Expanding the Scope of American
It is now over thirty-five years since the lamented Paul L. Murphy
lamented the decline of American constitutional history as a teaching
and research field.(1) "One of the
ironies of American historiography is that in the nineteenth century,
when the American citizen was hardly touched in his everyday existence
by his national government and very little by his state government,
constitutional history tended to crowd out almost every other aspect of
history," he wrote. Yet, as early as 1963 Murphy observed that "[i]n the
twentieth century, social, cultural, and intellectual history has risen
in professional status to the rapid exclusion of constitutional . . . ."(2)
As Murphy knew, in the nineteenth century
every history of the United States attended closely to the nation's
constitutional development--to the constitutional issues that
precipitated the American Revolution, to the operation of the Articles
of Confederation, the framing and ratification of the Constitution
itself, issues of state rights versus nationalism, constitutional
aspects of slavery, Civil War, and Reconstruction. Titles like James
Schouler's 7-volume History of the United States of America, Under
the Constitution(3), published from
1880 to 1913, tell the tale. John W. Burgess titled two volumes of his
5-volume history of the United States The Civil War and the
Constitution(4) and Reconstruction
and the Constitution.(5)
Then there were specifically designated
constitutional histories, like George Ticknor Curtis's Constitutional
History of the United States,(6)
Hermann von Holst's, The Constitutional and Political History of the
United States,(7) and Francis Newton
Thorpe's A Constitutional History of the American People and
Constitutional History of the United States.(8)
All these histories treated the
constitutional development of the United States as integral to its
general history. The master-narrative of American constitutional
development fit well the dominant Whig and Hegelian approaches to
history, stressed progress towards ever greater liberty coincident with
progress towards ever more universal community, manifested by the rise
of nationalism and the nation-state.
Written before the Supreme Court secured
its preeminent place as expositor of the Constitution--or at most as the
Court was first staking its claim--these histories did not attend
primarily to court decisions. Nor did they detail constitutional
doctrine. Rather they discussed constitutional issues generally,
primarily as part of the nation's political discourse. Indeed, as late
as 1935, court cases were the focus of only seven of the fifty-one
chapters of Andrew C. McLaughlin's Pulitzer Prize-winning A
Constitutional History of the United States(9)
But they looked for history primarily in the documents--the statute
books, legislative and court records, presidential messages, collected
speeches. Constitutional history fit perfectly the Rankean paradigm of
history "as it really was," speaking through the historian from the
archives. Thus constitutional history remained an important field as
historians shifted from romantic Whig history to more scientific,
The change Murphy lamented came from
several directions. First, of course, as Murphy noted history expanded
its subjects beyond politics, war, and diplomacy. Second, new
understandings of human motivation suggested that legal and
constitutional principles were merely the ephemeral manifestations of
deeper social and economic conflicts. Such understandings were
manifested in new approaches to constitutional history such as Charles
Beard's Economic Interpretation of the Constitution of the United
States.(10) The traditional approach
was more and more seen to be old-fashioned. In his aptly titled New
Viewpoints in American History, Arthur Schlesinger, Sr. included
essays on immigration, women, and other aspects of social and cultural
history. His two essays on constitutional history were instructive: one
was titled "Economic Aspects of the Movement for the Constitution" and
the other "The State Rights Fetish."(11)
These new developments did not have to
undermine the place of constitutional history. Constitutional historians
could have continued to integrate constitutional with other aspects of
American history and could have offered more sophisticated explanations
of constitutional change. The Hegelian heritage of constitutional
history, with its stress on institutions as the concrete manifestation
of the human spirit, should have encouraged a more humane orientation.
