Constitutional theory transformed

Yale Law Journal

Volumn 108, Issue 8, 1999, Pages 2115-2161

  Griffin, Stephen M ^a  

^a NONE

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[No Author keywords available]

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EID: 0041541753     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797384     Document Type: Article

References (352)

1. Bruce Ackerman and Lawrence Lessig are two prominent theorists who have undertaken the project of understanding the Constitution as a whole. See 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991); BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998); RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT (Sanford Levinson ed., 1995); Lawrence Lessig, Fidelity and Constraint, 65 FORDHAM L. REV. 1365 (1997); Lawrence Lessig, Translating Federalism: United States v. Lopez, 1995 SUP. CT. REV. 125 (1995); Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 STAN. L. REV. 395 (1995) [hereinafter Lessig, Understanding]; Lawrence Lessig, Fidelity in Translation, 71 TEX. L. REV. 1165 (1993) [hereinafter Lessig, Fidelity]; Symposium, Fidelity in Constitutional Theory, 65 FORDHAM L. REV. 1247 (1997). set out my own theory of constitutional change in STEPHEN M. GRIFFIN, AMERICAN CONSTITUTIONALISM: FROM THEORY TO POLITICS 9-19, 26-58, 68-87 (1996).
2. Bruce Ackerman and Lawrence Lessig are two prominent theorists who have undertaken the project of understanding the Constitution as a whole. See 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991); BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998); RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT (Sanford Levinson ed., 1995); Lawrence Lessig, Fidelity and Constraint, 65 FORDHAM L. REV. 1365 (1997); Lawrence Lessig, Translating Federalism: United States v. Lopez, 1995 SUP. CT. REV. 125 (1995); Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 STAN. L. REV. 395 (1995) [hereinafter Lessig, Understanding]; Lawrence Lessig, Fidelity in Translation, 71 TEX. L. REV. 1165 (1993) [hereinafter Lessig, Fidelity]; Symposium, Fidelity in Constitutional Theory, 65 FORDHAM L. REV. 1247 (1997). set out my own theory of constitutional change in STEPHEN M. GRIFFIN, AMERICAN CONSTITUTIONALISM: FROM THEORY TO POLITICS 9-19, 26-58, 68-87 (1996).
3. Bruce Ackerman and Lawrence Lessig are two prominent theorists who have undertaken the project of understanding the Constitution as a whole. See 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991); BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998); RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT (Sanford Levinson ed., 1995); Lawrence Lessig, Fidelity and Constraint, 65 FORDHAM L. REV. 1365 (1997); Lawrence Lessig, Translating Federalism: United States v. Lopez, 1995 SUP. CT. REV. 125 (1995); Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 STAN. L. REV. 395 (1995) [hereinafter Lessig, Understanding]; Lawrence Lessig, Fidelity in Translation, 71 TEX. L. REV. 1165 (1993) [hereinafter Lessig, Fidelity]; Symposium, Fidelity in Constitutional Theory, 65 FORDHAM L. REV. 1247 (1997). set out my own theory of constitutional change in STEPHEN M. GRIFFIN, AMERICAN CONSTITUTIONALISM: FROM THEORY TO POLITICS 9-19, 26-58, 68-87 (1996).
4. Bruce Ackerman and Lawrence Lessig are two prominent theorists who have undertaken the project of understanding the Constitution as a whole. See 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991); BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998); RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT (Sanford Levinson ed., 1995); Lawrence Lessig, Fidelity and Constraint, 65 FORDHAM L. REV. 1365 (1997); Lawrence Lessig, Translating Federalism: United States v. Lopez, 1995 SUP. CT. REV. 125 (1995); Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 STAN. L. REV. 395 (1995) [hereinafter Lessig, Understanding]; Lawrence Lessig, Fidelity in Translation, 71 TEX. L. REV. 1165 (1993) [hereinafter Lessig, Fidelity]; Symposium, Fidelity in Constitutional Theory, 65 FORDHAM L. REV. 1247 (1997). set out my own theory of constitutional change in STEPHEN M. GRIFFIN, AMERICAN CONSTITUTIONALISM: FROM THEORY TO POLITICS 9-19, 26-58, 68-87 (1996).
5. Bruce Ackerman and Lawrence Lessig are two prominent theorists who have undertaken the project of understanding the Constitution as a whole. See 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991); BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998); RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT (Sanford Levinson ed., 1995); Lawrence Lessig, Fidelity and Constraint, 65 FORDHAM L. REV. 1365 (1997); Lawrence Lessig, Translating Federalism: United States v. Lopez, 1995 SUP. CT. REV. 125 (1995); Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 STAN. L. REV. 395 (1995) [hereinafter Lessig, Understanding]; Lawrence Lessig, Fidelity in Translation, 71 TEX. L. REV. 1165 (1993) [hereinafter Lessig, Fidelity]; Symposium, Fidelity in Constitutional Theory, 65 FORDHAM L. REV. 1247 (1997). set out my own theory of constitutional change in STEPHEN M. GRIFFIN, AMERICAN CONSTITUTIONALISM: FROM THEORY TO POLITICS 9-19, 26-58, 68-87 (1996).
6. Bruce Ackerman and Lawrence Lessig are two prominent theorists who have undertaken the project of understanding the Constitution as a whole. See 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991); BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998); RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT (Sanford Levinson ed., 1995); Lawrence Lessig, Fidelity and Constraint, 65 FORDHAM L. REV. 1365 (1997); Lawrence Lessig, Translating Federalism: United States v. Lopez, 1995 SUP. CT. REV. 125 (1995); Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 STAN. L. REV. 395 (1995) [hereinafter Lessig, Understanding]; Lawrence Lessig, Fidelity in Translation, 71 TEX. L. REV. 1165 (1993) [hereinafter Lessig, Fidelity]; Symposium, Fidelity in Constitutional Theory, 65 FORDHAM L. REV. 1247 (1997). set out my own theory of constitutional change in STEPHEN M. GRIFFIN, AMERICAN CONSTITUTIONALISM: FROM THEORY TO POLITICS 9-19, 26-58, 68-87 (1996).
7. Bruce Ackerman and Lawrence Lessig are two prominent theorists who have undertaken the project of understanding the Constitution as a whole. See 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991); BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998); RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT (Sanford Levinson ed., 1995); Lawrence Lessig, Fidelity and Constraint, 65 FORDHAM L. REV. 1365 (1997); Lawrence Lessig, Translating Federalism: United States v. Lopez, 1995 SUP. CT. REV. 125 (1995); Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 STAN. L. REV. 395 (1995) [hereinafter Lessig, Understanding]; Lawrence Lessig, Fidelity in Translation, 71 TEX. L. REV. 1165 (1993) [hereinafter Lessig, Fidelity]; Symposium, Fidelity in Constitutional Theory, 65 FORDHAM L. REV. 1247 (1997). set out my own theory of constitutional change in STEPHEN M. GRIFFIN, AMERICAN CONSTITUTIONALISM: FROM THEORY TO POLITICS 9-19, 26-58, 68-87 (1996).
8. Bruce Ackerman and Lawrence Lessig are two prominent theorists who have undertaken the project of understanding the Constitution as a whole. See 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991); BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998); RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT (Sanford Levinson ed., 1995); Lawrence Lessig, Fidelity and Constraint, 65 FORDHAM L. REV. 1365 (1997); Lawrence Lessig, Translating Federalism: United States v. Lopez, 1995 SUP. CT. REV. 125 (1995); Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 STAN. L. REV. 395 (1995) [hereinafter Lessig, Understanding]; Lawrence Lessig, Fidelity in Translation, 71 TEX. L. REV. 1165 (1993) [hereinafter Lessig, Fidelity]; Symposium, Fidelity in Constitutional Theory, 65 FORDHAM L. REV. 1247 (1997). set out my own theory of constitutional change in STEPHEN M. GRIFFIN, AMERICAN CONSTITUTIONALISM: FROM THEORY TO POLITICS 9-19, 26-58, 68-87 (1996).
9. Bruce Ackerman and Lawrence Lessig are two prominent theorists who have undertaken the project of understanding the Constitution as a whole. See 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991); BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998); RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT (Sanford Levinson ed., 1995); Lawrence Lessig, Fidelity and Constraint, 65 FORDHAM L. REV. 1365 (1997); Lawrence Lessig, Translating Federalism: United States v. Lopez, 1995 SUP. CT. REV. 125 (1995); Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 STAN. L. REV. 395 (1995) [hereinafter Lessig, Understanding]; Lawrence Lessig, Fidelity in Translation, 71 TEX. L. REV. 1165 (1993) [hereinafter Lessig, Fidelity]; Symposium, Fidelity in Constitutional Theory, 65 FORDHAM L. REV. 1247 (1997). set out my own theory of constitutional change in STEPHEN M. GRIFFIN, AMERICAN CONSTITUTIONALISM: FROM THEORY TO POLITICS 9-19, 26-58, 68-87 (1996).
10. It would thus be unwise to assume at the outset that a single branch of government, such as the Supreme Court, has been the sole source of important constitutional changes. It is unlikely that the Court has initiated or is responsible for all of the significant changes that have occurred with respect to the political branches. It seems intuitive, for example, that the nation's presidents have had something to do with changes in their office. For a recent brief treatment of constitutional changes in the presidency, see Cass R. Sunstein, An Eighteenth Century Presidency in a Twenty-First Century World, 48 ARK. L. REV. 1 (1994).
11. See 1 ACKERMAN, supra note 1; 2 ACKERMAN, supra note 1.
12. See 1 ACKERMAN, supra note 1; 2 ACKERMAN, supra note 1.
13. My theory of constitutional change does not begin with the Court, but rather with the idea that all of the branches are likely to have initiated significant constitutional changes at one time or another. Further, I do not begin with the Court in a methodological sense; that is, I do not assume that the kind of legalistic interpretation that characterizes the Court's opinions necessarily prevails in the other branches. I see no reason to assume that constitutional change in the political branches is fundamentally a matter of interpreting the Constitution. Change may happen through interpretation, but it also may not. Since ordinary political change often happens as a result of power struggles, electoral victories, interest group pressure, and so on, it seems unlikely that changes in the constitutional structure of the political branches would be driven solely by legalistic interpretation. Justices Kennedy and O'Connor recently made this point in United States v. Lopez, 514 U.S. 549, 577-78 (1995) (opinion of Kennedy, J., concurring).
14. Here and elsewhere in this essay, I use "interpretive" and "interpretation" in the very specific sense of legal interpretation. I do not mean to refer to the much different debate of whether the social sciences should be pursued through an interpretive method.
15. How is the idea of "change" to be understood? What counts as a change? Some might imagine that I must use an originalist notion of change, according to which change in the Constitution is to be measured against a baseline of the Framers' intent. In this and in my earlier work, however, I am not using an originalist baseline, but an historicist one. The baseline for determining whether a constitutional change has occurred is not a relatively discrete set of statements by important members of the Founding generation issued during the period surrounding the adoption of the Constitution, as well as statements by Framers of its subsequent amendments. It is rather the historical context in which those statements were made. More specifically, the baseline for assessing change is composed of the institutional structures and state capacities created by the Constitution. We can study constitutional change by observing the continuities and discontinuities as these structures develop over time.
16. For representative works, see BRINGING THE STATE BACK IN (Peter B. Evans et al. eds., 1985); JAMES G. MARCH & JOHAN P. OLSEN, REDISCOVERING INSTITUTIONS: THE ORGANIZATIONAL BASIS OF POLITICS (1989); ERIC A. NORDLINGER, ON THE AUTONOMY OF THE DEMOCRATIC STATE (1981); MARTIN SHEFTER, POLITICAL PARTIES AND THE STATE: THE AMERICAN HISTORICAL EXPERIENCE (1994); and STEPHEN SKOWRONEK, BUILDING A NEW AMERICAN STATE: THE EXPANSION OF NATIONAL ADMINISTRATIVE CAPACITIES, 1877-1920 (1982). See also Karen Orren & Stephen Skowronek, Institutions and Intercurrence: Theory Building in the Fullness of Time, in POLITICAL ORDER 111 (Ian Shapiro & Russell Hardin eds., 1996); Polity Forum: Institutions and Institutionalism, 28 POLITY 84 (1995); Rogers M. Smith, Science, Non-Science, and Politics, in THE HISTORIC TURN IN THE HUMAN SCIENCES 119 (Terrence J. McDonald ed., 1996); Rogers M. Smith, Still Blowing in the Wind: The American Quest for a Democratic, Scientific Political Science, 126 DAEDALUS 253 (1997) [hereinafter Smith, Still Blowing in the Wind].
17. For representative works, see BRINGING THE STATE BACK IN (Peter B. Evans et al. eds., 1985); JAMES G. MARCH & JOHAN P. OLSEN, REDISCOVERING INSTITUTIONS: THE ORGANIZATIONAL BASIS OF POLITICS (1989); ERIC A. NORDLINGER, ON THE AUTONOMY OF THE DEMOCRATIC STATE (1981); MARTIN SHEFTER, POLITICAL PARTIES AND THE STATE: THE AMERICAN HISTORICAL EXPERIENCE (1994); and STEPHEN SKOWRONEK, BUILDING A NEW AMERICAN STATE: THE EXPANSION OF NATIONAL ADMINISTRATIVE CAPACITIES, 1877-1920 (1982). See also Karen Orren & Stephen Skowronek, Institutions and Intercurrence: Theory Building in the Fullness of Time, in POLITICAL ORDER 111 (Ian Shapiro & Russell Hardin eds., 1996); Polity Forum: Institutions and Institutionalism, 28 POLITY 84 (1995); Rogers M. Smith, Science, Non-Science, and Politics, in THE HISTORIC TURN IN THE HUMAN SCIENCES 119 (Terrence J. McDonald ed., 1996); Rogers M. Smith, Still Blowing in the Wind: The American Quest for a Democratic, Scientific Political Science, 126 DAEDALUS 253 (1997) [hereinafter Smith, Still Blowing in the Wind].
18. For representative works, see BRINGING THE STATE BACK IN (Peter B. Evans et al. eds., 1985); JAMES G. MARCH & JOHAN P. OLSEN, REDISCOVERING INSTITUTIONS: THE ORGANIZATIONAL BASIS OF POLITICS (1989); ERIC A. NORDLINGER, ON THE AUTONOMY OF THE DEMOCRATIC STATE (1981); MARTIN SHEFTER, POLITICAL PARTIES AND THE STATE: THE AMERICAN HISTORICAL EXPERIENCE (1994); and STEPHEN SKOWRONEK, BUILDING A NEW AMERICAN STATE: THE EXPANSION OF NATIONAL ADMINISTRATIVE CAPACITIES, 1877-1920 (1982). See also Karen Orren & Stephen Skowronek, Institutions and Intercurrence: Theory Building in the Fullness of Time, in POLITICAL ORDER 111 (Ian Shapiro & Russell Hardin eds., 1996); Polity Forum: Institutions and Institutionalism, 28 POLITY 84 (1995); Rogers M. Smith, Science, Non-Science, and Politics, in THE HISTORIC TURN IN THE HUMAN SCIENCES 119 (Terrence J. McDonald ed., 1996); Rogers M. Smith, Still Blowing in the Wind: The American Quest for a Democratic, Scientific Political Science, 126 DAEDALUS 253 (1997) [hereinafter Smith, Still Blowing in the Wind].
19. For representative works, see BRINGING THE STATE BACK IN (Peter B. Evans et al. eds., 1985); JAMES G. MARCH & JOHAN P. OLSEN, REDISCOVERING INSTITUTIONS: THE ORGANIZATIONAL BASIS OF POLITICS (1989); ERIC A. NORDLINGER, ON THE AUTONOMY OF THE DEMOCRATIC STATE (1981); MARTIN SHEFTER, POLITICAL PARTIES AND THE STATE: THE AMERICAN HISTORICAL EXPERIENCE (1994); and STEPHEN SKOWRONEK, BUILDING A NEW AMERICAN STATE: THE EXPANSION OF NATIONAL ADMINISTRATIVE CAPACITIES, 1877-1920 (1982). See also Karen Orren & Stephen Skowronek, Institutions and Intercurrence: Theory Building in the Fullness of Time, in POLITICAL ORDER 111 (Ian Shapiro & Russell Hardin eds., 1996); Polity Forum: Institutions and Institutionalism, 28 POLITY 84 (1995); Rogers M. Smith, Science, Non-Science, and Politics, in THE HISTORIC TURN IN THE HUMAN SCIENCES 119 (Terrence J. McDonald ed., 1996); Rogers M. Smith, Still Blowing in the Wind: The American Quest for a Democratic, Scientific Political Science, 126 DAEDALUS 253 (1997) [hereinafter Smith, Still Blowing in the Wind].
20. For representative works, see BRINGING THE STATE BACK IN (Peter B. Evans et al. eds., 1985); JAMES G. MARCH & JOHAN P. OLSEN, REDISCOVERING INSTITUTIONS: THE ORGANIZATIONAL BASIS OF POLITICS (1989); ERIC A. NORDLINGER, ON THE AUTONOMY OF THE DEMOCRATIC STATE (1981); MARTIN SHEFTER, POLITICAL PARTIES AND THE STATE: THE AMERICAN HISTORICAL EXPERIENCE (1994); and STEPHEN SKOWRONEK, BUILDING A NEW AMERICAN STATE: THE EXPANSION OF NATIONAL ADMINISTRATIVE CAPACITIES, 1877-1920 (1982). See also Karen Orren & Stephen Skowronek, Institutions and Intercurrence: Theory Building in the Fullness of Time, in POLITICAL ORDER 111 (Ian Shapiro & Russell Hardin eds., 1996); Polity Forum: Institutions and Institutionalism, 28 POLITY 84 (1995); Rogers M. Smith, Science, Non-Science, and Politics, in THE HISTORIC TURN IN THE HUMAN SCIENCES 119 (Terrence J. McDonald ed., 1996); Rogers M. Smith, Still Blowing in the Wind: The American Quest for a Democratic, Scientific Political Science, 126 DAEDALUS 253 (1997) [hereinafter Smith, Still Blowing in the Wind].
