The Human Subject in American
Constitutional History
Sandra F. VanBurkleo
On June 6, 1918, Virginia Woolf noted in her diary that she had "seen
Alix today" -- meaning Alex Sargant-Foster -- and had invited her to
dinner. "I think the faintest ray of dawn is observable on the pitchy
black of her horizon," she wrote. "She is able to conceive the
possibility of one day finding some book to read. She has tried Bertie's
mathematics, relinquished it, but did not altogether dismiss my
suggestion of legal history. She wants to work at something that matters
to no one; & will never be used, seen, or read, & can be done for no
more nor less than 3 hours a day."(1)
Why did Woolf assume that legal history
"matters to no one"? That it would "never be used, seen, or read"? The
quick-and-dirty answer, as you know, is that legal historians -- close
cousins of economists and other purveyors of "dismal sciences" -- tend
to think primarily about cases, doctrines, the mechanics of law
practice, institutional arrangements. Benjamin Wright really did write
an entire book about the contract clause, which I, for one, read in a
graduate seminar. Books like that don't end up as Main Selections for
the History Book Club.
I don't want to offer yet another talk
about tensions between law and history. We've all heard quite enough of
that -- and I'm not persuaded in any case that the dilemma as presently
framed goes to the heart of the matter. In a general way, we all know --
some of us approve, some don't -- that constitutional historians, even
more completely than historians of private law, typically fail to bridge
the gap between that 'brooding omnipresence in the sky' and the people
who authorize and experience law, government, freedom. Human beings
aren't missing altogether: textbooks certainly include numerous
references to "the people," to "the constituent power," "slaves,"
"citizens," and so on. They include an ever-increasing number of
references to previously excluded individuals or classes (free blacks,
unionists, indigenous peoples, Frederick Douglass, Susan B. Anthony),
although typically as parties to cases or advocates of constitutional
emendation and change. And, sometimes, scholars put ordinary people,
their consciousness of freedom, their experiences of governmental
constraint, center stage. Don Nieman's Promises to Keep begins
virtually every chapter with a concrete tale of a human being or group
mobilizing in self-defense; Linda Kerber's 'No Constitutional Right
to be Ladies' seamlessly weaves biography and human agency into the
book's analytical fabric.
Still, I don't need to tell this audience
that these are exceptions to a deeply juridified, homogenizing scholarly
practice. It is no accident that judicial biography -- despite its
celebration of Great Men at Law -- continues to be viewed as a
step-child, an orphan, something no graduate student would undertake for
a dissertation without long, hard talks with her advisor. (Hence, no
modern biography of Roger Taney, for heaven's sake). Most of the time,
the subjects of our discipline continue to be, not particular human
beings making and participating in constitutional culture along with
judges and congressmen, but the structures, functions, utterances, and
trajectories of "the state," and especially of the nation's highest
court -- a host of elegant, deeply impersonal formalities that "the
people" own but rarely occupy. We do not include McCulloch v.
Maryland in textbooks and lectures, in other words, primarily
because we want to talk about the cashier of the Baltimore branch bank
or the legislators responsible for BUS taxation -- or even because
hundreds of Americans in places like Tennessee and Kentucky thought that
the republic would collapse if the Court had its way. Instead, many --
perhaps most -- teachers of constitutional history characterize
McCulloch as a particularly fine example of John Marshall's defense
of federal energy in relations with states. Some of us would add, as a
kind of political-social (that is to say, extra-constitutional)
postscript, that Marshall's targets in 1819 were state legislators
determined to 'kill' the Second Bank, that Spencer Roane attacked
Marshall in the Richmond Enquirer, that Marshall rejoined, and so
forth. But this is an add on, a supplement -- definitely
extra-constitutional.
Where are "the people" -- indeed, where
can "the people" hope to be -- in such a narrative? Let's assume
for the moment that we're all historians, and that our students sign up
primarily for history courses, not for law courses. In the term
"constitutional history," after all, 'history' is the noun and
'constitutional' the modifier. From this vantage point, the "missing
persons" phenomenon is actually fairly interesting. For historians
supposedly have special, primary expertise in human agency and human
experience -- unlike political scientists and lawyers, who specialize in
the study of systems, structures, doctrines. Herbert Muller, for
instance, termed the "whole enterprise of civilization" a "rare human
creation, a triumph of mind and will"; impersonal forces, he thought,
"work only through the ideas and beliefs of men."(2) Yet, very often,
being more responsive to "people" calls to mind nothing more than new
sentences about minorities or women; we don't imagine rethinking those
technically brilliant, wholly 'internal' lectures about Roger Taney's
spin on the commerce clause -- that is to say, the master narrative
itself.
