3

The Critique of Constitutionalism in the Progressive Era

Constitutional realism as a basic approach to the study of public law and government in the United States had its origin in the rejection of static, legalistic conceptions of the nature and function of the Constitution in the last quarter of the nineteenth century. Seizing upon the ancient distinction between law and fact, and operating on the assumption that the first step toward effective reform was to describe things as they are, scholars such as Woodrow Wilson, J. Franklin Jameson, and Henry Jones Ford dissented from the reverential approval usually accorded the American Constitution. Rather than blaming bad men for preventing theoretically sound institutions from working properly, they laid to the constitutional system many of the political and governmental difficulties of the Gilded Age. In their very conception of the nature of the Constitution, moreover, realist critics abandoned the formalistic, juristic view of traditional constitutional theory. Instead of defining the Constitution in static terms as a code of law, they viewed it in political institutional terms. The changing relationships between the branches or parts of government, the role and influence of political parties, legislation of an organic character which altered the structure of actual government or the exercise of governmental power in derogation of written law — these were the kinds of problems that concerned constitutional realists. Employing an evolutionary rather than a mechanistic model, they described the constitution of government as the effective distribution and actual exercise of power — a shifting complex of laws, formal and informal rules, governmental processes, and political philosophical understandings. America had an unwritten constitution, and it was this rather than the documentary charter which demanded more careful and scientific study if political progress were to be realized.1

Realist insights into the function and effect of constitutions and laws in the conduct of politics were of course not altogether new. The attempt to construct a polity on the basis of a written fundamental law had for a century stimulated lawmakers and statesmen to consider the relationship between constitutionalism and political action. The worthlessness of paper guarantees, given certain circumstances, was well understood. The significance of constitutional realism as a mode of interpretation was not only that it broadened the forum within which these questions were raised. In the nature of their work as scholars, teachers, publicists, and intellectuals constitutional realists also offered a different kind of public forum from the more narrowly political one in which these matters had previously been dealt with. This is to call attention to the fact that the realists were leaders in the attempt to establish history and political science as professional scholarly disciplines in the late nineteenth century. Though obviously and intentionally not divorced from political concern, they sought to bring objective and scientific knowledge to bear in their efforts to effect change. It is not necessary to credit their use of the scientific method with a high degree of success in order to appreciate the importance that constitutional realists had in the development of a modern way of looking at politics. Their inductive, empirical, pragmatic, and melioristic approach, with emphasis on the actual functioning of the political system, remains one of the major methodological alternatives in the study of politics.2

Constitutional realism in the latter years of the nineteenth century formed the basis for and was continuous with a more far-reaching and critical attack on constitutional law and institutions in the era of reform. In the 1890s the transformation of limited judicial review into judicial supremacy gave courts a seemingly decisive position in the governmental system. Accordingly, as legislative and party institutions were the main concern of the early realists, judicial power absorbed the attention of realist critics in the progressive period. Insight into the political and social dimension of court actions that had always been available was made into a theory of judicial decision making by proponents of a sociological jurisprudence. Consideration of the judiciary as the linchpin of traditional constitutionalism in turn led to a more conscious exploration of the motivating forces behind constitutional and legal change in general. What most impressed realist critics in their analysis of this question was of course the seemingly pervasive influence of economic interests. This discovery became the basis of criticism of the very idea of constitutionalism itself. The traditional constitutionalist's belief in the value of limited government seemed hopelessly out of place in the face of social and economic needs requiring decisive governmental action. Constitutionalism appeared to be essentially a defense of existing property rights and economic power which prevented effective political action. Events of the 1920s tended to confirm this judgment and led constitutional realists to adopt an increasingly cynical attitude toward a system of politics theoretically based on the rule of law. Rejecting the conservative constitutional ideal, they stressed the sense in which governmental affairs turned upon the political will and action of men rather than the automatic operation of impartial law. In thus emphasizing the need for political action and governmental energy constitutional realists helped prepare the way for the renewal of the reform movement in the 1930s.

As early as the 1880s scholarly interest in the courts had begun to increase as the traditional practice of judicial review was expanded past all previous limits into the broad instrument of social and political control known as judicial supremacy.3 Although the judiciary in the progressive era lent its support to certain aspects of the reform movement, its great potential power as well as its demonstrated power in the service of egregiously conservative causes, as in the Lochner, Adair, and Dagenhart decisions, invited attack. The burden of the constitutional realist critique was that courts usurped the power of popularly elected legislatures in their irresponsible exercise of the review function.