21. For representative works, see BRINGING THE STATE BACK IN (Peter B. Evans et al. eds., 1985); JAMES G. MARCH & JOHAN P. OLSEN, REDISCOVERING INSTITUTIONS: THE ORGANIZATIONAL BASIS OF POLITICS (1989); ERIC A. NORDLINGER, ON THE AUTONOMY OF THE DEMOCRATIC STATE (1981); MARTIN SHEFTER, POLITICAL PARTIES AND THE STATE: THE AMERICAN HISTORICAL EXPERIENCE (1994); and STEPHEN SKOWRONEK, BUILDING A NEW AMERICAN STATE: THE EXPANSION OF NATIONAL ADMINISTRATIVE CAPACITIES, 1877-1920 (1982). See also Karen Orren & Stephen Skowronek, Institutions and Intercurrence: Theory Building in the Fullness of Time, in POLITICAL ORDER 111 (Ian Shapiro & Russell Hardin eds., 1996); Polity Forum: Institutions and Institutionalism, 28 POLITY 84 (1995); Rogers M. Smith, Science, Non-Science, and Politics, in THE HISTORIC TURN IN THE HUMAN SCIENCES 119 (Terrence J. McDonald ed., 1996); Rogers M. Smith, Still Blowing in the Wind: The American Quest for a Democratic, Scientific Political Science, 126 DAEDALUS 253 (1997) [hereinafter Smith, Still Blowing in the Wind].
22. For representative works, see BRINGING THE STATE BACK IN (Peter B. Evans et al. eds., 1985); JAMES G. MARCH & JOHAN P. OLSEN, REDISCOVERING INSTITUTIONS: THE ORGANIZATIONAL BASIS OF POLITICS (1989); ERIC A. NORDLINGER, ON THE AUTONOMY OF THE DEMOCRATIC STATE (1981); MARTIN SHEFTER, POLITICAL PARTIES AND THE STATE: THE AMERICAN HISTORICAL EXPERIENCE (1994); and STEPHEN SKOWRONEK, BUILDING A NEW AMERICAN STATE: THE EXPANSION OF NATIONAL ADMINISTRATIVE CAPACITIES, 1877-1920 (1982). See also Karen Orren & Stephen Skowronek, Institutions and Intercurrence: Theory Building in the Fullness of Time, in POLITICAL ORDER 111 (Ian Shapiro & Russell Hardin eds., 1996); Polity Forum: Institutions and Institutionalism, 28 POLITY 84 (1995); Rogers M. Smith, Science, Non-Science, and Politics, in THE HISTORIC TURN IN THE HUMAN SCIENCES 119 (Terrence J. McDonald ed., 1996); Rogers M. Smith, Still Blowing in the Wind: The American Quest for a Democratic, Scientific Political Science, 126 DAEDALUS 253 (1997) [hereinafter Smith, Still Blowing in the Wind].
23. For representative works, see BRINGING THE STATE BACK IN (Peter B. Evans et al. eds., 1985); JAMES G. MARCH & JOHAN P. OLSEN, REDISCOVERING INSTITUTIONS: THE ORGANIZATIONAL BASIS OF POLITICS (1989); ERIC A. NORDLINGER, ON THE AUTONOMY OF THE DEMOCRATIC STATE (1981); MARTIN SHEFTER, POLITICAL PARTIES AND THE STATE: THE AMERICAN HISTORICAL EXPERIENCE (1994); and STEPHEN SKOWRONEK, BUILDING A NEW AMERICAN STATE: THE EXPANSION OF NATIONAL ADMINISTRATIVE CAPACITIES, 1877-1920 (1982). See also Karen Orren & Stephen Skowronek, Institutions and Intercurrence: Theory Building in the Fullness of Time, in POLITICAL ORDER 111 (Ian Shapiro & Russell Hardin eds., 1996); Polity Forum: Institutions and Institutionalism, 28 POLITY 84 (1995); Rogers M. Smith, Science, Non-Science, and Politics, in THE HISTORIC TURN IN THE HUMAN SCIENCES 119 (Terrence J. McDonald ed., 1996); Rogers M. Smith, Still Blowing in the Wind: The American Quest for a Democratic, Scientific Political Science, 126 DAEDALUS 253 (1997) [hereinafter Smith, Still Blowing in the Wind].
24. For representative works, see BRINGING THE STATE BACK IN (Peter B. Evans et al. eds., 1985); JAMES G. MARCH & JOHAN P. OLSEN, REDISCOVERING INSTITUTIONS: THE ORGANIZATIONAL BASIS OF POLITICS (1989); ERIC A. NORDLINGER, ON THE AUTONOMY OF THE DEMOCRATIC STATE (1981); MARTIN SHEFTER, POLITICAL PARTIES AND THE STATE: THE AMERICAN HISTORICAL EXPERIENCE (1994); and STEPHEN SKOWRONEK, BUILDING A NEW AMERICAN STATE: THE EXPANSION OF NATIONAL ADMINISTRATIVE CAPACITIES, 1877-1920 (1982). See also Karen Orren & Stephen Skowronek, Institutions and Intercurrence: Theory Building in the Fullness of Time, in POLITICAL ORDER 111 (Ian Shapiro & Russell Hardin eds., 1996); Polity Forum: Institutions and Institutionalism, 28 POLITY 84 (1995); Rogers M. Smith, Science, Non-Science, and Politics, in THE HISTORIC TURN IN THE HUMAN SCIENCES 119 (Terrence J. McDonald ed., 1996); Rogers M. Smith, Still Blowing in the Wind: The American Quest for a Democratic, Scientific Political Science, 126 DAEDALUS 253 (1997) [hereinafter Smith, Still Blowing in the Wind].
25. The very idea of an autonomous national state presupposes the capacity to make effective decisions and have them enforced. See, e.g., KENNETH FINEGOLD & THEDA SKOCPOL, STATE AND PARTY IN AMERICA'S NEW DEAL 50-59 (1995). In the case of the American state, this capacity has been acquired over time, leading to the focus, characteristic of historical institutionalism, on state building. See, e.g., SKOWRONEK, supra note 7. At the most abstract level, historical institutionalists speak of "weak" or "strong" states. Strong states are relatively autonomous of civil society, while weak states are dependent on societal interests to make decisions and implement policies. There are a number of more specific opposing terms that go along with the terms weak or strong. Weak states can be so because their departments and agencies are fragmented instead of coordinated. Or state agencies can be decentralized at different levels of government rather than centralized at the national level. Further, states have various capacities for action. A state with a competent, adequately funded bureaucracy, for example, is more likely to have the infrastructural capacity "to penetrate society and to organize social relations." JOHN A. HALL & G. JOHN IKENBERRY, THE STATE 13 (1989). With this richer vocabulary, we can reach a more precise understanding of the development of state institutions, which then enables us to achieve a more dynamic view of the course of constitutional change. See generally Stephen D. Krasner, Approaches to the State: Alternative Conceptions and Historical Dynamics, 16 COMP. POL. 223 (1984).
26. The very idea of an autonomous national state presupposes the capacity to make effective decisions and have them enforced. See, e.g., KENNETH FINEGOLD & THEDA SKOCPOL, STATE AND PARTY IN AMERICA'S NEW DEAL 50-59 (1995). In the case of the American state, this capacity has been acquired over time, leading to the focus, characteristic of historical institutionalism, on state building. See, e.g., SKOWRONEK, supra note 7. At the most abstract level, historical institutionalists speak of "weak" or "strong" states. Strong states are relatively autonomous of civil society, while weak states are dependent on societal interests to make decisions and implement policies. There are a number of more specific opposing terms that go along with the terms weak or strong. Weak states can be so because their departments and agencies are fragmented instead of coordinated. Or state agencies can be decentralized at different levels of government rather than centralized at the national level. Further, states have various capacities for action. A state with a competent, adequately funded bureaucracy, for example, is more likely to have the infrastructural capacity "to penetrate society and to organize social relations." JOHN A. HALL & G. JOHN IKENBERRY, THE STATE 13 (1989). With this richer vocabulary, we can reach a more precise understanding of the development of state institutions, which then enables us to achieve a more dynamic view of the course of constitutional change. See generally Stephen D. Krasner, Approaches to the State: Alternative Conceptions and Historical Dynamics, 16 COMP. POL. 223 (1984).
27. The very idea of an autonomous national state presupposes the capacity to make effective decisions and have them enforced. See, e.g., KENNETH FINEGOLD & THEDA SKOCPOL, STATE AND PARTY IN AMERICA'S NEW DEAL 50-59 (1995). In the case of the American state, this capacity has been acquired over time, leading to the focus, characteristic of historical institutionalism, on state building. See, e.g., SKOWRONEK, supra note 7. At the most abstract level, historical institutionalists speak of "weak" or "strong" states. Strong states are relatively autonomous of civil society, while weak states are dependent on societal interests to make decisions and implement policies. There are a number of more specific opposing terms that go along with the terms weak or strong. Weak states can be so because their departments and agencies are fragmented instead of coordinated. Or state agencies can be decentralized at different levels of government rather than centralized at the national level. Further, states have various capacities for action. A state with a competent, adequately funded bureaucracy, for example, is more likely to have the infrastructural capacity "to penetrate society and to organize social relations." JOHN A. HALL & G. JOHN IKENBERRY, THE STATE 13 (1989). With this richer vocabulary, we can reach a more precise understanding of the development of state institutions, which then enables us to achieve a more dynamic view of the course of constitutional change. See generally Stephen D. Krasner, Approaches to the State: Alternative Conceptions and Historical Dynamics, 16 COMP. POL. 223 (1984).
28. The very idea of an autonomous national state presupposes the capacity to make effective decisions and have them enforced. See, e.g., KENNETH FINEGOLD & THEDA SKOCPOL, STATE AND PARTY IN AMERICA'S NEW DEAL 50-59 (1995). In the case of the American state, this capacity has been acquired over time, leading to the focus, characteristic of historical institutionalism, on state building. See, e.g., SKOWRONEK, supra note 7. At the most abstract level, historical institutionalists speak of "weak" or "strong" states. Strong states are relatively autonomous of civil society, while weak states are dependent on societal interests to make decisions and implement policies. There are a number of more specific opposing terms that go along with the terms weak or strong. Weak states can be so because their departments and agencies are fragmented instead of coordinated. Or state agencies can be decentralized at different levels of government rather than centralized at the national level. Further, states have various capacities for action. A state with a competent, adequately funded bureaucracy, for example, is more likely to have the infrastructural capacity "to penetrate society and to organize social relations." JOHN A. HALL & G. JOHN IKENBERRY, THE STATE 13 (1989). With this richer vocabulary, we can reach a more precise understanding of the development of state institutions, which then enables us to achieve a more dynamic view of the course of constitutional change. See generally Stephen D. Krasner, Approaches to the State: Alternative Conceptions and Historical Dynamics, 16 COMP. POL. 223 (1984).
29. ALAN BRINKLEY, THE END OF REFORM: NEW DEAL LIBERALISM IN RECESSION AND WAR 11 (1995).
30. See generally Krasner, supra note 8. For a discussion in the New Deal context, see FINEGOLD & SKOCPOL, supra note 8, at 50-59.
31. See generally Krasner, supra note 8. For a discussion in the New Deal context, see FINEGOLD & SKOCPOL, supra note 8, at 50-59.
32. 2 ACKERMAN, supra note 1, at 42; see also 2 ACKERMAN, supra note 1, at 259.
33. 2 ACKERMAN, supra note 1, at 42; see also 2 ACKERMAN, supra note 1, at 259.
34. This was demonstrated by the critical reaction to Ackerman's argument. See, e.g., Charles Fried, Foreword: Revolutions?, 109 HARV. L. REV. 13 (1995); Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1223 (1995).
35. This was demonstrated by the critical reaction to Ackerman's argument. See, e.g., Charles Fried, Foreword: Revolutions?, 109 HARV. L. REV. 13 (1995); Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1223 (1995).
36. 17 U.S. (4 Wheat.) 316 (1819).
37. 22 U.S. (9 Wheat.) 1 (1824).
38. See 2 ACKERMAN, supra note 1.
39. On the role of history and historicism, see 1 ACKERMAN, supra note 1, at 16-33; and GRIFFIN, supra note 1 at 164-69.
40. On the role of history and historicism, see 1 ACKERMAN, supra note 1, at 16-33; and GRIFFIN, supra note 1 at 164-69.
41. See, e.g., Terrance Sandalow, Abstract Democracy: A Review of Ackerman's We The People, 9 CONST. COMMENTARY 309 (1992) (reviewing 1 ACKERMAN, supra note 1); Suzanna Sherry, The Ghost of Liberalism Past, 105 HARV. L. REV. 918 (1992) (same); Richard A. Posner, This Magic Moment, THE NEW REPUBLIC, Apr. 6, 1998, at 32 (reviewing 2 ACKERMAN, supra note 1).
42. See, e.g., Terrance Sandalow, Abstract Democracy: A Review of Ackerman's We The People, 9 CONST. COMMENTARY 309 (1992) (reviewing 1 ACKERMAN, supra note 1); Suzanna Sherry, The Ghost of Liberalism Past, 105 HARV. L. REV. 918 (1992) (same); Richard A. Posner, This Magic Moment, THE NEW REPUBLIC, Apr. 6, 1998, at 32 (reviewing 2 ACKERMAN, supra note 1).
43. See, e.g., Terrance Sandalow, Abstract Democracy: A Review of Ackerman's We The People, 9 CONST. COMMENTARY 309 (1992) (reviewing 1 ACKERMAN, supra note 1); Suzanna Sherry, The Ghost of Liberalism Past, 105 HARV. L. REV. 918 (1992) (same); Richard A. Posner, This Magic Moment, THE NEW REPUBLIC, Apr. 6, 1998, at 32 (reviewing 2 ACKERMAN, supra note 1).
44. In a widely noted article, Robert Gordon argued that historicism, which he defined as "the recognition of the historical and cultural contingency of law," still had not been absorbed by legal scholars because it was a threat to the standard ways of doing legal scholarship. Robert W. Gordon, Historicism in Legal Scholarship, 90 YALE L.J. 1017, 1017 (1981); see also Robert W. Gordon, The Past as Authority and as Social Critic: Stabilizing and Destabilizing Functions of History in Legal Argument, in THE HISTORIC TURN IN THE HUMAN SCIENCES 339 (Terrence J. McDonald ed., 1996) [hereinafter Gordon, The Past as Authority]. Gordon contended that the evasion of this threat had limited the "intellectual options and imaginative range" of legal scholarship. Gordon, Historicism in Legal Scholarship, supra, at 1017. Although Gordon used some examples drawn from constitutional law, he did not explore in any detail the consequences of his thesis for constitutional theory. I believe that Gordon was largely correct.
45. In a widely noted article, Robert Gordon argued that historicism, which he defined as "the recognition of the historical and cultural contingency of law," still had not been absorbed by legal scholars because it was a threat to the standard ways of doing legal scholarship. Robert W. Gordon, Historicism in Legal Scholarship, 90 YALE L.J. 1017, 1017 (1981); see also Robert W. Gordon, The Past as Authority and as Social Critic: Stabilizing and Destabilizing Functions of History in Legal Argument, in THE HISTORIC TURN IN THE HUMAN SCIENCES 339 (Terrence J. McDonald ed., 1996) [hereinafter Gordon, The Past as Authority]. Gordon contended that the evasion of this threat had limited the "intellectual options and imaginative range" of legal scholarship. Gordon, Historicism in Legal Scholarship, supra, at 1017. Although Gordon used some examples drawn from constitutional law, he did not explore in any detail the consequences of his thesis for constitutional theory. I believe that Gordon was largely correct.
46. In a widely noted article, Robert Gordon argued that historicism, which he defined as "the recognition of the historical and cultural contingency of law," still had not been absorbed by legal scholars because it was a threat to the standard ways of doing legal scholarship. Robert W. Gordon, Historicism in Legal Scholarship, 90 YALE L.J. 1017, 1017 (1981); see also Robert W. Gordon, The Past as Authority and as Social Critic: Stabilizing and Destabilizing Functions of History in Legal Argument, in THE HISTORIC TURN IN THE HUMAN SCIENCES 339 (Terrence J. McDonald ed., 1996) [hereinafter Gordon, The Past as Authority]. Gordon contended that the evasion of this threat had limited the "intellectual options and imaginative range" of legal scholarship. Gordon, Historicism in Legal Scholarship, supra, at 1017. Although Gordon used some examples drawn from constitutional law, he did not explore in any detail the consequences of his thesis for constitutional theory. I believe that Gordon was largely correct.
47. 22 U.S. (9 Wheat.) 1 (1824).
48. 17 U.S. (4 Wheat.) 316 (1819).