Indeed, in 1898 Francis N. Thorpe urged such a shift in clearly Hegelian
language: "Constitutional history is the history of a constituency,
which, consciously or unconsciously, is ever striving to promote its own
welfare. A constitutional history deals primarily with persons, not with
But constitutional history went in
another direction. Influenced by the growing centrality of
court-articulated constitutional law in the making of public policy,
constitutional historians began to stress the role of judicial review in
constitutional development, with more specialized attention to court
cases and constitutional doctrine. Particularly important in this regard
was the work of the great Edward S. Corwin, Charles Warren, Charles
Grove Haines, with their histories of the Supreme Court, substantive due
process of law and attendant doctrines, and doctrines of federalism.(13)
Judicial biography became a leading vehicle for the transmission of
constitutional history, beginning with Albert J. Beveridge's seminal
biography of John Marshall.(14)
Political scientists and journalists (although Beveridge was a historian
and politician), they filled the vacuum as new generations of historians
left for newer fields. Of course, the more central a role the Supreme
Court played in constitutional politics in the twentieth century, the
more later chapters of constitutional histories concentrated upon it. As
the more mature of us here were entering the field, the activism of the
Warren Court reconfirmed our court and law-centered perspectives.
By the 1940s general American
constitutional histories reflected the new thrust. Carl Brent Swisher's
American Constitutional Development, published in 1943 by another
political scientist, was far more court-oriented than constitutional
histories of a previous generation. Sixteen of thirty-one chapters, and
six of the final eight, focused largely or entirely on court decisions.(15)
Alfred H. Kelly and Winfred Harbison's textbook The American
Constitution: A History, still one of our standard textbooks as
revised by Herman Belz, first appeared in 1948.(16)
Most of us know how specialized that work was and still remains. We have
a canon. It echoes the traditional works of the nineteenth and
turn-of-the-twentieth centuries in its initial attention to the general
constitutional politics of the ante-bellum and Civil War eras and then
turns primarily to Supreme Court developments from the second half of
the nineteenth century to the present. It still concentrates primarily
on legislation, formal doctrine, and court cases.
Constitutional history scholarship
over the past few decades has been something else again. It has been
influenced by the law and society movement, by the call of leading legal
historians to study law in action--as a social institution interacting
with other institutions--rather than doctrine.(17)
It has been enriched by the perspectives of non-specialist historians
who have attended to constitutional issues (some of whom have indeed
come to specialize in the field).(18) We
have been influenced by more sophisticated notions of law as both
legitimizing power relationships and constraining them, articulated by
Gramscian Marxists, like E.P. Thompson, and the critical legal studies
But the gulf between mainstream history
and constitutional history that Murphy lamented continued--indeed
accelerated--in the decades following his call to arms. This was
illustrated in 1987 by the Journal of American History's issue
observing the bicentennial of the Constitution, entitled The
Constitution and American Life.(20)
David Thelen, the Journal's editor, observed that constitutional
history "ha[d] fallen into the cracks between specializations, remaining
basically unnoticed and unattended by most American historians."
Constitutional historians, he said, were "deeply concerned with the
meaning of the Constitution but not so much concerned with the
consequences of the Constitution or the courts' changing interpretations
of its meanings."(21) Of course, these
comments demonstrated a pretty profound ignorance of what was going on
in constitutional history, but they did reflect quite well the way our
colleagues looked at constitutional history, and I fear still look at
constitutional history. Thelen and his advisors Harry Scheiber, Maeva
Marcus, and Dirk Hartog looked mostly to scholars from outside the field
to write essays for their special issue. Of the fifteen authors I think
only Kent Newmyer, Mark Tushnet, and Dirk Hartog could be called
squarely in the field, and perhaps Morton Keller, while one more, Martha
Minow could best be described as an expert in constitutional law.
Murphy was primarily concerned with
scholarship but his lament has had obvious implications for teaching
too. The number of schools offering U.S. constitutional history appears
to have shrunk, as have the number of students taking it. It seems now
to be the largely the preserve of future law students trying to get a
This should not surprise us. While the
rest of the profession has become concerned with conveying history as
lived experience, especially the lived experience of ordinary people, at
least until recently constitutional history has remained concerned
primarily with the history of governmental institutions and their
interrelations, with elite-determined public policy, with constitutional
doctrine, and court cases. It has been largely the history of how govt
is constituted, and how it is legally empowered and constrained. It has
attended primarily to the people and institutions who directly
determined those questions. It has been elite history from the top down.