Appreciation of the uniquely political character of the American judiciary was fundamental to the constitutional realist outlook. In English law, Charles Grove Haines explained in an early essay, courts traditionally decided controversies between persons and administered relief or punishment. In the United States, however, the existence of written constitutions as the basic governmental law and the legalistic tendencies they encouraged led the judiciary to depart from this limited role and become involved in politics. Written constitutions being regarded as a means of preventing governmental tyranny, it seemed reasonable that courts should maintain and apply them as though they were ordinary law. And yet, Haines pointed out, prescriptive constitutions were much more than instruments of ordinary private law: they were primarily a form of political law, interpretation and application of which led judges to consider problems of political theory. The upshot was that American courts were "continually called upon to deal with questions that [were] purely political and governmental; to enter partially at least into the realm of legislation; and to discuss questions of political, economic, and social theory."4

Within the political context outlined by Haines the legislative character of judicial action was a common theme in constitutional realist analysis. In a highly critical assessment, Brooks Adams viewed constitutional interpretation as an essentially political function. It brought about a fusion of law and politics, he observed, but this tended "to lower the courts toward the political level" rather than elevate politics Adverting to the enormous growth of judicial power in the 1890s, Adams distinguished between acceptable judicial review in which a court might declare a legislative act to be beyond the scope of its granted powers, and judicial supremacy by which it might declare an act to be unreasonable.5 The political scientist Walter F. Dodd similarly stressed the recent tendency of courts to usurp legislative power by judging the reasonableness of legislation One of the most important developments in the nation's unwritten constitution, Dodd observed, was the courts' invasion of the field of public policy and their quickness to declare unconstitutional almost any law of which they disapproved The traditional presumption of the constitutionality of legislation had thus become meaningless, especially in the field of social and industrial regulation And the law itself became more uncertain as results depended not on fixed rules, but on individual opinions of judges on political and economic questions Dodd urged courts to leave the determination of policy to the legislature while themselves construing constitutional provisions broadly and liberally.6

While criticism of the conservative political character of constitutional interpretation was implicit in these discussions of the judicial process, other realists took a more direct approach In The Spirit of American Government (1907) J. Allen Smith attacked the judiciary as the most antidemocratic part of the constitutional system Professing to be the guardians of the fundamental law, the Supreme Court actually controlled and shaped that law by its power to annul the legislative acts of the people Although Smith was chiefly critical of the lack of political democracy in the system, he also pointed out that protection of economic interests had been the central purpose of the Constitution from its very origin In particular judicial review was intended to secure the political power of conservative property-holding classes.7 The class character of Supreme Court decisions provided the focus for Gustavus Myers's realist account of constitutional development Seeking to clear away the mystery enshrouding the Court, Myers called it "the one all-potent institution automatically responding to and enforcing" the demands of the dominant capitalist class.8

Though centering on the judiciary, these assessments added up to an indictment of the constitutional system as a whole In the late nineteenth century constitutional realists had decried the lack of efficient and responsible administration, in the era of reform they charged further that the Constitution was being made to serve the economic and political purposes of an exclusive minority rule J. Allen Smith's entire book was an attack on the reactionary Constitution In part Smith referred to antidemocratic and irresponsible tendencies produced by such obstacles to majority rule as the amending process, judicial review, and the system of checks and balances But he also had in mind the economic self-interest of the wealthier classes who supported the movement for a new government in 1787 and had determined so much of its operation since The liberty that the Framers were concerned with had mainly to do with property rights, he wrote, and "the American scheme of government was planned and set up to perpetuate the ascendancy of the property-holding class in a society leavened with democratic ideas."9

A few years later Charles A Beard presented seemingly irrefutable proof of the antidemocratic and conservative foundations of American national government in An Economic Interpretation of the Constitution Beard's thesis was that the politics of the 1780s were dominated by a deep-seated conflict between a popular party based on paper money and agrarian interests, and a conservative party centered in the towns and resting on financial, mercantile, and personalty interests He held that the latter, suffering under the Confederation government and failing to achieve reforms through the prescribed channels in Congress, went outside the existing legal framework to adopt "a revolutionary programme" — the Constitution of 178710 Through the critical studies of Smith and Beard, to name only the most prominent examples, property interests in general were identified with defense of the existing Constitution as the basis of political conservatism.

The intellectual basis of constitutional realist criticism was a revolt against legalism and juridical formalism The late nineteenth century had seen a beginning of this critical reaction in analysis of the Constitution centering on the actual operations of political and economic institutions Continuing to view the Constitution as a dynamic political process, realist critics after 1900 studied the interaction between law and politics with special reference to the forces that motivated constitutional change. This search ultimately led them to consider the nature and effect of constitutionalism itself Given their disposition to reform, they viewed existing constitutional arrangements as the result of men responding to specific political pressures and concrete economic forces, rather than the necessary outcome of reliance on right principles of political science.

