American Constitutional History and the Social Sciences

Robert Lowry Clinton
 

It is an honor to have been invited to speak here today; and I want to thank Herbert Johnson for giving me the opportunity to do so. After several weeks of thinking about what I would say, I came to realize that, though I had done much thinking about how to teach constitutional law from an historical perspective, I had never really thought much about how to talk about teaching the subject. I was sure that I somehow brought the insights of social science to bear on my subject, but I had not done so in a very self-conscious way. Nor had I ever considered writing anything on these pedagogical matters.

So I sat down and began to try to write down some of the ways in which social science may--and has--been used to enrich my own understanding of American constitutional history, and to set forth some of the ways in which these influences have found their way into my efforts to teach the subject. This effort has yielded some important intellectual dividends, improved my pedagogical self-awareness, and--I'm hoping--may have produced a new course for me to teach as well.

Like many others, my own training in American constitutional history and law was fairly traditional. It was based mainly on case reading and case analysis periodized chronologically within standard substantive categories such as judicial review, congressional power, commercial regulation, procedural due process, equal protection of the law, & etc. The truth is, social science (at least as modern political scientists, sociologists, anthropologists, and the like, seem to understand the term) had little to do with this training. Hardly visible at all, modern social science intervened only sporadically; and when it did, it was almost always in the guise of what political scientists call "judicial behavioralism" (or perhaps more accurately, the quantitative analysis of some of the quantifiable characteristics of judges and other legal professionals--and more recently, of courts as institutions).

Speaking of political science, I should digress for a moment and say something about the discipline to which I belong. "Political science" as an organized branch of the American university (what I call "academic political science") was founded around the turn of the century by political and constitutional historians who, at the time, apparently did not represent the "mainstream" of American history writing and wanted to distance themselves from the approaches of more traditional historians. Perhaps due to these origins (and the rising influence of law schools--which stressed the case method of law study), the study of constitutional law in political science departments remained largely historical and literary throughout the first half of the twentieth century, focusing upon the historical development of legal doctrine as an outgrowth of the interpretation of constitutional language supplemented by analogical reasoning from case law.

In the 1950s, proponents of these traditional approaches began to lose ground in the face of a rising sentiment that, in order to be truly "scientific," a scholar had to quantify his or her object of study. By the 1970s, this view had all but taken over the public law subfield in political science--which had traditionally included the subjects of constitutional law, administrative law, public international law, jurisprudence, and criminal justice. One tragic result of this development has been the virtual elimination during the past two decades of all the above-mentioned subjects except constitutional law from the curriculum of many political science departments. The eliminated courses have been replaced by such courses as judicial process, judicial behavior, sociology of judges, court administration, etc.--all of which tend to be studied in contemporary "snapshots" rather than in historical development. In other words, the ascendancy of the new approaches has more often than not seriously compromised the historical study of constitutional development in political science departments. To my mind, whatever its contributions (and certainly there have been some), this kind of political science offers little to anyone interested in historical understanding, mainly because it is--for the most part--explicitly and avowedly ahistorical.

But the academic discipline founded a century ago is not the only political science; and, in my opinion, it is not the best political science. There is another political science that was founded by Plato and Aristotle 2400 years ago, and that is devoted to the pursuit of wisdom about social life, or life in the polis. Such wisdom necessarily includes legal knowledge, or "jurisprudence;" and jurisprudence must account for the historical experience of societies that have attempted to achieve individual and social order through law. Unlike academic political science, this kind of social science has much to do with law, and is fruitful in uncountable ways for the study of constitutional history--both comparative and American.

I would like to suggest some of the ways in which social science, conceived in this manner, may help to illuminate constitutional development and make its study more palatable for our students. It should be kept in mind that my comments here are provisional, and represent nothing more than a first attempt on my part to articulate a social scientific perspective on constitutional studies. Some of the thoughts set down here have arisen from reflections on my past efforts to teach constitutional law and history; others have arisen from experiences teaching other subjects like administrative law, international law, jurisprudence, or political theory from a constitutional perspective.

It should also be kept in mind that my views would hardly qualify as representative of mainstream political or social science. I am largely a political theorist who pursues constitutional history and theory from that perspective. I think the main virtue of this approach consists in its propensity to take us back to fundamental questions--to "first things." I have found in my own teaching that nothing stimulates student interest more than a sharp focus on first principles, so long as it is done in ways that make sense to students by engaging their own experiences.

