Expanding the Scope of American Constitutional History

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, institutional history.

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 documents."⁽¹²⁾

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 movement.⁽¹⁹⁾

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 head start.

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 elite actors.

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 Mississippi.⁽⁴²⁾

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 all.

Michael Les Benedict
The Ohio State University
 

Notes

1. Paul Murphy, "Time to Reclaim: The Current Challenge of American Constitutional History" AHR, 69 (October 1963): 64-79.

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, 1901).

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.: Appleton-Century-Crofts, 1935).

10. Charles Beard's Economic Interpretation of the Constitution of the United States (N.Y.: Macmillan, 1913).

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. Norton, 1948).

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, 1970), 3-21.

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 Constitution, 1992).

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, 1962).

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 Freedom.

41. Daniels, Concentration Camps USA: Japanese Americans and World War II (N.Y.: Holt, Rinehart, Winston, 1971).

42. Dittmer, Local People: The Struggle for Civil Rights in Mississippi (Urbana: University of Illinois Press, 1994).