As Dirk Hartog put it in his essay in the Journal of American History's
bicentennial issue, virtually all constitutional historians "have taken
it as a given that the goal of historical inquiry should be an
examination and evaluation of a body of authoritative
interpretations--constitutional law--typically identified with the
pronouncements of the United States Supreme Court. Largely banished from
the domain of constitutional history have been the activities of all who
were not official interpreters."(22)
Having said this, let me say that I don't
intend to blame constitutional historians for concentrating on these
parts of history. I share the sense of many historians that the
profession has gone too far in minimizing the importance of elite
culture and elite influence upon daily life, looking everywhere possible
for resistance to it and romanticizing every example found or thought to
be found. Of course, there has been a reaction even among those who been
most responsible--an oft-stated desire to "bring the state back in."(23)
There is a growing realization that the state and public policy have had
a profound effect upon the lived experience of ordinary Americans.(24)
And that should provide an opportunity
for American constitutional historians to demonstrate how true that is.
The challenge for teachers of
constitutional history is to convey this truth. It can't be done by
ignoring the role principle, doctrine, and law play in determining the
context in which Americans live their lives. On the contrary we must
show our students how central constitutionalism and the rule of law has
been to Americans, as well as how violations and limitations of those
commitments have been rationalized and contested.
As Thorpe urged a century ago, this
approach stresses the way Americans as a whole have viewed their
governments and their authority, how they have defined fundamental
limits and obligations, and how and to what degree they have established
these constraints as part of our general culture. It requires major
attention to this history of constitutionalism; to constitutional law as
the specialized manifestation of broad popular commitments. We must
convey how and why ordinary people become committed to democracy and the
role of law, how these commitments challenged and reaffirmed, the
process by which constitutional doctrines emerge, how they affected by
more general understandings of the nature of society, economics, the
individuals place in society, and how they in turn affect such
understandings. We must convey how fundamental principles of governance
affect real people in their lives--"Constitution in action."
To incorporate these understandings into
the narrative of constitutional history, one must open the canon. We
must provide the social and intellectual context for constitutional
change. We must discuss such things as the breakdown of hierarchy and
the rise of possessive individualism in the 18th century, how Victorian
moralism shaped understandings of individual rights and social authority
in the nineteenth century, the way economic and industrial change in the
late nineteenth century challenged social understandings established
earlier in the century, the revolt against formalism in late 19th
century, and the emergence of individual autonomy and happiness as
ultimate goods in the twentieth century.
We must discuss events that shape popular
constitutionalism even if they did not decide legal doctrine--for
example, the Alton riot and the murder of Elijah Lovejoy; Margaret
Sanger, contraception, and the Comstock laws; the Scopes Trial, the Ku
Klux Klan, and the Sacco-Vanzetti case in the 1920s. We must broaden our
approach to events that do directly affect legal doctrine, such as
Plessy v. Ferguson, the trial of the Scottboro Boys, and the Flag
Salute Cases. We must tell the stories of those affected by
constitutional change--the freedpeople in the postwar South, the
Japanese-American internees during World War Two. Yet, we must not lose
the importance of constitutional law in this process. This is where
those untrained in constitutional history often falter. Exposure to law
is necessary for an appreciation of the constraints it imposes upon
Teachers of constitutional history must
bring these insights into the classroom through texts or supplementary
readings. My survey The Blessings of Liberty(25)--expends
a good deal of space on extra-constitutional context. Mel Urofsky's
survey A March of Liberty does not integrate extra-constitutional
developments much as mine, but still does do so to some degree.(26)
These should be supplemented both by documents and by some of the many
books and essays that put constitutional cases into a broader social
context. Of course, one may turn to the essays in the old standard
Quarrels That Have Shaped the Constitution(27).
Overall, however, these provide only a superficial understanding of the
social, economic, and political context in which the included cases
arose. One can search for better essays. Some appear in a volume Dick
Howard and Mel Urofsky edited to celebrate the constitutional
bicentennial in Virginia.(28) One
particularly effective and harrowing one is Bill Leuchtenberg's essay on
Buck v. Bell.(29) This has the
virtue of both placing the case and issue in context and conveying an
idea of how the issue affected ordinary people.
