to show the intrinsic value and positive benefits of the Constitution.¹⁰

Since the 1960s, according to a study published by the American Historical Association, historians have generally rejected the values of nationalism, liberalism, and intellectual detachment that traditionally underlay historical scholarship. National self-criticism and subjective ideological engagement have become far more widely accepted as professional norms.¹¹ Constitutional and legal historians in the 1980s reflect these tendencies. Many of them follow a tradition of reform scholarship that since the early twentieth century has criticized constitutionalism as an expedient strategy for defending the status quo. Repudiating the theory of declaratory, text-based, formalist legal decision making, reform-minded scholars have sought to assimilate law and history to the social sciences.¹²

In a widely noted article that anticipated the concerns of liberal scholarship in the 1980s, Paul L. Murphy in 1963 called for a revival of constitutional history. Ostensibly exhorting historians to reclaim the field from ahistorical political scientists and lawyers, Murphy projected an agenda for constitutional history in the service of liberal reform. Dismissing major works of previous constitutional scholarship as "'revealed' history" that used "philosophic-metaphysical analysis" to underwrite the virtue of established institutions, he argued that history should be used to promote change. The judicial function, Murphy claimed, was naturally directed toward historical analysis, and the willingness of the Supreme Court to assume a policy-making role further implicated history in the task of reform. Moreover the advent of positive government since the New Deal signified a break from the past that required historical reassessment of the Constitution. Murphy envisioned for constitutional history "a new role as an auxiliary tool for the jurist, not for 'the consecration of an already established order of things.' but for a new order seeking a new level of equal rights and social justice through law." "If the Court is intent upon building new and dramatic legal structures to meet the requirements of a dynamic society," he concluded, "the historian can at least furnish it with complementary modern architectural materials...."¹³

While Murphy expressed the resurgent spirit of liberal scholarship, the major influence on liberal historians' understanding of the nature of the legal and constitutional order were the writings of James Willard Hurst. Beginning his career under the influence of legal realism in the 1930s, Hurst took for granted the reformist purpose of modern social science. Accordingly he dedicated himself to reorienting legal historical study toward a social and instrumental conception of law, in contrast to the idealist conception that characterized traditional constitutional and legal history.

At a descriptive level Hurst was intent on going beyond formal doctrines to discover the realities of the legal process. The basic reality he discerned was law as a social institution. Law was an instrument of individual, interest-group, or community purpose to be defined in terms of social functions, rather than a self-contained body of concepts, principles, and procedures consisting of timeless essences and values. The legal system also contained a constitutional ideal, which Hurst defined as the belief that all power should be accountable and should serve life outside public and private power structures according to standards of utility and justice. The constitutional ideal in the broadest sense meant using law to enlarge the meaningful content of life against formless experience. Although Hurst was able to maintain a constructive balance between the instrumental and constitutional aspects of the legal order, the problem in his work as a whole is that it explores the former dimension so thoroughly and with such a sense of intellectual excitement as to reduce the constitutional component to insignificance.¹⁴ Although conceding that "Constitutionalism must be reckoned with in a realistically comprehensive legal history," Hurst taught mainly that "A realistic history of law in the United States will be a social history of law...."¹⁵

Hurst's followers in the Wisconsin school of legal history adopted a severely instrumental view of law, virtually excluding constitutional considerations. Lawrence M. Friedman, perhaps the leading disciple, wrote in his History of American Law: "This is a social history of American law.... [It] treats American law, then, not as a kingdom unto itself, not as a set of rules and concepts ..., but as a mirror of society. It takes nothing as historical accident, nothing as autonomous, everything as relative and molded by economy and society."¹⁶ Basing his work on "the theory ... that law moves with its times and is eternally new," Friedman said "real economic interests" and "concrete political groups" determined the meaning of law. He acknowledged that "Constitutionalism answered to a deep-seated need among members of the articulate public, for formal, outward signs of political legitimacy." Yet he dismissed constitutional arguments as "masks" concealing interests and demands, and doubted that a constitution was essentially different from ordinary law. The function of a constitution in enumerating essential rules, rights, and limitations on government "has no natural boundaries," Friedman asserted, because "opinions differ from generation to generation on what rights and duties are most fundamental." Rejecting any idealist or normative element in law, Friedman's instrumentalism ultimately dissolved the boundaries between law and society.¹⁷ "As long as the country endures," he wrote, "so will its system of law, coextensive with society.... A full history of American law would be nothing more or less than a full history of American life."¹⁸

Conceived as a work of social science, Friedman's study rejected the traditional concept of the nature and purpose of legal history.¹⁹ Law was previously thought to embody idealist elements, expressed in formalist properties of the legal process considered to be in some sense autonomous, and legal history was intended to assist judges in developing the law by showing how modern legal rules came to exist.²⁰ This type of "internal" legal history was largely superseded by the "external" "law and society" approach of the Wisconsin school. In the 1970s, however, the Hurst school was challenged by radical historians who saw in its pragmatic and relativistic functionalism a form of liberal complacency that accepted the existing order. Proposing a more sophisticated version of instrumentalism, radical critics called for a legal history to assist the cause of social transformation.

In a leading work of radical legal history, Morton J. Horwitz accepted the Hurstians' instrumental conception of law, but criticized their view that legal interventions to promote economic change benefited the society as a whole. Horwitz contended that nineteenth-century economic development was managed by courts in a deliberately instrumental way — i.e., by the use of a self-consciously instrumental as opposed to a formalist-declaratory concept of law — to redistribute wealth to the advantage of entrepreneurial groups.²¹ More recently Horwitz has pursued a vision of legal history that can be described as anti-constitutionalist in tendency. Criticizing traditional legal history as simply a justification of the world as it is, he argues that legal historians should penetrate the distinction between law and politics by seeing legal and jurisprudential change as a product of social forces.²² Asserting that law and politics are essentially the same, he destroys the distinction between the two fields by rejecting the idea of law as neutral and autonomous principles or ideals. He goes so far as to question the rule of law as an unqualified good because it prevents the benevolent exercise of power and promotes substantive inequality by creating a consciousness that separates law from politics.²³ The purpose of legal history, then, is to demystify the law, breaking down its power as an instrument of conservative social control.²⁴ In a positive sense Horwitz sees legal history raising questions of legal and political theory that can assist in using law to constitute genuine community and establish a vision of the good society. Urging historians to become conscious of the use of legal history arguments as proxies for more general political controversies, Horwitz advises: "It is time for us to bridge the chasm between legal theory and legal history."²⁵ In fact his advice is tantamount to a recommendation that history be absorbed into theory and abandoned as a separate discipline.

Still another version of legal history instrumentalism, so sophisticated that its practitioners do not recognize it as such, is offered by radical scholar Robert W. Gordon. Rejecting the functional and pragmatic social view of the Wisconsin school, Gordon states that law is ideology. Law consists in cultural codes, social text, "deep structures" of consciousness, discursive practices, political language — things that may be considered embedded in relatively autonomous structures. Gordon disavows instrumentalism, which he defines as the belief that legal doctrines and rules are made and used by groups and classes in their own interest. He contends, in contrast, that legal decisions are made by persons who are "prisoners of their conventional categories of discourse." The codes, categories, and languages of discourse "organize and make sense of reality" for decision makers.²⁶

If in liberal instrumentalism political actors use legal principles and rules to promote group and class interests, in radical instrumentalism cultural codes and structures of consciousness, directed by we know not what, control legal and constitutional decision making. In liberal instrumentalism constitutional principles possess no intrinsic validity, but merely expedient practical utility in the hands of political actors. In radical instrumentalism political and legal decision makers are the instruments of structures and consciousness and language that function beyond the reason and will of human agents. "The discourses of law," Gordon writes, "connect with other social discourses to form complex overlapping systems of ideology that help to constitute and shape the desires and powers of interest groups themselves."²⁷

The purpose of legal history in this view is to discover "the sunken codes of shared inarticulate assumptions" that underlie apparently neutral legal systems. Legal history discloses that no "rule of law" exists, only contradictory systems struggling for dominance in a deeply divided society. The political task is radical reformation of "the teeming jungle of plural, contradictory orders struggling for recognition," Gordon declares. Legal history has the role of describing "how constraints upon freedom get socially manufactured and how people acting collectively through politics sometimes succeed and sometimes fail in breaking through the constraints."²⁸

Comparable to Gordon's theory of legal history is the radical conception of constitutional history that informs the bicentennial volume published by the Organization of American Historians. The OAH history is conventionally radical in its view of the impact of the Constitution on American life. The unifying themes describing this impact are that corporate interests control constitutional development; that the hegemonic function of constitutional law is "to educate, to gloss power with high moral and intellectual standards"; and that "constitutionalism aided the 'winners' in American history."²⁹ The distinctive feature of the OAH radical history is its normative, aspirational dimension. Studies of social groups and rights consciousness define the Constitution as the ground of social and cultural conflict on which plain people — workers, farmers, blacks, immigrants, women — struggle for emancipation. The OAH volume in effect applies Horwitz's dictum that the task of legal history is to bridge the chasm between history and legal and political theory.

