The Arrival of History in Constitutional Scholarship

Abstract

A to by American constitutional scholars has become one of familiar chapters in accounts of legal scholarship at end of twentieth century. But despite a widespread assumption within legal academy that inquiry has become a central, and statured, dimension of contemporary constitutional scholarship, causes of arrival of history in constitutional jurisprudence have not yet been fully explored. This article advances an explanation for turn. Reduced to a nutshell, explanation first posits a connection between three casual elements: a conception of history as a progression of qualitative change over time, in which time is structured in discrete segments (the past, present, and future); confidence, among scholars, about distinctive identity and relative homogeneity of America as a culture with shared ideals and values; and a sharp separation between disciplinary inquiries of historians and legal scholars. In terms of article, a historicist theory of change, a perception of current cultural and stability; and sharply perceived distinctions between and compliment and reinforce one another. In periods of twentieth-century American history when this configuration has occurred, historians have tended to define their scholarly enterprise as structured by canon of objectivity, by which a historically oriented scholar, situated in one time frame, faithfully renders the without injecting concerns or ideological agendas into that inquiry. In those same periods, constitutional scholars in legal academy have defined their scholarly enterprise as primarily ahistorical, focusing on contemporary constitutional issues and setting those issues in analytical and theoretical frameworks borrowed from contemporary social sciences, especially institutional and behavioral theories of political science. Conversely, in periods of twentieth-century American history where alternatives to a historicist theory of change have some prominence, where uncertainty exists among scholars about consensual values that define American present, and where sharp segmentations between past, present, and future time seem less coherent, historians have tended to recoil from strong versions of canon of objectivity, and to emphasize inherent presentism of all inquiry. Legal scholars, in such periods, have exhibited less confidence that field theories drawn from political science can serve as universal frameworks for addressing issues in constitutional law. The result has been a shift from a sharp separation of disciplinary inquiries of historians from those of legally trained constitutional scholars to a comparative integration of inquiries of two groups. Legal scholars have reached out from uncertainty of their present to reconsider past as a source of theoretical explanations for current issues, and historians have abandoned strong versions of canon of objectivity and given fuller attention to presentist dimensions of their exploration of topics. The article seeks to illustrate these general claims by detailed attention to three defining episodes in twentieth century American legal and scholarship. The first episode was emergence of social sciences, including history, as separate disciplines in early twentieth century, and parallel emergence of legal scholarship as inspired by social science theories. The second episode was development in American constitutional jurisprudence, between 1940s and 1970s, of matrix for situating analytical and theoretical inquiries about constitutional issues. The countermajoritarian difficulty matrix was developed and refined in periods of cultural stability, was predicated on a robust historicist theory of change, and was ahistorical in its emphasis. It was also developed and refined in a period in which and strong versions of objectivity canon dominated scholarship of American historians. The third episode was estrangement of several groups of legal scholars (of diverse ideological persuasions) from countermajoritarian difficulty matrix, and parallel estrangement of many historians from consensus history and strong versions of canon of objectivity. That episode began in late 1960s and is still in progress. Its principal contemporary manifestation, in American constitutional jurisprudence, has been surfacing of historically oriented scholarship by a variety of constitutional scholars who are not united in their normative concerns. Thus historical turn in American constitutional scholarship needs to be seen both as an illustration of late twentieth-century cultural ferment and an illustration of quite profound changes in epistemological underpinnings of American higher education as it enters first decade of twentieth century.