Better are more substantial efforts, such
as C. Peter Magrath's narrative of the Yazoo Land Case,(30)
Stanley Kutler's study of the Charles River Bridge Case, Privilege
and Creative Destruction;(31) Jill
Norgren, The Cherokee Cases;(32)
Howard Jones' book on the Amistad mutiny;(33)
chapters from Kenneth Stampp's Peculiar Institution;(34)
Paul Kens' study of the Lochner case;(35)
Dan T. Carter's Scottsboro: A Tragedy of the American South;(36)
David Manwaring's study of the Flag Salute Cases;(37)
and John P. Roche's The Quest for the Dream.(38)
Peter Hoffer and Natalie Hull are editing a series of case studies for
the University of Kansas Press that seems promising.(39)
Eric Foner's recent Story of American Freedom is a very
well-written general history of how Americans have defined citizenship,
the rights associated with it, and who has been entitled to it.(40)
Most of the works I have named do a good job of contextualizing
constitutional issues. But we have few studies that bring constitutional
issues to life, as do Roger Daniels' unfortunately named
Concentration Camps U.S.A.;(41) and
John Dittmer's Local People: The Struggle for Civil Rights in
No nation is more proud of its system of
government, its liberty, and of its history than the United States. All
of these are brought together in the constitutional history of the
United States. American constitutional historians have both the
opportunity and the responsibility to teach that history--to illuminate
our successes and our failures in living up to the heritage of which our
people are so proud. We can grasp the opportunity and fulfill the
responsibility only if we teach the history of the American constitution
as it is--a living heritage that has touched and continues to touch us
Michael Les Benedict
The Ohio State University
1. Paul Murphy, "Time to Reclaim: The
Current Challenge of American Constitutional History" AHR, 69 (October
2. Ibid., 65.
3. James Schouler, History of the
United States of America, Under the Constitution, 7 vols.
(Washington, D.C.: W.H. Morrison, 1880-1913). See also, for examples,
James Ford Rhodes, History of the United States from the Compromise
of 1850 to the Restoration of Home Rule at the South in 1877, 7
vols. (N.Y.: Macmillan, 1893-1902) and Edward Channing, History of
the United States, 6 vols. (N.Y.: Macmillan, 1905-1925).
4. John W. Burgess, The Civil War and
the Constitution, 1859-1865 2 vols., (N.Y.: Charles Scribner's Sons,
5. Burgess, Reconstruction and the
Constitution (N.Y.: Charles Scribner's Sons, 1902).
6. Curtis, Constitutional History of
the United States, 2 vols. (N.Y.: Harper & Bros., 1896-1897).
7. Hermann von Holst, The
Constitutional and Political History of the United States, trans.
John J. Lalor, 7 vols. (Chicago: Callaghan & Co., 1889-1902).
8. Francis Newton Thorpe, A
Constitutional History of the American People, 1776-1850, 2 vols.
(N.Y.: Harper & Bros., 1898); Thorpe, The Constitutional History of
the United States, 3 vols., (Chicago: Callaghan & Co., 1901).
9. Andrew C. McLaughlin, A
Constitutional History of the United States (N.Y.:
10. Charles Beard's Economic
Interpretation of the Constitution of the United States (N.Y.:
11. Arthur M. Schlesinger, New
Viewpoints in American History (N.Y.: Macmillan, 1922).
12. Thorpe, Constitutional History of
the American People, 1: v.
13. Classic examples: Edward S. Corwin,
National Supremacy: Treaty Power vs. State Power (N.Y.: Henry
Holt, 1913); The Doctrine of Judicial Review: Its Legal and
Historical Basis and Other Essays (Princeton, N.J.: Princeton
University Press, 1921); The Commerce Power Versus State Rights(Princeton,
N.J.: Princeton University Press, 1936); Charles Warren, The Supreme
Court in United States History, 3 vols.(Boston: Little Brown, 1922);
Charles Grove Haines, The American Doctrine of Judicial Supremacy
(Berkeley: University of California Press, 1932), Felix Frankfurter,
The Commerce Clause under Marshall, Taney, and Waite (Chapel Hill:
University of North Carolina Press, 1937).