Hendrik Hartog captures the spirit and describes the method of radical constitutional history in the OAH volume. He dismisses traditional constitutional history, concerned to preserve the constitutional order, as "an apologetic discourse" that justifies the power of ruling elites. Dismissed along with it is the concept of the Constitution as an authoritative text with a permanent and fixed meaning. Radical history also rejects the more realistic liberal history that considers the impact of social, cultural, ideological, political, and economic forces on constitutional change. Hartog says the realist approach treats the "constitutional faiths and values of blacks and others of the constitutionally disinherited" merely as inputs that help produce constitutional law doctrines. Like traditional constitutional history, liberal history assumes that "only certain authoritative texts and certain authoritative textual interpretations can have the status of constitutional input." Hartog protests that emphasis on authoritative texts "tends to imply the near inevitability of the American pattern of discovering constitutional meaning and of establishing constitutional legitimacy."³⁰

Radicals seek a new method of discovering constitutional meaning and establishing constitutional legitimacy. Through political and social struggle by the "disinherited," retrospectively realized in constitutional history, constitutional rights consciousness becomes the Constitution. This might be called the method of historically imagined constitutional aspiration, offered as a model for contemporary political action. According to the OAH volume, disinherited groups attacked the existing structure of rights and yearned for permanent statements of rights. Hartog says these groups made "aspirations to a life free from recognized hierarchies — to a life without badges and incidents of slavery — into a super-constitution that has taken permanent precedence over any merely transitory determination of constitutional meaning." History written from the point of view of constitutional aspiration, Hartog suggests, may force historians "to abandon notions of a distinctively legal or constitutional history, abandoning a perspective founded on the American Constitution's separation from the indeterminacies of American social and political history."³¹

Calling for "the social construction of constitutional history,"³² radical history concludes that the Constitution is coeval with society. This means that the Constitution has no independent, objective existence.

Constitutional history in the radical perspective, Hartog notes, describes the conflicts of everyday life involving rights claims, treating labor contracts, divorce decrees, zoning variances, and municipal ordinances as equally important with Supreme Court decisions. Constitutional history, and by necessary implication the Constitution, is in the radical view important not for itself, but only as a way of learning about "the history of a people contending about power, identity, and justice."³³

Constitutional interpretation in the United States in some sense inevitably derives from the Founding, a rule to which the OAH history forms no exception. Joyce Appleby supplies the obligatory originalist component in discussing the unfulfilled intent of the anti-Federalist critics of the Constitution. They were republicans, she tells us, whose aim was to establish populist legislative sovereignty. This purpose, which she believes can revitalize contemporary American politics, would have prevented the rhetorical "sacralization" of private property rights and enabled the people to decide the course of economic development. Appleby furthermore explains the intellectual rationale by which radical historians reconceptualize — and in reality seek to escape — the Constitution.³⁴ This is the theory of literary deconstruction or philosophical hermeneutics.³⁵ The "contemporary crisis of Western metaphysics," she asserts, has led to repudiation of the belief in reason, objective knowledge, and the concept of human nature that is essential to the "mystification of fundamental law." The result has been a "de-centering of European culture, which threatens the elite and gives hope to the disinherited of "liberation from a language of rights accompanied by a practice of denial."³⁶

Although ultimately directed at traditional constitutionalism, radical legal and constitutional history more immediately attacks liberal reform scholarship. To their credit, liberal historians have responded to the challenge. Harry N. Scheiber, for example, critically observes that radical history rejects the controlling premise of public law and constitutional history, namely, "that traditional constitutional principles have a content and historical importance that go beyond mere rhetoric." Scheiber objects to the dismissal of rule formalism and proceduralism in constitutional law as "empty pretension."³⁷ In his view realist instrumentalism is reconcilable with constitutionalism. Arguing that law is at once the product of social change and an autonomous force, he holds that the rule of law has been effective in correcting abuses, protecting the weak, and making power responsible.³⁸

Lawrence M. Friedman concedes much of the force of the radical critique of Hurstian functionalism. He acknowledges that the Wisconsin school carried the law-in-society approach to such an extreme that it "may have ... killed off the idea of law altogether, or at least the idea that law makes much of a difference." Legal history reduced to social history "eliminates law altogether as an independent entity with any kind of meaningful boundaries." Friedman's response to radical criticism is to accuse radical legal scholars of "neo-doctrinalism." Moreover, he insists that in order for the radical theory of law as a legitimating myth or symbol to have any effect, it must be understood as possessing an instrumentalist function or base. Friedman concludes that law has a double nature: instrumentally it represents a monopoly of force, while symbolically it expresses the moral hegemony of dominant political and economic elements.³⁹

The dilemma of liberal legal history, rooted in the realist instrumentalism of the reform tradition yet concerned also with the defense of constitutionalism, can be seen in the writing of William E. Nelson. In the 1970s Nelson agreed with the radical view that law is an expression of social forces and that legal rules ultimately reflect the policy preferences of dominant elites.⁴⁰ Yet he believed law must also be seen as an autonomous body of principles and ideals. Quoting a conservative scholar, Nelson wrote:"... in order to avoid 'the intellectual and moral anarchy underlying the realist's conception of the law,' it is necessary 'to establish an ethical and moral basis for authority through the incorporation' into American jurisprudence of at least some autonomous values."⁴¹ Rejecting natural law and original intent as sources of enduring legal values, Nelson relied on history. Although legal rules are instrumental in origin, he reasoned, some rules survive beyond the period of their usefulness to dominant groups and assume an autonomous status. He believed the task of the legal historian was to identify the traditions that were an essential part of the legal culture and that restrained judges and decision makers from initiating revolutionary changes in the legal order.⁴²

Nelson has recently deemphasized the instrumental nature of law and recognized more clearly the value of traditional constitutionalism. He now attacks radical legal history for teaching that law is incapable of autonomous development and is ultimately no different from politics.⁴³ He asserts that radical legal history, defining law in terms of a hegemonic function of mystification, is simply another form of instrumentalism which rests on the idea that legal decisions result "from the impact of political and social forces on the law, and not from any neutral content in the law."⁴⁴ Nelson claims that some constitutional and political decision making is based on concern for the public interest and is guided by considerations of reason and justice, in contrast to ordinary politics grounded in interest-group conflict.⁴⁵ And he observes that traditional constitutional and legal history contributes to an understanding of the neutral principles of constitutional law. It identifies "how determinate principles of constitutionalism can provide determinate answers to issues of constitutional law." Ultimately the purpose of constitutional history, Nelson affirms, is "to preserve the existing American political order designed to enhance individual autonomy or freedom to participate in imposing some new collective vision of the good on the polity."⁴⁶

The liberal-radical split within the tradition of reform scholarship raises the issue of a conservative approach to constitutional and legal history. There is much to be said on this score, but little that is new. Whatever novelty the conservative view may have arises from the circumstance of its being so long obscured by liberal realist instrumentalism. In fact the conservative approach to constitutional history is really that of traditional American constitutionalism. To call it conservative reflects mainly its rejection of the liberalism that has dominated American intellectual life since the 1930s. In any event the traditional or conservative approach to constitutional history seeks knowledge and understanding of the Constitution with a view toward affirming and maintaining American constitutionalism. While it includes political-institutional analysis as well as studies of constitutional doctrine, the organizing principle of this approach is the documentary Constitution and the principles, forms, and procedures contained therein. Rejecting the various instrumental views of the Constitution, the traditional approach regards constitutional and legal principles as things of enduring and intrinsic validity, proper historical understanding of which requires consideration of the political and social context.⁴⁷ It takes the view that despite continual change in the practical meaning of the Constitution, as Alfred de Grazia has written, "the term itself has always conjured a firm image of a real thing to most people, changeless and weighty."⁴⁸ The traditional approach to constitutional history treats the Constitution as fundamental, paramount, and binding law — what legal philosophers have called "hard law."⁴⁹

Numerous works reflecting a traditional constitutionalist perspective might be noted.⁵⁰ Several scholars have recently affirmed the relationship between constitutionalism and constitutional history and law. Discussing the problem of how to conceptualize and define constitutional history, Charles A. Lofgren suggests more analysis of the meaning of constitutions and constitutionalism.⁵¹ Robert Faulkner states that the purpose of constitutional scholarship remains "the grand old task kept alive by a few scholars: taking the Constitution seriously." He believes that in the present crisis of American constitutionalism, historical studies of the old constitutionalism are indispensable as a guide in recovering what the liberal reform tradition rejected.⁵² Edward J. Erler declares: "A scholarship that takes constitutional government seriously must therefore be one which intends to elaborate and apply those permanent and fundamental principles in the spirit of the 'original and supreme will' of the people which established the Constitution."⁵³ Michael Zuckert urges historical studies of the Founding and the Reconstruction amendments in order to recover the original political character of the Constitution and depoliticize constitutional adjudication.⁵⁴

The constitutionalist approach to constitutional history can be seen in Philip B. Kurland and Ralph Lerner's The Founders' Constitution. A five-volume collection of documents from the seventeenth and eighteenth centuries, the work gives a general view of the range of arguments concerning questions of political theory and governmental practice that were expressed in specific provisions of the Constitution. Unlike scholars whose approach to the Constitution rests on realist-instrumentalist assumptions, Kurland and Lerner take into account considerations of truth and timelessness or universality. They write: "This is an anthology of reasons and of the political arguments that thoughtful men and women drew from, and used to support, those reasons. We believe that those reasons have enduring interest and significance for anyone who purports to think about constitutional government in general and the Constitution of the United States in particular." Kurland and Lerner furthermore seek to recover an original understanding of those who argued for and against the Constitution. Their aim is to assist in detecting the "simplistic truisms" that pass for political thought today, in the belief that "the Constitution still matters — as a framework, as a statement of broad purposes, as a point of recurring reference, as a legitimation of further developments, as a restraint on the overbearing and the righteous...."⁵⁵

II

The liberal, radical, and conservative approaches to legal and constitutional history find expression in discussions of three critical turning points in American constitutional development. Accordingly we shall examine some of the principal interpretive problems raised in recent scholarship on the Founding, the Civil War and Reconstruction, and modern judicial review as an aspect of New Deal governance. Our concern will be with how scholars have defined or conceived of the Constitution and how they have evaluated the nature and tendency of constitutional government in the United States.