49. U.S. CONST, art. I, § 8, cl. 3.
50. Gibbons, 22 U.S. at 196.
51. Id.
52. Id. at 197.
53. See PETER H. IRONS, THE NEW DEAL LAWYERS 137-38 (1982). Irons himself appears to accept the restoration thesis. See id. at 47. For a Court opinion that emphasizes the plenary nature of the power established in Gibbons, see Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 276 (1981).
54. See PETER H. IRONS, THE NEW DEAL LAWYERS 137-38 (1982). Irons himself appears to accept the restoration thesis. See id. at 47. For a Court opinion that emphasizes the plenary nature of the power established in Gibbons, see Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 276 (1981).
55. See PETER H. IRONS, THE NEW DEAL LAWYERS 137-38 (1982). Irons himself appears to accept the restoration thesis. See id. at 47. For a Court opinion that emphasizes the plenary nature of the power established in Gibbons, see Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 276 (1981).
56. Robert L. Stern, That Commerce Which Concerns More States Than One, 47 HARV. L. REV. 1335, 1337 (1934).
57. See IRONS, supra note 25, at 92-93, 137-38, 295.
58. ROBERT H. JACKSON, THE STRUGGLE FOR JUDICIAL SUPREMACY: A STUDY OF A CRISIS IN AMERICAN POWER POLITICS xiv-xv (1941) (emphasis added). For further evidence of the prominence of the restoration thesis in the late 1930s and 1940s, see PAUL L. MURPHY, THE CONSTITUTION IN CRISIS TIMES, 1918-1969, at 167-68 (1972). See also Hugh Evander Willis, Gibbons v. Ogden Then and Now, 28 KY. L.J. 280, 286, 302 (1940).
59. ROBERT H. JACKSON, THE STRUGGLE FOR JUDICIAL SUPREMACY: A STUDY OF A CRISIS IN AMERICAN POWER POLITICS xiv-xv (1941) (emphasis added). For further evidence of the prominence of the restoration thesis in the late 1930s and 1940s, see PAUL L. MURPHY, THE CONSTITUTION IN CRISIS TIMES, 1918-1969, at 167-68 (1972). See also Hugh Evander Willis, Gibbons v. Ogden Then and Now, 28 KY. L.J. 280, 286, 302 (1940).
60. ROBERT H. JACKSON, THE STRUGGLE FOR JUDICIAL SUPREMACY: A STUDY OF A CRISIS IN AMERICAN POWER POLITICS xiv-xv (1941) (emphasis added). For further evidence of the prominence of the restoration thesis in the late 1930s and 1940s, see PAUL L. MURPHY, THE CONSTITUTION IN CRISIS TIMES, 1918-1969, at 167-68 (1972). See also Hugh Evander Willis, Gibbons v. Ogden Then and Now, 28 KY. L.J. 280, 286, 302 (1940).
61. 312 U.S. 100 (1941).
62. 247 U.S. 251 (1918).
63. 312 U.S. at 115.
64. See id.
65. 317 U.S. 111 (1942).
66. Id. at 120.
67. Id. at 122.
68. 379 U.S. 241 (1964).
69. See id. at 254-55.
70. Id. at 251.
71. Id.
72. 402 U.S. 146 (1971).
73. See id. at 150-51.
74. Id. at 151.
75. See. e.g., PAUL R. BENSON, JR., THE SUPREME COURT AND THE COMMERCE CLAUSE, 1937-1970, at 57, 64-65, 90, 94-95, 101 (1970); BERNARD SCHWARTZ, THE SUPREME COURT: CONSTITUTIONAL REVOLUTION IN RETROSPECT 28-38 (1957).
76. See. e.g., PAUL R. BENSON, JR., THE SUPREME COURT AND THE COMMERCE CLAUSE, 1937-1970, at 57, 64-65, 90, 94-95, 101 (1970); BERNARD SCHWARTZ, THE SUPREME COURT: CONSTITUTIONAL REVOLUTION IN RETROSPECT 28-38 (1957).
77. Fried, supra note 12, at 33.
78. Tribe, supra note 12, at 1295.
79. 14 U.S. (1 Wheat.) 304 (1816).
80. 19 U.S. (6 Wheat.) 264 (1821).
81. 17 U.S. (4 Wheat.) 316 (1819).
82. 22 U.S. (9 Wheat.) 1 (1824).
83. G. EDWARD WHITE, THE MARSHALL COURT AND CULTURAL CHANGE, 1815-1835, at 486 (1988).
84. Id.
85. Id. at 487.
86. See 1 ACKERMAN, supra note 1, at 62.
87. WHITE supra note 50, at 519. The most recent biographies of Marshall and Justice Joseph Story agree with this assessment. See R. KENT NEWMYER, SUPREME COURT JUSTICE JOSEPH STORY: STATESMAN OF THE OLD REPUBLIC 148-49 (1985); JEAN EDWARD SMITH, JOHN MARSHALL: DEFINER OF A NATION 445 (1996); see also Michael Les Benedict, Preserving Federalism: Reconstruction and the Waite Court, 1978 SUP. CT. REV. 39, 42-44 (1979).
88. WHITE supra note 50, at 519. The most recent biographies of Marshall and Justice Joseph Story agree with this assessment. See R. KENT NEWMYER, SUPREME COURT JUSTICE JOSEPH STORY: STATESMAN OF THE OLD REPUBLIC 148-49 (1985); JEAN EDWARD SMITH, JOHN MARSHALL: DEFINER OF A NATION 445 (1996); see also Michael Les Benedict, Preserving Federalism: Reconstruction and the Waite Court, 1978 SUP. CT. REV. 39, 42-44 (1979).
89. WHITE supra note 50, at 519. The most recent biographies of Marshall and Justice Joseph Story agree with this assessment. See R. KENT NEWMYER, SUPREME COURT JUSTICE JOSEPH STORY: STATESMAN OF THE OLD REPUBLIC 148-49 (1985); JEAN EDWARD SMITH, JOHN MARSHALL: DEFINER OF A NATION 445 (1996); see also Michael Les Benedict, Preserving Federalism: Reconstruction and the Waite Court, 1978 SUP. CT. REV. 39, 42-44 (1979).
90. WHITE supra note 50, at 519. The most recent biographies of Marshall and Justice Joseph Story agree with this assessment. See R. KENT NEWMYER, SUPREME COURT JUSTICE JOSEPH STORY: STATESMAN OF THE OLD REPUBLIC 148-49 (1985); JEAN EDWARD SMITH, JOHN MARSHALL: DEFINER OF A NATION 445 (1996); see also Michael Les Benedict, Preserving Federalism: Reconstruction and the Waite Court, 1978 SUP. CT. REV. 39, 42-44 (1979).
91. See HERBERT A. JOHNSON, THE CHIEF JUSTICESHIP OF JOHN MARSHALL, 1801-1835, at 73-74 (1997).
92. Id. at 73 (footnote omitted).
93. CHARLES F. HOBSON, THE GREAT CHIEF JUSTICE: JOHN MARSHALL AND THE RULE OF LAW 123 (1996).
94. Id.
95. Id. (footnote omitted). With respect to Gibbons, Hobson notes that while it "has often been cited as a landmark judicial precedent for extensive national power. . . the principal significance of Gibbons lay not so much in building up and centralizing federal power as in circumscribing state power." Id. at 139.
96. Id. (footnote omitted). With respect to Gibbons, Hobson notes that while it "has often been cited as a landmark judicial precedent for extensive national power. . . the principal significance of Gibbons lay not so much in building up and centralizing federal power as in circumscribing state power." Id. at 139.
97. Gillman's article is part of his exchange with Robert Lowry Clinton and Wallace Mendelson, who defend the traditional restorationist position. For the progress of this debate, see Roben Lowry Clinton, Judicial Review, Nationalism, and the Commerce Clause: Contrasting Antebellum and Postbellum Supreme Court Decision Making, 47 POL. RES Q. 857 (1994); Howard Gillman, The Struggle over Marshall and the Politics of Constitutional History, 41 POL. RES. Q. 877 (1994); Robert Lowry Clinton, John Marshall's Federalism: A Reply to Professor Gillman, 47 POL. RES. Q. 887 (1994); Wallace Mendelson, John Marshall and the Sugar Trust - A Reply to Professor Gillman, 49 POL. RES. Q. 405 (1996); Howard Gillman, More on the Origins of the Fuller Court's Jurisprudence: Reexamining the Scope of Federal Power over Commerce and Manufacturing in Nineteenth-Century Constitutional Law, 49 POL. RES. Q. 415 (1996); and Wallace Mendelson, Nullification via Dual Federalism: A Second Response to Professor Gillman, 49 POL. RES. Q. 439 (1996).
98. Gillman's article is part of his exchange with Robert Lowry Clinton and Wallace Mendelson, who defend the traditional restorationist position. For the progress of this debate, see Roben Lowry Clinton, Judicial Review, Nationalism, and the Commerce Clause: Contrasting Antebellum and Postbellum Supreme Court Decision Making, 47 POL. RES Q. 857 (1994); Howard Gillman, The Struggle over Marshall and the Politics of Constitutional History, 41 POL. RES. Q. 877 (1994); Robert Lowry Clinton, John Marshall's Federalism: A Reply to Professor Gillman, 47 POL. RES. Q. 887 (1994); Wallace Mendelson, John Marshall and the Sugar Trust - A Reply to Professor Gillman, 49 POL. RES. Q. 405 (1996); Howard Gillman, More on the Origins of the Fuller Court's Jurisprudence: Reexamining the Scope of Federal Power over Commerce and Manufacturing in Nineteenth-Century Constitutional Law, 49 POL. RES. Q. 415 (1996); and Wallace Mendelson, Nullification via Dual Federalism: A Second Response to Professor Gillman, 49 POL. RES. Q. 439 (1996).
99. Gillman's article is part of his exchange with Robert Lowry Clinton and Wallace Mendelson, who defend the traditional restorationist position. For the progress of this debate, see Roben Lowry Clinton, Judicial Review, Nationalism, and the Commerce Clause: Contrasting Antebellum and Postbellum Supreme Court Decision Making, 47 POL. RES Q. 857 (1994); Howard Gillman, The Struggle over Marshall and the Politics of Constitutional History, 41 POL. RES. Q. 877 (1994); Robert Lowry Clinton, John Marshall's Federalism: A Reply to Professor Gillman, 47 POL. RES. Q. 887 (1994); Wallace Mendelson, John Marshall and the Sugar Trust - A Reply to Professor Gillman, 49 POL. RES. Q. 405 (1996); Howard Gillman, More on the Origins of the Fuller Court's Jurisprudence: Reexamining the Scope of Federal Power over Commerce and Manufacturing in Nineteenth-Century Constitutional Law, 49 POL. RES. Q. 415 (1996); and Wallace Mendelson, Nullification via Dual Federalism: A Second Response to Professor Gillman, 49 POL. RES. Q. 439 (1996).
100. Gillman's article is part of his exchange with Robert Lowry Clinton and Wallace Mendelson, who defend the traditional restorationist position. For the progress of this debate, see Roben Lowry Clinton, Judicial Review, Nationalism, and the Commerce Clause: Contrasting Antebellum and Postbellum Supreme Court Decision Making, 47 POL. RES Q. 857 (1994); Howard Gillman, The Struggle over Marshall and the Politics of Constitutional History, 41 POL. RES. Q. 877 (1994); Robert Lowry Clinton, John Marshall's Federalism: A Reply to Professor Gillman, 47 POL. RES. Q. 887 (1994); Wallace Mendelson, John Marshall and the Sugar Trust -A Reply to Professor Gillman, 49 POL. RES. Q. 405 (1996); Howard Gillman, More on the Origins of the Fuller Court's Jurisprudence: Reexamining the Scope of Federal Power over Commerce and Manufacturing in Nineteenth-Century Constitutional Law, 49 POL. RES. Q. 415 (1996); and Wallace Mendelson, Nullification via Dual Federalism: A Second Response to Professor Gillman, 49 POL. RES. Q. 439 (1996).
101. Gillman's article is part of his exchange with Robert Lowry Clinton and Wallace Mendelson, who defend the traditional restorationist position. For the progress of this debate, see Roben Lowry Clinton, Judicial Review, Nationalism, and the Commerce Clause: Contrasting Antebellum and Postbellum Supreme Court Decision Making, 47 POL. RES Q. 857 (1994); Howard Gillman, The Struggle over Marshall and the Politics of Constitutional History, 41 POL. RES. Q. 877 (1994); Robert Lowry Clinton, John Marshall's Federalism: A Reply to Professor Gillman, 47 POL. RES. Q. 887 (1994); Wallace Mendelson, John Marshall and the Sugar Trust - A Reply to Professor Gillman, 49 POL. RES. Q. 405 (1996); Howard Gillman, More on the Origins of the Fuller Court's Jurisprudence: Reexamining the Scope of Federal Power over Commerce and Manufacturing in Nineteenth-Century Constitutional Law, 49 POL. RES. Q. 415 (1996); and Wallace Mendelson, Nullification via Dual Federalism: A Second Response to Professor Gillman, 49 POL. RES. Q. 439 (1996).
102. Gillman's article is part of his exchange with Robert Lowry Clinton and Wallace Mendelson, who defend the traditional restorationist position. For the progress of this debate, see Roben Lowry Clinton, Judicial Review, Nationalism, and the Commerce Clause: Contrasting Antebellum and Postbellum Supreme Court Decision Making, 47 POL. RES Q. 857 (1994); Howard Gillman, The Struggle over Marshall and the Politics of Constitutional History, 41 POL. RES. Q. 877 (1994); Robert Lowry Clinton, John Marshall's Federalism: A Reply to Professor Gillman, 47 POL. RES. Q. 887 (1994); Wallace Mendelson, John Marshall and the Sugar Trust - A Reply to Professor Gillman, 49 POL. RES. Q. 405 (1996); Howard Gillman, More on the Origins of the Fuller Court's Jurisprudence: Reexamining the Scope of Federal Power over Commerce and Manufacturing in Nineteenth-Century Constitutional Law, 49 POL. RES. Q. 415 (1996); and Wallace Mendelson, Nullification via Dual Federalism: A Second Response to Professor Gillman, 49 POL. RES. Q. 439 (1996).
103. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 194 (1824).
104. Id. at 203.
105. Id.
106. For an account that supports the position that the adoption of the Constitution established a very limited set of powers for the national government, see JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 177-202 (1996).
107. See 1 ACKERMAN, supra note 1, at 62.
108. See LEONARD D. WHITE, THE FEDERALISTS: A STUDY IN ADMINISTRATIVE HISTORY (1948); LEONARD D. WHITE, THE JACKSONIANS: A STUDY IN ADMINISTRATIVE HISTORY 1829- 1861 (1954); LEONARD D. WHITE, THE JEFFERSONIANS: A STUDY IN ADMINISTRATIVE HISTORY 1801-1829 (1951).
109. See LEONARD D. WHITE, THE FEDERALISTS: A STUDY IN ADMINISTRATIVE HISTORY (1948); LEONARD D. WHITE, THE JACKSONIANS: A STUDY IN ADMINISTRATIVE HISTORY 1829-1861 (1954); LEONARD D. WHITE, THE JEFFERSONIANS: A STUDY IN ADMINISTRATIVE HISTORY 1801-1829 (1951).
110. See LEONARD D. WHITE, THE FEDERALISTS: A STUDY IN ADMINISTRATIVE HISTORY (1948); LEONARD D. WHITE, THE JACKSONIANS: A STUDY IN ADMINISTRATIVE HISTORY 1829- 1861 (1954); LEONARD D. WHITE, THE JEFFERSONIANS: A STUDY IN ADMINISTRATIVE HISTORY 1801-1829 (1951).
111. See JAMES STERLING YOUNG, THE WASHINGTON COMMUNITY 1800-1828 (1966).
112. See SKOWRONEK, supra note 7.
113. As historian Charles Sellers describes: Except in matters of diplomacy and war, [the federal government's] only direct services to citizens were the lightly used postal system, the federal courts, a National Road, and scattered lighthouses and navigational aids. . . . In 1815 the President paid out of his own pocket the single secretary who assisted him; the Attorney General had neither clerk nor office; the Supreme Court convened for two months a year in a Capitol Hill boarding house; and during the summer only the clerks and bureau chiefs remained in the muggy capital to keep the wheels of state slowly turning. CHARLES SELLERS, THE MARKET REVOLUTION: JACKSONIAN AMERICA 1815-1846, at 36-37 (1991).
114. SKOWRONEK, supra note 7, at 24.
115. Charles C. Bright, The State in the United States During the Nineteenth Century, in STATEMAKING AND SOCIAL MOVEMENTS 121, 121 (Charles Bright & Susan Harding, eds.) (1984).
116. See, e.g., DANIEL FELLER, THE JACKSONIAN PROMISE: AMERICA 1815-1840, at 53-60, 66-75, 162-68; SELLERS, supra note 69, at 70-84, 149-52, 312-31. Calhoun, of course, eventually turned against the American System and the federal power it represented. See SELLERS, supra, at 305-06.
117. See, e.g., DANIEL FELLER, THE JACKSONIAN PROMISE: AMERICA 1815-1840, at 53-60, 66-75, 162-68; SELLERS, supra note 69, at 70-84, 149-52, 312-31. Calhoun, of course, eventually turned against the American System and the federal power it represented. See SELLERS, supra, at 305-06.