Perhaps the most obvious influence of social or political science (I will tend to use these terms interchangeably from this point on in the discussion) on my understanding of, and teaching about, constitutional history is the Straussian division of the history of political thought into "ancient" and "modern." Since I tend to view constitutional studies as a branch of political thought, it does not seem possible to me that anyone could understand fully our constitutional development without at least noticing that something happened around the time of Machiavelli that changed dramatically the way human beings thought about a lot of things--especially the political and legal relations between societies and individuals, which we now regard as the primary subject-matter of constitutional law.

Just think for a moment about Machiavelli's subordinations: of morality to law; of law to politics; of right to might; of justice to expediency; of means to ends; of church to state. After Machiavelli, we begin to think of law not as rule sanctioned by right; but as a tool of sovereign power--an idea reiterated forcefully by Thomas Hobbes in the seventeenth century and brought to completion in the nineteenth century when John Austin and the English radicals founded analytical jurisprudence and legal positivism. Positivism turned historical jurisprudence on its head by defining law as the "command of a sovereign number" and by conceiving law's sanction as mere coercion. Austin himself, in a way, also founded modern judicial review by asserting that the "real" law is not of him who first makes it, but of him by whose force it continues to be law. Austin's "move" led ultimately to the judicialized constitutionalism of modern times by conceiving the law as defined by the will of its interpreter.

Long before Austin put Machiavelli's ideas at the heart of jurisprudence, Machiavellian thinking inspired the work of Hugo Grotius, who was a well-known and highly-respected author in the founding era. Grotius wrote his monumental Law of War and Peace in order to defeat the Machiavellian ideas that "in the case of a king or imperial city nothing is unjust which is expedient," that "might makes right," and that "the administration of a state cannot be carried on without injustice." It is clear to me that the beliefs of the founders were closer to those of Grotius than they were to those of Machiavelli, but how do we understand this fact--and what we are to make of it--if we do not attend to the centuries of pre-modern political and legal thought that Grotius tried to resurrect? After all, the argument that "might makes right" was first set forth not by Machiavelli, but by Thrasymachus and Callicles in two of Plato's dialogues, Republic and Gorgias--works which might plausibly be considered the first books of political science.

The answer given by Socrates to Thrasymachus's Machiavellianism in the Republic was not just a moral or political argument; it was a constitutional theory--or perhaps more accurately, it was a theory of constitutional history. According to this theory, which is found in Books 8 and 9 of the Republic, the constitution of a state takes the form of the character of the dominant "type" of individual in the society for which that state is the legal embodiment--its "ruling class," if you like. Whether the constitution be aristocratic, plutocratic, oligarchic, democratic, or tyrannical, the proclivities, propensities, and interests of the individuals comprising the dominant class will be the ones encouraged and accorded respect by the institutions of society and government; and the particular flaws or weaknesses in the character of the dominant type will inevitably and invariably provide the mechanism by which each type of political constitution dissolves--sooner or later--into another form. Thus, aristocracies dissolve into timocracies, timocracies into oligarchies, oligarchies into democracies, and democracies into tyrannies. Because of Plato's conception of history, the constitutional progression is cyclical--which implies that efforts to break the cycle through institutional design are, in the end, doomed to failure.

All this runs against the grain of our modern way of thinking about history as "progressive" or "linear," rather than "cyclic" or "circular"--an attitude that is part of our inheritance from early Christianity and Saint Augustine, its most prominent ancient proponent. But we should be cautious here; for some of our most prominent modern historiographers have a conception of history more in line with Plato than with Augustine--for example, Arnold Toynbee and Oswald Spengler come immediately to mind. And we have had at least one American Secretary of State in recent years whose idea of diplomacy was rooted in an essentially Spenglerian conception of history.
 
A couple of years ago, a bright student asked me to direct a thesis on the application of Plato's constitutional theory to American political history, using the speeches and writings of American Presidents to demonstrate that the United States has undergone some of the transformations suggested by Plato's theory. At first, I was skeptical; but after looking at some of the material the student had gathered, I began to think that he was onto something. In the end, he did not prove to my satisfaction that we had undergone Plato's cycles (at least not in a straightforward manner); but he did manage to show that the first six American Presidents were essentially aristocrats, the next group were mostly generals (Jackson to Grant), the third were oligarchs (Grant to Hoover), and the fourth were democrats (Franklin Roosevelt on). I don't know exactly what this means (if anything); but I told him that if he was right about the general applicability of Plato's theory, we are in big trouble.