Let me be clear: I am not urging that
structures, doctrines, the narrative of the federation's growth and
development, should be junked. We all know better. Organic law, the
Congress, the Court occupy a large part of the arena within which
experiences of government and freedom happen. Rather, I mean to say,
first, that constitutional historians tend -- even more completely than
our comrades in legal history -- to unify, homogenize, and reify every
part of their subject; and second, that this rule-seeking architecture
of mind leads many of us variously to treat "the people" either as
passive receivers and containers of legal events (supplying so-called
"context"), or simply as vehicles who bring disputes into a
constitutional court, where judges and lawyers marginalize and then
erase them. As a consequence, we don't think deeply about the layering,
the complexity, the messiness, so much a part of both constitutionalism
and human consciousness of it. Very commonly, in fact, we relegate
unsightly or unruly matters to fields on the other side of a bright line
drawn around recognizably 'constitutional' forms and institutions.
"Social history," "women's history," "political history" supposedly
treat culture, liberty poles, rights consciousness, the contests for
control of constitutional meanings that Dirk Hartog once called
"constitutions of aspiration"; constitutional history does not treat
these things. As a result, we fail to attract to constitutional history
many undergraduates who are not interested in law school. Equally
troubling, we fail to convey law's moral content to pre-law students --
its origins in human life and thought, its capacity for both cruelty and
social improvement. We also put ever-greater distance between ourselves
and the writers of survey textbooks, who do little more than recycle
stale paragraphs about Marbury and the Fourteenth Amendment.
What about the "government-and-liberty"
part of the subject? One of the most consistently fascinating things
about our field is the extraordinary, ongoing power of both legal
formalism and systems analysis in shaping the subject and its analytical
objectives. Those seemingly irresistable forces have inspired a
sprawling literature about law and history that I intend for the most
part to ignore.(3) Beneath those pressures and their irresistibility,
though, is a frame of mind (I sometimes think, especially when reading
my H-Law postings, that too many of us are wanna-be lawyers) that we
need to explore at some length. It is a view shaped very powerfully by
more than a few misconceptions about the common law.
Why "misconceptions"? Contrary to the
rather mindless, rule-seeking behavior of law students headed for the
bar exam, and certainly contrary to the impulse underlying searches for
the (presumably unitary and homogenous) intentions of various framers
and founders, the vast collection of texts and judicial utterances that
comprise "constitutional law" are layered rather than one-dimensional,
discordant rather than unitary. Good lawyers certainly know this. Adam
Czarnota and Martin Krygier once called this phenomenon "layered
complexity." Legal systems, they noted, consist not only of rules and
principles, but also of higher order understandings, received techniques
(matters necessarily of human memory, and therefore to some extent
irrational), constellations of values, shared as well as diverse ways of
perceiving reality, which are pervasive and themselves deeply layered in
complex, decisive ways.(4)
Why, then, do constitutional historians
-- not unlike historians of ideas, whose internal controversies greatly
resemble out own -- pay lip service to varieties of "social" or
"political" drapery, yet continue to situate governmental forms and
unity-seeking abstractions at the center of the analysis? Is there no
difference between constitutional history, and constitutional law
practiced using old material, so that the past furnishes a supply of
cases for continual re-argument? Even Willard Hurst, for all of his
concern about the anti-democratic character of appellate law practice,
thought that legal institutions and the "social values embodied in law
developed within the context of demanding ideals of constitutionalism"
which, apparently all by themselves, "pressed legal agencies and their
formal processes into rich involvement with institutions and patterns of
individual and group experience" -- which, in turn, gave social meaning
to law.(5)
Surely the curious resilience of
reification and homogenization has something to do with historians'
internalization of 'legal thinking,' or at least what passes for it. Not
coincidentally, human beings (excepting perhaps the judges, whose
degree of personal influence, I should remind you, is a point of
scholarly disputation) come to be squeezed out of the picture. Nobody
said it better than Leonard Levy. "The common law," he observed in the
concluding chapter of his biography of Lemuel Shaw, "knew society only