Scholarship on the Founding deals with two main issues: the nature of the Constitution, in the sense of identifying the forces, interests, ideas, purposes, motives, and intentions that led to the writing and adoption of the document; and the philosophical or ideological character and content of the Constitution. The former question has usually been posed by asking whether the Constitution is more accurately understood as an expedient response to problems of class, group, and sectional conflicts of interest, or as an action based on reason, reflection, and sound principles of political science, the purpose of which was to secure justice and the common good. In modern scholarship this question has usually been debated in the terms of Beardian economic analysis, with significant implications for American constitutional history in general. If the Constitution can be shown to rest on economic motives and interests, constitutionalism and the rule of law in general may be presumed to operate on the same basis. The way then becomes clear to regard the Constitution as a reflection of the hegemonic function of the law justifying the existing order.

The Beardian view of the Constitution as a reactionary document imposed on a democratic people by self-interested politicians has long since been refuted. Nevertheless the so-called Beardian insight into the role of economic and social class interests in the making of the Constitution has continued to influence neo-progressive scholarship.⁵⁶ More important than arguments about the conservative or democratic character of the Constitution, however, has been the transposing of the debate into the language of ideological analysis. This historiographical shift was accomplished two decades ago in the writings of Bernard Bailyn, Gordon S. Wood, and J. G. A. Pocock, who argued that the ideology of classical republicanism formed the intellectual framework and shaped the content of the Revolution and Constitution. The republican interpretation was subsequently challenged by scholars arguing that liberalism was the ideological basis of American institutions.⁵⁷ Nevertheless historians on both sides of the controversy agree about the nature of constitutional thinking, action, and decision making in the revolutionary era. The linguistic-ideological analysis of political thought provides the approach to constitutionalism employed by these scholars.

Although Pocock is the leading theoretician of linguistic historical analysis, Gordon S. Wood is its most influential practitioner.⁵⁸ Wood and the ideological school have been seen as refuting the economic-instrumental interpretation of political thought and upholding the autonomy of ideas.⁵⁹ In fact linguistic-ideological analysis is but another form of instrumentalism. Wood states that ideas are essential to behavior, but it is not thinking, reflecting, deliberating individuals who in his account formulate ideas to guide action. Ideas or ideology accompany action; they do not motivate or cause it. "Ideology creates behavior," Wood asserts, adding that the meanings we give to what we do are public ones and are defined and delimited by the conventions and languages of the culture of our time. Culture or ideology creates behavior "by forcing us to describe our behavior in its terms." According to Wood, what is liberal or tyrannical, monarchical or republican, democratic or aristocratic, "is determined by this cultural structure of meanings."⁶⁰

This is a deconstructionist approach to history which separates intelligence from the senses and the reading of texts from the experience of life.⁶¹ Because it treats the Constitution as having no determinate meaning, it has serious implications for constitutionalism. Historians faced with different meanings attributed to the Constitution, Wood advises, should not try to determine which is the more true or correct one. The task of the historian rather is to explain why opposing sides in constitutional debate argued as they did. There was not in 1787, nor is there today, Wood avers, a true meaning of the real Constitution. Indeed, he argues that "there was and is no 'real' Constitution against which we can measure the conflicting statements" in a constitutional controversy.⁶² Wood dismisses the notion of an objective and intelligible Constitution as a legal fiction necessary for lawyers and jurists to carry on their business. He says that historians have different aims and obligations and may properly reject this view of the Constitution. We may ask, however, whether historians should not try to understand the words and deeds of political actors as they themselves understood them. If lawyers and judges, and government officials and the people in general, understood the Constitution to be an objective and intelligible document, are not historians required as a matter of sound historical method to adopt a like perspective?

Many students of the Founding deny that the meaning, purpose, and intent of the Constitution can be historically recovered, or that such knowledge is in any case relevant to contemporary government. The earnestness with which liberal historians disavow the ability to answer the essentially historical question of constitutional original intent is puzzling. According to Wood, it is "wrong to see the Constitution as having timeless and universal meaning embodied in the philosophical aims of the Founders and discoverable through textual analysis." Original intent may be a useful fiction for limiting judicial discretion, he observes, "but historically there can be no real 'original intention' behind the document."⁶³ Jack Rakove contends that there is no verifiable way of knowing how the Constitution was understood by the nation at the moment of ratification, while Peter S. Onuf says flatly that history is incompatible with original intent.⁶⁴ Terence Ball and J. G. A. Pocock concede that it is possible for historians to reach agreement on statements concerning original intent. They note that such statements are not incontestable, however, and that the decision to follow one or another view of original intent is properly one for the jurist. Originalist scholars would tend to agree. Ball and Pocock argue further, however, that although the Constitution is the kind of text that exercises authority over a long period of time, the appeal to original intent is a conservative strategy which if implemented would require a return to eighteenth-century contexts of discourse and vocabulary. They regard the doctrine of original intent as a "canute-like attempt to turn back the tide of linguistic and conceptual change," which would divorce our constitutional language from the concerns of contemporary life.⁶⁵

The linguistic-ideological view of the Constitution has provoked dissenting opinions. Forceful criticism has come from Straussian-trained political scientists, who though described as "ideologically repellent" and "methodologically incomprehensible" by one historian,⁶⁶ are credited by another with having paid closer attention to the words of the Framers than historians have.⁶⁷ Among the critics, Ralph Lerner faults the linguistic-ideological school for denying human thought as a central reality and independent variable in history. Arguing that individuals have direct access to ideas through reason and intellect, unmediated by ideology, Lerner urges historians to study the way the Framers reshaped the presuppositions of their age and replaced old intellectual precepts with new ones of their own design.⁶⁸ Thomas L. Pangle seeks to understand the Constitution in relation to political philosophy, or the quest for permanent principles. Believing that historical analysis should be open to the view that political ideas are not entirely reducible to ideology, Pangle states that the Founding was dominated by a small number of geniuses who not only reflected common opinion, but saw further into the philosophic roots of the modern liberal republic than other men.⁶⁹ John P. Diggins, a non-Straussian, attacks the linguistic-ideological interpretation for its epistemological skepticism. "If all ideas require a linguistic medium for their expression," he points out, "ideas are no longer regarded as purveyors of truth and language is no longer regarded as representative of reality."⁷⁰

Ultimately the logic of the linguistic-ideological approach to the Constitution may threaten constitutionalism and the rule of law. Diggins recognizes this when he says it is necessary for historians to ask not only what political words were used for, but also "whether they are being used correctly and justifiably."⁷¹ Linguistic-ideological analysis denies the nature of political life as individuals experience it. Daniel T. Rodgers, an exponent of linguistic interpretation, illustrates this tendency in asserting that political and constitutional history consists in struggles over — not for or on behalf of — basic political and governmental concepts that he calls "keywords." Rodgers argues that in such controversies "language no longer registers an exogenous change: contest over linguistic legitimacy and control will lie at the heart of the event itself."⁷²

A contradiction exists in the linguistic-ideological interpretation of the Founding. Skeptical of the possibility of ascertaining constitutional original intent, its adherents nevertheless believe that classical republican ideology can be recovered and applied as a political theory answering the needs of contemporary American society. While this use of history appeals especially to constitutional law scholars,⁷³ it is supported by historians and political scientists as well.⁷⁴ Michael Lienesch states that the republican tradition in American politics — the fear of corruption, conspiracy, entrenched power, and constitutional decline — has not been merely nostalgic. It has been a continuing source of inspiration for reformers and radicals who resist corporate and public power, and can be a model for the future.⁷⁵ The inconsistency of the linguistic-ideological school concerning the use of the past suggests that the basic issue is not whether the purpose and intent of the Constitution can be known, but whether its principles are to be regarded as sound, reasonable, and just.⁷⁶

Scholarly disagreement on the substantive value of the Framers' Constitution points to the central issue in the study of the Reconstruction amendments after the Civil War. The question is whether the Thirteenth, Fourteenth, and Fifteenth Amendments are to be understood as consistent with the original Constitution with respect to the meaning of liberty, or whether these measures introduced new values and transformed the fundamental law, becoming in effect a new Constitution. Early twentieth-century histories written from a progressive point of view sympathetic to the South viewed Reconstruction as a political tragedy and constitutional error which revolutionized the federal system by consolidating power in the national government. Revisionist scholarship in the era of the civil rights movement interpreted the Reconstruction amendments in a positive light as extending the liberal principles of the Founding to blacks who had wrongfully been denied liberty and equality. According to revisionist accounts, the amendments recognized the traditional federal-state balance, while establishing federal guarantees of civil rights requiring the states to extend equal protection of the law to their citizens irrespective of race.⁷⁷

In the past two decades, in the context of affirmative action policy, the legal history of Reconstruction has taken a new turn. Consistent with the expansion of Fourteenth Amendment litigation as an all-purpose reform instrument, radical legal historians have viewed the Reconstruction amendments as effecting a revolution in national citizenship and federal-state relations. According to this interpretation, the Thirteenth and Fourteenth Amendments conferred absolute civil rights on blacks as U.S. citizens, protecting them against state and private discrimination under guarantees of plenary and absolute federal authority.⁷⁸ In the OAH bicentennial volume referred to previously, Vincent Harding expresses the radical revisionist view in describing the "transformative force" of the black struggle for freedom on the Constitution. "Obviously the instrument that contained the Thirteenth Amendment... was not the same one that had been created at Philadelphia," Harding asserts.⁷⁹