I realize, as Herman Belz has noted in a recent collection of essays,¹ that the constitutionalism of greatest interest to contemporary constitutional theorists and historians is not that of ancient Rome, Athens, or Jerusalem, or even that of modern Italy or England; rather, our interest is focused upon the kind of textual constitutionalism that utilizes the written word to limit government power vis-a-vis individuals (or groups conceived as legal individuals). Yet, I wonder if real understanding of the modern constitutional project can be had apart from recognition of the background against which modern constitutionalism emerged. Was not the founders' project essentially to break Plato's cycle by designing a constitutional system that would not be subject to dissolution and decline? Can we really know to what extent they succeeded without going through the sort of mental exercise performed by the student mentioned above? Put in the language of art, if we don't have the "ground," how can we see the "figure?"

At any rate, the brand of positivism exemplified by Thrasymachus and Callicles and defeated by Socrates, Plato, and others in ancient times re-emerged as a winner two millennia later in the thought of Machiavelli and Hobbes. Machiavelli's complete subordination of morality and religion to political necessity led naturally to an idea of law as the mere tool of a territorial sovereign. Hobbes's rejection of custom as an appropriate basis for law, his founding of the modern state upon the necessity of maintaining an inherently unstable social compact, and his adoption of an atomistic psychology that regards human nature as radically asocial, all worked in tandem to establish modern constitutionalism. Wide acceptance of Hobbesian constitutionalism also guaranteed that modern constitutional history will be a story about alienated individuals divorced from society and in continuous conflict with the abstracted, artificial, absolute unity known as the modern state.

Perhaps the acceptance of liberal constitutionalism is simply the result of our having come up with a nice new way of looking at the world that seems more sympathetic to the aspirations of individuals, as such; but in that acceptance, we also scuttled eons of experience and tradition, and stumbled into a hornet's nest of problems that have not yet been resolved. If Mark Tushnet is right, and liberalism sets forth an array of constitutional contradictions that cannot be resolved at all,² then our own liberal (and therefore self-contradictory) constitutional self-understanding requires taking into account the alternatives to liberal constitutional contradictionalism. In other words, if modern, text-based constitutionalism generates problems from which it cannot fully escape on its own terms, couldn't we use some ancient wisdom at least to help us "muddle through?" Even if we can only live in the world as it is, might we not enhance our understanding of that world by recognizing that it is not necessarily the only, or even the best, of all possible worlds?

In recent years, prominent scholars, having become aware of the ahistorical one-sidedness of an unqualified liberal reading of American constitutional history, have put forward a republican correction of that history based upon an idea of civic virtue. This view is deeply rooted in classical thought; so it seems that, if we are to understand the republican features of our Constitution, we need to examine these features in light of the origins of classical republicanism in Greek and Roman constitutional thought. The idea is that maintenance of a healthy liberal polity requires more than the government structures, procedural safeguards, and substantive rights provided in the Constitution and enforced by the courts (i.e., it requires more than liberal political institutions); it demands also a complementary and supportive cultural base, and social institutions that direct and sustain that foundation by developing and nourishing a virtuous citizenry.

The founders knew this; and believed (or at least hoped) that the constitutional framework they advanced would encourage the development of these intermediate institutions. Perhaps, to an extent, it did--at least for a while; but somewhere along the way, things got off-track. Whether because some of the internal presuppositions of republican order (relative economic equality, for example) came no longer to hold, or because such external dislocating events as civil war, rapid industrialization, or economic collapse hardened the hearts of Americans, or from some combination of all these causes and more, the republican ethos of the founding era was lost, and its history--for a time--forgotten.

There is yet another set of problems that we seem beset with today as a result of our uncritical acceptance of modern political thought. Acquiescence in Hobbesianism means acceptance not only of individualism--which, I suppose, nobody would now think of renouncing; but also of monistic materialism--the view that all is matter. To my mind, this is the most destructive feature of modern thought; and it cannot be countered successfully absent a thorough exposure to the histories of older societies that were not constitutionally committed to such a principle. Yet it must be countered; even modern science cannot account for the existence of matter itself in purely material terms. As Jacques Maritain once put it: Science can tell us how matter behaves; it cannot tell us what matter is. Even less can we account for such intelligible species as laws, contracts, or constitutions in material terms. Can we really explain property in material terms? The concept of precedent? The oath? History? The answer is that we cannot; in fact, we usually don't even try. We simply smuggle in abstractions from the intelligible world whenever we need them, remaining blissfully unaware that we are all the while awash in Platonic Forms.

