The Arrival of History in Constitutional Scholarship

Abstract

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