Frank J. Goodnow's Politics and Administration (1900) illustrated constitutional realism at the descriptive, institutional level A colleague of Beard's on Columbia's faculty of law and political science, Goodnow argued that customs, political forces, and especially the administrative system shaped government far more decisively than did the formal Constitution. In his attempt to describe "the real political life of the people," he pointed out, for example, that the ideal of a separation of powers did not accord with the constitutional reality. The people, the legislature, and the executive all shared the function of expressing the will of the state in legislation, while courts, executive departments, and administrative agencies executed the will of the state.11 Goodnow also rejected the favored juridical conception of a static political system resting on natural rights principles. Social progress, he believed, depended on getting courts and other agencies of government to view the Constitution not as fixed, immutable rules, but as set of general principles whose application should take into account changing social conditions.12

Goodnow extended the realist approach begun in the years after Reconstruction. The more distinctive contribution of twentieth-century constitutional realists was to illuminate the motivating forces behind the political law by which the nation was governed. Beard's was of course the most famous exploration of this theme, having an impact such that Robert L. Schuyler could write in 1916 that while the economic interpretation was occasionally overworked, "its claim has been securely established and must be recognized by all sober-minded students of the past."13 Important also were studies which pointed the direction that Beard would take. In 1907 J. Allen Smith wrote that while the political system and economic organization were interrelated and interacting, "constitutional forms are always largely the product and expression of economic conditions." "The Constitution was in form a political document," Smith asserted, "but its significance was mainly economic."14 In legal scholarship Brooks Adams and Melville Bigelow illustrated the drift toward a sociological jurisprudence which rejected the notion that principles of right and justice were the basis of the law. Legal principles, Bigelow wrote in 1906, were "only the resultant of conflicting forces in society" that were mainly economic.15 A particularly significant realist contribution, which Beard acknowledged as an influence on his own work, was made by the philosopher Arthur F. Bentley. "I am engaged simply in showing," Bentley explained in 1908, "that the use of specific forms of soul-stuff gives us absolutely no help in interpreting the doings of social men." Political and constitutional principles were precisely the "soul-stuff" which most needed demolishing in this view. Pressures and interests were the causes of social change, not abstract ideals, and law itself was not a resultant of government, "it is government," Bentley concluded. Law was an activity, a group process, a struggle, an adaptation of group interests just as government was.16

Beard regarded An Economic Interpretation of the Constitution as especially important for introducing into American historiography, and into the constitutional and legal field in particular, an "analysis of determining forces." Critical of traditional constitutionalists for neglecting economic elements, he wrote: "It is necessary to realize at the outset that law is not an abstract thing.... So far as it becomes of any consequence to the observer it must take on real form; it must govern actions; ... Separated from the social and economic fabric by which it is, in part, conditioned and which, in turn, it helps to condition, it has no reality." Constitutional law had seemed to be a special branch of law, Beard noted, because of its concern with the control of government. In reality, however, the main business of government was to make rules determining property relations in society. In this context Beard went so far as to define the Constitution as "the social structure by which one type of legislation [was] secured and another prevented." Yet even then the Constitution was "a secondary or derivative feature arising from the nature of the economic groups seeking positive action and negative restraint." It was against this theoretical and historiographical background that Beard went on to argue that the Founding Fathers represented distinct economic interest groups and were not operating "merely under the guidance of abstract principles of political science."17 According to this point of view, then, the ultimate reality in constitutional affairs was economic forces, and the Constitution, however broadly defined, was no longer a primary datum in understanding political and governmental history.

This insertion of social and economic forces into the foreground of historical analysis was the principal development in constitutional studies during the era of reform. The change can be seen in the assessments of constitutional history presented to the American Historical Association by William MacDonald in 1907 and James G. Randall in 1929. Certainly MacDonald took a broad view of his subject. Recognizing the interaction between law and social forces, he pointed out that Supreme Court decisions were more than technical expositions of legal doctrine; they registered stages of social progress and were points of departure for subsequent governmental action. MacDonald also saw, however, an antagonism between the constitutional or legal element and other factors in history. Thus he expressed concern that social and economic aspects were being overemphasized "to the neglect of the part which law has played in determining the course of our development." Despite a certain breadth of view MacDonald still considered constitutional history essentially the history of constitutional law decisions, a position which other historians criticized on the ground that in many instances such decisions were merely formal.18

The antiformalist attitude found full expression in James G. Randall's 1929 analysis of constitutional history. Defining his field as the study of civil processes based on critical examination of civil and governmental data, he distinguished it from the history of constitutional law. It was no subject for a legalist whose concern for the forms of law blinded him to the essential forces that worked through the law. In Randall's view constitutional history had significance insofar as it supplied material for the social historian. "It is well to seek out the social motives constituting the reality of which constitutional arguments are but the reflection," he stated in Constitutional Problems under Lincoln (1926). "Only so may we preserve the important study of constitutional history." Thus whereas MacDonald viewed law as a kind of autonomous and determining, though socially conditioned, force in history, Randall saw it as essentially derivative and subordinate. He doubted that any significant issue could be said to be primarily constitutional.19 Harry Elmer Barnes summarized the realist critique of traditional constitutionalist thought: "Political and legal concepts and institutions are looked upon as either originating in the void anterior to man or society and gradually setting down and mingling with humanity, ... or as developing mysteriously, and independent of any non-political influences in society." As a result conventional histories were in Barnes's view "devoid of life, reality, and true instructiveness."20

In discounting the inherent importance of constitutional issues Randall and Barnes did not speak for all students of public law and government. Although it had received serious challenge, the legalistic, juridical approach was by no means given up as a lost cause in the era of reform. Responding in part to the threat presented by the economic interpretation, traditional constitutionalists reexamined major developments in American constitutionalism.