Concentrating for a moment further on materialism may help to shed some additional light on the problem of republicanism in the United States. As with the case of our lost or forgotten republican heritage, we confront here the loss of a perspective on the founding era itself. The ultimate triumph of Hobbesian materialism in the United States did not occur until the late nineteenth and early twentieth centuries--well beyond the time of the founders. This means that scholars engaged in the historical interpretation of the founding era must be very careful to avoid attributing to thinkers of that time a materialist ontology that probably would have been incomprehensible to them--at least as that ideology is understood in the full dress of twentieth century thought. I believe that some of the progressive historians made exactly this mistake; and we have since paid a heavy intellectual price for their error.

We should go a couple of steps further. If the founders were not Hobbesian materialists, then they also would not have been committed to the implications of the materialist world view; and since materialism is an ontology--a philosophy of being itself, its implications are wide and deep. Let us consider briefly some of these implications.
 
First, materialism is a metaphysical theory of the real which generates a distinctive epistemology. This epistemology holds that the human mind, or psyche, is fully reducible to the physical functioning of the brain. In other words, thought is purely material, fully embodied, and radically individuated. Since it is individuated, when a person thinks, he (or she) can really be aware only of the contents of his (or her) own mind--the perceptions or sense impressions and the "ideas" or "phantasms" that those impressions evoke. Since the purely physical can be experienced only as particular, and since no universal concept or form can be fully contained in matter, under the materialist dispensation universals, or "absolutes," are ruled out, and the objects of thought must be regarded as unknowable, as such. As David Hume put the matter: "The mind never has anything present to it but the perceptions, and cannot possibly reach any experience of their connexion with objects."³ This position leads to a form of intellectual solipsism, the social consequences of which have been described by Mortimer J. Adler in a wonderful little book entitled Ten Philosophical Mistakes:
 

We are compelled to live in two worlds without any bridge

between them. One is the world of physical reality, in which

our own bodies occupy space, move about, and interact with

other bodies. Our belief in the existence of this world is [in

this view] a blind and irrational faith. The other is the

completely private world in which each of us is enclosed--

the world in which our only experience is the experience

constituted by consciousness of our own ideas. The

assumption that individuals other than ourselves also and

similarly live in the private worlds of their own conscious

experience is as blind a faith as the belief that we all live

together in the one world of external physical reality.⁴
 

The intellectual solipsism described in Adler's comment finds its political complement in the constitutional solipsism of liberal thought in the absence of a significant republican corrective. In constitutional theory, the denial of a knowable external reality has resulted in the rise of coherence epistemologies in which a constitution--and the constitutional law that flows from it by interpretation and construction--is evaluated according to its internal consistency rather than its correspondence with external reality. Given that approach, it then becomes very easy to forget that there is any external reality at all that a written constitution should correspond to. This means that the underlying unwritten, yet "real," constitution for which any written constitutional text is (or ought to be) "best evidence" tends to be either overlooked or disavowed altogether. Is it any wonder that modern-day republicans are distressed?
 
Materialism also generates a complementary jurisprudence, legal positivism, which rules out legal naturalism and the moral basis for constitutionalism. Yet, as William Casto has recently argued, the founders were not legal positivists; they were legal naturalists who, for the most part, believed in the declaratory theory of law. According to Casto:
 

In eighteenth-century America, virtually everyone still

believed that nature was God's creation and was ordered by

him. This vision was especially strong in the case of

Calvinists like Ellsworth who believed that God had

absolutely and minutely predestined human existence.