as so many John Does and Richard Roes, which is to say that it had scant
regard for society collectively. Social and economic problems were
reflected in the common law merely as conflicts of personal interest
between contending parties. They might possess an unequal status and
power; their case might involve great and grave social interests. But to
the common law, indifferently neutral and ... generally oblivious to
public policy, the parties were theoretically interchangeable
personalities to be dealt with on equal terms and with scant regard for
others."(6)
Part of what's missing, then, is an
appreciation for what Clifford Geertz calls "legal sensibility" -- that
is, the shifting ways in which a society creates and generates rules,
the constitutive aspects of a legal system, its distinctive and
ever-changing "method and manner of conceiving decision situations so
that settled rules can be applied to decide them."(7) Americans, for
example, have constituted "the state" very differently over time;
various gatekeepers -- some of them distinctly unmodern -- have
controlled access to basic rights and liberties. Yet, until very
recently, historians were virtually blind to the shifting sites of
public power, the content of state constitutions, or the
community-centered, locally-sanctioned responsibilities of domestic
governments. In nineteenth-century America, for example, federal courts
and Congress were invisible to most Americans, most of the time. Yet
citizens and non-citizens regularly experienced (or were denied
experiences of) the rule of law, freedom, and 'the state.' It is simply
false to conclude, from the evidence derived solely from federal policy,
that (to give some examples) liberty of speech, freedom of assembly, or
the right of locomotion didn't register on the constitutional Geiger
counter. They did. But we need to look in the right place. Household
heads (barons) governed women, children, and servants, at the
behest of formal governments; plantation masters governed
African-Americans, again as agents of state and municipal governments.
Husbands, fathers, masters, even presiding officers at reform society
conventions, regularly and powerfully shaped the liberty prospects of
dependents and constituents. A woman's ability to visit relatives or
make a public speech, a slave's ability to stroll in the woods or write
a letter, rested with domestic governors; a wife's capacity to exercise
constitutional rights to property depended upon the generosity of state
legislators, local judges, and male relatives. In the 1850's, Antoinette
Brown and many other prominent women, sometimes in company with black
male abolitionists, found themselves tossed out of lecture halls for
daring to mount the podium; upper-class women went on the lecture
circuit to eliminate "padlocks on our lips," as one woman put it.(8)
Well into the 1860's, women's rights
activists situated speech and press freedom dead center on their
constitutional agenda, in some cases ahead of political freedom. They
complained loudly and repeatedly of unconstitutional 'takings' of their
property, apparently for the crime of marriage. They spoke the language
of republican constitutionalism with fluency and wielded it to great
good effect. Are their agitations a chapter in "social history"? Or in
constitutional history differently conceived? Do we really need a ruling
by the Marshall Court before we can say that explicit demands for access
to the First Amendment -- indeed, that men and women, blacks and whites,
experienced constitutionalism very differently -- merit inclusion in
texts and lectures?
What about people like Antoinette
Brown, whose exchanges with constituted authority permanently altered
American constitutional culture? With important exceptions,
constitutional historians continue to ignore human agency beyond key
actors on benches and in Congress; we speak instead of amorphous classes
-- "the people" (the constituent power, "the citizenry"), "slaves,"
"women," "aliens," and so on -- much as I've done every time I presume
to speak for all of us ("we"). As Karl Joachim Weintraub once said of
Saint Augustine, constitutional historians exhibit remarkably little
interest in developing a "conception of the interplay of a self," or of
selves, formed in a "specific world," working "back upon the world by
partially making it [their] own, changing it in terms of what it has
become by having interacted with it."(9)
Setting aside the possibility that such
talk really belongs in 'social history': why do human beings with
different, contributory, or contrary stories to tell come to be
portrayed as environmental, "contextual" noise -- as a necessary
distraction surrounding but distinguishable from the "real" juridified
primary subject or "text"? Do historians generally cling to a unitary,
usually white and male master narrative basically to hold off the
spectre of radical subjectivism -- as if those were the only choices?