118. See, e.g., DANIEL FELLER, THE JACKSONIAN PROMISE: AMERICA 1815-1840, at 53-60, 66-75, 162-68; SELLERS, supra note 69, at 70-84, 149-52, 312-31. Calhoun, of course, eventually turned against the American System and the federal power it represented. See SELLERS, supra, at 305-06.
119. FELLER, supra note 72, at 168.
120. See id. at 167.
121. See Leslie Friedman Goldstein, State Resistance to Authority in Federal Unions: The Early United States (1790-1860) and the European Community (1958-94), 11 STUD. AM. POL. DEV. 149 (1997); Mark A. Graber, The Passive-Aggressive Virtues: Cohens v. Virginia and the Problematic Establishment of Judicial Power, 12 CONST. COMMENTARY 67 (1995).
122. See Leslie Friedman Goldstein, State Resistance to Authority in Federal Unions: The Early United States (1790-1860) and the European Community (1958-94), 11 STUD. AM. POL. DEV. 149 (1997); Mark A. Graber, The Passive-Aggressive Virtues: Cohens v. Virginia and the Problematic Establishment of Judicial Power, 12 CONST. COMMENTARY 67 (1995).
123. See, e.g., Larry Kramer, What's a Constitution For Anyway? Of History and Theory, Bruce Ackerman and the New Deal, 46 CASE W. RES. L. REV. 885, 916-24 (1996).
124. Historical institutionalists emphasize the importance of crises for state-building efforts. See Charles Bright & Susan Harding, Processes of Statemaking and Popular Protest, in STATEMAKING AND SOCIAL MOVEMENTS, supra note 71, at 1, 14; SKOWRONEK, supra note 7, at 10-12.
125. Historical institutionalists emphasize the importance of crises for state-building efforts. See Charles Bright & Susan Harding, Processes of Statemaking and Popular Protest, in STATEMAKING AND SOCIAL MOVEMENTS, supra note 71, at 1, 14; SKOWRONEK, supra note 7, at 10-12.
126. See, e.g., JOHN A. GARRATY, THE GREAT DEPRESSION (1986); WILLIAM E. LEUCHTENBURG, FRANKLIN D. ROOSEVELT AND THE NEW DEAL, 1932-1940 (1963).
127. See, e.g., JOHN A. GARRATY, THE GREAT DEPRESSION (1986); WILLIAM E. LEUCHTENBURG, FRANKLIN D. ROOSEVELT AND THE NEW DEAL, 1932-1940 (1963).
128. There is an obvious affinity here with the argument that Ackerman makes with respect to the New Deal. See 2 ACKERMAN, supra note 1, at 279-382.
129. See LOUIS MICHAEL SEIDMAN & MARK V. TUSHNET, REMNANTS OF BELIEF: CONTEMPORARY CONSTITUTIONAL ISSUES 49-71 (1996).
130. See WILLIAM E. LEUCHTENBURG, THE FDR YEARS: ON ROOSEVELT AND HIS LEGACY 35-75 (1995).
131. 295 U.S. 330 (1935) (invalidating the Railroad Retirement Act).
132. 295 U.S. 495 (1935) (invalidating the National Industrial Recovery Act).
133. 297 U.S. 1 (1936) (invalidating the Agricultural Adjustment Act).
134. 298 U S 238 (1936) (invalidating the Guffey Coal Act).
135. This story has been told many times and lately a dispute has broken out over how the "switch" occurred. For contrasting views, compare BARRY CUSHMAN, RETHINKING THE NEW DEAL COURT: THE STRUCTURE OF A CONSTITUTIONAL REVOLUTION (1998), and Richard D. Friedman, Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation, 142 U. PA. L. REV. 1891 (1994), with WILLIAM E. LEUCHTENBURG, THE SUPREME COURT REBORN: THE CONSTITUTIONAL REVOLUTION IN THE AGE OF ROOSEVELT (1995), and David A. Pepper, Against Legalism: Rebutting an Anachronistic Account of 1937, 82 MARQ. L. REV. 63 (1998). For other important discussions see MICHAEL E. PARRISH, ANXIOUS DECADES: AMERICA IN PROSPERITY AND DEPRESSION, 1920-1941, at 364-76 (1992); Michael Ariens, A Thrice-Told Tale, or Felix the Cat, 107 HARV. L. REV. 620 (1994); John W. Chambers, The Big Switch: Justice Roberts and the Minimum-Wage Cases, 10 LABOR HIST. 44 (1969); Richard D. Friedman, A Reaffirmation: The Authenticity of the Roberts Memorandum, or Felix the Non-Forger, 142 U. PA. L. REV. 1985 (1994); Michael E. Parrish, The Great Depression, the New Deal, and the American Legal Order, 59 WASH. L. REV. 723 (1984) [hereinafter Parrish, The Great Depression]; Michael E. Parrish, The Hughes Court, the Great Depression, and the Historians, 40 HISTORIAN 286 (1978) [hereinafter Parrish, The Hughes Court]. have serious reservations about Cushman's narrowly doctrinal account of the Court's 1937 switch. While space does not permit setting out my objections in detail, it is important to point out that many reputable scholars have in effect taken the position that purely doctrinal explanations of the votes of Chief Justice Hughes and Justice Roberts in the various New Deal cases are implausible because they took inconsistent positions. Their positions were inconsistent with respect to their allegiance to broad constitutional values such as federalism, as set forth in pre- 1937 decisions. The most plausible explanation for their votes is therefore that they changed their minds about the relative importance of various constitutional values. The context for their change in view was: (1) the hostile, bipartisan reaction to Morehead v. Tipaldo, 298 U.S. 587 (1936), which held unconstitutional a New York statute mandating a minimum wage for women and minors (only relevant to Roberts); (2) FDR's overwhelming victory in the 1936 election; and (3) FDR's Court-packing plan (only relevant to some 1937 decsions). Cushman's tendentious distinction between "internal" or doctrinal explanations and "external" or political explanations means that he never comes to grips with the most persuasive version of the "external" account, one that is, in fact, an internal explanation to the extent that it focuses on the motives of Hughes and Roberts. See CUSHMAN, supra, at 4.
136. This story has been told many times and lately a dispute has broken out over how the "switch" occurred. For contrasting views, compare BARRY CUSHMAN, RETHINKING THE NEW DEAL COURT: THE STRUCTURE OF A CONSTITUTIONAL REVOLUTION (1998), and Richard D. Friedman, Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation, 142 U. PA. L. REV. 1891 (1994), with WILLIAM E. LEUCHTENBURG, THE SUPREME COURT REBORN: THE CONSTITUTIONAL REVOLUTION IN THE AGE OF ROOSEVELT (1995), and David A. Pepper, Against Legalism: Rebutting an Anachronistic Account of 1937, 82 MARQ. L. REV. 63 (1998). For other important discussions see MICHAEL E. PARRISH, ANXIOUS DECADES: AMERICA IN PROSPERITY AND DEPRESSION, 1920-1941, at 364-76 (1992); Michael Ariens, A Thrice-Told Tale, or Felix the Cat, 107 HARV. L. REV. 620 (1994); John W. Chambers, The Big Switch: Justice Roberts and the Minimum-Wage Cases, 10 LABOR HIST. 44 (1969); Richard D. Friedman, A Reaffirmation: The Authenticity of the Roberts Memorandum, or Felix the Non-Forger, 142 U. PA. L. REV. 1985 (1994); Michael E. Parrish, The Great Depression, the New Deal, and the American Legal Order, 59 WASH. L. REV. 723 (1984) [hereinafter Parrish, The Great Depression]; Michael E. Parrish, The Hughes Court, the Great Depression, and the Historians, 40 HISTORIAN 286 (1978) [hereinafter Parrish, The Hughes Court]. have serious reservations about Cushman's narrowly doctrinal account of the Court's 1937 switch. While space does not permit setting out my objections in detail, it is important to point out that many reputable scholars have in effect taken the position that purely doctrinal explanations of the votes of Chief Justice Hughes and Justice Roberts in the various New Deal cases are implausible because they took inconsistent positions. Their positions were inconsistent with respect to their allegiance to broad constitutional values such as federalism, as set forth in pre- 1937 decisions. The most plausible explanation for their votes is therefore that they changed their minds about the relative importance of various constitutional values. The context for their change in view was: (1) the hostile, bipartisan reaction to Morehead v. Tipaldo, 298 U.S. 587 (1936), which held unconstitutional a New York statute mandating a minimum wage for women and minors (only relevant to Roberts); (2) FDR's
137. This story has been told many times and lately a dispute has broken out over how the "switch" occurred. For contrasting views, compare BARRY CUSHMAN, RETHINKING THE NEW DEAL COURT: THE STRUCTURE OF A CONSTITUTIONAL REVOLUTION (1998), and Richard D. Friedman, Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation, 142 U. PA. L. REV. 1891 (1994), with WILLIAM E. LEUCHTENBURG, THE SUPREME COURT REBORN: THE CONSTITUTIONAL REVOLUTION IN THE AGE OF ROOSEVELT (1995), and David A. Pepper, Against Legalism: Rebutting an Anachronistic Account of 1937, 82 MARQ. L. REV. 63 (1998). For other important discussions see MICHAEL E. PARRISH, ANXIOUS DECADES: AMERICA IN PROSPERITY AND DEPRESSION, 1920-1941, at 364-76 (1992); Michael Ariens, A Thrice-Told Tale, or Felix the Cat, 107 HARV. L. REV. 620 (1994); John W. Chambers, The Big Switch: Justice Roberts and the Minimum-Wage Cases, 10 LABOR HIST. 44 (1969); Richard D. Friedman, A Reaffirmation: The Authenticity of the Roberts Memorandum, or Felix the Non-Forger, 142 U. PA. L. REV. 1985 (1994); Michael E. Parrish, The Great Depression, the New Deal, and the American Legal Order, 59 WASH. L. REV. 723 (1984) [hereinafter Parrish, The Great Depression]; Michael E. Parrish, The Hughes Court, the Great Depression, and the Historians, 40 HISTORIAN 286 (1978) [hereinafter Parrish, The Hughes Court]. have serious reservations about Cushman's narrowly doctrinal account of the Court's 1937 switch. While space does not permit setting out my objections in detail, it is important to point out that many reputable scholars have in effect taken the position that purely doctrinal explanations of the votes of Chief Justice Hughes and Justice Roberts in the various New Deal cases are implausible because they took inconsistent positions. Their positions were inconsistent with respect to their allegiance to broad constitutional values such as federalism, as set forth in pre- 1937 decisions. The most plausible explanation for their votes is therefore that they changed their minds about the relative importance of various constitutional values. The context for their change in view was: (1) the hostile, bipartisan reaction to Morehead v. Tipaldo, 298 U.S. 587 (1936), which held unconstitutional a New York statute mandating a minimum wage for women and minors (only relevant to Roberts); (2) FDR's overwhelming victory in the 1936 election; and (3) FDR's Court-packing plan (only relevant to some 1937 decsions). Cushman's tendentious distinction between "internal" or doctrinal explanations and "external" or political explanations means that he never comes to grips with the most persuasive version of the "external" account, one that is, in fact, an internal explanation to the extent that it focuses on the motives of Hughes and Roberts. See CUSHMAN, supra, at 4.
138. This story has been told many times and lately a dispute has broken out over how the "switch" occurred. For contrasting views, compare BARRY CUSHMAN, RETHINKING THE NEW DEAL COURT: THE STRUCTURE OF A CONSTITUTIONAL REVOLUTION (1998), and Richard D. Friedman, Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation, 142 U. PA. L. REV. 1891 (1994), with WILLIAM E. LEUCHTENBURG, THE SUPREME COURT REBORN: THE CONSTITUTIONAL REVOLUTION IN THE AGE OF ROOSEVELT (1995), and David A. Pepper, Against Legalism: Rebutting an Anachronistic Account of 1937, 82 MARQ. L. REV. 63 (1998). For other important discussions see MICHAEL E. PARRISH, ANXIOUS DECADES: AMERICA IN PROSPERITY AND DEPRESSION, 1920-1941, at 364-76 (1992); Michael Ariens, A Thrice-Told Tale, or Felix the Cat, 107 HARV. L. REV. 620 (1994); John W. Chambers, The Big Switch: Justice Roberts and the Minimum-Wage Cases, 10 LABOR HIST. 44 (1969); Richard D. Friedman, A Reaffirmation: The Authenticity of the Roberts Memorandum, or Felix the Non-Forger, 142 U. PA. L. REV. 1985 (1994); Michael E. Parrish, The Great Depression, the New Deal, and the American Legal Order, 59 WASH. L. REV. 723 (1984) [hereinafter Parrish, The Great Depression]; Michael E. Parrish, The Hughes Court, the Great Depression, and the Historians, 40 HISTORIAN 286 (1978) [hereinafter Parrish, The Hughes Court]. have serious reservations about Cushman's narrowly doctrinal account of the Court's 1937 switch. While space does not permit setting out my objections in detail, it is important to point out that many reputable scholars have in effect taken the position that purely doctrinal explanations of the votes of Chief Justice Hughes and Justice Roberts in the various New Deal cases are implausible because they took inconsistent positions. Their positions were inconsistent with respect to their allegiance to broad constitutional values such as federalism, as set forth in pre- 1937 decisions. The most plausible explanation for their votes is therefore that they changed their minds about the relative importance of various constitutional values. The context for their change in view was: (1) the hostile, bipartisan reaction to Morehead v. Tipaldo, 298 U.S. 587 (1936), which held unconstitutional a New York statute mandating a minimum wage for women and minors (only relevant to Roberts); (2) FDR's overwhelming victory in the 1936 election; and (3) FDR's Court-packing plan (only relevant to some 1937 decsions). Cushman's tendentious distinction between "internal" or doctrinal explanations and "external" or political explanations means that he never comes to grips with the most persuasive version of the "external" account, one that is, in fact, an internal explanation to the extent that it focuses on the motives of Hughes and Roberts. See CUSHMAN, supra, at 4.
139. This story has been told many times and lately a dispute has broken out over how the "switch" occurred. For contrasting views, compare BARRY CUSHMAN, RETHINKING THE NEW DEAL COURT: THE STRUCTURE OF A CONSTITUTIONAL REVOLUTION (1998), and Richard D. Friedman, Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation, 142 U. PA. L. REV. 1891 (1994), with WILLIAM E. LEUCHTENBURG, THE SUPREME COURT REBORN: THE CONSTITUTIONAL REVOLUTION IN THE AGE OF ROOSEVELT (1995), and David A. Pepper, Against Legalism: Rebutting an Anachronistic Account of 1937, 82 MARQ. L. REV. 63 (1998). For other important discussions see MICHAEL E. PARRISH, ANXIOUS DECADES: AMERICA IN PROSPERITY AND DEPRESSION, 1920-1941, at 364-76 (1992); Michael Ariens, A Thrice-Told Tale, or Felix the Cat, 107 HARV. L. REV. 620 (1994); John W. Chambers, The Big Switch: Justice Roberts and the Minimum-Wage Cases, 10 LABOR HIST. 44 (1969); Richard D. Friedman, A Reaffirmation: The Authenticity of the Roberts Memorandum, or Felix the Non-Forger, 142 U. PA. L. REV. 1985 (1994); Michael E. Parrish, The Great Depression, the New Deal, and the American Legal Order, 59 WASH. L. REV. 723 (1984) [hereinafter Parrish, The Great Depression]; Michael E. Parrish, The Hughes Court, the Great Depression, and the Historians, 40 HISTORIAN 286 (1978) [hereinafter Parrish, The Hughes Court]. have serious reservations about Cushman's narrowly doctrinal account of the Court's 1937 switch. While space does not permit setting out my objections in detail, it is important to point out that many reputable scholars have in effect taken the position that purely doctrinal explanations of the votes of Chief Justice Hughes and Justice Roberts in the various New Deal cases are implausible because they took inconsistent positions. Their positions were inconsistent with respect to their allegiance to broad constitutional values such as federalism, as set forth in pre- 1937 decisions. The most plausible explanation for their votes is therefore that they changed their minds about the relative importance of various constitutional values. The context for their change in view was: (1) the hostile, bipartisan reaction to Morehead v. Tipaldo, 298 U.S. 587 (1936), which held unconstitutional a New York statute mandating a minimum wage for women and minors (only relevant to Roberts); (2) FDR's overwhelming victory in the 1936 election; and (3) FDR's Court-packing plan (only relevant to some 1937 decsions). Cushman's tendentious distinction between "internal" or doctrinal explanations and "external" or political explanations means that he never comes to grips with the most persuasive version of the "external" account, one that is, in fact, an internal explanation to the extent that it focuses on the motives of Hughes and Roberts. See CUSHMAN, supra, at 4.