More than is ordinarily the case in constitutional history, the radical account of Reconstruction is a pragmatic response to the litigation strategy of the civil rights lobby. It is fitting therefore that Supreme Court Justice Thurgood Marshall should popularize radical revisionism. In a widely noted bicentennial speech which cautioned against making "a blind pilgrimage to the shrine of the original document," Justice Marshall stated that "while the Union survived the civil war, the Constitution did not," "In its place," he said, "arose a new, more promising basis for justice and equality, the 14th amendment." Observing that the framers of the Reconstruction amendments "refused to acquiesce in outdated notions of 'liberty,' 'justice,' and 'equality,' " he concluded that they conceived of "new constitutional principles" guaranteeing "respect for individual freedoms and human rights ... we hold as fundamental today."⁸⁰

The pragmatic approach of radical legal history is evident in historical arguments filed in Patterson v. McLean Credit Union, the recent Supreme Court case that reconsidered a previous decision declaring private discrimination to be prohibited by the Civil Rights Act of 1866 under the Thirteenth Amendment. Civil rights lawyers argued that the question of congressional intent, as a matter of statutory interpretation, was "an essentially pragmatic one." The meaning of the statute was to be derived more from historical knowledge of the actual situation facing the freedmen in the post-emancipation period, in which private discrimination was rife, than from textual analysis or congressional debate on the Civil Rights Act, which referred frequently to state action and not at all to private discrimination. The means which Congress adopted, civil rights lawyers contended, should be assumed to be commensurate with the evils it perceived.⁸¹

In response to radical revisionism, the moderate or conservative view of the Reconstruction amendments has been reaffirmed in a number of recent works.⁸² In essence the argument is that the Thirteenth and Fourteenth Amendments were intended to remove the exceptions to liberty and equality signified by the recognition of the slavery provisions of the Constitution, and to complete the document by bringing it into conformity with the Declaration of Independence. The Republican framers of the amendments intended neither a revolution in federalism nor a radical transformation in the meaning of liberty and equal rights. Their aim was to extend to the freed people the protection of person and property that delineated the condition of civil liberty under U.S. citizenship. Although the abolition of slavery required amendment of the Constitution restricting state powers, according to Earl Maltz, "substantial changes in constitutional theory inherent in Republican policy were moderated by strong conservative influences."⁸³ In the view of William E. Nelson, the authors of the Fourteenth Amendment intended to reaffirm their commitment to general principles of equality, individual rights, and local self-government.⁸⁴

The question of continuity versus radical change arises in discussions of the third critical episode in American constitutional history, the New Deal. The perception of radical governmental change that existed in the 1930s was superseded in subsequent historical accounts by an emphasis on the continuity of the New Deal with the constitutional tradition.⁸⁵ Recent evaluations tend to underscore the extent to which the New Deal departed from the constitutional tradition.⁸⁶ This theme may be pursued in relation to the presidency, the rise of the administrative state, and the party system.⁸⁷ Even more important because of its direct relation to the nature and meaning of the Constitution is the development of modern judicial activism as an aspect of New Deal government.

Although President Franklin D. Roosevelt's Court-packing plan threatened judicial independence and revealed the weakness of the Supreme Court, in the aftermath of the crisis the Court's authority was strengthened.⁸⁸ In 1937 judicial restraint was a rallying cry for liberals, but the limited scope of the commitment to restraint soon became clear. The problem in constitutional politics, from the liberal standpoint, was to gain acceptance of New Deal policies. One way to do this was through judicial deference to the executive and legislative branches, safely controlled by the liberal governing coalition. The alternative approach was judicial activism, by which courts under the preferred freedoms theory intervened directly to protect the political process and the interests of discrete and insular minority groups. Tension between these alternative liberal strategies continued in the post-New Deal period until it was resolved in the 1960s in favor of judicial activism.⁸⁹

The remarkable expansion of judicial power in the past three decades has transformed debate about the legitimacy, scope, and effect of judicial review, a familiar feature of our constitutional history, into fundamental controversy over the nature of the Constitution and the tendency of American constitutionalism. The controversy is primarily one of constitutional and political theory. Yet it implicates constitutional and legal history. Those who would institutionalize judicial activism in a revised theory of constitutionalism, as well as those who would restore the judicial function to more traditional limits, seek authority in historical knowledge and understanding.

Although the conservative call for a jurisprudence of original intent in the 1980s is the peg on which the present controversy hangs, conservatives did not start the modern debate over judicial review. Liberals began it in the 1950s in reaction to the first phase of Warren Court activism.⁹⁰ By the end of the 1970s some liberal scholars were trying to find a way to retain the benefits of judicial activism, while acknowledging the legitimate restraints of a written constitution.⁹¹ Meanwhile proponents of the theory of a "living Constitution" extended their argument to the point of claiming that the United States had an unwritten constitution.⁹² This signified a readiness to redefine the terms of the debate. "Interpretivism" versus "noninterpretivism" was the infelicitous but accurate nomenclature used to describe the escalation of the debate into a fundamental controversy over the nature of constitutionalism. The terms indicated that the opponents of activism, called interpretivists, believed constitutional decision making should depend on the application and interpretation of the constitutional text, while supporters of activism, called noninterpretivists, believed constitutional decisions should be based on sources of authority outside the Constitution.⁹³

Critics of activism have attempted to recover the historical understanding of the judicial function intended by the framers of the Constitution. Christopher Wolfe's survey of the history of constitutional adjudication emphasizes the change from a judicial conception of judicial review, based on the distinction between law and politics, and the modern legislative conception which assimilates judicial review to the legislative power as an instrument of will rather than judgment. Observing that the debate over constitutional adjudication concerns basic issues of republican government and the distribution of political power, Wolfe asks: "What is — and should be — the meaning and authority of the Constitution in the context of our national political life?"⁹⁴ Gary L. McDowell similarly views the controversy over constitutional adjudication in relation to basic regime principles. As he formulates it, the question is whether the judiciary shall be committed to moral self-government under a constitution of open texture and evolving principles, as in the judicial activist approach, or to the morality of government by consent under the principles and forms of the Constitution as defined by the text and intentions of the Framers. To justify judicial activism because of the results it has achieved, McDowell argues, is "to deny the fundamental wisdom of the American founding."⁹⁵

A different version of the originalist-restraint position argues the theory of judicial statesmanship. As discussed by Harry M. Clor, this theory views the Constitution as a vital constituent of the political community. It holds that no sharp dividing line can be drawn between the standards of constitutional law and the principles of the polity or the regime. The Constitution is law, but it is extraordinary law, requiring knowledge of the ends of government and pointing to political fundamentals. Clor says historically it was almost inevitable that courts should seek guidance from political understandings and principles of right and justice that transcend the constitutional text. The indefinite or ambiguous clauses of the Constitution are not, however, according to the theory of judicial statesmanship, merely empty vessels to be filled by whatever morality a judge may think best. "Even the least precise constitutional provisions have substance," Clor writes, "when one considers them in light of the premises and aims of the constitutional polity." The judicial statesmanship school of interpretivists thus calls for a "regime-oriented" jurisprudence that depends on historical and philosophical understanding of the Founding.⁹⁶

Still another historically grounded attempt to address the problem of constitutional adjudication is Sylvia Snowiss's analysis of the origins of judicial review. Snowiss emphasizes that the distinctive feature of American constitutionalism, which provided the basis for repudiating the doctrine of legislative supremacy and for conceiving of a judicial review function, was the concrete reality and explicitness of the Constitution expressed in its documentary character. In its earliest phase the determination of the unconstitutionality of a law, the essence of judicial review, was a public or political act rather than a legal one. In stage two of judicial review judges consulted the first principles of government as identified in the constitutional text, but more importantly grounded in the common assumptions of the social contract. Snowiss contends that the decisive shift to modern judicial review occurred when John Marshall, in the contract and federalism cases from 1810 to 1825, transformed the Constitution from politically binding fundamental law into legally binding supreme ordinary law. Marshall effected this change by applying the rules for statutory interpretation to the Constitution, thereby enabling policy considerations appropriate to legislation to enter constitutional adjudication. Intellectually and theoretically the way was clear to the "fundamental values" jurisprudence of modern judicial activism. Although Snowiss's account suggests the inevitability of this development, she recognizes the problematic character of contemporary activism. She proposes therefore to recapture and strengthen the inescapable political component of constitutional law, derived from the principle of republican government, as a restraint on the legislative character of modern activism.⁹⁷

The conservative appeal for a jurisprudence of original intent in the 1980s has provoked historical investigation by liberal scholars. Widely accepted is H. Jefferson Powell's contention that the Founding Fathers intended the Constitution to be interpreted according to the common law rules of statutory interpretation, unassisted by reference to extrinsic aids such as speeches in the Constitutional Convention. Powell thus argues that the conservative notion of original intent, relying on extrinsic aids, disregards the Framers' true intent.⁹⁸ Paul W. Kahn further denies a privileged place to original intent by presenting it as a nineteenth-century development divorced from the approach to constitutionalism taken by the founders. He argues that originalism, first fully realized in the Dred Scott decision, was a mythical construct that developed in the post-founding generation as constitutional interpreters rejected rationally based political and moral theory and turned to the intentions of the Framers for authority.⁹⁹