Whatever the cause, we have come, often reluctantly, to recognize the
existence of alternative witnesses and story-tellers, but still treat
them as aliens possessed of incompatible or extra-constitutional
cultures. "Slaves," presumptively steeped in the culture of the quarters
rather than in the culture of constitutionalism, are regularly named,
but rarely granted a constitutional history of their own -- that is, a
page on which to describe their experiences of freedom, mastership,
state governments, as agents and subjects. Black experiences of
constitutional government, after all, happened before, after, and all
around the Amistad case, well beyond the range of movie cameras;
race (and gender) powerfully cut across the sovereign individual's right
to personal security, or to a jury trial by peers. Yet the "slave" is
most often an object of someone else's story. Working men demonstrated
in public squares to secure ballots for all white men without reference
to property or class; for the most part, their contributions to
constitutional change have been unremarked. Women enter the scene,
basically, only with the Supreme Court's ruling in Myra Bradwell's case,
and typically as prescient advocates of modernity -- as champions of
universal suffrage, Roe v. Wade, workplace equality, and
ERA.
We tend, in other words, to demand
compliance with the official story as a condition for permanent
residence in the Big House. Susan B. Anthony and Margaret Sanger have
House privileges because of the "Anthony Amendment" and Griswold
v. Connecticut; despite Socialism, Eugene Debs unwittingly
contributed to the development of the commerce clause and so merits a
paragraph. Elizabeth Cady Stanton, Mother Jones, Paulina Wright Davis,
Mary Church Terrell, and thousands of anti-suffragists followed
different drummers, never appeared before the Supreme Court, and so
inhabit other extra-constitutional narratives ("black history," "women's
history," "political history"). To borrow Robert Berkhofer's words,
contrary or supplementary voices "do not cross" the master narrative so
much as "fall in line" with it.(10)
Still, as Eric Foner points out in his
elegant history of American freedom,(11) it is the special genius of
American culture to permit and even encourage disputation; a central
feature of our constitutional history has been the contested character
of virtually every term, concept, and symbol in the constitutional
lexicon. Many years ago, E. H. Carr -- a communist, to be sure -- noted
that "progress in human affairs" had come about "mainly through the bold
readiness of human beings ... to present fundamental challenges in the
name of reason to the current way of doing things."(12) But whose
stories might we agree to include alongside Marshall, Taney, and other
familiar figures in a reconstituted "constitutional history"? Let me lay
out some possibilities, only half in jest:
STORY # 1: In 1819, the
Marshall Court ruled in Dartmouth College v. Woodward that
the state of New Hampshire could not transform a private charter into a
public one without violating the contract clause. Joseph Story offered a
concurring opinion which said, among other things, that certain
corporations (e.g., banks) were "private" entities, and so off limits to
legislative meddling unless the original charter reserved the
legislature's right to meddle. In Kentucky and Tennessee, Dartmouth
created a firestorm. Suddenly, the ruling had nothing to do with a
college, or even with the contract clause; rather, Relief partisans
argued that Joseph Story (not Marshall) aimed to curtail legislatures'
ordinary remedial powers and to attack recent bank charter revocations.
Within days, legislators passed resolutions condemning judicial
"tyranny," enacted laws affirming legislative authority across a broad
range of heads, and moved to curtail the review powers of the United
States Supreme Court. As a result of Dartmouth, in other words,
both Kentucky and Tennessee basically declared war on the federal
judiciary -- a war that persisted (with occasional fuel added to the
fire) until at least 1826. How much of this story belongs in a
constitutional history textbook?
STORY #2: In 1845, the
Connecticut Supreme Court of Errors heard the appeal of Shaw v.
Shaw, involving a divorce petition originally brought by Emeline
Shaw against her husband, Daniel. In 1844, after about three years'
cohabitation, Emeline had "left the bed and board of her husband" to
live "separate from him, with her mother." Chief Judge Williams noted
that she was a "woman of an irritable temperament" and "in delicate and
feeble health." Daniel apparently "made use of abusive and obscene
language to her," calling her (among other terms) an "old imp of hell"
and "an ugly devil." As the court put it, though her health made it
"improper" and dangerous for her to "have sexual intercourse with him,"
he "unreasonably objected," and "refused to suffer her to occupy a
separate bed." At least twice, he "took her, by force, from the bed of
her daughter" and "compelled her to occupy a bed with himself." He
accused her of having illicit relations with other men and repeatedly
forced her to "remain with him in bed against her wishes and
remonstrances," even though it was "injurious to her health so to do."
