History, Theory, and the
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
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
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
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 practices shaped by 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 actions and decisions. 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
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 in explaining the nature of American
constitutionalism.23 And it seems unnecessary to add that the
project of reconstructing constitutional theory, initiated especially by
Llewellyn with his prescient reference to penumbras in constant flux, has
flourished in recent years as legal commentators try to rationalize the
expansion of judicial policy making.24
Yet there is evidence that legal-formalist constitutionalism, which
Llewellyn and Corwin considered to be historically exhausted, has not only
persisted in the post-New Deal era, but has experienced something of a
revival.25 Perhaps the clearest indication of formalist survival is
the aggrandizement of constitutional law as an instrument of judicial
governance. One can assume of course that despite formal appearances all
constitutional adjudication is politically willful and subjective. But then it
becomes necessary to ask why legal-juridical forms must be maintained. Why does
not the Supreme Court candidly acknowledge, for example, that its decisions are
based on an unwritten constitution and laws when, in the opinion of many
scholars, this is so obviously the case?26 Perhaps the reason is
that principles, forms, and procedures are essential elements of
constitutionalism. Accordingly the formal, written Constitution continues to
have great practical importance in shaping the course of American political
The resuscitation of original-intent thinking, which began in the 1970s,
occurred when it did because of substantive objections in the society to
many Supreme Court decisions in the previous decade. The reasons why it
occurred, however, concern the very nature of constitutional government in the
United States. In the deepest sense the concept of Framers' intent as an
approach to constitutional adjudication, and the corollary interpretive method
of textualism, reflects the fact that the American Constitution is not simply
or primarily an ongoing historical process. It is a written document, adopted
at a particular point in history (and subsequently amended), that signifies
political action and purpose of the most fundamental sort, namely, the founding
of a regime. Critics of original intent, citing epistemological and other
difficulties, labor mightily to discount if not dismiss the solid grounding in
empirical fact on which this approach to constitutional decision making rests.
They labor in vain, however, because the history of the making of the
Constitution, abundantly documented despite inevitable lacunae, prevents it
from being dissolved into some immemorial past — or transformed into an
assemblage of existing political institutions and practices.
Writing before the revival of original-intent jurisprudence, Charles
Neither the clinical destruction of the Court's use of history through
legal scholarship nor outright advocacy of forward-looking decisions has been
able to tear up traditions of constitutional and judicial thinking deeply
rooted in the American political culture. The ties of the Constitution are to
the past, and when history calls the justices strain to listen.28
A generation later Paul Kahn, surveying the history of constitutional
theory, made the same point in stating that constitutional law is a historical
enterprise: "In recognizing its authority, citizens recognize the continuity of
the past with the present. In respecting the Constitution as law, they respect
the authority of past political acts over present community
If Llewellyn and Corwin failed to appreciate the necessity and enduring
appeal of legal-formalist elements in the regime, their analyses are
nevertheless instructive for the reflection they provoke on history and theory
in constitutional interpretation. Both historical knowledge of the purpose of
the Constitution, and theoretical understanding of basic constitutional
principles, are essential to maintaining the American regime as a lawful system
of government. History and theory as separate disciplines contribute to
constitutional maintenance. Yet the question of the scope and precise limits of
the two fields warrants further investigation. A review of some recent writings
on the Constitution suggests a more complicated interdisciplinary tendency in
which practitioners in each field employ the methods and engage some of the
concerns of the other.
History is usually thought of as a nontheoretical inquiry, in comparison
with philosophy, law, and political science, all of which it is allied with in
constitutional scholarship. Historians like to talk about evidence and methods;
they regard theory as speculative and hypothetical. This restraint is
warranted, for theory is difficult to define and hard to know how to use in a
disciplined way. Theory can refer to systematically organized knowledge that is
applicable in a variety of circumstances, to a set of assumptions, principles,
and rules of procedure devised to analyze, predict, or explain the nature or
behavior of a set of phenomena, or simply to abstract reasoning and
speculation. As used in public law scholarship, theory has a decidedly
normative connotation. It expresses opinion and belief about what the
Constitution and the laws ought to be, rather than empirical description of
what they are or were in the past. Indeed, contemporary legal commentary has
been described as pervasively normative in the sense of being grounded in
various conceptions of justice.30
History that aims at an objective factual account of past events is
often considered to be untheoretical antiquarianism.31 Yet in a
strict sense any type of historical inquiry rests on theoretical assumptions.