In the early 1920s Charles H. McIlwain and Randolph G. Adams reinterpreted the American Revolution along the lines of legal and constitutional theory rather than social and economic analysis. Although recognizing an intricate network of economic, social, and political causes of the revolution, McIlwain considered them "non-essentials." At bottom the revolution resulted from a collision of different conceptions of the constitution of the British Empire. Taking a narrow legalistic view of the matter, McIlwain attempted to show that the American interpretation of the imperial constitution was the correct one in the light of legal precedent. This essentially legalistic consideration he treated as the dynamic force in the minds of revolutionary leaders.21 Randolph G. Adams was chiefly concerned with the problem of imperial organization in international law, but his study of The Political Ideas of the American Revolution assumed from the outset that fundamental constitutional principles were the key to understanding the American separation from Great Britain. Although Adams did not deny a social and economic dimension to the revolution, he did not regard it as central. Recognizing the distinctiveness of their society, Americans demanded a reorganization of the empire based upon the facts of the economic world. Englishmen, however, could not grasp the Americans' ideas that authority must be distributed and that law must be sovereign. "When a given political form can not be made to respond to the demands of an economic situation," Adams wrote underscoring the primacy of the constitutional question, "it is not always the economic situation which is at fault, or which will be changed.... [T]he empire was broken by its own rigidity."22

A focal point for traditional constitutionalism was the problem of the Founding Fathers. In 1905 Andrew C. McLaughlin presented the classic statement of the conservative nationalist view of the constitution-making period. According to McLaughlin, the new constitution was the work of men who with "a reckless disregard of political obligations" appreciated the national danger existing in 1785 and were able to settle the problem of imperial or continental political organization inherited from the British.23 In 1913 Max Farrand, after editing three volumes of the records of the Federal Convention, treated the formation of the Constitution as an attempt to deal with the problem of a confederated republic, in particular the defect of excessive power and independence in the states.24 And after the publication of Beard's researches, Charles Warren asserted flatly that historians who left out political and nationalistic factors, contending that the Framers were moved mainly by economic considerations, utterly failed to interpret their character and acts. According to Warren, the idea of the convention arose from "a patriotic desire for a united Nation," and from a conviction that without a new constitution "a dissolution of the Union and disappearance of republican government were inevitable."25

One of the ablest representatives of the constitutionalist position during the progressive era was Edward S. Corwin. A professor of political science, Corwin had received his doctorate in history, and his writing, never that of a mere legalist, combined knowledge of public law with an historical appreciation of the political circumstances surrounding constitutional change. Although critical of reactionary tendencies in Supreme Court decisions and sympathetic to reform, Corwin's most important work before the 1930s supported the traditional view that the exercise of government power must always be subordinated to objective, rational principles. This was the point of his well-known study, The Higher Law Background of American Constitutional Law (1927), in which he traced the origins of judicial review as a means of restraining government through fundamental law.26 Another defendant of constitutionalism was Benjamin F. Wright, who in a study of natural law thinking criticized constitutional realists' tendency to dismiss the importance of political ideas In order to prove that natural law is an outworn concept, he reasoned, "It is necessary to show that political philosophy has no need of a concept which is expressive of standards of right and justice other than, perhaps higher than, those set forth in the positive laws." Wright acknowledged the value of knowing the actual workings of political institutions in order to shape their future growth. Yet the most complete analysis of the actual system could not in his view provide "standards or criteria of justice, equity, political right."27

In 1932 Andrew C. McLaughlin published The Foundations of American Constitutionalism, a series of essays which epitomized the traditionalist constitutionalist outlook Far from being narrowly legalistic in his writing, McLaughlin reflected the influence of the constitutional realism of the late nineteenth century He had concluded an earlier work on the relationship between political parties and the Constitution with the judgment that "The development of these associations is the greatest fact in our constitutional history."28 But, insisting on the primacy of constitutionalism and the rule of law, McLaughlin did not agree with the more advanced position of constitutional realists in the age of reform The economic interpretation of history he could not accept In his presidential address of 1914 to the American Historical Association, he noted that "many of us are even now looking out upon the field of constitutional history as a branch and only a branch of economic history." Analysis of economic influences on political institutions was important, he conceded, but he thought that the historian adopting this approach might fail to see "the infinite variety of motive and interest and personal and social character."29 Reviewing McIlwain's book on the Revolution in 1924, McLaughlin praised it for proving decisively that the Revolution was "essentially a constitutional struggle," not an economic one.30

McLaughlin's chief historical interest, as he stated in his AHA presidential address, was the American experiment in self-government.31 Accordingly his 1932 essays dwelt upon the colonial foundations of American constitutionalism in an attempt to "bring out the relationship between political philosophy and constitutional achievement." Church covenant, colonial corporation, social compact, constitutional convention, the division and separation of power, the right of judicial review — all figured in McLaughlin's account of how Americans in the revolutionary era "made ancient theories, of which they were entirely conscious, into actual institutions." And the quintessential feature of the constitutional settlement achieved was limited governmental authority. This was what the reign of law meant, and it required that a preeminent place be given to the judiciary "to announce the law and to decide controversies according to law." McLaughlin further asserted that in exercising the right of review courts were not acting as umpires superior to legislatures and dictating to them, they were merely fulfilling their duty "to find and declare the law."32