Daniel refused to let Emeline leave the house to visit relatives, and
"unreasonably" barred his mother-in-law from visiting. For these
reasons, she had fled, eventually filing for divorce on the ground of
"habitual intemperance" and "intolerable cruelty." Judge Williams
disagreed. Given Emeline's sour disposition and desertion, cruelty had
to be of the sort "not to be borne." Surely Daniel's language was
"vulgar, obscene, harsh." But he had been "jealous of his wife"; his
behavior, while heinous, could be understood by other men. Locking
people in and out of the house was "certainly harsh, if not cruel" --
but a husband had "the right to say who shall be admitted to his house"
and to "regulate the intercourse of his wife," and Emeline had
threatened to leave. Wrote the judge, although "the fancies of a jealous
man are as ungovernable as those of a madman, and often show themselves
as suspicious of their best friend," the "unreasonable exercise of the
authority of a husband ... has never been held to be that kind of
cruelty, which would authorize a separation." Nor was Daniel's claim of
"marital rights, against the wishes ... of his wife" intolerably cruel:
Emeline could not claim that "he intended to injure her, or did injure
her" by forcing her to sleep with him -- only that his behavior might
have killed her. While forced sex had been "injurious to her health, and
endangered it," Williams could not say that Daniel "knew this
would be the consequence," and so he refused the divorce. To what extent
is Daniel's governance of Emeline's body a matter of constitutional
concern?
STORY #3: Because ordinary
methods had not succeeded in recruiting President Woodrow Wilson and
other prominent federal politicians to suffragism, the National Woman's
Party (with allied organizations) decided to try the resistance
techniques used to good effect in England. In 1917, women began to
misbehave. Picketers ringed the White House, threatening to unhinge
Wilson's peace talks with bluntly-worded picket signs (e.g., "Kaiser
Wilson"). After a boisterous 1918 suffrage parade in the nation's
capitol, NWP women burned copies of presidential speeches as well as
their own messages to Congress in a ceremony at the White House. Said
one message: "This is a war for self-government among all the peoples of
the world as against the arbitrary choices of self-constituted masters."
A Washington correspondent said in early 1917 that he had "seen no more
impressive sight" than the "spectacle" of White House picketing: "[T]o
see a thousand women -- young women, middle-aged women, and old women
... marching in a rain that almost froze as it fell; to see them
standing and marching and holding their heavy banners ... against a wind
that was half a gale -- hour after hour, until their gloves were wet and
their clothes soaked through ... was a sight to impress even the jaded
senses of one who has seen much ...." Others, however, accused
demonstrators of sabotaging both the war effort and Woodrow Wilson's
credibility in Europe; the president himself said that the timing was
"not opportune" and the demands too strident. Mobs jeered the picketers,
and constables hauled them off to jail. When arrested and incarcerated
for obstructing traffic, Alice Paul and others went on hunger strikes,
only to be manhandled, forcibly fed, and occasionally put in solitary
confinement. Beyond Washington, NWP organizers confronted repeated
attempts to silence circuit-riding speakers. In Dallas, Texas, just as
the United States prepared to enter the war, NWP speaker Maud Younger
and several companions met with what suffragist Inez Haynes Irwin called
"the cry of 'Treason'" -- in her judgment, an "incredible" development "in
these days of free speech." As Irwin told the story, NWP organizers
in Texas could not engage a hall or hotel room for Younger; the mayor
refused to allow her to hold a street meeting. When she "offered to
submit her speech for censorship," city officials "refused her even
that." In Tennessee, agents of the War Association and Home Defense
League supposedly went "to all hotels, or meeting -places, to ask them
not to rent rooms for Miss Younger's meetings, and to mayors to request
them not to grant permits for street meetings." At least one woman, Sue
White of Jackson, Tennessee -- editor of the NWP newspaper The
Suffragist -- decided to support the lecture series, not because she
agreed with speakers' positions, nor even to secure "equal suffrage,"
but because the visitors had been denied "freedom of speech, which is
not only essential to our cause but to every other step in human
progress." In the end, organized labor came to the rescue: Chattanooga
union members offered NWP orators their hall. In Knoxville, a labor
leader "saw at once that it was a free speech fight" and resolved that
"Labor would make the fight for the suffragists." NWP speakers spoke
from the courthouse steps, fully expecting "to be shot"; deputies
barricaded the building while "eighty armed Union men" guarded
the speakers White House pickets and NWP speakers. Do we include such
attempts to suppress political dissent in constitutional history
textbooks alongside Abrams and Schenk? Or not? The Supreme
Court, after all, is absent.