In his attack on original-intent historicism, Jacobus ten Broek noted that the
historical approach rests on logic, or theory. It assumes that the intent of a
constitutional provision can be discovered by identifying matters that demanded
treatment by constitution makers, on the theory that ideas which were part of
the climate of opinion or which resulted from current problems must have been
in the minds of the authors of the text.32 The purpose of inquiries
into legal history, moreover, is often to resolve contemporary legal
William Nelson, a liberal legal historian, has argued that conservative
original-intent scholars on the one hand and radical devotees of critical legal
studies on the other use history to resolve present problems.33 Yet
if liberal historians have been unsuccessful in illuminating legal policy
questions, it has not been for want of trying. A glance at recent legal
historiography suggests that liberal scholars, no less than other historians,
have been theoretically inclined in the sense of joining history with normative
philosophical considerations to help solve current problems.
The tradition of external legal history, defined in relation to social
and economic forces rather than the formal doctrines of internal legal history,
is self-consciously instrumental. James Willard Hurst, the founder of
law-and-society historiography, took for granted the reformist ends of social
science and legal realism in the 1930s in his effort to re-direct legal history
away from technical professional concerns. Hurst viewed law as a social
institution, an instrument of individual, group, and community purpose rather
than a self-contained body of autonomous principles and rules. Hurstian legal
history aimed at measuring the actual past performance of government against
man's potential for rational control of his environment and decision making. It
provided a standard by which the present generation of lawyers could determine
the circumstances that best promoted the intelligent direction of society in
favor of growth.34
Normative moral ends were more explicitly avowed in Paul Murphy's appeal
in the early 1960s to historians to reclaim the field of constitutional history
from lawyers and political scientists. Issuing a kind of liberal manifesto for
the era of judicial activism that was then beginning, Murphy advocated the use
of history to promote social change. The theoretical basis of the project he
envisioned was the assumption that the judicial function tends naturally to
historical study to discover the precise locus of constitutional language, and
to ascertain its thrust, implications, and overall justification. Murphy
proposed a "new role" for constitutional history "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
In the 1970s radical historians, updating the theory of legal realism,
began to challenge the normative perspective of liberal legal history. To
proponents of critical legal studies, the work of the Hurst school appeared as
pragmatic functionalism signifying political acceptance of the existing order.
In an early statement of the radical argument, Morton Horwitz asserted that
legal history should no longer be content with justifying the world as it is,
but should penetrate the distinction between law and politics. It should view
jurisprudential change as the product of social forces and political
struggle.36 In more mature form this argument became an explicit
plea for historians to take up questions of legal and political theory.
According to Horwitz, legal theory inevitably uses history to show how existing
arrangements were created and legitimized. By the same token, historical
interpretation serves as a proxy for more general controversies over political
theory. When, for example, historians argue over whether liberalism or
republicanism was the ideology of the American Revolution, they are really
debating the primacy of politics and substantive visions of the good society.
"It is time for us to bridge the chasm between legal theory and legal history,"
Robert Gordon contends that history in general liberates the political
imagination by revealing suppressed alternatives, and radical history discloses
the fact that the rule of law is really "a teeming jungle of plural,
contradictory, orders struggling for recognition and dominance." In the
politics of radical reformation, the role of history is "to describe as
concretely as possible how constraints upon freedom get socially manufactured
and how people acting collectively through politics sometimes succeed and
sometimes fail in breaking through the constraints."38 According to
Gordon, radical legal history teaches the "political lesson" that there exist,
"immanent in such familiar ideals and institutions as private property and free
contract, possibilities for transforming the society and economy in more
democratic and egalitarian ... directions."39
The result of uniting history and theory can be seen in the bicentennial
symposium of the Organization of American Historians. Repudiating the
traditional concern of constitutional history with constitutional maintenance,
the symposium authors build their accounts around the idea of constitutional
aspiration popular among legal theorists. Undertaking "the social construction
of constitutional history," they describe how "disinherited groups" "have made
aspirations to a life free from legally recognized hierarchies — to a
life without the badges and incidents of slavery — into a
superconstitution that has taken precedence over any merely transitory
determination of constitutional meaning." The effect of this reconstruction of
constitutional history, speculates Hendrik Hartog, may be the rejection of
"notions of a distinctly legal or constitutional history, abandoning a
perspective founded on the American Constitution's separation from the