McLaughlin's impressive achievement notwithstanding, the ideas of traditional constitutionalism had lost their intellectual power and appeal for a growing number of public law scholars In consequence a defensive attitude often characterized the constitutionalist position It can be seen, for example, in the Constitutional Review, a journal edited throughout the 1920s by Henry Campbell Black and dedicated to the affirmation of orthodox legal values.33 Shortly before suspending publication in 1929 the Constitutional Review featured an essay by Alpheus T. Mason which tried to mediate between traditional constitutionalism and the realist critique Mason, who later gained renown as a liberal constitutionalist, acknowledged that judicial decisions were influenced by training, education, and economic and social backgrounds of individual judges Constitutional interpretation, he observed, was "determined not so much by the document itself as by the influences which society brings to bear on the judicial mind." Yet it was quite as true that this did not mean that American government was not a government of laws "The Constitution does provide the rules of the game," Mason continued, "and the judges can never proceed to lay down whatever decision seems best to them on the grounds of reason alone." Although the notion of a government of laws could not be accepted uncritically, Mason believed it to be an accurate description of the American constitutional system.34

Other students of public law and government voiced emphatic disagreement as they questioned the very concept of constitutionalism Unable to see that the idea of a government of laws and not of men had ever worked in America, they ceased to define the Constitution as a legal code the main purpose of which was to limit governmental action The word "constitutional" lost its normative content and became merely descriptive every country had a constitution, and this was not principally a form of legal restraint, but the arrangement and actual exercise of governmental power Arthur F. Bentley put the matter succinctly when he wrote "The constitution is always what is."35 In explaining human affairs, moreover, realist critics considered constitutional ideas and rules less important and less real than social and economic forces Many shared the belief of James G. Randall that "laws and constitutions have importance not in themselves, but because of the social purposes which they embody."36

Several works written in the 1920s challenged traditional constitutionalism. Typical was Howard L. McBain's The Living Constitution, published in 1927 by the Workers Education Bureau Press. A Columbia law professor, McBain attacked the idea of a government of laws on the ground that law had no life of its own, but merely a borrowed life from the actions of men. Though it suggested arbitrariness and instability, a government of men was the inevitable result to which attempts to establish the rule of law tended. Scornful of legal formalism McBain pronounced: "The constitution of the United States was not handed down on Mount Sinai by the Lord God of Hosts. It is not revealed law.... It is human means. The system of government which it provides can scarcely be read at all in the stately procession of its simple clauses."37 Charles E. Merriam, the noted political scientist and reform leader, dismissed political and constitutional theorizing as "more or less thinly veiled propaganda of particular social interests." A nation's constitution, he explained, consisted not of words alone, but of public attitudes and habits; it was a general understanding as to ways of doing things political. And it was delusory to think "that there is magic in the written word, apart from the situations of which it is a part." Yet that was the meaning of constitutionalism to many people.38

Conservatives' firm identification with the written fundamental law led realist critics to become cynical toward constitutionalism. When they did so they sometimes seemed to lapse inconsistently into the static, legalistic conceptions of their adversaries. The philosopher A. K. Rogers seemed to do so in defining constitutionalism as the belief in "law as an entity existing apart from the hesitating opinions and wavering wills of men in a higher realm of pure reason." What was so baneful about this outlook was its tendency to stifle the spirit of social experiment. "We have been trying by the constitutional ideal to keep things from changing except within narrow limits," Rogers complained. Skeptical of the central premise of constitutionalism, he questioned whether particular forms of law and legal process were necessary to the guarantee of liberty and other basic values.39 William Bennett Munro's The Invisible Government (1928) also assumed an anti-constitutionalist position. Munro questioned the validity of the separation of powers and checks and balances doctrine as a safeguard for liberty, and the belief that the Constitution guaranteed a government of laws and not of men. Rejecting the idea that constitutions and laws could compare in their importance to social, economic, and personal forces, Munro invoked William Penn's famous dictum: "Governments are like clocks; they go from the motion that men give them." Thus a government of laws and not of men was an impossibility: the rule of law was a mere fiction of political fundamentalism.40

Realist disillusionment with constitutionalism was only too apparent in J. Allen Smith's gloomy analysis, The Growth and Decadence of Constitutional Government (1930). Originally intended to restrain arbitrary power, constitutionalism, Smith argued, had been made into a doctrine of the supremacy of government over the people. Through the fiction of a government of law bound by constitutional limitations which it was the special duty of courts to enforce, conservatives had kept the people from recognizing this truth. Political apathy was an important further consequence of what Smith called "the prevalent anthropomorphic conception of the Constitution ... as the guardian and protector of the rights of the people." Constitutionalism resting on the fiction of the rule of law in Smith's view precluded an intelligently critical attitude toward politics; it blinded people to the need for political action.41 In actuality then the national government had unlimited, irresponsible power, and the rights of individuals who dissented from the social and economic consensus were in jeopardy. Smith called the new conception of the state a doctrine of governmental absolutism.42