STORY #4: In Calvin
Trilling's brilliant essay collection, Killings, he describes an
Appalachian community in which landowners can murder trespassers without
fear of penalty. In past time, citizens apparently decided that a person
walking without permission across another person's tobacco field had
relinquished all right to personal security. The local police will not
arrest such shooters, on the ground that killings in defense of property
are justifiable. Is this an example of an alternative, customary
constitutional regime? Or is it merely a good story?
Indeed, which of these 'good stories'
belong in the text? And how would we decide? It may be that
constitutional historians ignore messes like these because they rightly
perceive that opening one such door might lead to opening many more. At
issue is the unity and coherence of the master narrative. How can we
direct the choir when the singers have different scores, sing in
different keys, and don't even perform in the same auditorium? In the
seemingly innocuous turn from structures and functions of government to
human experiences of government, the post-modern nightmare comes home to
roost. How many 'constitutions of aspiration' can we fit onto the page
before it tears?
On the other hand: business as usual
cannot restore the vitality that characterized constitutional history
during the late New Deal, when political scientists 'discovered' the
politics inherent in law, or in the 1960's, when a handful of scholars
decided to reclaim and renovate the history profession's old flagship
for a new day. Whether we like it or not, the practice of history
nowadays requires engagement with the richness and dissonance of
American society and culture. I take this to be a sign, not of political
faddishness, but of collective maturity: it takes a certain amount of
courage to deliberately let go of the reins. Despite important
contributions, "forensic history" and much of the so-called "new
constitutional history" evades our most pressing difficulty -- the need
to confront constitutionalism's embeddedness in culture, social process,
and consciousness without attracting and succumbing to charges of
irrelevance. There is nothing wrong with claiming to be different from
everyone else -- only in claiming to be impervious to social process. As
Robert Cover once explained, "legal meaning is created by simultaneous
engagement and disengagement, identification and objectification."
Historians basically describe and analyze the "process of human action
stretched between vision and reality";(13) there is no compelling reason
to exempt constitutional historians from that mandate -- no more than we
would exempt economic historians, who sometimes prefer to write internal
accounts of the development of monetary theory, thereby avoiding
"layered complexity" and shifting "sensibilities."
To its credit, relativism -- by which I
mean openness to complexity, multiplicity, messiness, and uncertainty --
is an honest position: law never has brooded in a truly omnipresent way.
Constitutional historians bear the mark not only of legal thinking, but
also of a perceived burden of public trust: to 'forget' the traditional
constitutional narrative is in a sense to jeopardize national cohesion
-- which, I think, is why the very idea of altering the story or
alienating title to all or part of the narrative raises such fierce
opposition and causes ranks to close. Joyce Appleby and her co-authors
put it this way: "Having chosen to knit themselves together as a people
with the propositions of liberal democracy, Americans initially turned
their history into a record of national cohersion";(14) any move to the
contrary smacks of treason. Hence, the long-lived attachment to what can
only be called unreconstructed scientific history. Practitioners -- I
don't exempt myself -- still yearn to believe (in Peter Gay's words)
that "the tree in the woods of the past fell in only one way," and that
we know (or can learn) what it was.(15) Many of us genuinely regret the
absence of what Henry Adams called "some basis of faith in general
principles, some theory of progress of civilization which is outside and
above all temporary questions of policy."(16) Nevertheless, as Dominick
LaCapra said of the long-standing contest between the history of ideas
and intellectual history, we should consider moving away from the notion
of "history as a reconstruction of the past" bounded by a canon of
received texts, toward an idea of history as "a dialogue or conversation
with the past," bounded by the testimony of many speakers operating in
multiple arenas -- if only to admit all of the people to full
citizenship.(17)
As to the dread subjectivism and its
supposed close relation, relativism: in 1957, Herbert Muller wrote these
remarkable sentences. "...[T]he admission of a principle of relativity
and uncertainty," he insisted, "should not be simply depressing. It does
not destroy all possibility of knowledge and judgment. Rather, it is the
outcome of comprehensive knowledge, and the means to further knowledge
of ... history. ... It enables wiser choices among the possibilities
open to us -- among goods that are no less real because they are
relative, and that are more relevant than arbitrary absolutes. Above
all, this principle encourages a positive faith in positive values: of
liberality, breadth of spirit, hospitality to new ideas, willingness to
adventure, humility in admitting one's own fallibility and the
limitations of the human mind -- ... If these are not the highest
values, none are more essential to the hopes of world order and peace.