indeterminacies of American social and political history."40
Despite its growing professional acceptance, the trend toward explicitly
normative historiography has provoked dissent. The constitutional historian
Alfred Kelly, after first-hand experience using history to promote legal reform
in the school desegregation cases, condemned the types of history found in
constitutional adjudication. This consisted of a priori history, created by
judicial fiat, and law-office history aimed at selection of data favorable to a
position. Questioning whether court-oriented history and scholarly history were
reconcilable, Kelly held that truth in history was independent of its
usefulness.41 Similarly Charles Miller, though fully sensitive to
the normative use of history to transmit values, cautioned against reliance on
ideologically charged "ongoing" history by the Supreme Court. Miller declared:
"The Supreme Court as a whole cannot indulge in historical fabrication without
thereby appearing to approve the deterioration of truth as a criterion for
communication in public affairs.... where it matters most to society, it
matters most that the story be a true one."42
A recent convert to nontheoretical, objective history is William Nelson,
who concedes the failure of his own efforts to show the utility of legal
history in contemporary legal analysis. Criticizing the normative-theoretical
bent of both the original-intent school and the critical legal studies
movement, he appeals to a pure, genuinely historical inquiry that studies the
past for its own sake.43 Michael Les Benedict similarly sees a clear
distinction between genuine historical inquiry and legal scholarship that uses
historical materials. The legal scholar is committed to settling a policy
question and uses judicially tested rules of evidence to evaluate evidence. The
historian seeks to explain change over time, showing how events occurred to
produce the present state of affairs. Benedict observes further that legal
scholarship using history tends toward advocacy, while historical inquiry
eschews judgment and accepts ambiguities in the evidence. It does not force the
evidence to yield a definite conclusion.44
Benedict's historiographical analysis may be more heuristic than
empirical. While disavowing a normative task for history, he himself employs
theoretical premises. Historians assume, he tells us, that historical actors do
not have firm intentions and clear understandings about events they are
involved in. Historians assume further that understandings will change over
time and intentions will go awry.45 Benedict's "historical
principles of analysis" implicate a philosophy of history that is no less
important for being presented in a theoretically modest way.
If it is hard to disentangle history from philosophy, it is equally
difficult to extricate theory from the toils of history. At first glance the
pursuit of legal theory, in its eager embrace of moral philosophy, seems remote
from the pedestrian factuality of history. History must nevertheless be taken
into account, for constitutional and legal theorists recognize that their
normative arguments will gain in persuasiveness if supported by evidence of the
actual experience of human thought and action in the past.
Theory, including political science, is integral to American
constitutionalism. At the start of the twentieth century constitutional theory
became preoccupied with the justification of judicial review, the famous
"countermajoritarian difficulty" which inspired a rich body of criticism
through the 1960s.46 In the past two decades constitutional
theorizing has assumed a new level of urgency. This is in large part a response
to the historicist challenge to judicial activism thrown down by the proponents
of original-intent jurisprudence. William Wiecek notes that the coherence of
constitutional theory disintegrated in the 1980s as debate focused on the
Framers' intent and the use of history in constitutional
adjudication.47 The fight over the Bork nomination in 1987 signified
fundamental conflict over constitutional philosophy and
The varieties of constitutional theory can be bewildering.49
For present purposes it is sufficient to note the basic distinction between
those who appeal to the Constitution as an authoritative historical document
having a substantially fixed, objective meaning, and those who conceive of the
Constitution as a text of largely symbolic import that enables interpreters to
appeal elsewhere for authority to decide constitutional questions. We shall
note the response of representative theorists on both sides of this distinction
to the fundamental requirement that history be taken into account in
Radical historicism figures prominently in the writing of several
theorists who adopt the second of these views, and who can be considered in the
"fundamental values" school. The defining feature of radical historicism is the
idea that the Constitution, although it has a history, never has a historical
meaning, but always and only a current meaning.
In the theory of Ronald Dworkin, for example, law is the rights and
duties that flow from past collective decisions. Judges are not required,
however, to understand the law they enforce as continuous and consistent in
principle with the law of the past. "Law as integrity," he explains, "begins in
the present and pursues the past only so far as and in the way its contemporary
focus dictates." It does not aim to recapture the ideals or practical purposes
of those who created it.50 Hercules, Dworkin's fabled
judge-interpreter, seeks in statutory and constitutional construction "to make
the best he can of this continuing story [i.e. the life of the statute or
constitution], and his interpretation therefore changes as the story develops."