14. Albert H. Beveridge, The Life of
John Marshall, 4 vols. (Boston: Houghton, Mifflin, 1916-1919);
Edward S. Corwin, John Marshall and the Constitution (New Haven:
Yale University Press, 1919); Carl Brent Swisher, Stephen J. Field,
Craftsman of the Law (Washington, D.C.: Brookings Institution,
1930); Swisher, Roger B. Taney (N.Y.: Macmillan, 1935).
15. Carl Brent Swisher, American
Constitutional Development (N.Y.: Houghton Mifflin, 1943).
16. Alfred H. Kelly and Winfred A.
Harbison, The American Constitution: A History (N.Y.: W.W.
17. Willard Hurst, "The Law in United
States History," Proceedings of the American Philosophical Society,
104 (October 1960): 518-26; Hurst, "Old and New Dimensions of Research
in United States Legal History," American Journal of Legal History,
23 (January 1979): 1-20; Lawrence M. Friedman, "Some Problems and
Possibilities of American Legal History," in Herbert J. Bass (ed.),
The State of American History (Chicago: University of Chicago Press,
18. For example, Morton J. Keller,
Affairs of State: Public Life in late Nineteenth Century America
(Cambridge, Mass.: Harvard University Press, 1977); Don E. Fehrenbacher,
The Dred Scott Case: Its Significance in American Law and Politics
(N.Y.: Oxford University Press, 1978); Michael Kammen, A Machine That
Would Go Of Itself: The Constitution in American Culture (N.Y.:
Alfred A. Knopf, 1986); Kammen, Sovereignty and Liberty:
Constitutional Discourse in American Culture (Madison: University of
Wisconsin Press, 1988); Mark E. Neely, Jr., The Fate of Liberty:
Abraham Lincoln and Civil Liberties (N.Y.: Oxford University Press,
1991); Eric Foner, The Story of American Freedom (N.Y.: W.W.
Norton, 1998); Linda K. Kerber, No Constitutional Right to Be Ladies:
Women and the Obligations of Citizenship (N.Y.: Hill & Wang, 1998).
19. E.P. Thompson, Whigs and Hunters:
The Origin of the Black Act (N.Y.: Pantheon, 1975); Douglas Hays et
al., Albion's Fatal Tree: Crime and Society in Eighteenth Century
England(N.Y.: Pantheon, 1975); Duncan Kennedy, "Toward an Historical
Understanding of Legal Consciousness: The Case of Classical Legal
Thought in America, 1850-1940," Research in Law and Sociology, 3
(1980): 3-24; Robert W. Gordon, "Critical Legal Histories," Stanford
Law Review, 36 (January 1984): 57-125.
20. David Thelen (ed.), "The Constitution
and American Life: A Special Issue," JAH, 74 (December, 1987).
21. Ibid., 661.
22. Hartog, "The Constitution of
Aspiration," JAH, 74 (December 1987), 1029.
23. Peter B. Evans, Dietrich Reuschemeyer,
and Theda P. Skocpol (eds.), Bringing the State Back In (N.Y.:
Cambridge University Press, 1988).