They also entail obvious dangers, of confusion, halfheartedness,
demoralization, despair. One cannot be confident that mankind is yet
ready or able to surrender the ancient illusion of certainty in its
idealisms. Nevertheless, this illusion intensifies the confusion and
dismay of our times. It obscures the actual uncertainty in which men
have always lived and which they take for granted in daily life. ... [W]e
doubtless suffer from too much doubt. But we are likely to suffer much
more because too many men are too sure of themselves."(18)
NOTES
1. Virginia Woolf, The Diary of
Virginia Woolf, Vol. 1, 1915-1918 (London: Hogarth Press, 1977):
152.
2. Herbert Muller, The Uses of the
Past: Profiles of Former Societies (New York 1957): 36.
3. See the exemplary, if dated,
collection of essays in Kermit Hall, ed., Main Themes in United
States Constitutional and Legal History (New York 1987).
4. Adam Czarnota and Martin Krygier,
"Revolutions and the Continuity of European Law," in Zenon Bankowski,
ed., Revolutions in Law and Legal Thought (Aberdeen, Scotland,
1991): 90.
5. J. Willard Hurst, "Legal Elements in
United States History," Perspectives in American History, 5
(1971): 349.
6. Leonard Levy, The Law of the
Commonwealth and Chief Justice Shaw (Cambridge, MA, 1957): 316.
7. Clifford Geertz, Local Knowledge:
Further Essays in Interpretive Anthropology (New York, 1983): 215.
8. For "padlocks" and other fairly
typical references to abridgments of speech freedom, see E. C. Stanton,
et al., eds., History of Woman Suffrage , Vol. I (New York 1881):
38, 82-85, 95, 206, 152-53, 160, 184, 218, 476.
9. Karl Joachim Weintraub, The Value
of the Individual: Self and Circumstance in Autobiography (Chicago,
IL: University of Chicago Press, 1978): 48.
10. Robert Berkhofer, Beyond the Great
Story: History as Text and Discourse (Cambridge, MA:
Harvard/Belknap, 1995): 179.
11. Eric Foner, The Story of American
Freedom (New York, 1999).
12. Edward Hallett Carr, What Is
History? (New York, 1961, repr. 1972): 207.
13. Robert Cover, Narrative, Violence,
and the Law: The Essays of Robert Cover (Ann Arbor, MI, 1992, ed.
Martha Minow): 144. With the exception of Trilling, the material used in
the preceding 'stories' can be found in Sandra F. VanBurkleo,
"Belonging to the World": Women's Rights and American Constitutional
Culture (Oxford, forthcoming).
14. Joyce Appleby, Lynn Hunt, and
Margaret Jacobs, Telling the Truth About History (New York 1994):
156.
15. Peter Gay, quoted in Robert Berkhofer,
Beyond the Great Story: History as Text and Discourse (Cambridge,
MA, 1995): 48.
16. Henry Adams, quoted in John Clive,
Not By Fact Alone: Essays on the Writing and Reading of History (New
York 1989): 182.
17. Dominick LaCapra, Rethinking
Intellectual History: Texts, Contexts, Language (Ithaca, NY, 1983):
61.
18. Muller, Uses of the Past:
43-44.