Making the story the best it can be, Hercules "interprets history in
motion."51 Dworkin rejects the historical approach of
original-intent interpretivism because it makes the Framers' mental state
decisive in reading the abstract language of the Constitution. It thus denies
that the Constitution expresses principles. Asserting that constitutional
principles do not stop "where some historical statesman's time, imagination,
and interest stopped," Dworkin avows a "thoughtful" historicism that retrieves
the Framers' abstract convictions and asks how they can be best understood in
David Richards argues similarly that legal interpretation is a form of
historical reconstruction by which a community understands itself as a legal
tradition. According to Richards, sound legal interpretation requires critical
historiography, in contrast to the providential and mythical history often
found in legal arguments. Richards attacks Raoul Berger's original-intent
historicism as an abuse of critical historiography because it does not fit the
available data. Berger's history is flawed as a theory of interpretation
because it identifies the meaning of the Constitution with the Framers'
subjective intent. It is also inadequate as political theory because it rests
on an indefensible notion of popular sovereignty.53 Richards
advocates a type of historical reconstruction in which the facts bearing on the
central texts of the legal tradition are used to provide the best theory of the
values constituting the tradition.54 "[G]ood legal interpretation,"
he declares, "requires that history and moral philosophy be practiced
together."55 But in Richards's scheme the meaning of a political
theory or constitutional principle is never something objective to be
discovered in the past; it is a contemporary philosophical conception. He
concludes that constitutional interpretation is best understood "as the
imputation of reasonable purposes to the text and history of the
A different concept of history operates in the theory of constitutional
aspiration. As seen in the writings of Sotirios Barber and Walter F. Murphy,
this historical understanding is substantially different from radical
historicism in a philosophical sense, although in programmatic terms the
difference may be only slight. Barber's theory of aspirational
constitutionalism rests on the proposition that the Constitution has a meaning
— in the past, presumably, as well as in the present — that is
independent of what any interpreter might want it to mean.57
Affirming natural law principles, Barber rejects the relativist position, which
denies this independent meaning and holds that a constitutional principle means
different things at different times. Historical relativism cannot comprehend
the Constitution as supreme law, a concept that assumes some values are
fundamental and transhistorical.58 At the same time, Barber avoids
the pole of positivistic conventionalism. He argues that the Constitution
embodies the nation's traditions, not simply its history in the sense of the
indiscriminate past. Tradition in this view is different from the past. It is a
normative theory of what we stand for and what has been best in us as a
Aspirational historicism rejects original-intent historicism, with its
focus on a single, discoverable intent and the specific ideas of the Framers as
the key to understanding the meaning of constitutional principles.60
Aspirational theorists nevertheless recognize the significance of empirical
research and find examples of constitutional aspiration in
history.61 The work of Walter F. Murphy has been described as a
natural law theory, built largely out of historical materials of law and
politics in action, that finds a coherent vision of the lessons of
A more astringent theory of constitutional aspiration seeks to recover
the meaning of constitutional principles as the Framers understood them. In
this historical outlook, constitutional concepts are not merely symbolic
abstractions that permit boundless interpretive possibilities for those who
would improve on the work of the Founders.63 Gary Jacobsohn, for
example, holds that the Constitution embodies our aspirations, but he rejects
the idea that to be supreme it must always be "reaffirmed as descriptive of our
best current conception of an ideal state of affairs."64 Analyzing
Lincoln's statesmanship as the preeminent example of constitutional aspiration,
Jacobsohn emphasizes Lincoln's interpretation of the Constitution in relation
to the moral theory of the Founders. "Only in the framework of this particular
association," he reasons, "may the Constitution be understood to embody the
nation's aspirations."65 Rejecting both the undisciplined
subjectivism of unwritten constitutionalism and the parsimonious positivism of
original-intent historicism, Jacobsohn understands the Constitution as
"flow[ing] out of a coherent and knowable, not arbitrary or ever-mutable, set
of philosophic presuppositions."66
The theoretical writing of Hadley Arkes further illustrates what we may
refer to as a nonhistoricist historical inquiry aimed at understanding
constitutional principles as the Framers understood them.67
According to Arkes, in order to defend, justify, and preserve the Constitution
it is necessary to establish its essential character or meaning. This is not a
historicist meaning that changes with the passing generations; it is a
philosophical meaning and moral understanding, grounded in modern natural
rights theory, that can be grasped again. "To restore those understandings is
not to engage in a quaint project in 'historical' reconstruction," Arkes
observes. It is a task of philosophical recovery and reflection on principles
that have a timeless historical existence. The purpose of this type of inquiry,
Arkes writes, is "to recall the arguments of the Founders themselves in order
to restore" their original understanding that "it was necessary to move ...