24. One can see this conviction
especially in the inter-related areas of women's history,
African-American, and labor history. See, for example, Kerber, No
Constitutional Right to be Ladies; Joan Hoff, Law, Gender &
Injustice: A Legal History of U.S. Women (N.Y.: New York University
Press, 1991); Theda Skocpol, Protecting Soldiers and Mothers: The
Political Origins of Social Policy in the United States (Cambridge,
Mass.: Harvard University Press, 1992): Ross Evans Paulson, Liberty,
Equality, and Justice: Civil Rights, Women's Rights, and the Regulation
of Business, 1865-1932 (Raleigh, N.C.: Duke University Press, 1997);
Laura F. Edwards, Gendered Strife and Confusion: The Political
Culture of Reconstruction (Urbana: University of Illinois Press,
1997); Amy Dru Stanley, From Bondage to Contract: Wage Labor,
Marriage, and the Market in the Age of Slave Emancipation (N.Y.:
Cambridge University Press, 1998); William Cohen, At Freedom's Edge:
Black Mobility and the Southern White Quest for Racial Control,
1861-1915 (Baton Rouge: Louisiana State University Press, 1991);
Harold D. Woodman, New South-New Law: The Legal Foundations of the
Credit and Labor Relations in the Postbellum Agricultural South
(Baton Rouge: Louisiana State University Press, 1995); Julie Saville,
The Work of Reconstruction: From Slave to Wage Laborer in South
Carolina, 1860-1870 (N.Y.: Cambridge University Press, 1996);
William E. Forbath, Law and the Shaping of the american Labor
Movement (Cambridge, Mass.: Harvard University Press, 1991);
Victoria C. Hattam, Labor Visions and State Power: The Origins of
Business Unionism in the United States (Princeton, N.J.: Princeton
University Press, 1993); Richard Schneirov, Labor and Urban Politics:
Class Conflict and the Origins of Modern Liberalism in chicago, 1864-97
(Urbana: University of Illinois Press, 1998).
25. Michael Les Benedict, The
Blessings of Liberty: A Concise History of the Constitution of the
United States (Lexington, Mass.: D.C. Heath, 1995).
26. Melvin I. Urofsky, A March of
Liberty: A Constitutional History of the United States, 2 vols.
(N.Y.: Alfred A. Knopf, 1988).
27. John A. Garraty, Quarrels that
Have Shaped the Constitution, rev. ed. (N.Y.: Harper & Row, 1987).
28. A.E. Dick Howard and Melvin I.
Urofsky (ed.), Virginia and the Constitution (Charlottesville,
Va.: Virginia Commission on the Bicentennial of the United States
29. Leuchtenberg, "Buck v. Bell:
'Three Generations of Imbeciles," ibid., 83-106, reprinted as "Mr.
Justice Holmes and Three Generations of Imbeciles," in Leuchtenberg,
The Supreme Court Reborn: The Constitutional Revolution in the Age of
Roosevelt (N.Y.: Oxford University Press, 1995), 3-26.
30. Magrath, Yazoo--Law and Politics
in the New Republic: The Case of Fletcher v. Peck (Providence, R.I.:
Brown University Press, 1966).
31. Stanley I. Kutler, Privilege and
Creative Destruction: The Charles River Bridge Case (Baltimore, Md.:
Johns Hopkins University Press, 1990; orig. pub. 1970).
32. Norgren, The Cherokee Cases: The
Confrontation of Law and Politics (N.Y.: McGraw-Hill, 1996).
33. Jones, Mutiny on the Amistad: The
Saga of a Slave Revolt and Its Impact on American Abolition, Law, and
Diplomacy (N.Y.: Oxford University Press, 1987).
34. Kenneth M. Stampp, The Peculiar
Institution: Slavery in the Ante-Bellum South (N.Y.: Knopf, 1956).
35. Kens, Judicial Power and Reform
Politics: The Anatomy of Lochner v. New York (Lawrence: University
Press of Kansas, 1990).
36. Carter, Scottsboro: A Tragedy of
the American South, rev. ed. (Baton Rouge: Louisiana State
University Press, 1979).
37. Manwaring, Render Unto Caesar: The
Flag Salute Controversy (Chicago: University of Chicago Press,
38. Roche, The Quest for the Dream:
The Development of Civil Rights and Human Relations in Modern America
(N.Y.: Macmillan, 1963).
39. Peter Charles Hoffer and N.E.H. Hull
(eds.), Landmark Law Cases and American Society (Lawrence:
University of Kansas Press, 1997- ).
40. Foner, The Story of American
41. Daniels, Concentration Camps USA:
Japanese Americans and World War II (N.Y.: Holt, Rinehart, Winston,
42. Dittmer, Local People: The
Struggle for Civil Rights in Mississippi (Urbana: University of
Illinois Press, 1994).