Leonard W. Levy has written the strongest liberal attack on the idea of constitutional original intent. Levy rejects originalism as a jurisprudential approach on the ground that the documentary basis for it is insufficient. More importantly he contends that the nature of the Constitution as a written document containing ambiguous words does not allow original-intent analysis to be dispositive or even meaningful. Levy does not deny that original intent, as a matter of historical fact, can be ascertained. In his own writings he claims to have discovered the original understanding of the religion clauses and other constitutional provisions. He argues, however, that the Supreme Court is incapable of the historical research and analysis that original intent requires. While condemning politically motivated, result-oriented jurisprudence, Levy believes judicial activism has dominated constitutional adjudication from the outset. The inconsistency between Levy's historical finding of a thoroughgoing political jurisprudence, and his constitutionalist demand for a nonpolitical judicial function, is resolved only by his conclusion that modern liberal judges like Chief Justice Warren have served the public interest and followed the Constitution.¹⁰⁰

Although liberals presently reject the notion, original-intent jurisprudence has appealed to progressive scholars in the past.¹⁰¹ There are indications of liberal reconsideration of the issue in the present debate. Constitutional law scholar Robert N. Clinton, for example, seeks to reclaim original intent from the conservatives. Acknowledging the fact of a written Constitution and a body of historical data on the Framers' intent, Clinton defines a middle position that recognizes originalism as a legitimate concern in constitutional adjudication, while reconciling it with post-realist legal thought. His approach to original intent, however, is pragmatic and instrumental. Believing the public would look unfavorably on a general repudiation of the idea that original intent has constitutional significance, Clinton adopts an originalist position for the pragmatic reason that it will promote constitutional stability.¹⁰²

The call for original-intent jurisprudence in the 1980s emanated from a conservative administration that was arguably effecting a realignment of American politics. While party lines may be too evanescent to permit a clear judgment of the success of this project, it seems reasonable to view the original-intent appeal as part of a movement aimed at reasserting constitutional forms and principles deemed in jeopardy. Conservatives might be seen as seeking a constitutionalist realignment in their recurrence to federalism, deregulation or market freedom, equal rights for individuals, and a strong national defense.¹⁰³ The attempt to curb judicial discretion through revival of an original intent standard was yet another expression of the desire to return to first principles: the concept of limited government under a written constitution. Intruding upon an academic and political establishment that had long since concluded that the Constitution did not refer to anything objective and was only to be understood as expressing the subjective preferences of judges or other officials, the original-intent idea was deeply offensive.¹⁰⁴ Yet it was part of a broader reaction against intellectual modernism, of which legal realism and liberal activism were particular expressions. In law as in culture and society generally there has been a search for a stable reference point from which to ground otherwise subjective values.¹⁰⁵

Some liberal scholars share the concern for constitutional and legal stability. In a diagnosis which many originalists would accept, H. Jefferson Powell says the perception that the Constitution has no objective reference results in "a cynicism about constitutional discussion that is personally and socially corrosive."¹⁰⁶ Ronald L. K. Collins makes a similar point in criticizing Levy's conclusion that constitutional adjudication has been overwhelmingly result-oriented. According to Collins, Levy insists on the open ended nature of constitutional interpretation to the point where "one is tempted to deny what any constitution-maker would unquestionably affirm; namely, that written words do matter...." Collins fears the extremes to which constitutional law could be taken in the absence of any common ground or objective reference of textual, historical, and analytical judgment in constitutional decision making.¹⁰⁷

"Constitutional objectivism" has been suggested as a liberal answer to the problem of stability in constitutional development. H. Jefferson Powell uses this term to describe the concept of constitutional interpretation adopted by Walter F. Murphy and his associates.¹⁰⁸ The approach is apparently traditional in its emphasis on the Constitution as a text. Yet the notion of a text is to be understood in a deconstructivist way. The Constitution as a text consists in the document, plus the polity or the institutions surrounding it. According to Powell, constitutional objectivism "approaches the 'text' to be interpreted — document plus polity — as itself the source of the interpreter's methodology." Interpretation of the Constitution as a normative text is "determined methodologically by the text and the structure of the institutions it creates." Powell concludes that the Constitution, "both the historical document and its polity," creates a bounded yet somewhat indeterminate sphere of discourse.¹⁰⁹

Encouraging as liberal reconsiderations of judicial activism may be, the theory of constitutional objectivism is but an updated version of the legal realist preference for defining the Constitution as the existing institutions and practices of government.¹¹⁰ It is difficult to see where limits would be established by a Constitution consisting of documentary and institutional texts. Reading the text of institutional development would seem to yield a variety of contestable meanings, more so than reading the written constitutional text. Interpretive uncertainty would be compounded by divorcing the documentary text from the intent of the Framers, as the objectivist theory proposes.¹¹¹

The theory of constitutional objectivism recalls Edward S. Corwin's 1934 prediction that the United States would soon be governed by an unwritten constitution. Corwin saw in New Deal reform measures a constitutional revolution that would bring about cooperation and a fusion of powers, in place of the tension and competition produced by the separation of powers in the original Constitution. The documentary Constitution would be retained, but it would become more political and less legalistic, valued for instrumental social purposes rather than as a lawyers' document. Corwin believed the Constitution would become merely a part of the actual constitution. Like Magna Carta in relation to the English constitution, the Constitution would be absorbed into a vast complex of political institutions.¹¹² Gordon Wood echoes Corwin in his recent assertion that "our Constitution is no more important to the longevity and workability of our government than Magna Carta is to the longevity and workability of the British government. Our Constitution is as unwritten as theirs."¹¹³

Despite repeated discovery of this realist "insight," we have not yet had a constitutional history written from a perspective which views American government as resting on an unwritten constitution. In fact a recent constitutional history based on legal realist-instrumentalist assumptions gives a great deal of attention to the analysis of formal constitutional doctrines in Supreme Court decisions. It is not clear why a realist should be concerned with legal logic.¹¹⁴ The concern may reflect the fact that legal and constitutional reasoning, a vestige of formalism and declaratory jurisprudence, is a basic reality of American constitutionalism.

III

The controversy over original intent is an extension and escalation of the debate over modern judicial review that was precipitated by judicial activism in the era of New Deal and post-New Deal liberalism. The scholarship it has produced, like that on the Founding and the Reconstruction amendments, reveals sharp disagreement concerning the nature, meaning, effect, and significance of the Constitution in American politics. Liberal scholars concede on the one hand that it may be useful and necessary to treat the Constitution as "fundamental scripture" or to tolerate myths or legal fictions about original intent.¹¹⁵ They believe on the other hand that historians should penetrate these fictions and describe the past in realist, instrumentalist, and historicist terms. There seems to be something politically and constitutionally unsound in a situation where government is conducted under a Constitution that is thought to be objective, intelligible, and reasonably clear in meaning from the standpoint of those participating in it, but which is perceived by at least a substantial part of the scholarly community as mythical, meaningless, or nonexistent. One wonders what the consequence of such scholarship might be for constitutionalism. Yet such a situation appears to characterize constitutional and legal history in the 1980s.

Wood observes that the conservative view of the Constitution as the product of reason, and the Founding as a monumental event in American history, rests on "a deep and longstanding popular belief in the sanctity of the Constitution and the uniqueness of the Founding Fathers."¹¹⁶ This belief has been a basic feature of American constitutionalism. Whether it is accurate or inaccurate might be said to be the ultimate question which our constitutional history addresses.

A survey of constitutional and legal history in the 1980s suggests that no generally agreed upon answer to this question will be forthcoming because of the significant differences in the way scholars conceive of the Constitution and in their use of history. Consider, for example, Bruce A. Ackerman's "discovery" of the Constitution. A constitutional law scholar, Ackerman seeks to overcome the stalemate in the present debate between interpretivists and noninterpretivists and to affirm the democratic character of judicial review. Philosophical and economic analysis and common law techniques having been found inadequate to the task, he turns to history. He argues from The Federalist that judicial review is democratic insofar as it upholds the Constitution, an expression of popular sovereignty. He posits a distinction between normal politics, which must be tolerated in the name of individual liberty, and the "politics of public virtue associated with moments of constitutional creation." In order to multiply the number of creative constitutional moments that may provide a source of higher law principles that the courts can apply, he advances the theory of structural amendment of the Constitution.

Based on what Ackerman calls a nonformalist reading of Article V, the theory contends that the Constitution has actually been amended by the convention method on several occasions, beyond the Philadelphia Convention of 1787. The "best interpretation of our constitutional history," he writes, "requires the conclusion that We the People ... have indeed amended our Constitution through 'conventional' means."¹¹⁷ Asserting that Article V is the beginning, not the end, of constitutional transformation, Ackerman declares: "Only after we have reflected on this history can we hope to do justice to our constitutional future."¹¹⁸ Ackerman offers the theory of structural amendment as a means by which interpretivists can avoid "clause fetishism," respond to the "nihilist critique" that sees all judicial value imposition as arbitrary, and "elaborate the nature of our existing constitution in a legally compelling way."¹¹⁹ He takes such extraordinary license with the historical record, however, as to discredit his entire effort.¹²⁰

A more sober use of history to illuminate a constitutional problem is found in Russell L. Caplan's study of the Article V amendment process. Concerning a subject about which constitutional scholars have said text and history offer no guidance, Caplan traces text and practice historically to provide guidance on the question of whether a state-inspired constitutional convention could be confined to specific subjects. As important as his conclusion — that a convention can be limited and that Congress has obscured this fact in order to maintain its own power over the amendment process — is the premise of his study. It is that "the Convention clause, like every other in the Constitution, has a historical meaning that can be successfully retrieved." Caplan provides us with a valuable example of original-intent history.¹²¹