beyond the text of the Constitution to the principles of right and wrong that
stood antecedent to the Constitution."68 Arkes proposes "to state
anew, and perhaps state more fully, the issues that were raised" in the debate
over the Constitution and the Bill of Rights. In order to apply the
Constitution in practical cases and preserve and perfect constitutional
government, he declares, "[t]here is a need to know again what was known by
It is generally agreed that the Framers were natural law thinkers who
relied on modern natural rights theory. Sound historical method, in order to
understand the Framers as they understood themselves, should therefore be open
to the possibility that philosophical truth or moral reality
exists.70 This historical attitude is disputed by radical
historicism on the left (informed by pragmatism and cognitive relativism), and
by original-intent historicism on the right (informed by legal positivism).
It is ironic that while originalist scholars have forced legal theorists
to take history into account, they have been somewhat reticent about the type
of historical thinking that original-intent jurisprudence requires. The
writings of Raoul Berger, the most prolific originalist legal historian, appear
to rest on the assumption that historical facts are objectively knowable, that
the past exists independently of the way it is interpreted and does not change,
and that applying the past to the present is simply a matter of getting the
historical facts straight.71 Whether this approach to history is
sound is not the issue, or at least it is not an issue that originalist
scholars feel obliged to discuss.72 Their task rather has been to
explain in normative terms why constitutional original intent, which they
assume can be ascertained as readily as the purpose or intent of any other
historical event or idea, should be relied on in constitutional
The reasons for employing original intent include considerations of
democratic political theory, the rule of law, neutrality in judicial decision
making, and governmental flexibility and responsiveness. According to Earl
Maltz, originalism and original intent are labels for a set of conventions
reflecting a political theory about the judicial function. Maltz argues that
modern theory, not traditionalism or an obligation to the past, requires
fidelity to Framer intent.73 Thus, although original-intent thinking
is in some sense historical by definition, there is an element of truth in John
Phillip Reid's assertion that original-intent jurisprudence is more accurately
seen as a rejection of judicial activism, rather than "a respect for
constitutional meaning discovered through the discipline of
The best known recent work of originalist scholarship, Robert H. Bork's
The Tempting of America,75 presents very little, if any,
historical evidence that original intent was ever a practical and effective
method of constitutional adjudication. Bork's theory of judging is not
supported by his history, which is a tale of judicial legislation from John
Marshall to Thurgood Marshall.76 A more illuminating account written
from an original-intent point of view is Christopher Wolfe's The Rise of
Modern Judicial Review.77
Wolfe attempts to show that interpretivism, or constitutional
interpretation in accordance with the Framers' purpose and intent, was standard
judicial practice in the nineteenth century. He argues that John Marshall, for
example, relied on intrinsic and extrinsic sources of intent, with a view
toward discovering what the Framers meant by the principles they embodied in
the Constitution.78 Wolfe's concept of original intent recognizes
the role of prudence in the performance of the judicial function and is
different from Berger's and Bork's positivist conception.79 A more
philosophically precise description would say Wolfe seeks to determine the real
or intrinsic meaning — as opposed to either original or current meaning
— of the Constitution.80 In the context of the present
analysis, however, the important point is Wolfe's attempt to demonstrate the
possibility of objective constitutional interpretation, as a theoretical
matter, by making a good-faith effort to be faithful to the Constitution
through historical reenactment of the process of
To conclude this brief survey we consider a different kind of historical
reenactment, tending toward radical historicism and recalling the legal realism
with which we began, that has been proposed by the constitutional theorist
Bruce Ackerman. Criticizing the ahistorical character of much constitutional
theory, Ackerman urges "a reflective study of the past" to determine "the
concrete historical processes" that allowed Americans to transform moments of
passionate political mobilization into lasting legal achievement.82
The result of his historical inquiry is the theory of dualist democracy,
describing how the people at decisive historical moments amend the Constitution
through the practice of constitutional — as opposed to normal —
politics. Ackerman claims the authority of the Framers for this theory. As they
made the original Constitution by acting illegally outside the Articles of