140. This story has been told many times and lately a dispute has broken out over how the "switch" occurred. For contrasting views, compare BARRY CUSHMAN, RETHINKING THE NEW DEAL COURT: THE STRUCTURE OF A CONSTITUTIONAL REVOLUTION (1998), and Richard D. Friedman, Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation, 142 U. PA. L. REV. 1891 (1994), with WILLIAM E. LEUCHTENBURG, THE SUPREME COURT REBORN: THE CONSTITUTIONAL REVOLUTION IN THE AGE OF ROOSEVELT (1995), and David A. Pepper, Against Legalism: Rebutting an Anachronistic Account of 1937, 82 MARQ. L. REV. 63 (1998). For other important discussions see MICHAEL E. PARRISH, ANXIOUS DECADES: AMERICA IN PROSPERITY AND DEPRESSION, 1920-1941, at 364-76 (1992); Michael Ariens, A Thrice-Told Tale, or Felix the Cat, 107 HARV. L. REV. 620 (1994); John W. Chambers, The Big Switch: Justice Roberts and the Minimum-Wage Cases, 10 LABOR HIST. 44 (1969); Richard D. Friedman, A Reaffirmation: The Authenticity of the Roberts Memorandum, or Felix the Non-Forger, 142 U. PA. L. REV. 1985 (1994); Michael E. Parrish, The Great Depression, the New Deal, and the American Legal Order, 59 WASH. L. REV. 723 (1984) [hereinafter Parrish, The Great Depression]; Michael E. Parrish, The Hughes Court, the Great Depression, and the Historians, 40 HISTORIAN 286 (1978) [hereinafter Parrish, The Hughes Court]. have serious reservations about Cushman's narrowly doctrinal account of the Court's 1937 switch. While space does not permit setting out my objections in detail, it is important to point out that many reputable scholars have in effect taken the position that purely doctrinal explanations of the votes of Chief Justice Hughes and Justice Roberts in the various New Deal cases are implausible because they took inconsistent positions. Their positions were inconsistent with respect to their allegiance to broad constitutional values such as federalism, as set forth in pre- 1937 decisions. The most plausible explanation for their votes is therefore that they changed their minds about the relative importance of various constitutional values. The context for their change in view was: (1) the hostile, bipartisan reaction to Morehead v. Tipaldo, 298 U.S. 587 (1936), which held unconstitutional a New York statute mandating a minimum wage for women and minors (only relevant to Roberts); (2) FDR's overwhelming victory in the 1936 election; and (3) FDR's Court-packing plan (only relevant to some 1937 decsions). Cushman's tendentious distinction between "internal" or doctrinal explanations and "external" or political explanations means that he never comes to grips with the most persuasive version of the "external" account, one that is, in fact, an internal explanation to the extent that it focuses on the motives of Hughes and Roberts. See CUSHMAN, supra, at 4.
141. This story has been told many times and lately a dispute has broken out over how the "switch" occurred. For contrasting views, compare BARRY CUSHMAN, RETHINKING THE NEW DEAL COURT: THE STRUCTURE OF A CONSTITUTIONAL REVOLUTION (1998), and Richard D. Friedman, Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation, 142 U. PA. L. REV. 1891 (1994), with WILLIAM E. LEUCHTENBURG, THE SUPREME COURT REBORN: THE CONSTITUTIONAL REVOLUTION IN THE AGE OF ROOSEVELT (1995), and David A. Pepper, Against Legalism: Rebutting an Anachronistic Account of 1937, 82 MARQ. L. REV. 63 (1998). For other important discussions see MICHAEL E. PARRISH, ANXIOUS DECADES: AMERICA IN PROSPERITY AND DEPRESSION, 1920-1941, at 364-76 (1992); Michael Ariens, A Thrice-Told Tale, or Felix the Cat, 107 HARV. L. REV. 620 (1994); John W. Chambers, The Big Switch: Justice Roberts and the Minimum-Wage Cases, 10 LABOR HIST. 44 (1969); Richard D. Friedman, A Reaffirmation: The Authenticity of the Roberts Memorandum, or Felix the Non-Forger, 142 U. PA. L. REV. 1985 (1994); Michael E. Parrish, The Great Depression, the New Deal, and the American Legal Order, 59 WASH. L. REV. 723 (1984) [hereinafter Parrish, The Great Depression]; Michael E. Parrish, The Hughes Court, the Great Depression, and the Historians, 40 HISTORIAN 286 (1978) [hereinafter Parrish, The Hughes Court]. have serious reservations about Cushman's narrowly doctrinal account of the Court's 1937 switch. While space does not permit setting out my objections in detail, it is important to point out that many reputable scholars have in effect taken the position that purely doctrinal explanations of the votes of Chief Justice Hughes and Justice Roberts in the various New Deal cases are implausible because they took inconsistent positions. Their positions were inconsistent with respect to their allegiance to broad constitutional values such as federalism, as set forth in pre- 1937 decisions. The most plausible explanation for their votes is therefore that they changed their minds about the relative importance of various constitutional values. The context for their change in view was: (1) the hostile, bipartisan reaction to Morehead v. Tipaldo, 298 U.S. 587 (1936), which held unconstitutional a New York statute mandating a minimum wage for women and minors (only relevant to Roberts); (2) FDR's overwhelming victory in the 1936 election; and (3) FDR's Court-packing plan (only relevant to some 1937 decsions). Cushman's tendentious distinction between "internal" or doctrinal explanations and "external" or political explanations means that he never comes to grips with the most persuasive version of the "external" account, one that is, in fact, an internal explanation to the extent that it focuses on the motives of Hughes and Roberts. See CUSHMAN, supra, at 4.
142. This story has been told many times and lately a dispute has broken out over how the "switch" occurred. For contrasting views, compare BARRY CUSHMAN, RETHINKING THE NEW DEAL COURT: THE STRUCTURE OF A CONSTITUTIONAL REVOLUTION (1998), and Richard D. Friedman, Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation, 142 U. PA. L. REV. 1891 (1994), with WILLIAM E. LEUCHTENBURG, THE SUPREME COURT REBORN: THE CONSTITUTIONAL REVOLUTION IN THE AGE OF ROOSEVELT (1995), and David A. Pepper, Against Legalism: Rebutting an Anachronistic Account of 1937, 82 MARQ. L. REV. 63 (1998). For other important discussions see MICHAEL E. PARRISH, ANXIOUS DECADES: AMERICA IN PROSPERITY AND DEPRESSION, 1920-1941, at 364-76 (1992); Michael Ariens, A Thrice-Told Tale, or Felix the Cat, 107 HARV. L. REV. 620 (1994); John W. Chambers, The Big Switch: Justice Roberts and the Minimum-Wage Cases, 10 LABOR HIST. 44 (1969); Richard D. Friedman, A Reaffirmation: The Authenticity of the Roberts Memorandum, or Felix the Non-Forger, 142 U. PA. L. REV. 1985 (1994); Michael E. Parrish, The Great Depression, the New Deal, and the American Legal Order, 59 WASH. L. REV. 723 (1984) [hereinafter Parrish, The Great Depression]; Michael E. Parrish, The Hughes Court, the Great Depression, and the Historians, 40 HISTORIAN 286 (1978) [hereinafter Parrish, The Hughes Court]. have serious reservations about Cushman's narrowly doctrinal account of the Court's 1937 switch. While space does not permit setting out my objections in detail, it is important to point out that many reputable scholars have in effect taken the position that purely doctrinal explanations of the votes of Chief Justice Hughes and Justice Roberts in the various New Deal cases are implausible because they took inconsistent positions. Their positions were inconsistent with respect to their allegiance to broad constitutional values such as federalism, as set forth in pre- 1937 decisions. The most plausible explanation for their votes is therefore that they changed their minds about the relative importance of various constitutional values. The context for their change in view was: (1) the hostile, bipartisan reaction to Morehead v. Tipaldo, 298 U.S. 587 (1936), which held unconstitutional a New York statute mandating a minimum wage for women and minors (only relevant to Roberts); (2) FDR's overwhelming victory in the 1936 election; and (3) FDR's Court-packing plan (only relevant to some 1937 decsions). Cushman's tendentious distinction between "internal" or doctrinal explanations and "external" or political explanations means that he never comes to grips with the most persuasive version of the "external" account, one that is, in fact, an internal explanation to the extent that it focuses on the motives of Hughes and Roberts. See CUSHMAN, supra, at 4.
143. This story has been told many times and lately a dispute has broken out over how the "switch" occurred. For contrasting views, compare BARRY CUSHMAN, RETHINKING THE NEW DEAL COURT: THE STRUCTURE OF A CONSTITUTIONAL REVOLUTION (1998), and Richard D. Friedman, Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation, 142 U. PA. L. REV. 1891 (1994), with WILLIAM E. LEUCHTENBURG, THE SUPREME COURT REBORN: THE CONSTITUTIONAL REVOLUTION IN THE AGE OF ROOSEVELT (1995), and David A. Pepper, Against Legalism: Rebutting an Anachronistic Account of 1937, 82 MARQ. L. REV. 63 (1998). For other important discussions see MICHAEL E. PARRISH, ANXIOUS DECADES: AMERICA IN PROSPERITY AND DEPRESSION, 1920-1941, at 364-76 (1992); Michael Ariens, A Thrice-Told Tale, or Felix the Cat, 107 HARV. L. REV. 620 (1994); John W. Chambers, The Big Switch: Justice Roberts and the Minimum-Wage Cases, 10 LABOR HIST. 44 (1969); Richard D. Friedman, A Reaffirmation: The Authenticity of the Roberts Memorandum, or Felix the Non-Forger, 142 U. PA. L. REV. 1985 (1994); Michael E. Parrish, The Great Depression, the New Deal, and the American Legal Order, 59 WASH. L. REV. 723 (1984) [hereinafter Parrish, The Great Depression]; Michael E. Parrish, The Hughes Court, the Great Depression, and the Historians, 40 HISTORIAN 286 (1978) [hereinafter Parrish, The Hughes Court]. have serious reservations about Cushman's narrowly doctrinal account of the Court's 1937 switch. While space does not permit setting out my objections in detail, it is important to point out that many reputable scholars have in effect taken the position that purely doctrinal explanations of the votes of Chief Justice Hughes and Justice Roberts in the various New Deal cases are implausible because they took inconsistent positions. Their positions were inconsistent with respect to their allegiance to broad constitutional values such as federalism, as set forth in pre- 1937 decisions. The most plausible explanation for their votes is therefore that they changed their minds about the relative importance of various constitutional values. The context for their change in view was: (1) the hostile, bipartisan reaction to Morehead v. Tipaldo, 298 U.S. 587 (1936), which held unconstitutional a New York statute mandating a minimum wage for women and minors (only relevant to Roberts); (2) FDR's overwhelming victory in the 1936 election; and (3) FDR's Court-packing plan (only relevant to some 1937 decsions). Cushman's tendentious distinction between "internal" or doctrinal explanations and "external" or political explanations means that he never comes to grips with the most persuasive version of the "external" account, one that is, in fact, an internal explanation to the extent that it focuses on the motives of Hughes and Roberts. See CUSHMAN, supra, at 4.
144. This story has been told many times and lately a dispute has broken out over how the "switch" occurred. For contrasting views, compare BARRY CUSHMAN, RETHINKING THE NEW DEAL COURT: THE STRUCTURE OF A CONSTITUTIONAL REVOLUTION (1998), and Richard D. Friedman, Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation, 142 U. PA. L. REV. 1891 (1994), with WILLIAM E. LEUCHTENBURG, THE SUPREME COURT REBORN: THE CONSTITUTIONAL REVOLUTION IN THE AGE OF ROOSEVELT (1995), and David A. Pepper, Against Legalism: Rebutting an Anachronistic Account of 1937, 82 MARQ. L. REV. 63 (1998). For other important discussions see MICHAEL E. PARRISH, ANXIOUS DECADES: AMERICA IN PROSPERITY AND DEPRESSION, 1920-1941, at 364-76 (1992); Michael Ariens, A Thrice-Told Tale, or Felix the Cat, 107 HARV. L. REV. 620 (1994); John W. Chambers, The Big Switch: Justice Roberts and the Minimum-Wage Cases, 10 LABOR HIST. 44 (1969); Richard D. Friedman, A Reaffirmation: The Authenticity of the Roberts Memorandum, or Felix the Non-Forger, 142 U. PA. L. REV. 1985 (1994); Michael E. Parrish, The Great Depression, the New Deal, and the American Legal Order, 59 WASH. L. REV. 723 (1984) [hereinafter Parrish, The Great Depression]; Michael E. Parrish, The Hughes Court, the Great Depression, and the Historians, 40 HISTORIAN 286 (1978) [hereinafter Parrish, The Hughes Court]. have serious reservations about Cushman's narrowly doctrinal account of the Court's 1937 switch. While space does not permit setting out my objections in detail, it is important to point out that many reputable scholars have in effect taken the position that purely doctrinal explanations of the votes of Chief Justice Hughes and Justice Roberts in the various New Deal cases are implausible because they took inconsistent positions. Their positions were inconsistent with respect to their allegiance to broad constitutional values such as federalism, as set forth in pre- 1937 decisions. The most plausible explanation for their votes is therefore that they changed their minds about the relative importance of various constitutional values. The context for their change in view was: (1) the hostile, bipartisan reaction to Morehead v. Tipaldo, 298 U.S. 587 (1936), which held unconstitutional a New York statute mandating a minimum wage for women and minors (only relevant to Roberts); (2) FDR's overwhelming victory in the 1936 election; and (3) FDR's Court-packing plan (only relevant to some 1937 decsions). Cushman's tendentious distinction between "internal" or doctrinal explanations and "external" or political explanations means that he never comes to grips with the most persuasive version of the "external" account, one that is, in fact, an internal explanation to the extent that it focuses on the motives of Hughes and Roberts. See CUSHMAN, supra, at 4.
145. This story has been told many times and lately a dispute has broken out over how the "switch" occurred. For contrasting views, compare BARRY CUSHMAN, RETHINKING THE NEW DEAL COURT: THE STRUCTURE OF A CONSTITUTIONAL REVOLUTION (1998), and Richard D. Friedman, Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation, 142 U. PA. L. REV. 1891 (1994), with WILLIAM E. LEUCHTENBURG, THE SUPREME COURT REBORN: THE CONSTITUTIONAL REVOLUTION IN THE AGE OF ROOSEVELT (1995), and David A. Pepper, Against Legalism: Rebutting an Anachronistic Account of 1937, 82 MARQ. L. REV. 63 (1998). For other important discussions see MICHAEL E. PARRISH, ANXIOUS DECADES: AMERICA IN PROSPERITY AND DEPRESSION, 1920-1941, at 364-76 (1992); Michael Ariens, A Thrice-Told Tale, or Felix the Cat, 107 HARV. L. REV. 620 (1994); John W. Chambers, The Big Switch: Justice Roberts and the Minimum-Wage Cases, 10 LABOR HIST. 44 (1969); Richard D. Friedman, A Reaffirmation: The Authenticity of the Roberts Memorandum, or Felix the Non-Forger, 142 U. PA. L. REV. 1985 (1994); Michael E. Parrish, The Great Depression, the New Deal, and the American Legal Order, 59 WASH. L. REV. 723 (1984) [hereinafter Parrish, The Great Depression]; Michael E. Parrish, The Hughes Court, the Great Depression, and the Historians, 40 HISTORIAN 286 (1978) [hereinafter Parrish, The Hughes Court]. have serious reservations about Cushman's narrowly doctrinal account of the Court's 1937 switch. While space does not permit setting out my objections in detail, it is important to point out that many reputable scholars have in effect taken the position that purely doctrinal explanations of the votes of Chief Justice Hughes and Justice Roberts in the various New Deal cases are implausible because they took inconsistent positions. Their positions were inconsistent with respect to their allegiance to broad constitutional values such as federalism, as set forth in pre-1937 decisions. The most plausible explanation for their votes is therefore that they changed their minds about the relative importance of various constitutional values. The context for their change in view was: (1) the hostile, bipartisan reaction to Morehead v. Tipaldo, 298 U.S. 587 (1936), which held unconstitutional a New York statute mandating a minimum wage for women and minors (only relevant to Roberts); (2) FDR's overwhelming victory in the 1936 election; and (3) FDR's Court-packing plan (only relevant to some 1937 decsions). Cushman's tendentious distinction between "internal" or doctrinal explanations and "external" or political explanations means that he never comes to grips with the most persuasive version of the "external" account, one that is, in fact, an internal explanation to the extent that it focuses on the motives of Hughes and Roberts. See CUSHMAN, supra, at 4.
146. This story has been told many times and lately a dispute has broken out over how the "switch" occurred. For contrasting views, compare BARRY CUSHMAN, RETHINKING THE NEW DEAL COURT: THE STRUCTURE OF A CONSTITUTIONAL REVOLUTION (1998), and Richard D. Friedman, Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation, 142 U. PA. L. REV. 1891 (1994), with WILLIAM E. LEUCHTENBURG, THE SUPREME COURT REBORN: THE CONSTITUTIONAL REVOLUTION IN THE AGE OF ROOSEVELT (1995), and David A. Pepper, Against Legalism: Rebutting an Anachronistic Account of 1937, 82 MARQ. L. REV. 63 (1998). For other important discussions see MICHAEL E. PARRISH, ANXIOUS DECADES: AMERICA IN PROSPERITY AND DEPRESSION, 1920-1941, at 364-76 (1992); Michael Ariens, A Thrice-Told Tale, or Felix the Cat, 107 HARV. L. REV. 620 (1994); John W. Chambers, The Big Switch: Justice Roberts and the Minimum-Wage Cases, 10 LABOR HIST. 44 (1969); Richard D. Friedman, A Reaffirmation: The Authenticity of the Roberts Memorandum, or Felix the Non-Forger, 142 U. PA. L. REV. 1985 (1994); Michael E. Parrish, The Great Depression, the New Deal, and the American Legal Order, 59 WASH. L. REV. 723 (1984) [hereinafter Parrish, The Great Depression]; Michael E. Parrish, The Hughes Court, the Great Depression, and the Historians, 40 HISTORIAN 286 (1978) [hereinafter Parrish, The Hughes Court]. have serious reservations about Cushman's narrowly doctrinal account of the Court's 1937 switch. While space does not permit setting out my objections in detail, it is important to point out that many reputable scholars have in effect taken the position that purely doctrinal explanations of the votes of Chief Justice Hughes and Justice Roberts in the various New Deal cases are implausible because they took inconsistent positions. Their positions were inconsistent with respect to their allegiance to broad constitutional values such as federalism, as set forth in pre- 1937 decisions. The most plausible explanation for their votes is therefore that they changed their minds about the relative importance of various constitutional values. The context for their change in view was: (1) the hostile, bipartisan reaction to Morehead v. Tipaldo, 298 U.S. 587 (1936), which held unconstitutional a New York statute mandating a minimum wage for women and minors (only relevant to Roberts); (2) FDR's overwhelming victory in the 1936 election; and (3) FDR's Court-packing plan (only relevant to some 1937 decsions). Cushman's tendentious distinction between "internal" or doctrinal explanations and "external" or political explanations means that he never comes to grips with the most persuasive version of the "external" account, one that is, in fact, an internal explanation to the extent that it focuses on the motives of Hughes and Roberts. See CUSHMAN, supra, at 4.