Notwithstanding scholarly uncertainty concerning the nature and meaning of the Constitution as seen in the debate over constitutional adjudication, it is likely that historians who actually write about the Constitution, like most lawyers and the people in general, regard it as the original text and the twenty-six amendments subsequently added to it. There are indications that this conventional view is still widespread. Constitutional law scholar Gary C. Leedes writes about conventional theory, which explains the beliefs of law-abiding citizens and the content of case law. The conventional specialist, says Leedes, unlike radicals and skeptics considers the Supreme Court competent to decide cases in accordance with the written Constitution. This is the basic norm of the legal system which represents definable limits on power that officials respect. "The Constitution itself, and not the theory which explains it, is the basic norm," Leedes observes.¹²² In an account of Supreme Court history intended to illuminate the present controversy over constitutional adjudication, William M. Wiecek views the Constitution in the conventional way. He identifies as criteria for constitutional decision making text, intent, the structure and relationship of constitutional forms and procedures, and history.¹²³ David P. Currie's history of the Supreme Court is similarly based on the conventional view that the Constitution is a law binding on judges no less than on other officials. He concludes that judges were expected to base their decisions on the law as found in the Constitution, and that very few important decisions in the first century of the Supreme Court clearly distorted the Constitution. Eschewing theory, Currie says his aim is "not to defend the rule of law but to apply its methodology to the cases."¹²⁴ Finally, a British scholar observes that despite sharp controversy over original intent and constitutional reform, the Constitution itself is not under challenge.¹²⁵

In his study of popular attitudes toward the Constitution, Michael Kammen contrasts reverence for the document with what he finds to be general ignorance, neglect, and lack of understanding of its specific provisions. Claiming that "realism" rather than "mindless reverence" has been the bulwark of liberty, Kammen says Americans have been more likely "to read and understand the Constitution" when it has been controversial and there has been argument about its misuse, than in moments when it was venerated.¹²⁶ Yet might not the success of the Constitution in time of controversy or crisis be related to an attitude of veneration, reverence, or conviction? And does not this conviction ultimately rest on historical fact?

In Federalist No. 49 Publius cautions against a too frequent recurrence to the people in convention to resolve constitutional decisions, on the ground that it would carry an implication of some defect in the government It would "deprive the government of that veneration which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability." In a nation of philosophers, Publius argues, a reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason But a nation of philosophers can never exist, he observes, and "in every other nation, the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side."¹²⁷

It would be unsound to argue that the essence of constitutionalism is legalism, or the belief that right conduct consists in following rules Yet it seems unwise to deny the importance of the high public status that the rule of law has had in American history, and especially the law of the Constitution.¹²⁸ Like positive legal rules, the Constitution may be used instrumentally by groups and individuals In order to be effective in shaping political life for its declared objects, however, a constitution must be upheld for intrinsic rather than instrumental reasons, at least by some people some of the time. Those in our polity who most significantly and decisively tend to regard the Constitution as a real thing possessing intrinsic validity and intelligible meaning are the people Their view of the Constitution is the basis of the constitutionalist conviction which Lincoln and other statesmen have seen as essential to the preservation of American institutions. This conviction of intrinsic constitutional validity is not mythical, however. It is grounded in historical fact and understanding.

The nature of the Constitution as a written charter of first principles, adopted at a single moment to establish the ends and purposes of a new political society, necessarily makes original intent pertinent to the conduct of political life. It necessarily implicates history in the preservation of constitutional government Critics of traditional constitutionalism are impatient with, if they do not scorn, the enduring appeal to historical original intent Yet this appeal is not based on mere symbolism or social mythology It rests on the historical fact that in a nation where political legitimacy derives from the act of foundation, where nationality itself is defined by political principles and institutions written into the Constitution, the founders possess lasting authority The written Constitution, a thing subject to varying interpretation in certain respects but not ultimately a subjective state of mind, expresses the wisdom and justice of the act of foundation The constitutional history which tells this story provides an essential basis of American constitutionalism.

Notes

1 "One of the interesting things about communism," a former Secretary of State observes, "is that when the reign of terror stops, there seems to be almost no way they can achieve regular political legitimacy." Washington Times, June 7, 1989, p. A10, quoting Henry Kissinger. Concerning the revival of interest in constitutionalism in recent years, see Vernon Bogdanor, ed., Constitutions in Democratic Politics (Gower, Eng., 1988).

2 Donald S. Lutz, The Origins of American Constitutionalism (Baton Rouge, 1988).

3 Hannah Arendt, On Revolution 139-178 (New York, 1963).

4 For enumeration of current constitutional problems, see 1 this Constitution A Bicentennial Chronicle 4-8 (1983) and 18 this Constitution 66-69 (1988).

5 Harry N. Scheiber, Introduction The Bicentennial and the Rediscovery of Constitutional History, 74 Journal of American History 668-670 (1987).

6 Stanley C. Brubaker, Constitutional Scholarship: What Next? 5 Constitutional Commentary 48 (1988).

7 Robert N. Clinton, Original Understanding, Legal Realism, and the Interpretation of This Constitution,' 72 Iowa L. R. 1179, 1243 (1987).

8 Michael Kammen, A Machine That Would Go of Itself: The Constitution in American Culture XVIII-XIX (New York, 1986).

9 William H. McNeill, Modern European History in Michael Kammen, ed., The Past Before Us Contemporary Historical Writing in the United States 107-109 (Ithaca, 1980), William H. McNeill, World Cm as an Alternative, 12 Continuity 25-27 (1988).

10 Herman Belz, The Constitution in the Gilded Age The Beginnings of Constitutional Realism in American Scholarship, 13 Amer. J. Legal Hist. 110 (1969).

11 Kammen, supra note 8, at 22-23.

12 Herman Belz, The Realist Critique of Constitutionalism in the Era of Reform, 15 Amer. J. Legal Hist. 288 (1971), Herman Belz, Changing Conceptions of Constitutionalism in the Era of World War II and the Cold War, 59 J. American Hist. 640 (1972), Edward A Purcell, American Jurisprudence Between the Wars Legal Real ism and the Crisis of Democratic Theory, 75 Amer. Hist. Rev. 424 (1969).

13 Paul L. Murphy, Time to Reclaim The Current Challenge of American Constitutional History, 69 Amer. Hist. Rev. 64, 74-77 (1963).

14 Hurst's followers later acknowledged this fact See Harry N. Scheiber, American Constitutional History and the New Legal History Complementary Themes in Two Modes, 68 J. Amer. Hist. 343 (1981), and Lawrence M. Friedman, Amen can Legal History Past and Present 34 J. Legal Ed (1984), reprinted in L. Friedman and H. Scheiber, eds., American Law and the Constitutional Order, 2 ed. 466 (Cambridge, 1988).

15 James Willard Hurst, Legal Elements in United States History, 5 Perspectives in American History 28, 91 (1971) Cf. Willard Hurst, Legal History A Research Program 1942 Wisconsin L. R. 323, Hurst, The Growth of American Law The Law Makers (Boston, 1950), Hurst, Law and Social Process in United States History (Ann Arbor, 1960), Hurst, Law and the Conditions of Freedom in the Nineteenth Century United States (Madison, 1956), Hurst, The Law in United States History, 104 Proceedings of the Amer. Philosophical Soc. 521 (1960), Harry N. Scheiber, At the Borderland of Law and Economic History: The Contributions of Willard Hurst, 75 Amer. Hist. Rev. 744 (1970).

16 Lawrence M. Friedman, A History of American Law 10 (New York, 1973).

17 Lawrence M. Friedman, "Some Problems and Possibilities of American Legal History," unpublished MS, 1969, p. 13.

18 Friedman, supra note 16, at 14-15, 102-103, 570, 595.

19 Friedman wrote "I have surrendered myself wholeheartedly to some of the central insights of social science." Id. at 10.

20 Robert W. Gordon, J. Willard Hurst and the Common Law Tradition in American Legal Historiography, 10 Law and Society Rev. 34 (1975), Daniel J. Boorstin, Tradition and Method in Legal History, 54 Harvard L. R. 424 (1941), William E. Nelson and John Phillip Reid, The Literature of American Legal History 2-5 (New York, 1985).

21 Morton J. Horwitz, The Transformation of American Law 1780-1860 (Cambridge, 1977).

22 Morton J. Horwitz, The Conservative Tradition in the Writing of American Legal History, 17 Amer. J. Legal Hist. 281 (1973).

23 Morton J. Horwitz, The Rule of Law An Unqualified Human Good? 86 Yale L. J. 561-566 (1977).

24 Id. at 565.

25 Morton J. Horwitz, History and Theory, 96 Yale L. J. 1825 (1987).

26 Robert W. Gordon, An Exchange on Critical Legal Studies, 6 Law and History Rev. 145, 170-171 (1988).

27 Id. at 171.

28 Id. at 145, 153, 170-171, 182.

29 Walter LaFeber, The Constitution and United States Foreign Policy An Interpretation, 74 J. Amer. Hist. 696 (1987), R. Kent Newmyer, Harvard Law School New England Culture, and the Antebellum Origins of American Jurisprudence, 74 J. Amer. Hist. 825 (1987), Donald J. Pisani, Promotion and Regulation Constitutionalism and the American Economy, 74 J. Amer. Hist. 767 (1987).

30 Hendrik Hartog, The Constitution of Aspiration and 'The Rights That Belong to Us All,' 74 J. Amer. Hist. 1029-1030 (1987).

31 Id. 1024, 1029.

32 Id. at 1031.

33 Id. at 1013, 1020, 1024, 1029-1033.

34 For an example of an historian seeking to escape the Constitution, see the comment of Norman Rosenberg in the symposium, Constitutional Scholarship: What Next?, 5 Constitutional Commentary 46 (1988) Rosenberg urges a moratorium on writing about the Constitution He states "Free from the grasp of it [i. e. the Constitution], writers could delve into all those very human stories about powers and knowledge, about the reach of social institutions and groups, and about the popular needs and aspirations that actually bring into play the specialized rhetoric of constitutional lawyers and judges."