Confederation, so later generations properly emulate them by creatively
altering the regime (in reality creating new regimes as in Reconstruction and
the New Deal), through the exercise of the de facto amending power inherent in
popular sovereignty. In the legal realist spirit of Llewellyn and Corwin,
Ackerman views the Constitution as "a historically rooted tradition of theory
and practice — an evolving language of politics" and "historical
practice." He evokes their unwritten, political constitutionalism in asserting
that the basic reality is the radically different government Americans have
made for themselves, to which the paper or ceremonial Constitution is
adapted.83 Ackerman's radical historicism convinces him that we are
not "rootless epigones of bygone eras of constitutional creativity." By
rewriting history, the constitutional theorist can recover "the distinctive
aspirations of the American Republic."84
History and theory are reciprocally related in American
constitutionalism. To assist in realizing the ends of constitutional government
in the United States, theory must take account of history.85 At the
same time, the historical knowledge that is essential for maintaining the
Constitution has a normative dimension. This is not to endorse partisan or
ideological history, any more than to say the purpose of liberal education is
political is to approve the politicization of the university86 As
education is political in aiming to produce good citizens, so history —
like its sister discipline political science — has reason to be partial
to the regime of liberal democracy87 Of course there is always the
risk that history and theory will be abused in the service of ideology In
constitutional scholarship, no less than in political life generally, prudence
is required in applying the principles and rules that constitute and define
inquiry in the respective fields When pursued according to rational and
objective scholarly standards, however, the disciplines of history and theory
can enrich each other and contribute much to the discipline of
1 Karl Llewellyn, The Constitution As An Institution, 34 Colum.
L. Rev. 1, 3 (1934).
2 Charles A Miller, The Supreme Court and the Uses of History
(Harv. U. Press, 1969).
3 Id. at 1-2.
4 Id. at 115-16.
5 Michael Kammen, ed., The Past Before Us: Contemporary Historical
Writing in the United States 19-46 (Cornell U. Press, 1980), and Peter
Novick, That Noble Dream: The Objectivity Question and the American
Historical Profession (Cambridge U. Press, 1988).
6 Llewellyn, 34 Colum. L. Rev. at 3 (cited in note 1).
7 Id. at 2 n 5 Llewellyn acknowledged earlier writers who questioned the
theory of the written Constitution, including Arthur F. Bentley and Howard L.
McBain For discussion, see Herman Belz, The Realist Critique of
Constitutional ism in the Era of Reform, 15 Am J. Legal Hist. 288 (1971).
8 Llewellyn, 34 Colum. L. Rev. at 19 (cited in note 1).
9 Id. at 39 (emphasis in original).
10 Id. at 12 (emphasis in original).
11 Id. at 26.
12 Id. at 28 (emphasis in original).
13 Id. at 39 (emphasis in original).
14 Id. at 28.
15 Edward S. Corwin, Some Probable Repercussions of Nira on Our
Constitutional System 172 Annals Am. Acad. Pol. & Soc. Sci. 139, 139-40
16 Id. at 140-41.
17 Corwin said that although the end of the federal-state balance
removed a major rationale for judicial intervention in national policy making,
judicial review would continue "in behalf of the helpless and oppressed against
local injustice and prejudice ' He also predicted that fusion of powers and
cooperation among the branches of government would supersede the ideas of
separation and competition on which the constitutional system was originally
based Id. at 142.
18 Id. at 144.
19 Quoted in Sanford Levinson, Constitutional Faith 33 (Princeton
U. Press, 1988).
20 Miller, The Supreme Court and the Uses of History at 25-26,
191-92 (cited in note 2).
21 Sotinos A. Barber, Normative Theory, the New Institutionalism, and
the Future of Public Law, 3 Stud. Amer. Pol. Dev. 56, 57 (1989).
22 G. Edward White, The American Judicial Tradition (Oxford U.
23 Thomas C. Grey, Do We Have an Unwritten Constitution? 27 Stan.
L. Rev. 703 (1975), Thomas C. Grey, Origins of the Unwritten Constitution
Fundamental Law in American Revolutionary Thought, 30 Stan. L. Rev. 843
(1978), Stephen R. Munzer and James W. Nickel, Does the Constitution Mean
What It Always Meant? 77 Colum. L. Rev. 1029 (1977), Suzanna Sherry, The
Founders Unwritten Constitution, 54 U. Chi. L. Rev. 1127 (1987), Michael
Zuckert, Epistemology and Hermeneutics in the Constitutional Jurisprudence
of John Marshall, in Thomas C. Shevory, ed., John Marshall's Achievement
Law, Politics, and Constitutional Interpretations 202-15 (Greenwood Press,
1989), Robert F. Nagel, Constitutional Cultures The Mentality and
Consequences of Judicial Review 1-26 (U. of Cal Press, 1989)
24 See, for example, Philip Bobbitt, Constitutional Fate (Oxford
U. Press, 1982), Sotirios A. Barber, On What The Constitution Means
(Johns Hopkins U. Press, 1984), Ronald Dworkin, Law's Empire (Belknap
Press, 1986), Cass R. Sunstein, The Partial Constitution (Harv. U.