Consistent with this vision of God's nature, Blackstone

wrote that God had ordained a system of "external

immutable laws of good and evil." Human laws--

especially the common law--"derive all their force, and

all their authority" from this universal natural law and are

invalid if they are contrary to it ....Under this almost

Platonic vision of the common law, a particular judicial

determination was proper only to the extent that it

approximated natural law that had an existence outside

and independent of the court.⁵
 

This morning Herbert Johnson noted that first-year law students see a sharp distinction between constitutional law and such common law subjects as tort, property, and contract. There certainly is a distinction; but it should not be a "gulf." An important part of the historical foundation of American constitutionalism consists in a common law understanding of the legal process given to the American founders by such men as Coke, Hale, and Blackstone. The world view--I should say the legal world view--transcribed in the writings of these men was essentially medieval; a fact noted also by the eminent British legal historian F. W. Maitland. The reason that the common law bequeathed to the founders' generation was medieval lies in the fact that its formative period falls between the eleventh and fourteenth centuries--the era of Thomas Aquinas rather than Machiavelli or Hobbes. Chief Justice Hale--arguably more influential upon the founders than Hobbes--was an avowed Aristotelian, a devotee of the virtue of the Law's "practical reason," who explicitly condemned the legal philosophy of Hobbes as an abomination. As in the instances of republicanism and legal naturalism, to understand the common law features of American constitutionalism is again to understand that the founders themselves straddled the line between the ancient and the modern.

One final point: Materialism implies atheism; but the founders were not atheists. They gave us a constitution designed to govern a society of believers--not unbelievers; and they did so self-consciously "under God." Yet most constitutional theorists today describe the project of written constitutionalism in the United States as a purely human endeavor; we are continually making and remaking it all up ourselves. William Harris provides the most explicit description and defense of this constitutional artifactualism in his Interpretable Constitution. According to Harris, the founders exnihilated our constitutional world, erecting the Constitution in the midst of a "metaphorical Hobbesian-like chaos," instigating a "new order of creation," cordoning off a "secure area....from the rest of an incoherent universe" whose fundamental character is "insignificance," "disorder," and "cacophony."⁶

Even history is ruled out here. There can be no "history," strictly speaking, where the past is "insignificant," "disorderly," and "cacophonic." To my mind, history has a transcendent character, according to which events, beliefs, and practices gain significance only as the result of reflective experiences that go beyond the merely immanent happenings themselves to their pattern and meaning. It is literally a triumph of "mind" over "matter"--a triumph not possible under materialism, positivism, or atheism.

In the end, the most striking feature of modern constitutionalism may be the sheer extent of its willfulness. Harris calls the idea "that a political world can be constructed and controlled with words" both "preposterous" and "presumptuous."⁷ I think he has gotten it about right. Surely there is creativity in establishing and maintaining constitutions; but there is also "givenness"--which is true "historicity." That is why experiments with written constitutions can sometimes fail because the principles and procedures expressed and established in them fail to reflect the real values and decisional predispositions of the societies they supposedly constitute. It is also why the world's arguably most stable and long-standing constitutional government--Great Britain--is based not on a text, but upon a traditional, "unwritten" constitution.

For millennia, constitutionalism was about what was already there. Now--and we have reached this point in little more than a century--it seems to be all about what isn't there. We are shouldering a heavier burden than we can bear, doing all this constitutional creation and re-creation by ourselves, without the help of the wisdom of the ages. We should revisit the ancients in order to rediscover the art of summoning a Higher Power.

Robert Lowry Clinton
Professor and Director of Graduate Studies
Department of Political Science
Southern Illinois University
Carbondale, Illinois 
 

Notes

1. Herman Belz, A Living Constitution Or Fundamental Law? American Constitutionalism in Historical Perspective. Lanham, Maryland: Rowman & Littlefield, 1998, pp. 1-2.

2. Mark Tushnet, Red, White, and Blue: A Critical Analysis of Constitutional Law. Cambridge, Massachusetts: Harvard University Press, 1988. 

3. David Hume, An Enquiry Concerning Human Understanding, ed. L.A. Selby-Bigge, in Great Books of the Western World, ed. Robert Maynard Hutchins (Chicago: Encyclopaedia Britannica, 1952), vol. 35, p. 505. 

4. Mortimer J. Adler, Ten Philosophical Mistakes (New York: Macmillan, 1985), pp. 27-28.

5. William Casto, The Supreme Court in the Early Republic: The Chief Justiceships of John Jay and Oliver Ellsworth (Columbia: University of South Carolina Press, 1995), pp. 34-35. 

6. William Harris, The Interpretable Constitution (Baltimore: Johns Hopkins University Press, 1993), pp. 84-107.  

7. Harris, Interpretable Constitution, p. 1.