35 For the testimony of a believing practitioner, see Gregory Leyh, Toward a Constitutional Hermeneutics, 32 Amer. J. of Pol. Sci. 369 (1988) For criticism of deconstruction theory, see R. V Young, Jr., Constitutional Interpretation and Liter ary Theory, 23 The Intercollegiate Review 49 (1987), and Ewa Thompson, Body, Mind, and Deconstruction, 23 The Intercollegiate Review 25 (1987).

36 Joyce Appleby, The American Heritage The Heirs and the Disinherited, 74 J. Amer. Hist. 798-813 (1987).

37 Scheiber, supra note 14, at 338.

38 Harry N. Scheiber, The Constitution in the School Curriculum A Proposal for the 1987 Bicentennial, in B. R. Gifford, ed., History in the Schools 165-166 (New York, 1988) See also Scheiber, supra note 5. It should be noted that Scheiber is out of place among the radicals who dominate the OAH bicentennial volume The same may be said of liberal historian Morton Keller See his essay, Powers and Rights Two Centuries of American Constitutionalism, 74 J. Amer. Hist. 675 (1987).

39 Friedman, supra note 14, at 467, 469, 471-472.

40 Nelson and Reid, supra note 20, at 193.

41 Id. at 194 The conservative scholar whom Nelson quotes is James McClellan.

42 Id. at 197.

43 William E. Nelson, An Exchange on Critical Legal Studies, 6 Law and History Rev. 161 (1988), Nelson and Reid, supra note 20, at 262.

44 Nelson, supra note 43, at 162.

45 William E. Nelson, Reason and Compromise in the Establishment of the Constitution, 1787-1801, 44 William and Mary Q. 458 (1987).

46 Nelson and Reid, supra note 20, at 288, 296, 302.

47 William T. Hutchinson, The significance of the Constitution of the United States in the Teaching of American History, 13 The Historian 3 (1950), Shirley A Bill, The Really Crucial Matter Prosper Constitutional History, 48 Mid-America 126 (1966), Calvin Woodard, History, Legal History and Legal Education, 53 Virginia L. R. 89 (1967), Calvin Woodard, The Limits of Legal Realism, 54 Virginia L. R. 689 (1968).

48 Alfred de Grazia, The Elements of Political Science 305 (New York, 1952).

49 Cf. Michael S. Moore, The Constitution as Hard Law, 6 Constitutional Commentary 51 (1989).

50 For illustrative purposes, consider Clinton Rossiter, The American Quest 1790-1860 (New York, 1970), Donald G. Morgan, Congress and the Constitution A Study in Responsibility (Cambridge, 1966), Raoul Berger, Congress v. The Supreme Court (Cambridge, 1969), Raoul Berger, Government by Judiciary The Transformation of the Fourteenth Amendment (Cambridge, 1977), Charles Fairman, Reconstruction and Reunion 1864-88 Part One (New York, 1971), Don E. Fehrenbacher, The Dred Scott Case Its Significance in American Law and Politics (New York, 1978), Robert C. Palmer, Liberties as Constitutional Provisions, 1776-1791, in Robert C. Palmer and William E. Nelson, Liberty and Community Constitution and Rights in the Early American Republic (New York, 1987), Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution, (Lawrence, 1985), G. Edward White, The American Judicial Tradition, 2 ed. (New York, 1988), Christopher Wolfe, The Rise of Modern Judicial Review (New York, 1986), Donald S. Lutz, The Origins of American Constitutionalism (Baton Rouge, 1988), Gary J. Jacobsohn, The Supreme Court and the Decline of Constitutional Aspiration (Totowa, 1985), Walter Berns, Taking the Constitution Seriously (New York, 1987).

51 Charles A Lofgren, Constitutional Scholarship What Next? 5 Constitutional Commentary 34 (1988).

52 Robert Faulkner, Constitutional Scholarship What Next? 5 Constitutional Commentary 42-43 (1988).

53 Edward J. Erler, Constitutional Scholarship What Next? 5 Constitutional Commentary 53 (1988).

54 Michael Zuckert, Constitutional Scholarship What Next? 5 Constitutional Commentary 37 (1988).

55 Philip B. Kurland and Ralph Lerner, eds., 1 The Founders' Constitution XI (Chicago, 1987).

56 James H. Hutson, The Constitution An Economic Document? in Leonard W. Levy and Dennis J. Mahoney, eds., The Framing and Ratification of the Constitution 259-270 (New York, 1987).

57 See Lance Banning, Jeffersonian Ideology Revisited: Liberal and Classical Ideas in the New American Republic, 43 William and Mary Q. 3 (1986).

58 Gordon S. Wood, The Creation of the American Republic 1776-1787 (Chapel Hill, 1969), Gordon S. Wood, Rhetoric and Reality in the American Revolution, 23 William and Mary Q. 20 (1966).

59 Peter S. Onuf, Reflections on the Founding Constitutional Historiography in Bicentennial Perspective, 46 William and Mary Q. 347 (1989).

60 Gordon S. Wood, Ideology and the Origins of Liberal America, 44 William and Mary Q. 628, 631 (1987).

61 Cf. Thompson, supra note 35, at 25.

62 Gordon S. Wood, Democracy and the Constitution, in Robert A. Goldwin and William A Schambra, eds., How Democratic Is the Constitution? 3-4 (Washington, 1980).

63 Gordon S. Wood, The Fundamentalists and the Constitution, New York Review of Books 39 (Feb. 18, 1988).

64 Jack N. Rakove, The Madisonian Moment, 55 Univ. of Chicago L. R. 302 (1988), Onuf, supra note 59, at 343.

65 Terence Ball and J. G. A Pocock, eds., Conceptual Change and the Constitution 8-11 (Lawrence, 1988).

66 Onuf, supra note 59, at 343.

67 Wood, supra note 63, at 36 Wood says that although the Straussians do not understand "the process of history," their close textual readings have recovered meanings not seen by historians and have yielded historical insight.

68 Ralph Lerner, The Constitution of the Thinking Revolutionary, in Richard Beeman, Stephen Botem, and Edward C. Carter II, eds., Beyond Confederation Origins of the Constitution and American National Identity 44-50 (Chapel Hill, 1987).

69 Thomas L. Pangle, The Spirit of Modern Republicanism The Moral Vision of the American Founders and the Philosophy of Locke 1-4, 38 (Chicago, 1988).

70 John Patrick Diggins, Language and History, 17 Reviews in American History 1 (1989).

71 Id. at 5.

72 Daniel T. Rodgers, Keywords A Reply, 49 J. of the History of Ideas 671 (1988) See Mark Olsen and Louis-Georges Harvey, Contested Methods Daniel T. Rodgers's Contested Truths, 49 J. of the History of Ideas 653 (1988).

73 Cf. Morton J. Horwitz, Republicanism and Liberalism in American Constitutional Thought, 29 William and Mary L. R. 57 (1987), Bruce A. Ackerman, Discovering the Constitution, 93 Yale L. J. 1013 (1984), Paul W. Kahn, Reason and Will in the Origins of American Constitutionalism, 98 Yale L. J. 449 (1989) Kahn says the communitarian ethos of republican political ideology "has swept constitutional theory." Id. at 511.

74 Cf. Appleby, supra note 36, at 811, James T. Kloppenberg, The Virtues of Liberalism Christianity, Republicanism, and Ethics in Early American Political Discourse, 74 J. Amer. Hist. 32-33 (1987).

75 Michael Lienesch, New Order of the Ages Time, the Constitution, and the Making of Modern American Political Thought 206-214 (Princeton, 1988).

76 Glen E. Thurow, Judicial Review, Democracy, and the Rule of Law, in Sarah B. Thurow, ed., Constitutionalism in America The Constitution in Twentieth Century Politics 216-219 (Lanham, 1988), Thomas G. West, Conservatives, Liberals, and the Founding: The Meaning of the Debate Over Natural Rights The Heritage Lectures No 184, p. 7 (1989).

77 Herman Belz, The Constitution and Reconstruction, in Eric D. Anderson, and Alfred Moss, eds., The Facts of Reconstruction Essays in Honor of John Hope Franklin (forthcoming, Baton Rouge).

78 Cf. Arthur Kinoy, The Constitutional Right of Negro Freedom, 21 Rutgers L. R. 387 (1967), G. Sidney Buchanan, The Quest for Freedom A Legal History of the Thirteenth Amendment (Houston, 1976, reprinted from Houston L. R. ), Robert J. Kaczorowski, The Politics of Judicial Interpretation The Federal Courts, Department of Justice and Civil Rights 1866-1876 (New York, 1985), Robert J. Kaczorowski, To Begin the Nation Anew Congress, Citizenship, and Civil Rights After the Civil War, 92 Amer. Hist. Rev. 45 (1987).

79 Vincent Gordon Harding, Wrestling toward the Dawn The Afro American Freedom Movement and the Changing Constitution, 74 J. Amer. Hist. 724 (1987) See also Stanley N. Katz, The Strange Birth and Unlikely History of Constitutional Equality, 75 J. Amer. Hist. 747 (1988).