Cynicism about the rule of law was further evident in the treatment of constitutionalism in The Encyclopedia of the Social Sciences, the monument of progressive scholarship that was published in the early 1930s. Constitutionalism was not, as it was for Edward S. Corwin, the limitation of arbitrary government through the rule of law, with roots reaching back to ancient and medieval times. Rather, according to Walton H. Hamilton, "Constitutionalism is the name given to the trust which men repose in the power of words engrossed on parchment to keep a government in order." Not only was this definition extraordinarily truncated, seeming to deny constitutionalism historical actuality or validity, it was based on the simplistic, formalist view of the Constitution that realists criticized in other contexts. Hamilton, professor in the Yale Law School, identified his subject with the attempt to limit irresponsible authority, but dated it only from the first American state constitution of 1776. Although he considered the writing of fundamental law an important political invention, its disadvantages outweighed its benefits. Constitutionalism offered exact language as a test for official conduct, Hamilton noted, yet it did so "at the risk of imposing outworn standards upon current activities." With fine impartiality he pointed out that an unwritten constitution was no more certain to adjust politics to popular needs. Nevertheless, his central conclusion was that "the faith of the fundamentalist" was unfounded; the Constitution "is not a self-regulating mechanism which automatically holds official conduct to conformity with its lines." Even more serious, "constitutionality" in Hamilton's view blocked popular legislation and shackled the present to the past.43

In 1932 two great works of constitutional history appeared which summed up the point of view and achievements of three decades of progressive scholarship. Louis B. Boudin's Government by Judiciary and Charles Grove Haines's The American Doctrine of Judicial Supremacy were to constitutional realism what McLaughlin's Foundations of American Constitutionalism was to traditional constitutionalism. Boudin in a long and distinguished career combined the roles of socialist theoretician, labor lawyer, and constitutional historian and commentator.44Government by Judiciary, an historical account of the Supreme Court's use of judicial review, was a powerful attack on the judiciary as an undemocratic institution committed to the defense of a conservative social and economic order. By no single dramatic step but rather by a gradual and continuous process, Boudin argued, the judiciary encroached upon the legitimate rights of legislature, executive, and people. The result, which Boudin and a good many other progressives had sought to overcome, was "Judicial Despotism": a government "with all powers lodged in an irresponsible judiciary."45 Boudin also reflected constitutional realists' preoccupation with economic forces. Judicial decisions were not controlled by the Constitution, he insisted, but by the "general outlook on life, chiefly economic life," of the judges involved. Constitutional disputes were thus decided according to "some economic or political assumption or predilection ... as to what is desirable or undesirable in legislation." Like other constitutional realists, Boudin also questioned the idea of constitutionalism. Not only was American government a government of men, because of the absence of restraints on the judiciary it was a government of irresponsible men. Professing faith in "old-fashioned democracy," Boudin believed that judicial power rested on popular ignorance of the actual workings of the government. When people learned what was happening to them, learned "the true inwardness of this system," as Boudin put it, they would demand genuine self-government.46

Charles Grove Haines's study of judicial supremacy was more moderate in tone, as befitted its academic provenance, but it was equally critical and realistic in its conclusions. First published in 1911, The American Doctrine of Judicial Supremacy in the revised and enlarged edition of 1932 summarized the era of constitutional realism. Although Haines recognized limitations on the judiciary which Boudin disregarded, he agreed that the courts exercised every form of governmental power: legislative, executive, administrative, as well as judicial. "What may be termed government by the judiciary, ... or the supremacy of the judiciary, is unquestionably the most significant principle of the politics and public law of the United States," Haines asserted.47 Most of the book surveyed in objective, scholarly fashion the growth of judicial power and its conservative political and economic significance. A final chapter, however, attacked fictions about judicial review and the idea of a government of laws.

Rejecting the "mechanical theory" of constitutional interpretation, according to which courts merely discovered and applied legal principles, Haines subscribed to the theory of "free legal decision." This referred to a judicial process influenced by a judge's conscience, training, and experience, as well as by general social conditions. It also included, however, the idea that courts could consciously shape the law in accordance with their perception and evaluation of dominant social trends and needs. Though this appealed to some progressives, its suggestion of social engineering was inconsistent with the democratic and anti-judicial outlook of most constitutional realists, including Haines. His solution, if courts must inevitably perform a legislative function, was to insist on closer scrutiny of the political and economic affiliations and views of judicial nominees. Like Boudin, however, Haines preferred a drastically restricted power of judicial review. Betraying perhaps a naive view of the character of constitutional interpretation, he urged judges to confine themselves to "the normal function of defining and applying the express requirements of written constitutions, concerning which few serious controversies arise." And like most constitutional realists he hoped that trust in the people would bring an end to the system of political arbitration by the judiciary.48