147. Cf. 2 ACKERMAN, supra note 1, at 286-89 (discussing NIRA's replacement of market capitalism with a corporatist structure).
148. FINEGOLD AND SKOCPOL, supra note 8, at 20.
149. See Railroad Retirement Bd. v. Alton R.R. Co., 295 U.S. 330, 367-68 (1935); Butler, 297 U.S. at 63-64, 68-78; Carter Coal, 298 U.S. at 297-310.
150. See Railroad Retirement Bd. v. Alton R.R. Co., 295 U.S. 330, 367-68 (1935); Butler, 297 U.S. at 63-64, 68-78; Carter Coal, 298 U.S. at 297-310.
151. See Railroad Retirement Bd. v. Alton R.R. Co., 295 U.S. 330, 367-68 (1935); Butler, 297 U.S. at 63-64, 68-78; Carter Coal, 298 U.S. at 297-310.
152. In A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), for example, Chief Justice Hughes stated: In determining how far the federal government may go in controlling intrastate transactions upon the ground that they "affect" interstate commerce, there is a necessary and well-established distinction between direct and indirect effects. . . . If the commerce clause were construed to reach all enterprises and transactions which could be said to have an indirect effect upon interstate commerce, the federal authority would embrace practically all the activities of the people, and the authority of the state over its domestic concerns would exist only by sufferance of the federal government. . . . . The distinction between direct and indirect effects of intrastate commerce must be recognized as a fundamental one, essential to the maintenance of our constitutional system. Otherwise, as we have said, there would be virtually no limit to the federal power and for all practical purposes we should have a completely centralized government. Id. at 546, 548.
153. In A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), for example, Chief Justice Hughes stated: In determining how far the federal government may go in controlling intrastate transactions upon the ground that they "affect" interstate commerce, there is a necessary and well-established distinction between direct and indirect effects. . . . If the commerce clause were construed to reach all enterprises and transactions which could be said to have an indirect effect upon interstate commerce, the federal authority would embrace practically all the activities of the people, and the authority of the state over its domestic concerns would exist only by sufferance of the federal government. . . . . The distinction between direct and indirect effects of intrastate commerce must be recognized as a fundamental one, essential to the maintenance of our constitutional system. Otherwise, as we have said, there would be virtually no limit to the federal power and for all practical purposes we should have a completely centralized government. Id. at 546, 548.
154. 301 U.S. 1 (1937).
155. 312 U.S. 657 (1941).
156. 317 U.S. 111 (1942).
157. Since I have provided more detail on the presidency and federalism in my book, my discussion here is brief. I should note, however, that the presidency was affected just as much by the changes that occurred in the Cold War as the developments during FDR's terms in office. See GRIFFIN, supra note 1, at 81-85.
158. See LEUCHTENBURG, supra note 86, at 1-34; SIDNEY M. MILKIS, THE PRESIDENT AND THE PARTIES: THE TRANSFORMATION OF THE AMERICAN PARTY SYSTEM SINCE THE NEW DEAL 150-51 (1993).
159. See LEUCHTENBURG, supra note 86, at 1-34; SIDNEY M. MILKIS, THE PRESIDENT AND THE PARTIES: THE TRANSFORMATION OF THE AMERICAN PARTY SYSTEM SINCE THE NEW DEAL 150-51 (1993).
160. See Parrish, The Great Depression, supra note 86, at 727 (internal citations omitted).
161. See id. For a recent treatment from a doctrinal perspective, see Stephen Gardbaum, New Deal Constitutionalism and the Unshackling of the States, 64 U. CHI. L. REV. 483 (1997). Gardbaum's analysis is useful to the extent that he reminds us that the end of the "no go zone" in due process jurisprudence necessarily meant that the states came out of the New Deal with greatly expanded regulatory powers. But Gardbaum's article also shows the inherent limits of doctrinal history: He never assumes an institutionalist perspective, that is, he never tells us what the states did with their new powers. As I suggest in the text, at least with respect to unemployment and poor relief, they were not able to do very much.
162. See id. For a recent treatment from a doctrinal perspective, see Stephen Gardbaum, New Deal Constitutionalism and the Unshackling of the States, 64 U. CHI. L. REV. 483 (1997). Gardbaum's analysis is useful to the extent that he reminds us that the end of the "no go zone" in due process jurisprudence necessarily meant that the states came out of the New Deal with greatly expanded regulatory powers. But Gardbaum's article also shows the inherent limits of doctrinal history: He never assumes an institutionalist perspective, that is, he never tells us what the states did with their new powers. As I suggest in the text, at least with respect to unemployment and poor relief, they were not able to do very much.
163. See JAMES T. PATTERSON, THE NEW DEAL AND THE STATES: FEDERALISM IN TRANSITION (1969).
164. See GRIFFIN, supra note 1, at 41-42.
165. This list of assumptions is an extremely compressed summary of recent historical work on the constitutional ideology that prevailed between the Civil War and the New Deal. See, e.g., CUSHMAN, supra note 86, at 6; HOWARD GILLMAN, THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA POLICE POWERS JURISPRUDENCE (1993); Benedict, supra note 54; see also JAMES W. ELY, JR., THE CHIEF JUSTICESHIP OF MELVILLE W. FULLER, 1888-1910 (1995) ; OWEN M. FISS, TROUBLED BEGINNINGS OF THE MODERN STATE, 1888-1910 (1993); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960 (1992); HERBERT HOVENKAMP, ENTERPRISE AND AMERICAN LAW 1836-1937 (1991); WILLIAM E. NELSON, THE ROOTS OF AMERICAN BUREAUCRACY, 1830-1900 (1982); WILLIAM M. WIECEK, THE LOST WORLD OF CLASSICAL LEGAL THOUGHT (1998); Michael Les Benedict, Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism, 3 LEGAL HIST. REV. 293 (1985); Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition, 70 N.C. L. REV. 1 (1991).
166. This list of assumptions is an extremely compressed summary of recent historical work on the constitutional ideology that prevailed between the Civil War and the New Deal. See, e.g., CUSHMAN, supra note 86, at 6; HOWARD GILLMAN, THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA POLICE POWERS JURISPRUDENCE (1993); Benedict, supra note 54; see also JAMES W. ELY, JR., THE CHIEF JUSTICESHIP OF MELVILLE W. FULLER, 1888-1910 (1995) ; OWEN M. FISS, TROUBLED BEGINNINGS OF THE MODERN STATE, 1888-1910 (1993); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960 (1992); HERBERT HOVENKAMP, ENTERPRISE AND AMERICAN LAW 1836-1937 (1991); WILLIAM E. NELSON, THE ROOTS OF AMERICAN BUREAUCRACY, 1830-1900 (1982); WILLIAM M. WIECEK, THE LOST WORLD OF CLASSICAL LEGAL THOUGHT (1998); Michael Les Benedict, Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism, 3 LEGAL HIST. REV. 293 (1985); Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition, 70 N.C. L. REV. 1 (1991).
167. This list of assumptions is an extremely compressed summary of recent historical work on the constitutional ideology that prevailed between the Civil War and the New Deal. See, e.g., CUSHMAN, supra note 86, at 6; HOWARD GILLMAN, THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA POLICE POWERS JURISPRUDENCE (1993); Benedict, supra note 54; see also JAMES W. ELY, JR., THE CHIEF JUSTICESHIP OF MELVILLE W. FULLER, 1888-1910 (1995) ; OWEN M. FISS, TROUBLED BEGINNINGS OF THE MODERN STATE, 1888-1910 (1993); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960 (1992); HERBERT HOVENKAMP, ENTERPRISE AND AMERICAN LAW 1836-1937 (1991); WILLIAM E. NELSON, THE ROOTS OF AMERICAN BUREAUCRACY, 1830-1900 (1982); WILLIAM M. WIECEK, THE LOST WORLD OF CLASSICAL LEGAL THOUGHT (1998); Michael Les Benedict, Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism, 3 LEGAL HIST. REV. 293 (1985); Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition, 70 N.C. L. REV. 1 (1991).
168. This list of assumptions is an extremely compressed summary of recent historical work on the constitutional ideology that prevailed between the Civil War and the New Deal. See, e.g., CUSHMAN, supra note 86, at 6; HOWARD GILLMAN, THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA POLICE POWERS JURISPRUDENCE (1993); Benedict, supra note 54; see also JAMES W. ELY, JR., THE CHIEF JUSTICESHIP OF MELVILLE W. FULLER, 1888-1910 (1995) ; OWEN M. FISS, TROUBLED BEGINNINGS OF THE MODERN STATE, 1888-1910 (1993); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960 (1992); HERBERT HOVENKAMP, ENTERPRISE AND AMERICAN LAW 1836-1937 (1991); WILLIAM E. NELSON, THE ROOTS OF AMERICAN BUREAUCRACY, 1830-1900 (1982); WILLIAM M. WIECEK, THE LOST WORLD OF CLASSICAL LEGAL THOUGHT (1998); Michael Les Benedict, Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism, 3 LEGAL HIST. REV. 293 (1985); Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition, 70 N.C. L. REV. 1 (1991).
169. This list of assumptions is an extremely compressed summary of recent historical work on the constitutional ideology that prevailed between the Civil War and the New Deal. See, e.g., CUSHMAN, supra note 86, at 6; HOWARD GILLMAN, THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA POLICE POWERS JURISPRUDENCE (1993); Benedict, supra note 54; see also JAMES W. ELY, JR., THE CHIEF JUSTICESHIP OF MELVILLE W. FULLER, 1888-1910 (1995) ; OWEN M. FISS, TROUBLED BEGINNINGS OF THE MODERN STATE, 1888-1910 (1993); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960 (1992); HERBERT HOVENKAMP, ENTERPRISE AND AMERICAN LAW 1836-1937 (1991); WILLIAM E. NELSON, THE ROOTS OF AMERICAN BUREAUCRACY, 1830-1900 (1982); WILLIAM M. WIECEK, THE LOST WORLD OF CLASSICAL LEGAL THOUGHT (1998); Michael Les Benedict, Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism, 3 LEGAL HIST. REV. 293 (1985); Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition, 70 N.C. L. REV. 1 (1991).
170. This list of assumptions is an extremely compressed summary of recent historical work on the constitutional ideology that prevailed between the Civil War and the New Deal. See, e.g., CUSHMAN, supra note 86, at 6; HOWARD GILLMAN, THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA POLICE POWERS JURISPRUDENCE (1993); Benedict, supra note 54; see also JAMES W. ELY, JR., THE CHIEF JUSTICESHIP OF MELVILLE W. FULLER, 1888-1910 (1995) ; OWEN M. FISS, TROUBLED BEGINNINGS OF THE MODERN STATE, 1888-1910 (1993); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960 (1992); HERBERT HOVENKAMP, ENTERPRISE AND AMERICAN LAW 1836-1937 (1991); WILLIAM E. NELSON, THE ROOTS OF AMERICAN BUREAUCRACY, 1830-1900 (1982); WILLIAM M. WIECEK, THE LOST WORLD OF CLASSICAL LEGAL THOUGHT (1998); Michael Les Benedict, Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism, 3 LEGAL HIST. REV. 293 (1985); Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition, 70 N.C. L. REV. 1 (1991).
171. This list of assumptions is an extremely compressed summary of recent historical work on the constitutional ideology that prevailed between the Civil War and the New Deal. See, e.g., CUSHMAN, supra note 86, at 6; HOWARD GILLMAN, THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA POLICE POWERS JURISPRUDENCE (1993); Benedict, supra note 54; see also JAMES W. ELY, JR., THE CHIEF JUSTICESHIP OF MELVILLE W. FULLER, 1888-1910 (1995) ; OWEN M. FISS, TROUBLED BEGINNINGS OF THE MODERN STATE, 1888-1910 (1993); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960 (1992); HERBERT HOVENKAMP, ENTERPRISE AND AMERICAN LAW 1836-1937 (1991); WILLIAM E. NELSON, THE ROOTS OF AMERICAN BUREAUCRACY, 1830-1900 (1982); WILLIAM M. WIECEK, THE LOST WORLD OF CLASSICAL LEGAL THOUGHT (1998); Michael Les Benedict, Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism, 3 LEGAL HIST. REV. 293 (1985); Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition, 70 N.C. L. REV. 1 (1991).
172. This list of assumptions is an extremely compressed summary of recent historical work on the constitutional ideology that prevailed between the Civil War and the New Deal. See, e.g., CUSHMAN, supra note 86, at 6; HOWARD GILLMAN, THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA POLICE POWERS JURISPRUDENCE (1993); Benedict, supra note 54; see also JAMES W. ELY, JR., THE CHIEF JUSTICESHIP OF MELVILLE W. FULLER, 1888-1910 (1995) ; OWEN M. FISS, TROUBLED BEGINNINGS OF THE MODERN STATE, 1888-1910 (1993); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960 (1992); HERBERT HOVENKAMP, ENTERPRISE AND AMERICAN LAW 1836-1937 (1991); WILLIAM E. NELSON, THE ROOTS OF AMERICAN BUREAUCRACY, 1830-1900 (1982); WILLIAM M. WIECEK, THE LOST WORLD OF CLASSICAL LEGAL THOUGHT (1998); Michael Les Benedict, Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism, 3 LEGAL HIST. REV. 293 (1985); Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition, 70 N.C. L. REV. 1 (1991).
173. This list of assumptions is an extremely compressed summary of recent historical work on the constitutional ideology that prevailed between the Civil War and the New Deal. See, e.g., CUSHMAN, supra note 86, at 6; HOWARD GILLMAN, THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA POLICE POWERS JURISPRUDENCE (1993); Benedict, supra note 54; see also JAMES W. ELY, JR., THE CHIEF JUSTICESHIP OF MELVILLE W. FULLER, 1888-1910 (1995) ; OWEN M. FISS, TROUBLED BEGINNINGS OF THE MODERN STATE, 1888-1910 (1993); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960 (1992); HERBERT HOVENKAMP, ENTERPRISE AND AMERICAN LAW 1836-1937 (1991); WILLIAM E. NELSON, THE ROOTS OF AMERICAN BUREAUCRACY, 1830-1900 (1982); WILLIAM M. WIECEK, THE LOST WORLD OF CLASSICAL LEGAL THOUGHT (1998); Michael Les Benedict, Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism, 3 LEGAL HIST. REV. 293 (1985); Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition, 70 N.C. L. REV. 1 (1991).
174. This list of assumptions is an extremely compressed summary of recent historical work on the constitutional ideology that prevailed between the Civil War and the New Deal. See, e.g., CUSHMAN, supra note 86, at 6; HOWARD GILLMAN, THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA POLICE POWERS JURISPRUDENCE (1993); Benedict, supra note 54; see also JAMES W. ELY, JR., THE CHIEF JUSTICESHIP OF MELVILLE W. FULLER, 1888-1910 (1995) ; OWEN M. FISS, TROUBLED BEGINNINGS OF THE MODERN STATE, 1888-1910 (1993); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960 (1992); HERBERT HOVENKAMP, ENTERPRISE AND AMERICAN LAW 1836-1937 (1991); WILLIAM E. NELSON, THE ROOTS OF AMERICAN BUREAUCRACY, 1830-1900 (1982); WILLIAM M. WIECEK, THE LOST WORLD OF CLASSICAL LEGAL THOUGHT (1998); Michael Les Benedict, Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism, 3 LEGAL HIST. REV. 293 (1985); Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition, 70 N.C. L. REV. 1 (1991).
175. This list of assumptions is an extremely compressed summary of recent historical work on the constitutional ideology that prevailed between the Civil War and the New Deal. See, e.g., CUSHMAN, supra note 86, at 6; HOWARD GILLMAN, THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA POLICE POWERS JURISPRUDENCE (1993); Benedict, supra note 54; see also JAMES W. ELY, JR., THE CHIEF JUSTICESHIP OF MELVILLE W. FULLER, 1888-1910 (1995) ; OWEN M. FISS, TROUBLED BEGINNINGS OF THE MODERN STATE, 1888-1910 (1993); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960 (1992); HERBERT HOVENKAMP, ENTERPRISE AND AMERICAN LAW 1836-1937 (1991); WILLIAM E. NELSON, THE ROOTS OF AMERICAN BUREAUCRACY, 1830-1900 (1982); WILLIAM M. WIECEK, THE LOST WORLD OF CLASSICAL LEGAL THOUGHT (1998); Michael Les Benedict, Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism, 3 LEGAL HIST. REV. 293 (1985); Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition, 70 N.C. L. REV. 1 (1991).
