9

History, Theory, and the Constitution

On the occasion of this journal's tenth anniversary, readers may find profit in recalling two seminal essays on the American Constitution that may be thought of as providing an intellectual provenance for the kind of scholarship that Constitutional Commentary seeks to encourage. In 1934, in the midst of the Great Depression, Karl Llewellyn and Edward S. Corwin, two leading representatives of legal liberalism, assayed the nature and tendency of American constitutionalism. Llewellyn, writing with the explicit intent of laying "the foundation for an intelligent reconstruction of our constitutional law theory," offered an empirical description of the Constitution that can be regarded as a possible model for the study of constitutional history.1 Corwin, writing as a historian of the Supreme Court and constitutional law, relied on theory to explain the significance of the New Deal for the constitutional order. Although approaching their subject from the differing standpoints of theory and history respectively, each scholar's account implicated the other's discipline.

The purpose of the present essay is to consider historical and theoretical perspectives in writing about the Constitution. It is intended to be exploratory and suggestive, continuing in a modest way a scholarly inquiry begun over two decades ago by Charles A. Miller in his illuminating study, The Supreme Court and the Uses of History.2 To rely on history in constitutional adjudication raises a question about historiographical method. As Miller noted, it also poses a problem in legal theory.3 Miller's interest in the problem was provoked in part by changes in race relations in the 1960s, which constituted a chasm in history and required major revision in constitutional law and theory.4 Since then a revival of interest in original-intent jurisprudence has occurred that has stimulated further consideration of the role of history in constitutional and legal theory. At the same time, the historical profession has responded to political and social change, including specific developments in constitutional law, by becoming increasingly sensitive to normative and theoretical concerns.5

Part I of this essay will briefly review Llewellyn's and Corwin's analyses of the Constitution, which have intrinsic historical importance and are worthy of reflection and contemplation. Parts II and III of the essay will then examine some recent writing in constitutional history and theory, illustrating the tendency toward reciprocal involvement of each field in the other's disciplinary metier. While the inquiry seeks to clarify the nature of the knowledge and understanding of the Constitution which Americans require to carry on their political life, its approach is mainly that of historical description.

I

Rejecting the orthodox view that written and unwritten constitutions were fundamentally different in nature, Karl Llewellyn argued that the United States Constitution was "in essence not a document, but a living institution built (historically, genetically) in first instance around a particular Document."6 The United States, he said, had "the sort of constitution loosely designated as 'unwritten.' "7 It consisted of existing political, governmental, and legal institutions and practices, and operated through the agency of "specialists in governing," "interested groups," and the "general public."8 Llewellyn acknowledged that the constitutional text had "a little influence," but only "[w]here it makes no important difference which way the decision goes."9 The "first principle of a sane theory of our constitutional law," he asserted, was that "[w]herever there are today established practices 'under' or 'in accordance with' the Document, it is only the practice which can legitimize the words as still being part of our going Constitution. It is not the words which legitimize the practice."10

If governmental practice without reference to the document was the standard of constitutional legitimacy, what then became of the Constitution as a fundamental law limiting government? Where was the line to be drawn defining principles and institutions basic to the whole? Llewellyn recognized the problem, but it is hard to see how he provided a satisfactory answer. Neither in his empirical description nor in his theory were there clear lines, limits, or boundaries distinguishing the "working constitution" from "mere working government." Llewellyn wrote: "[w]hatever one takes as being this working Constitution, he will find the edges of his chosen material not sharp, but penumbra-like. And the penumbra will of necessity be in constant flux."11 When questions arose in "the penumbra-border of the Constitution" as to whether a change should be approved, recourse could not be had to a definite institution because none was definite on the point at issue. "The appeal must therefore be ... to a normative ideal of what the institution in question should be and do," Llewellyn reasoned.12 In like manner, explaining how the Constitution restrained the power of government officials, he said it was "the job of the [Supreme] Court... to control the course of governmental practice by reference to an ideal not found in that practice, but in the nature of what our government should be."13 To rely on "the language of the Document and its 'intent' " as a standard for constitutional interpretation, Llewellyn concluded, in contrast to the "development-tendency of existing and formative practice," was to "offer a basis utterly self-inconsistent, unworkable, and heavy with the fragrance of a charnel-house."14