Through the first third of the twentieth century constitutional realists thus brought constitutional history and analysis into the mainstream of critical historical and social science scholarship. Ironically, however, the realist point of view that invigorated constitutional studies could become a reason for abandoning the field. Skeptical toward constitutionalism, realists ultimately denied the significance of constitutional principles, theories, and rules as causative forces in history. They concluded, with James G. Randall, that constitutional issues were not real issues.49 Although Randall claimed that a realist approach was the only way to preserve constitutional history as a worthwhile subject of study, it was more likely that, if viewed in this way, the field would become irrelevant. For if constitutional issues were but a superficial manifestation of economic or social reality, it was understandable that scholars should study this reality at first hand, rather than once removed in its legalistic reflections. Randall himself turned away from constitutional history to general Civil War history, contributing to what one constitutional scholar saw as the growing neglect of the field.50 Constitutionalism, meanwhile, came to seem a false and trivial issue. The cynicism that could result when the insight of constitutional realism was translated into a general historical account was evident in Howard K. Beale's view of the corning of the Civil War "Constitutional discussions," he wrote, "determined nothing They were pure sham For all the heat and bombast of their enunciation, these constitutional arguments were mere justifications of practical ends."51

If the Constitution were viewed narrowly as a formal legal code which only obscured real motives, as Beale in this instance viewed it, constitutionalism as a field of study might well be judged irrelevant Yet not even Beale was able to dismiss constitutional considerations when seen in broader, more political terms In describing the history of Reconstruction, for example, he held that the Radical Republicans sought to replace the traditional scheme of checks and balances with a centralized parliamentary system. This, he declared, was not "mere embroidery for more practical desires," but a "fundamental constitutional issue that in importance outranks the whole reconstruction question."52 Apparently, then, not all constitutional arguments were sham. The realists' ambivalence on this point arose from their reform-inspired criticism of the social and economic reality behind the conservatives' legalistic Constitution, which operated alongside their broad, political institutional approach to the study of public law Traditionalists like McLaughlin, who accepted the primacy of constitutional issues in essentially legalistic terms experienced no such ambivalence.

Though taking a cynical view of the conservatives' rule of law, constitutional realists like Smith, Boudin, and Haines did not relinquish altogether the constitutional symbol What they did was to try to fill it with a different content In general, realist critics were unreconstructed democrats who in their scholarship sought to provide an intellectual basis for political action that would revitalize constitutional government. This meant energizing government to make it responsive to social needs and accountable to the popular will "The real difference between despotism and constitutional government," Henry Jones Ford wrote in 1918, "does not lie in limitation of power but in the existence of means of enforcing responsibility." Ford saw "nothing but deceit in the notion of maintaining republican institutions and democratic government by limitation put to the scope of authority." Like most of the realists he would recognize "the inevitable fulness of power" and insist on its responsible behavior.53 Constitutional realists thus hoped to infuse American constitutionalism with a new content of positive, responsible government By the start of the 1930s their critique of traditional constitutionalism helped provide the intellectual framework for the constitution of powers that the New Deal created.

Notes

1 Herman Belz, "The Constitution in the Gilded Age The Beginnings of Constitutional Realism in American Scholarship," 13 Amer. J. of Legal Hist. 110-25 (1969).

2 Martin Landau, "The Myth of Hyperfactualism in the Study of American Politics," 83 Pol. Sci. Q. 378-99 (1968), Glendon L. Schubert, "The Rhetoric of Constitutional Change," 16 J. of Public Law, 16-49 (1967).

3 Arnold M. Paul, Conservative Crisis and the Rule of Law Attitudes of Bar and Bench, 1887-1895 (1960).

4 Charles G. Haines, "Political Theories of the Supreme Court from 1789-1835," 2 Amer. Pol. Sci. Rev. 221-24 (1908).

5 Brooks Adams, The Theory of Social Revolutions 45-47, 79 (1913).

6 Walter F. Dodd, "The Growth of Judicial Power," 24 Pol. Sci. Q. 193-95 (1909).

7 J. Allen Smith, The Spirit of American Government 65-66, 97-98, 298-300 (1907).

8 Gustavus Myers, History of the Supreme Court of the United States, 7 (1918).

9 Smith, op. cit. supra note 7, at V-VII.

10 Charles A Beard, An Economic Interpretation of the Constitution of the United States 292, 63 (2nd ed. 1935).

11 Frank J. Goodnow, Politics and Administration, 1-5, 17-18 (1900).

12 Frank J. Goodnow, Social Reform and the Constitution, 2-4, 6 (1911).

13 Robert L. Schuyler, "Agreement in the Federal Convention," 31 Pol. Sci. Q. 290-92 (1916).

14 Smith, op. cit. supra note 7, at 299.

15 Melville W. Bigelow, ed., Centralization and the Law 3 (1906).

16 Arthur F. Bentley, The Process of Government, 110, 113, 272 (1949).

17 Beard, op. cit. supra note 10, at 10, 12-13, 73.

18 Remarks of William MacDonald, quoted in A. C. McLaughlin, "Report of the Conference on American Constitutional History," 1 Amer. Hist. Assoc. Annual Report 1907 79-80 (1908).