80 Thurgood Marshall, Reflections on the Bicentennial of the United Stales Constitution, 101 Harvard L. R. 2-4 (1987).

81 Brief for Petitioner on Reargument, Patterson v. McLean Credit Union, No 87-108, in the Supreme Court of the United States, October Term, 1987, p. 40, Barry Sullivan, Historical Reconstruction, Reconstruction History, and the Proper Scope of Section 1981, 98 Yale L. J. 547 (1989), Robert J. Kaczorowski, The Enforcement Provisions of the Civil Rights Act of 1866 A Legislative History in Light of Runyon v. McCrary, 98 Yale L. J. 565 (1989) The argument against the latitudinarian reading of the Civil Rights Act of 1866 is presented in Brief for Respondent on Reargument, Patterson v. McLean Credit Union, No 87-108, in the Supreme Court of the United States, October Term 1987, and in James McClellan, The New Liberty of Contract Under the 13th Amendment The Case Against Runyon v. McCrary, 3 Benchmark 279 (1987).

82 Cf. Michael P. Zuckert, Completing the Constitution: The Thirteenth Amendment, 4 Constitutional Commentary 259 (1987), Michael P. Zuckert, Congressional Power Under the Fourteenth Amendment — The Original Understanding of Section Five, 3 Constitutional Commentary 123 (1986), Earl Maltz, Reconstruction Without Revolution: Republican Civil Rights Theory in the Era of the Fourteenth Amendment, 24 Houston L. R. 221 (1986), Earl Maltz, Fourteenth Amendment Concepts in the Antebellum Era, 32 Amer. J. Legal Hist. 305 (1988), Herman Belz, The Civil War Amendments to the Constitution The Relevance of Original Intent, 5 Constitutional Commentary 115 (1988), Michael Les Benedict, Civil Rights and Civil Liberties (Washington, 1987), William E. Nelson, The Fourteenth Amendment From Political Principle to Judicial Doctrine (Cambridge, 1988).

83 Maltz, Reconstruction Without Revolution supra note 82, at 278.

84 Nelson, supra note 82, at 8.

85 Cf. Alfred H. Kelly and Winfred A Harbison, The American Constitution Its Origins and Development (New York, 1948).

86 Cf. Michael E. Parrish, The Great Depression, the New Deal, and the American Legal Order, 59 Washington L. R. 723 (1984), Robert Eden, ed., The New Deal and Its Legacy Critique and Reappraisal (Westport, 1989), Richard A Harris and Sidney M. Milkis, eds., Remaking American Politics (Boulder, 1989).

87 Cf. Theodore M. Lowi, The Personal President Power Invested, Promise Unfulfilled (Ithaca, 1985), Sidney M. Milkis, The Presidency, Policy Reform, and the Rise of Administrative Politics, in Harris and Milkis, supra note 86, at 146, John A Rohr, To Run a Constitution The Legitimacy of the Administrative State (Lawrence, 1986).

88 William Lasser, The Limits of Judicial Power The Supreme Court in American Politics 254-259 (Chapel Hill, 1988) Lasser argues that criticism of Supreme Court decisions in times of crisis, as in the Court-packing episode, implies that the cases in question would have been decided correctly by other judges The criticism thus assumes that there is a mode of constitutional interpretation which if practiced by honest judges with an understanding of the Constitution is legitimate and appropriate Lasser regards this as a permanent basis for the power of the Supreme Court.

89 Martin Shapiro, The Supreme Court from Warren to Burger, in Anthony King, ed., The New American Political System 179-211 (Washington, 1978), Martin Shapiro, Fathers and Sons The Court The Commentators, and the Search for Values, in Vincent Blasi, ed., The Burger Court The Counter-Revolution That Wasn't 218-240 (New Haven, 1983), Martin Shapiro, The Supreme Court's Return' to Economic Regulation, 1 Studies in American Political Development 91-94 (1986).

90 Cf. Herbert Wechsler, Toward Neutral Principles of Constitutional Law 73 Harvard L. R. 1 (1959), Alexander M. Bickel, The Least Dangerous Branch (Indianapolis, 1962).

91 John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, 1980), Jesse Choper, Judicial Review and the National Political Process (Chicago, 1980).

92 Thomas C. Grey, Do We Have an Unwritten Constitution? 27 Stanford L. R. 703 (1975), Thomas C. Grey, Origins of the Unwritten Constitution Fundamental Law in American Revolutionary Thought, 30 Stanford L. R. 843 (1978).

93 The nomenclature is provided in Ely, supra note 91.

94 Wolfe, supra note 50, at 11.

95 Gary L. McDowell, Curbing the Courts: The Constitution and the Limits of Judicial Power 13-48 (Baton Rouge, 1988), The quoted material is at p. 27.

96 Harry M. Clor, Judicial Statesmanship and Constitutional Interpretation, 26 South Texas L. J. 397, 400-406, 416, 432-433 (1985) See also John Agresto, The Supreme Court and Constitutional Democracy (Ithaca, 1984), Gary L. Jacobsohn, Pragmatism, Statesmanship, and the Supreme Court (Ithaca, 1977), Gary L. Jacobsohn, The Supreme Court and the Decline of Constitutional Aspiration (Totowa, 1986), Sotmos A Barber, On What the Constitution Means (Baltimore 1984) The judicial statesmanship argument is criticized in Matthew J. Franck, Statesmanship and the Judiciary, 51 Review of Politics 510 (1989).

97 Sylvia Snowiss, From Fundamental Law to Supreme Law of the Land A Remterpretation of the Origin of Judicial Review, 2 Studies in American Political Development 1-67 (1987).

98 H. Jefferson Powell, The Original Understanding of Original Intent 98 Harvard L. R. 885 (1985) For a contrary view, see Charles A Lofgren, The Original Understanding of Original Intent? 5 Constitutional Commentary 77 (1988), and Clinton, supra note 7, at 1186-1197.

99 Kahn, supra note 73, at 449.

100 Leonard W. Levy, Original Intent and the Framers' Constitution XIV, 310, 398 (New York, 1988) Levy's interpretation of judicial review is reflected in Melvin I. Urofsky, A March of Liberty: A Constitutional History of the United States (New York, 1988).

Although condemning original-intent jurisprudence, Levy himself fashions a civil libertarianism of original intent Insofar as his constitutional interpretation is guided by consistent principle, it is a Bill-of-Rights libertarianism based on the constitutional text, which he believes was intended by the Framers to be interpreted expansively in favor of the natural rights of individuals He employs a theory of original intent in arguing, for example, that the Framers left crucial terms undefined so they could be given the widest possible interpretation, and in asserting that in the Ninth Amendment they put their "thumbs down on the 'rights' side of the scales that weigh rights against powers." (p. 392).

101 Belz, supra note 82.

102 Clinton, supra note 7.

103 Robert Eden, Tocqueville on Political Realignment and Constitutional Forms, 48 Review of Politics 349 (1986).

104 H. Jefferson Powell, Constitutional Law as Though the Constitution Mattered, 1986 Duke L. J. 915.

105 G. Edward White, Recapturing New Deal Lawyers, 102 Harvard L. R. 518 (1988).

106 Powell, supra note 104, at 915.

107 Ronald L. K. Collins, The Historian as Judge, 15 Reviews in Amer. Hist. 193, 196 (1987).

108 Walter F. Murphy, James E. Fleming, and William F. Harris, II, American Constitutional Interpretation (Mineola, 1986).

109 Powell, supra note 104, at 925-926.

110 Karl Llewellyn, The Constitution as an Institution, 74 Columbia L. R. 1 (1934).

111 William F. Harris, II, Bonding Word and Polity The Logic of American Constitutionalism, 76 Amer. Pol. Sci. Rev. 34 (1982).

112 Edward S. Corwin, Some Probable Repercussions of 'Nira' on Our Constitutional System, 72 Annals of the American Academy of Pol. and Soc. Science, 139-144 (1934) See also Corwin, Standpoint in Constitutional Law, Bacon Lectures on the Constitution of the United States 1928-1938 (Boston, 1939).

113 Wood, supra note 63, at 40.

114 Urofsky, supra note 100 Urofsky does not appear to regard legal logic and constitutional doctrine as a mystification or glossing of power, according to the radical history rationale.

115 Wood, supra note 63, at 39-40.

116 Id. at 37.

117 Ackerman, supra note 73, at 1062. Ackerman defines a convention in the sense of Article V as "an assembly whose right to propose a new constitutional solution is open to substantial good-faith legal doubt," but which nevertheless "proposes to ratify these proposals by a procedure that plainly departs from preexisting constitutional understandings." Id. at 1018. The Reconstruction amendments are seen as the result of the Thirty-ninth Congress acting as a constitutional convention, and the election of 1936 and New Deal legislation are counted as a constitutional amendment that repudiated laissez-faire capitalism.

118 Id. at 1013, 1022-1023, 1062, 1065, 1071.

119 Id. at 1070.

120 See the criticism in David Chang, Conflict, Coherence, and Constitutional Intent, 72 Iowa L. R. 753 (1987).

121 Russell L. Caplan, Constitutional Brinkmanship Amending the Constitution by National Convention VII-XI (New York, 1988).

122 Gary C. Leedes, The Meaning of the Constitution An Interdisciplinary Study of Legal Theory IX, 14 (Millwood, 1986).

123 William M. Wiecek, Liberty Under Law The Supreme Court in American Life 185-186 (Baltimore, 1988).

124 David P. Currie, The Constitution in the Supreme Court The First Hundred Years 1789-1888 XI-XIII, 455 (Chicago, 1985).

125 Richard Hodder-Williams, The Constitution (1787) and Modern American Government, in Vernon Bogdanor, ed., Constitutions in Democratic Politics 100 (Gower, Eng, 1988).

126 Kammen, supra note 8, at 24, 38.

127 The Federalist, Edward Mead Earle Ed 328-329 (New York, 1938).

128 Martin Spencer, Rule of Law in America, 14 Southern Q. 333 (1976).

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