176. See, e.g., GILLMAN, supra note 100.
177. See, e.g., WIECEK, supra note 100, at 124-26.
178. See id. at 132.
179. See Benedict, supra note 54, at 41-42. This is the doctrine of "dual federalism" or "states' rights." Benedict comments that "[t]hose who advocated broad expansion of the national role from the Progressive to the New Deal eras. . . argued that this doctrine of dual federalism had subverted the nationalistic principles expounded by the Marshall Court. But in reality, most Americans had accepted dual federalism as implicit in those principles." Id. at 42.
180. Peter Irons notes, for example, that some NRA lawyers found even the strong restorationist argument advanced by Robert Stern to be too timid. See IRONS, supra note 25, at 92-93.
181. See, e.g., Howard Gillman, The Collapse of Constitutional Originalism and the Rise of the Notion of the 'Living Constitution' in the Course of American State-Building, 11 STUD. AM. POL. DEV. 191 (1997); G. Edward White, The "Constitutional Revolution" as a Crisis in Adaptivity, 48 HASTINGS L.J. 867 (1997).
182. See, e.g., Howard Gillman, The Collapse of Constitutional Originalism and the Rise of the Notion of the 'Living Constitution' in the Course of American State-Building, 11 STUD. AM. POL. DEV. 191 (1997); G. Edward White, The "Constitutional Revolution" as a Crisis in Adaptivity, 48 HASTINGS L.J. 867 (1997).
183. See IRONS, supra note 25, at 52-54, 93.
184. See Franklin D. Roosevelt, "A Concert of Action, Based on a Fair and Just Concert of Interests," Address at Jefferson Day Dinner, St. Paul, Minn. (April 18, 1932), in 1 THE PUBLIC PAPERS AND ADDRESSES OF FRANKLIN D. ROOSEVELT 627, 631 (1938).
185. Franklin D. Roosevelt, Inaugural Address (March 4, 1933), in 2 THE PUBLIC PAPERS AND ADDRESSES OF FRANKLIN D. ROOSEVELT, 11, 14 (1938) (address of March 4, 1933).
186. Id.
187. Id. at 15.
188. See BARRY D. KARL, THE UNEASY STATE: THE UNITED STATES FROM 1915 TO 1945, at 119-21 (1983); LEUCHTENBURG, supra note 86, at 35-75; Michal R. Belknap, The New Deal and the Emergency Powers Doctrine, 62 TEX. L. REV. 67 (1983).
189. See BARRY D. KARL, THE UNEASY STATE: THE UNITED STATES FROM 1915 TO 1945, at 119-21 (1983); LEUCHTENBURG, supra note 86, at 35-75; Michal R. Belknap, The New Deal and the Emergency Powers Doctrine, 62 TEX. L. REV. 67 (1983).
190. See BARRY D. KARL, THE UNEASY STATE: THE UNITED STATES FROM 1915 TO 1945, at 119-21 (1983); LEUCHTENBURG, supra note 86, at 35-75; Michal R. Belknap, The New Deal and the Emergency Powers Doctrine, 62 TEX. L. REV. 67 (1983).
191. In the Civil War, it was the doctrine of state sovereignty and its corollaries of interposition, nullification, and secession that were discredited. See Benedict, supra note 54.
192. See GRIFFIN, supra note 1, at 81-85; KARL, supra note 112.
193. See GRIFFIN, supra note 1, at 81-85; KARL, supra note 112.
194. Roosevelt did say in his inaugural address that the Constitution was adequate to meet the crisis. This remark was made, however, within the framework provided by the wartime analogy, which should have been unnecessary had Roosevelt really accepted some version of restorationism.
195. See, e.g., Fried, supra note 12; Tribe, supra note 12.
196. See, e.g., Fried, supra note 12; Tribe, supra note 12.
197. See GILLMAN, supra note 100, at 201-02.
198. But see Kramer, supra note 76, at 916-24.
199. As Barry Karl notes. [T]he mechanisms for giving the federal government control over a centralized, nationalized industrial system simply did not exist. A skilled federal bureaucracy was not available, and, even had it been, it is doubtful that a managerial army would have been acceptable to most Americans, accustomed as they were to looking on active government as a threat. KARL, supra note 112, at 119; see also GRIFFIN, supra note 1, at 80-81 (noting that Congress had long been reluctant to give up control over the federal bureaucracy).
200. As Barry Karl notes. [T]he mechanisms for giving the federal government control over a centralized, nationalized industrial system simply did not exist. A skilled federal bureaucracy was not available, and, even had it been, it is doubtful that a managerial army would have been acceptable to most Americans, accustomed as they were to looking on active government as a threat. KARL, supra note 112, at 119; see also GRIFFIN, supra note 1, at 80-81 (noting that Congress had long been reluctant to give up control over the federal bureaucracy).
201. Finegold and Skocpol argue that in a few particular areas, such as agriculture, there was substantial capacity to administer the programs of the New Deal. See FINEGOLD & SKOCPOL, supra note 8, at 58-59. However, in general, Finegold and Skocpol agree with the majority of scholars that the U.S. national state was weak prior to the New Deal. See id. at 53-57.
202. Finegold and Skocpol argue that in a few particular areas, such as agriculture, there was substantial capacity to administer the programs of the New Deal. See FINEGOLD & SKOCPOL, supra note 8, at 58-59. However, in general, Finegold and Skocpol agree with the majority of scholars that the U.S. national state was weak prior to the New Deal. See id. at 53-57.
203. In this Section, I summarize the theory of constitutional change that is presented in much greater detail in GRIFFIN, supra note 1, at 26-58.
204. See GRIFFIN, supra note 1, at 81-87, 194-201.
205. See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
206. See id. at 166-67.
207. The exception, of course, is in the area of civil liberties and civil rights. Even here, however, most of the Court's jurisprudence concerned actions of the state governments, not the national government. Furthermore, in the new democratic context produced by the New Deal, it is a mistake to say simply that the Court responded by increasing its power to oversee the other branches in the area of rights. The question should rather be posed as follows: Why was it in the interest of the national state for the Court to handle these kinds of issues? For an interesting discussion, see Mark A. Graber, The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary, 7 STUD. AM. POL. DEV. 35 (1993).
208. See the brief remarks to this effect in Lessig, Fidelity, supra note 1, at 1268.
209. Hereinafter, just "rules."
210. This may appear to be an implausible conclusion, given that I have dealt only with restorationism. But restorationism is the theory that results from the most common modes of constitutional interpretation: appeals to text and intent. The other major approach to constitutional interpretation focuses on the abstract character of the text. See, e.g., RONALD DWORKIN, FREEDOM'S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION (1996). While Dworkin has not discussed the legitimacy of the New Deal, Lawrence Lessig has presented a Dworkin-like theory that attempts to justify the New Deal. I criticize Lessig's theory infra note 182.
211. See Kramer, supra note 76, at 915-17; Sherry, supra note 17, at 923-28.
212. See Kramer, supra note 76, at 915-17; Sherry, supra note 17, at 923-28.
213. See 1 ACKERMAN, supra note 1, at 58-130.
214. See 1 id. at 16-33. Ackerman's historicism of course includes not only his treatment of Lochner, as I note below, but his rejection of restorationism. Unfortunately, Ackerman's critics have largely missed these points, especially the last. This is shown by two common criticisms of Ackerman's first volume. One, advanced by Terrance Sandalow and others, was that Ackerman was trying to rehabilitate Lochner v. New York, 198 U.S. 45 (1905), one of the most criticized decisions of what Ackerman calls the "Middle Republic." To conventional scholars, this was heresy. See, e.g., Sandalow, supra note 17, at 333- 34. From their point of view, Lochner was wrong at the moment it was decided and there is no reasonable contemporary justification for the judicial philosophy that it represented. Ackerman, however, stated quite clearly that he wanted legal scholars to view Lochner in a "legally detached way," which is to say from an historicist point of view. 1 ACKERMAN, supra note 1, at 66. Ackerman was trying to put Lochner in context, an Ackermanian context to be sure, but an historical context nonetheless. See 1 id. at 58-67, 99-103. From this perspective, it is pointless to condemn Lochner as wrong (or praise it as right). The task is to understand how the result and reasoning in Lochner was plausible within the context of its own time. A second common criticism is that Ackerman's theory is difficult to implement because it gives judges the role of deciding when constitutional moments have occurred. See, e.g., Posner, supra note 17, at 34. Not only does this criticism misunderstand completely the thrust of Ackerman's theory, it demonstrates unwittingly the kind of Court-centered focus Ackerman labors to correct. Constitutional moments are the kind of events about which everyone tends to agree. Everyone recognizes that something has happened. The moment creates a new constitutional reality, as it were, and there is no real possibility of the Court doing anything else but ratifying it.
215. See 1 id. at 16-33. Ackerman's historicism of course includes not only his treatment of Lochner, as I note below, but his rejection of restorationism. Unfortunately, Ackerman's critics have largely missed these points, especially the last. This is shown by two common criticisms of Ackerman's first volume. One, advanced by Terrance Sandalow and others, was that Ackerman was trying to rehabilitate Lochner v. New York, 198 U.S. 45 (1905), one of the most criticized decisions of what Ackerman calls the "Middle Republic." To conventional scholars, this was heresy. See, e.g., Sandalow, supra note 17, at 333- 34. From their point of view, Lochner was wrong at the moment it was decided and there is no reasonable contemporary justification for the judicial philosophy that it represented. Ackerman, however, stated quite clearly that he wanted legal scholars to view Lochner in a "legally detached way," which is to say from an historicist point of view. 1 ACKERMAN, supra note 1, at 66. Ackerman was trying to put Lochner in context, an Ackermanian context to be sure, but an historical context nonetheless. See 1 id. at 58-67, 99-103. From this perspective, it is pointless to condemn Lochner as wrong (or praise it as right). The task is to understand how the result and reasoning in Lochner was plausible within the context of its own time. A second common criticism is that Ackerman's theory is difficult to implement because it gives judges the role of deciding when constitutional moments have occurred. See, e.g., Posner, supra note 17, at 34. Not only does this criticism misunderstand completely the thrust of Ackerman's theory, it demonstrates unwittingly the kind of Court-centered focus Ackerman labors to correct. Constitutional moments are the kind of events about which everyone tends to agree. Everyone recognizes that something has happened. The moment creates a new constitutional reality, as it were, and there is no real possibility of the Court doing anything else but ratifying it.
216. See 1 id. at 16-33. Ackerman's historicism of course includes not only his treatment of Lochner, as I note below, but his rejection of restorationism. Unfortunately, Ackerman's critics have largely missed these points, especially the last. This is shown by two common criticisms of Ackerman's first volume. One, advanced by Terrance Sandalow and others, was that Ackerman was trying to rehabilitate Lochner v. New York, 198 U.S. 45 (1905), one of the most criticized decisions of what Ackerman calls the "Middle Republic." To conventional scholars, this was heresy. See, e.g., Sandalow, supra note 17, at 333-34. From their point of view, Lochner was wrong at the moment it was decided and there is no reasonable contemporary justification for the judicial
217. See 1 id. at 16-33. Ackerman's historicism of course includes not only his treatment of Lochner, as I note below, but his rejection of restorationism. Unfortunately, Ackerman's critics have largely missed these points, especially the last. This is shown by two common criticisms of Ackerman's first volume. One, advanced by Terrance Sandalow and others, was that Ackerman was trying to rehabilitate Lochner v. New York, 198 U.S. 45 (1905), one of the most criticized decisions of what Ackerman calls the "Middle Republic." To conventional scholars, this was heresy. See, e.g., Sandalow, supra note 17, at 333- 34. From their point of view, Lochner was wrong at the moment it was decided and there is no reasonable contemporary justification for the judicial philosophy that it represented. Ackerman, however, stated quite clearly that he wanted legal scholars to view Lochner in a "legally detached way," which is to say from an historicist point of view. 1 ACKERMAN, supra note 1, at 66. Ackerman was trying to put Lochner in context, an Ackermanian context to be sure, but an historical context nonetheless. See 1 id. at 58-67, 99-103. From this perspective, it is pointless to condemn Lochner as wrong (or praise it as right). The task is to understand how the result and reasoning in Lochner was plausible within the context of its own time. A second common criticism is that Ackerman's theory is difficult to implement because it gives judges the role of deciding when constitutional moments have occurred. See, e.g., Posner, supra note 17, at 34. Not only does this criticism misunderstand completely the thrust of Ackerman's theory, it demonstrates unwittingly the kind of Court-centered focus Ackerman labors to correct. Constitutional moments are the kind of events about which everyone tends to agree. Everyone recognizes that something has happened. The moment creates a new constitutional reality, as it were, and there is no real possibility of the Court doing anything else but ratifying it.
218. See 1 id. at 16-33. Ackerman's historicism of course includes not only his treatment of Lochner, as I note below, but his rejection of restorationism. Unfortunately, Ackerman's critics have largely missed these points, especially the last. This is shown by two common criticisms of Ackerman's first volume. One, advanced by Terrance Sandalow and others, was that Ackerman was trying to rehabilitate Lochner v. New York, 198 U.S. 45 (1905), one of the most criticized decisions of what Ackerman calls the "Middle Republic." To conventional scholars, this was heresy. See, e.g., Sandalow, supra note 17, at 333- 34. From their point of view, Lochner was wrong at the moment it was decided and there is no reasonable contemporary justification for the judicial philosophy that it represented. Ackerman, however, stated quite clearly that he wanted legal scholars to view Lochner in a "legally detached way," which is to say from an historicist point of view. 1 ACKERMAN, supra note 1, at 66. Ackerman was trying to put Lochner in context, an Ackermanian context to be sure, but an historical context nonetheless. See 1 id. at 58-67, 99-103. From this perspective, it is pointless to condemn Lochner as wrong (or praise it as right). The task is to understand how the result and reasoning in Lochner was plausible within the context of its own time. A second common criticism is that Ackerman's theory is difficult to implement because it gives judges the role of deciding when constitutional moments have occurred. See, e.g., Posner, supra note 17, at 34. Not only does this criticism misunderstand completely the thrust of Ackerman's theory, it demonstrates unwittingly the kind of Court-centered focus Ackerman labors to correct. Constitutional moments are the kind of events about which everyone tends to agree. Everyone recognizes that something has happened. The moment creates a new constitutional reality, as it were, and there is no real possibility of the Court doing anything else but ratifying it.
219. See 1 id. at 16-33. Ackerman's historicism of course includes not only his treatment of Lochner, as I note below, but his rejection of restorationism. Unfortunately, Ackerman's critics have largely missed these points, especially the last. This is shown by two common criticisms of Ackerman's first volume. One, advanced by Terrance Sandalow and others, was that Ackerman was trying to rehabilitate Lochner v. New York, 198 U.S. 45 (1905), one of the most criticized decisions of what Ackerman calls the "Middle Republic." To conventional scholars, this was heresy. See, e.g., Sandalow, supra note 17, at 333- 34. From their point of view, Lochner was wrong at the moment it was decided and there is no reasonable contemporary justification for the judicial philosophy that it represented. Ackerman, however, stated quite clearly that he wanted legal scholars to view Lochner in a "legally detached way," which is to say from an historicist point of view. 1 ACKERMAN, supra note 1, at 66. Ackerman was trying to put Lochner in context, an Ackermanian context to be sure, but an historical context nonetheless. See 1 id. at 58-67, 99-103. From this perspective, it is pointless to condemn Lochner as wrong (or praise it as right). The task is to understand how the result and reasoning in Lochner was plausible within the context of its own time. A second common criticism is that Ackerman's theory is difficult to implement because it gives judges the role of deciding when constitutional moments have occurred. See, e.g., Posner, supra note 17, at 34. Not only does this criticism misunderstand completely the thrust of Ackerman's theory, it demonstrates unwittingly the kind of Court-centered focus Ackerman labors to correct. Constitutional moments are the kind of events about which everyone tends to agree. Everyone recognizes that something has happened. The moment creates a new constitutional reality, as it were, and there is no real possibility of the Court doing anything else but ratifying it.
220. See 2 ACKERMAN, supra note 1, at 71-95.
221. See 1 ACKERMAN, supra note 1, at 165-99.
222. See 2 ACKERMAN, supra note 1, at 12, 66-68.
223. See 2 id. at 11-12.
224. See 2 id. at 70, 115.
225. 2 id. at 12.
226. 2 id. at 26.
227. I realize that Ackerman argues that Article V does not offer much certainty. See id. at 69-95. I am merely pointing out here that his arguments are not likely to be persuasive because they threaten larger concerns shared by most lawyers, judges, and scholars.
228. See, e.g., 2 id. at 91-95.
229. On the idea of the canon, see J.M. Balkin & Sanford Levinson, The Canons of Constitutional Law, 111 HARV. L. REV. 963 (1998).
230. This is why I am not attracted to the idea of understanding change outside Article V by unpacking the meaning of "amendment." See Sanford Levinson, How Many Times Has the United States Constitution Been Amended?, in RESPONDING TO IMPERFECTION, supra note 1, at 13. This enterprise makes two assumptions I see no reason to make: that change outside Article V must necessarily be legalistic in order to be constitutional, and that constitutional change is a matter of offering new legal interpretations of the Constitution. These assumptions may be true, but they may not. We should not assume that they are true before embarking on an investigation of constitutional change.