25 See Nagel, Constitutional Cultures at 121-55 (cited in note
26 Leslie Friedman Goldstein, In Defense of the Text Democracy and
Constitutional Theory 67 (Rowman & Littlefield, 1991) ("In Defense
of the Text").
27 Harvey C. Mansfield, Jr., America's Constitutional Soul (Johns
Hopkins U. Press, 1991).
28 Miller, The Supreme Court and the Uses of History at 51 (cited
in note 2) Miller's reference to an attempted destruction of judicial reliance
on history is a reference to Jacobus ten Broek, Use by the United States
Supreme Court of Extrinsic Aids in Constitutional Construction 26 and 27
Cal. L. Rev. 437, 664 (1938) and 157, 399 (1939).
29 Paul W. Kahn, Legitimacy and History Self-Government in American
Constitutional Theory 189 (Yale U. Press, 1992) ("Legitimacy and
30 Peter H. Schuck, Public Law Litigation and Social Reform 102
Yale L. J. 1763, 1764 (1993) (book review).
31 William M. Wiecek, The Constitutional Snipe Hunt, 23 Rutgers
L. J. 253, 254 (1992).
32 ten Broek, 26 Cal. L. Rev. at 677 (cited in note 28) ten Broek denied
that facts now apparent can be assumed to have presented themselves to the
framers of a constitution in the same light and with the same force as they now
appear to a historical observer.
33 William E. Nelson, New Directions in American Legal History, 4
Benchmark 283, 284-86 (1990).
34 James Willard Hurst, Legal History A Research Program, 1942
Wis. L. Rev. 323, 323-33, James Willard Hurst, Law and Social Process in
United States History 1-15 (U. of Mich. Law School, 1960), Robert W.
Gordon, J. Willard Hurst and the Common Law Tradition in American
Legal Historiography, 10 Law & Soc. Rev. 9, 48 (1975).
35 Paul L. Murphy, Time to Reclaim The Current Challenge of American
Constitutional History, 69 Am Hist. Rev. 64, 74-77 (1963).
36 Morton J. Horwitz, The Conservative Tradition in the Writing of
American Legal History, 17 Am J. Legal Hist. 275, 281 (1973).
37 Morton J. Horwitz, History and Theory, 96 Yale L. J. 1825,
1830, 1832, 1835 (1987).
38 Robert W. Gordon, An Exchange on Critical Legal Studies between
Robert W. Gordon and William Nelson, 6 Law & Hist. Rev. 139, 181-82
39 Robert W. Gordon, The Politics of Legal History and the Search for
a Usable Past, 4 Benchmark 269, 280 (1990).
40 Hendrik Hartog, The Constitution of Aspiration and 'The Rights
That Belong to Us All,' 74 J. Amer. Hist. 1013, 1024, 1029 (1987).
41 Alfred H. Kelly, Clio and the Court An Illicit Love Affair,
1965 Sup. Ct. Rev. 119, 122, 157.
42 Miller, The Supreme Court and the Uses of History at 195-96
(cited in note 2).
43 Nelson, 4 Benchmark at 284-91 (cited in note 33).
44 Michael Les Benedict, Book Review, 10 Law & Hist. Rev.
378, 379-80 (1992).
45 Id. at 380.
46 Robert Lowry Clinton, Marbury v. Madison and Judicial Review
(U. Press of Kansas, 1989).
47 William M. Wiecek, Liberty Under Law The Supreme Court in American
Life 2, 190 Johns Hopkins U. Press, 1988).
48 Goldstein, In Defense of the Text at 1 (cited in note 26).
49 Goldstein enumerates the following theories intentionalism and
textualism (often considered as a single theory under the name of originalism
or interpretivism), extratextualism (also called fundamental values
jurisprudence or noninterpretivism), indeterminacy, and Dworkinism Id. at 2
Lief Carter identifies interpretivism (which he calls preservatism), and
political and normative alternatives to interpretivism Lief H. Carter,
Contemporary Constitutional Law making The Supreme Court and the Art of
Politics (Pergamon Press, 1985) ("Con temporary Constitutional
50 Dworkin, Law's Empire at 227 (cited in note 24).
51 Id. at 348, 350.
52 Id. at 369, 361.
53 David A J. Richards, Interpretation and Historiography, 58 S.
Cal. L. Rev. 490, 512, 505, 509 (1985).