19 James G. Randall, "The Interrelation of Social and Constitutional History," 35 Amer. Hist. Rev. 1-2, 7 (1929), Constitutional Problems under Lincoln, 2-5 (rev. ed. 1951).

20 Harry Elmer Barnes, The New History and the Social Studies, 510 (1925).

21 Charles H. McIlwain, The American Revolution A Constitutional Interpretation x, 5, 16 (1924).

22 Randolph G. Adams, The Political Ideas of the American Revolution 196-97 (3rd ed. 1958) Charles M. Andrews also adopted a constitutional interpretation of the Revolution The problem that had to be dealt with, he wrote, was not mercantile subordination, but rather "the very constitution of the British empire." The Revolution came when the British were unable to make concessions meeting the Americans constitutional demands (The Colonial Background of the American Revolution 206, 217 [1924]).

23 Andrew C. McLaughlin, The Confederate and the Constitution 184, XVII. (1905).

24 Max Farrand, The Framing of the Constitution of the United States 201-02, 43-47 (1913).

25 Charles Warren, The Making of the Constitution 5, 8, 54 (1929).

26 Robert E. Newton, 'Edward S. Corwin and American Constitutional Law,' 14 J. of Public Law 211 (1965).

27 Benjamin F. Wright, Jr., American Interpretations of Natural Law 343-44 (1932).

28 Andrew C. McLaughlm, The Courts, the Constitution, and Parties Studies in Constitutional History and Politics 113 (1912).

29 Andrew C. McLaughlin, "American History and American Democracy," 20 Amer. Hist. Rev. 260 (1915).

30 Book review, 18 Amer. Pol. Sci. Rev. 180 (1924).

31 McLaughlin, op at supra note 29, at 261.

32 Andrew C. McLaughlin, The Foundations of American Constitutionalism, v, 104, 107, 109-110 (1932).

33 Black was the author of The Relation of the Executive Power to Legislation (1919), a critique of the enlargement of the presidency under Wilson.

34 Alpheus T. Mason, "Ours — A Government of Laws and Not of Men," 13 Constitutional Review, 197-203 (1929).

35 Bentley, op. cit. supra note 16, at 295.

36 Randall, op. cit. supra note 19 (Constitutional Problems), at 2.

37 Howard L. McBain, The Living Constitution A Consideration of the Realities and Legends of Our Fundamental Law, 3-5, 272 (1927).

38 Charles E. Merriam, New Aspects of Politics, 53-54 (1925), The Written Constitution and the Unwritten Attitude, 11, 25 (1931).

39 A K. Rogers, "Constitutionalism," 40 Inter'l J. of Ethics, 289, 296 (1930).

40 William Bennett Munro, The Invisible Government, 4-5, 20, 113 (1928) See also Munro, Personality in Politics (1924).

41 Ironically, the same criticism came from the conservative James M. Beck, who complained that "our very dependence upon a written Constitution and our mistaken belief in its static nature and its self-executing powers has tended to deaden the political consciousness of the American people" ("The Changed Conception of the Constitution," 69 Proc. of the Amer. Philosophical Soc. 111 [1930]).

42 J. Allen Smith, The Growth and Decadence of Constitutional Government, 149, 160, 185, 277, 285-86 (1930).

43 Walton H. Hamilton, "Constitutionalism," 4 Encyclopedia of the Social Sciences, 255-59 (1935).

44 In addition to his activities as a member of the Socialist Party of America Boudin gained recognition for his study, The Theoretical System of Karl Marx (1907).

45 In 1911 Boudin argued that the major issue facing the country was the question of the limitations on the judicial power to annul legislation Referring to the expanded judicial review of the 1890s and after he asked "Shall we permit this great revolution in our political institutions to take place undisputed?" ("Government by Judiciary," 26 Pol. Sci. Q. 238-70 ) Although Beard in his The Supreme Court and the Constitution (1912) tended to defend judicial review as part of the original constitutional settlement, most progressives criticized it as a departure from the Framers' intentions.

46 Louis B. Boudin, Government by Judiciary, v 1, IV-X (1932).

47 Charles Grove Haines, The American Doctrine of Judicial Supremacy 530-34 (2nd ed. 1932).

48 Ibid., 500-04, 538-40.

49 Randall, op. cit. supra, note 19 (Constitutional Problems), at 2-3.

50 Remarks of George M. Dutcher, quoted in Henry E. Bourne, "The Fiftieth Anniversary Meeting," 40 Amer. Hist. Rev. 426 (1935).

51 Howard K. Beale, The Critical Year A Study of Andrew Johnson and Reconstruction, 147, 150 (1930).

52 Ibid., 211.

53 Henry Jones Ford, "The Growth of Dictatorship," 121 Atlantic Monthly 634-35 (1918).


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