Edward S. Corwin presented a similar assessment of the tendency of American constitutionalism. Analyzing the National Industrial Recovery Act as the cynosure of the New Deal, Corwin described the Act as "declaratory ... of certain legal principles which it is hoped will prove to be adapted to the present economic situation of the United States." But the principles in this "declaratory statute" were not in the Constitution, or at least they received little illumination from the twenty or so words in the text that Corwin said had any bearing on the subject. "The problem," he observed, "is one rather of Constitutional law and theory."15

Corwin stated that the N.I.R.A. rested on the theory of "the solidarity of American business" and the power of Congress to regulate "the whole business structure." It was not based on the Commerce Clause, which limited congressional power to commerce among the states, nor on the traditional theory that the national government had only the powers clearly delegated to it. To justify the statute in constitutional theory, Corwin invoked history. He argued that the commerce power in fact had never been confined to regulating acts of commerce among the states, but extended to noncommercial matters insofar as it included the safeguarding of commerce. A major effect of the N.I.R.A., a form of centralized economic regulation, was to destroy the federal system by driving the states from the field of economic regulation or subordinating their powers to the supreme power of Congress. Again Corwin's justification of this doctrinal development was historical: "in the field of business relations state power has long been moribund, so that the N.I.R.A. simply recognizes and gives effect to a Constitutional theory which is the counterpart of a condition already long established in the facts of our everyday economic life."16

In Corwin's view, the New Deal signified a revolution in the understanding of the basic constitutional principles of federalism, judicial review, and the separation of powers.17 Underlying these theoretical changes, and linking his analysis both to Llewellyn's assessment and to constitutional theory a half century later, was Corwin's untroubled assumption that "the Constitution of the United States can accommodate itself to the revolution which the N.I.R.A. undoubtedly does spell." Ultimately Corwin perceived "a change in the character of the Constitution itself." In this he saw a historical parallel between English and American constitutionalism. In 1400 Magna Carta was the English Constitution in great part, yet by 1700 that document "had been absorbed into a vast complexus of environing institutions." The same thing was now happening to the American Constitution. The Constitution, Corwin reasoned, would become absorbed into the governmental revolution that the New Deal augured, and Americans' attitude toward the Constitution "will consequently become less legalistic and more political. We shall value it for the aid it lends to considered social purpose, not as a lawyers' document." Corwin thus described a transforming historical development with far-reaching theoretical consequences.18

Corwin and Llewellyn implicate history in the broadest sense in their view of momentous political and social change signaling the decline of legal-formalist constitutionalism and the advent of the unwritten constitution as a conceptual framework of American government. Consisting of existing governmental institutions and practicconstitution social forces, the unwritten constitution represented the historicization of the constitutional text. As a theoretical construct, it explained what happens to a charter of fundamental law under the ravages of time. The Constitution becomes, in the characterization later employed by Supreme Court Justice Felix Frankfurter, "a stream of history."19 To know and understand what the Constitution is, therefore, requires historical inquiry, and a different type of inquiry from that associated with a written constitution. The latter entails an understanding of history as discrete events and the objective, immanent meaning and intent of specific acconstitutionalismns. Unwritten, political constitutionalism, in contrast, depends upon a concept of history as ongoing process, growth, and development.20

As constitutional theory implicates history, so any account of constitutional history rests on certain theoretical assumptions. In order to decide what kind of evidence to consult, it is necessary to have in mind an idea of the nature and scope of the Constitution, or what constitutes it. Furthermore, the purpose of constitutional history, like any other historical inquiry, may involve normative concerns raising questions of political theory and moral philosophy. Concerned as it is with knowledge of past decisions and actions that may have a direct bearing on questions of policy, constitutional history may be more subject to normative-theoretical demands than scholarship in fields that have less immediate practical import.

Rereading the essays of Llewellyn and Corwin half a century later naturally invites reflection on the accuracy of their assessment of American constitutionalism. Do they offer, in essence, a prolegomenon to contemporary constitutional scholarship?

In many respects Corwin and Llewellyn appear as far-sighted, perspicacious observers. A generation after they described the triumph of political constitutionalism over declaratory jurisprudence and legal formalism, public law scholars generally accepted political jurisprudence in theoretical and empirical terms.21 Even the process jurisprudence of the 1940s and 1950s, which was a reaction to legal realism, conceded the substantially political nature of constitutional adjudication.22 Since Corwin and Llewellyn wrote, moreover, several scholars have elaborated the concept of an unwritten constitution