54 Id. at 501.
55 Id. at 548.
56 Id. at 527 For a concise statement of the epistemological theory of
radical historicism, see Gregory Leyh, Toward a Constitutional
Hermeneutics, 32 Amer. J. Pol. Sci. 369 (1988).
57 Barber, On What the Constitution Means at 7 (cited in note
58 Id. at 36.
59 Id. at 84-85.
60 Walter F. Murphy, Constitutional Interpretation: The Art of the
Historian, Magician, or Statesman?, 87 Yale L. J. 1752, 1764 (1978).
61 Barber, 3 Stud. Amer. Pol. Dev. at 68 (cited in note 21).
62 Carter, Contemporary Constitutional Lawmaking at 123, 125-26
(cited in note 49) See Walter F. Murphy et al., American Constitutional
Interpretation (Foundation Press, 1986)
63 Gary J. Jacobsohn, The Supreme Court and the Decline of
Constitutional Aspiration 95 (Rowman & Littlefield, 1986).
64 Id. at 96 The quoted material and view criticized are those of
Sotirios A. Barber.
66 Id. at 75.
67 The idea and the necessity of nonhistoricist historical inquiry is
discussed in Leo Strauss, Natural Right and History 33-34 (U. of Chi.
68 Hadley Arkes, Beyond the Constitution 17-18 (Princeton U.
69 Id. at 19-20.
70 For discussion of this outlook see Michael S. Moore, Do We Have an
Unwritten Constitution?, 63 S. Cal. L. Rev. 107 (1989), Stanley C.
Brubaker, What Constitutes 'this Constitution'? (unpublished paper
presented at the 1990 Annual Meeting of the American Political Science
Association), and Conserving the Constitution, 1987 Am B. Found Res J.
71 William M. Wiecek, Clio As Hostage The United States Supreme Court
and the Uses of History, 24 Cal. W. L. Rev. 227, 266 (1987).
72 Although this concept of historical method is held in intellectual
disrepute among theorists of historiography, the practice of historians
suggests there may be substantial truth in it.
73 Earl Maltz, Foreword The Appeal of Originalism, 1987 Utah L.
Rev. 773, 800, and Some New Thoughts on an Old Problem — The Role of
the Intent of the framers in Constitutional Theory, 63 B. U. L. Rev. 811
74 John Phillip Reid, Originalism and Subjectivism in the
Bicentennial Year, 68 Soc. Sci. Q. 687, 700 (1987).
75 Robert H. Bork, The Tempting of America The Political Seduction of
the Law (The Free Press, 1990).
76 Brubaker, What Constitutes this Constitution'? at 28 (cited in
77 Christopher Wolfe, The Rise of Modern Judicial Review From
Constitutional Interpretation to Judge Made Law (Basic Books, 1986)
("Rise of Modem Judicial Review").
78 Id. at 49-50.
79 Id. at 37, 71, 85, 88.
80 Brubaker, What Constitutes this Constitution"? at 37 (cited in
81 Wolfe, Rise of Modern Judicial Review at 14 (cited in note 77)
Similar in methodology and in historiographical significance is Richard A
Maidment, The Judicial Response to the New Deal The US. Supreme Court and
Economic Regulation, 1934-1936 (Manchester U. Press, 1991).
82 Bruce Ackerman, We The People Foundations 17, 22 (Belknap
83 Id. at 22, 34-35.
84 Id. at 57 A similar goal is asserted in Sunstein, The Partial
Constitution at 17-39 (cited in note 24).
85 Paul W. Kahn goes farther in arguing that American constitutional
theory is centrally concerned with history for the reason that, after the
founding generation, the state is a historical phenomenon The task of
constitutional theory is to explain how self-government is possible under the
conditions of temporality in which the state exists Kahn, Legitimacy and
History (cited in note 29).
86 John Alvis, Why a Proper Core Curriculum Is Political and Ought
Not Be 'Politicized', 28 The Intercollegiate Rev. 28-29 (1993).
87 Ernst Breisach, Historiography Ancient, Medieval, & Modern
409-10 (U. of Chi. Press, 1983), James W. Ceaser, Liberal Democracy and
Political Science 20-24 (Johns Hopkins U. Press, 1990).
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