231. The Philadelphia Convention transmitted the proposed Constitution to the Confederation Congress after it was adopted by the Convention. See DAVID E. KYVIG EXPLICIT AND AUTHENTIC ACTS: AMENDING THE U.S. CONSTITUTION, 1776-1995, at 63-65 (1996).
232. 2 ACKERMAN, supra note 1, at 50 (footnote omitted). In the case of Madison, Ackerman notes that since other Convention delegates did not encourage his concern with the legality of their proceedings, "it is not surprising that Madison abandoned his legalisms when defending the Convention's triggering decision in public." 2 id. at 430 n.63.
233. 2 ACKERMAN, supra note 1, at 50 (footnote omitted). In the case of Madison, Ackerman notes that since other Convention delegates did not encourage his concern with the legality of their proceedings, "it is not surprising that Madison abandoned his legalisms when defending the Convention's triggering decision in public." 2 id. at 430 n.63.
234. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 255 (Max Farrand ed., 1937), quoted in id. at 50. See also the discussion in RAKOVE, supra note 64, at 102-30.
235. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 255 (Max Farrand ed., 1937), quoted in id. at 50. See also the discussion in RAKOVE, supra note 64, at 102-30.
236. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 255 (Max Farrand ed., 1937), quoted in id. at 50. See also the discussion in RAKOVE, supra note 64, at 102-30.
237. 2 ACKERMAN, supra note 1, at 116.
238. My argument here largely accords with that of Les Benedict. See Michael Les Benedict, Constitutional History and Constitutional Theory: Bruce Ackerman on Reconstruction and the Transformation of the American Constitution, 108 YALE L.J. 2028-29 (1999).
239. See 2 ACKERMAN, supra note 1, at 113-14.
240. See 2 id. at 99-113.
241. See 2 id. at 120-252.
242. JAMES M. MCPHERSON, ORDEAL BY FIRE: THE CIVIL WAR AND RECONSTRUCTION 404 (2d ed. 1992).
243. See id. at 131-36.
244. Quoted in JAMES M. MCPHERSON, BATTLE CRY OF FREEDOM: THE CIVIL WAR ERA 558 (1988) (footnote omitted).
245. 2 ACKERMAN, supra note 1, at 115.
246. Compare Ackerman: "All that the victory of the Union army established was the failure of secession. It did not establish the terms for reunion, and certainly did not establish that most Americans supported a move beyond the Thirteenth Amendment." 2 id. at 22. I disagree with this judgment for the reasons stated in the text.
247. Indeed, I made the argument that the forced acceptance of these amendments was an important clue to the nature of American constitutionalism in Stephen M. Griffin, Constitutionalism in the United States: From Theory to Politics, 10 OXFORD J. LEGAL STUD. 200, 209 (1990).
248. Larry D. Kramer, Madison's Audience, 112 HARV. L. REV. 611, 677 (1999).
249. See, e.g., Michael C. Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning, 85 GEO. L.J. 1765 (1997).
250. For a recent illustration of this view, see Saikrishna B. Prakash, Unoriginalism's Law Without Meaning, 15 CONST. COMMENTARY 529, 535 (1998) ("[H]istory and originalism either sink or swim together. . . .") (reviewing RAKOVE, supra note 64). As I argue, originalism and historicism have little to do with each other. Prakash's failure to understand this results in a review that completely ignores Rakove's important insights into the Founding period. Rakove's book won the Pulitzer prize for history, but one would never know why from this review.
251. For recent general works that provide insight on the craft of history and the historicist perspective, see JOYCE APPLEBY ET AL., TELLING THE TRUTH ABOUT HISTORY (1994); PAUL A. COHEN, HISTORY IN THREE KEYS: THE BOXERS AS EVENT, EXPERIENCE, AND MYTH (1997); PETER NOVICK, THAT NOBLE DREAM: OBJECTIVITY AND THE AMERICAN HISTORICAL PROFESSION (1989).
252. For recent general works that provide insight on the craft of history and the historicist perspective, see JOYCE APPLEBY ET AL., TELLING THE TRUTH ABOUT HISTORY (1994); PAUL A. COHEN, HISTORY IN THREE KEYS: THE BOXERS AS EVENT, EXPERIENCE, AND MYTH (1997); PETER NOVICK, THAT NOBLE DREAM: OBJECTIVITY AND THE AMERICAN HISTORICAL PROFESSION (1989).
253. For recent general works that provide insight on the craft of history and the historicist perspective, see JOYCE APPLEBY ET AL., TELLING THE TRUTH ABOUT HISTORY (1994); PAUL A. COHEN, HISTORY IN THREE KEYS: THE BOXERS AS EVENT, EXPERIENCE, AND MYTH (1997); PETER NOVICK, THAT NOBLE DREAM: OBJECTIVITY AND THE AMERICAN HISTORICAL PROFESSION (1989).
254. See Gordon, The Past as Authority, supra note 18, at 340.
255. Id. at 341.
256. Why not the New Deal? Because, of course, lawyers and scholars think they know what happened during the New Deal - it was merely a restoration of the Founding, by way of the Marshall Court.
257. See WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE (1988).
258. Id. at 6.
259. Id.
260. Id.
261. Id. at 10.
262. See Michael Les Benedict, Book Review, 10 L. & HIST. REV. 377 (1992).
263. Id. at 379.
264. See id. at 380.
265. See the original critique of "law-office" history by Alfred H. Kelly, Clio and the Court: An Illicit Love Affair, 1965 SUP. CT. REV. 119. In recent years, Kelly's argument has been updated and confirmed by other scholars. See, e.g., Neil M. Richards, Clio and the Court: A Reassessment of the Supreme Court's Uses of History, 13 J.L. & POL. 809 (1997); William M. Wiecek, Clio as Hostage: The United States Supreme Court and the Uses of History, 24 CAL. W. L. REV. 227 (1988).
266. See the original critique of "law-office" history by Alfred H. Kelly, Clio and the Court: An Illicit Love Affair, 1965 SUP. CT. REV. 119. In recent years, Kelly's argument has been updated and confirmed by other scholars. See, e.g., Neil M. Richards, Clio and the Court: A Reassessment of the Supreme Court's Uses of History, 13 J.L. & POL. 809 (1997); William M. Wiecek, Clio as Hostage: The United States Supreme Court and the Uses of History, 24 CAL. W. L. REV. 227 (1988).
267. See the original critique of "law-office" history by Alfred H. Kelly, Clio and the Court: An Illicit Love Affair, 1965 SUP. CT. REV. 119. In recent years, Kelly's argument has been updated and confirmed by other scholars. See, e.g., Neil M. Richards, Clio and the Court: A Reassessment of the Supreme Court's Uses of History, 13 J.L. & POL. 809 (1997); William M. Wiecek, Clio as Hostage: The United States Supreme Court and the Uses of History, 24 CAL. W. L. REV. 227 (1988).
268. Eric Foner, The Supreme Court's Legal History, 23 RUTGERS L.J. 243, 243-44 (1992).
269. 505 U.S. 833 (1992).
270. See id. at 861-64.
271. Id. at 861-62.
272. 163 U.S. 537 (1896).
273. 347 U.S. 483 (1954).
274. Casey, 505 U.S. at 863.
275. Id.
276. This fallacy is one of the key problems with Lessig's theory of translation. Like Ackerman and myself, Lessig rejects restorationism as a way to understand how constitutional change occurred legitimately in the New Deal. See Lessig, Understanding, supra note 1, at 446-48. Lessig contends, however, that changes in the facts can justify the New Deal decisions. He quotes Chief Justice Hughes's opinion in West Coast Hotel v. Parrish, 300 U.S. 379 (1937), to show the role of changed facts. Hughes refers to "recent economic experience" which has revealed the "exploitation" of workers who occupy an "unequal" economic position and are "relatively defenceless." Id. at 399 (quoted in Lessig, Understanding, supra note 1, at 460) . He takes judicial notice of the Depression and says there is no need to provide a subsidy to "unconscionable employers." Id. The state has the right "to correct the abuse which springs from their selfish disregard of the public interest." Id. These are facts? At the very least Hughes's argument turns on a mixture of facts and values. Almost all the terms Hughes uses are unambiguously value-laden. Why is it so important for Lessig to avoid the idea that historical change involves changes in values? Lessig wants to show that the Court can maintain fidelity with the past even in areas where constitutional law has undergone drastic shifts without the benefit of Article V amendments. As he sees it, the key to maintaining fidelity is to make sure that the Framers' values are brought up to date through a process of translation that compares their background context with our own. The problem here is that the Framers' values, even the general ones that they embodied in the Constitution, were part of a larger historical worldview that no longer exists. See William W. Fisher III, Texts and Contexts: The Application to American Legal History of the Methodologies of Intellectual History, 49 STAN. L. REV. 1065, 1106-07 (1997) (arguing that when shifts in "ideology" or "world view" are involved, "then equivalence of the sort Lessig celebrates seems chimerical"). As I showed in Part I, the context surrounding Marshall's interpretation of the Commerce Clause included a commitment to an extremely limited federal role in regulating the economy. Given this value commitment, there is no possibility of maintaining true fidelity with the Marshall Court. If we include all of Marshall's values in our translation effort, we will not be able to justify the New Deal. On the other hand, if we selectively edit the past to remove those values that are antithetical to the modern regulatory state, we have given the game away. Deciding on our own which past values to keep and which to discard does not maintain "fidelity" with those values.
277. This fallacy is one of the key problems with Lessig's theory of translation. Like Ackerman and myself, Lessig rejects restorationism as a way to understand how constitutional change occurred legitimately in the New Deal. See Lessig, Understanding, supra note 1, at 446- 48. Lessig contends, however, that changes in the facts can justify the New Deal decisions. He quotes Chief Justice Hughes's opinion in West Coast Hotel v. Parrish, 300 U.S. 379 (1937), to show the role of changed facts. Hughes refers to "recent economic experience" which has revealed the "exploitation" of workers who occupy an "unequal" economic position and are "relatively defenceless." Id. at 399 (quoted in Lessig, Understanding, supra note 1, at 460) . He takes judicial notice of the Depression and says there is no need to provide a subsidy to "unconscionable employers." Id. The state has the right "to correct the abuse which springs from their selfish disregard of the public interest." Id. These are facts? At the very least Hughes's argument turns on a mixture of facts and values. Almost all the terms Hughes uses are unambiguously value-laden. Why is it so important for Lessig to avoid the idea that historical change involves changes in values? Lessig wants to show that the Court can maintain fidelity with the past even in areas where constitutional law has undergone drastic shifts without the benefit of Article V amendments. As he sees it, the key to maintaining fidelity is to make sure that the Framers' values are brought up to date through a process of translation that compares their background context with our own. The problem here is that the Framers' values, even the general ones that they embodied in the Constitution, were part of a larger historical worldview that no longer exists. See William W. Fisher III, Texts and Contexts: The Application to American Legal History of the Methodologies of Intellectual History, 49 STAN. L. REV. 1065, 1106-07 (1997) (arguing that when shifts in "ideology" or "world view" are involved, "then equivalence of the sort Lessig celebrates seems chimerical"). As I showed in Part I, the context surrounding Marshall's interpretation of the Commerce Clause included a commitment to an extremely limited federal role in regulating the economy. Given this value commitment, there is no possibility of maintaining true fidelity with the Marshall Court. If we include all of Marshall's values in our translation effort, we will not be able to justify the New Deal. On the other hand, if we selectively edit the past to remove those values that are antithetical to the modern regulatory state, we have given the game away. Deciding on our own which past values to keep and which to discard does not maintain "fidelity" with those values.
278. This fallacy is one of the key problems with Lessig's theory of translation. Like Ackerman and myself, Lessig rejects restorationism as a way to understand how constitutional change occurred legitimately in the New Deal. See Lessig, Understanding, supra note 1, at 446- 48. Lessig contends, however, that changes in the facts can justify the New Deal decisions. He quotes Chief Justice Hughes's opinion in West Coast Hotel v. Parrish, 300 U.S. 379 (1937), to show the role of changed facts. Hughes refers to "recent economic experience" which has revealed the "exploitation" of workers who occupy an "unequal" economic position and are "relatively defenceless." Id. at 399 (quoted in Lessig, Understanding, supra note 1, at 460) . He takes judicial notice of the Depression and says there is no need to provide a subsidy to "unconscionable employers." Id. The state has the right "to correct the abuse which springs from their selfish disregard of the public interest." Id. These are facts? At the very least Hughes's argument turns on a mixture of facts and values. Almost all the terms Hughes uses are unambiguously value-laden. Why is it so important for Lessig to avoid the idea that historical change involves changes in values? Lessig wants to show that the Court can maintain fidelity with the past even in areas where constitutional law has undergone drastic shifts without the benefit of Article V amendments. As he sees it, the key to maintaining fidelity is to make sure that the Framers' values are brought up to date through a process of translation that compares their background context with our own. The problem here is that the Framers' values, even the general ones that they embodied in the Constitution, were part of a larger historical worldview that no longer exists. See William W. Fisher III, Texts and Contexts: The Application to American Legal History of the Methodologies of Intellectual History, 49 STAN. L. REV. 1065, 1106-07 (1997) (arguing that when shifts in "ideology" or "world view" are involved, "then equivalence of the sort Lessig celebrates seems chimerical"). As I showed in Part I, the context surrounding Marshall's interpretation of the Commerce Clause included a commitment to an extremely limited federal role in regulating the economy. Given this value commitment, there is no possibility of maintaining true fidelity with the Marshall Court. If we include all of Marshall's values in our translation effort, we will not be able to justify the New Deal. On the other hand, if we selectively edit the past to remove those values that are antithetical to the modern regulatory state, we have given the game away. Deciding on our own which past values to keep and which to discard does not maintain "fidelity" with those values.
279. This fallacy is one of the key problems with Lessig's theory of translation. Like Ackerman and myself, Lessig rejects restorationism as a way to understand how constitutional change occurred legitimately in the New Deal. See Lessig, Understanding, supra note 1, at 446- 48. Lessig contends, however, that changes in the facts can justify the New Deal decisions. He quotes Chief Justice Hughes's opinion in West Coast Hotel v. Parrish, 300 U.S. 379 (1937), to show the role of changed facts. Hughes refers to "recent economic experience" which has revealed the "exploitation" of workers who occupy an "unequal" economic position and are "relatively defenceless." Id. at 399 (quoted in Lessig, Understanding, supra note 1, at 460) . He takes judicial notice of the Depression and says there is no need to provide a subsidy to "unconscionable employers." Id. The state has the right "to correct the abuse which springs from their selfish disregard of the public interest." Id. These are facts? At the very least Hughes's argument turns on a mixture of facts and values. Almost all the terms Hughes uses are unambiguously value-laden. Why is it so important for Lessig to avoid the idea that historical change involves changes in values? Lessig wants to show that the Court can maintain fidelity with the past even in areas where constitutional law has undergone drastic shifts without the benefit of Article V amendments. As he sees it, the key to maintaining fidelity is to make sure that the Framers' values are brought up to date through a process of translation that compares their background context with our own. The problem here is that the Framers' values, even the general ones that they embodied in the Constitution, were part of a larger historical worldview that no longer exists. See William W. Fisher III, Texts and Contexts: The Application to American Legal History of the Methodologies of Intellectual History, 49 STAN. L. REV. 1065, 1106-07 (1997) (arguing that when shifts in "ideology" or "world view" are involved, "then equivalence of the sort Lessig celebrates seems chimerical"). As I showed in Part I, the context surrounding Marshall's interpretation of the Commerce Clause included a commitment to an extremely limited federal role in regulating the economy. Given this value commitment, there is no possibility of maintaining true fidelity with the Marshall Court. If we include all of Marshall's values in our translation effort, we will not be able to justify the New Deal. On the other hand, if we selectively edit the past to remove those values that are antithetical to the modern regulatory state, we have given the game away. Deciding on our own which past values to keep and which to discard does not maintain "fidelity" with those values.
280. This fallacy is one of the key problems with Lessig's theory of translation. Like Ackerman and myself, Lessig rejects restorationism as a way to understand how constitutional change occurred legitimately in the New Deal. See Lessig, Understanding, supra note 1, at 446- 48. Lessig contends, however, that changes in the facts can justify the New Deal decisions. He quotes Chief Justice Hughes's opinion in West Coast Hotel v. Parrish, 300 U.S. 379 (1937), to show the role of changed facts. Hughes refers to "recent economic experience" which has revealed the "exploitation" of workers who occupy an "unequal" economic position and are "relatively defenceless." Id. at 399 (quoted in Lessig, Understanding, supra note 1, at 460) . He takes judicial notice of the Depression and says there is no need to provide a subsidy to "unconscionable employers." Id. The state has the right "to correct the abuse which springs from their selfish disregard of the public interest." Id. These are facts? At the very least Hughes's argument turns on a mixture of facts and values. Almost all the terms Hughes uses are unambiguously value-laden. Why is it so important for Lessig to avoid the idea that historical change involves changes in values? Lessig wants to show that the Court can maintain fidelity with the past even in areas where constitutional law has undergone drastic shifts without the benefit of Article V amendments. As he sees it, the key to maintaining fidelity is to make sure that the Framers' values are brought up to date through a process of translation that compares their background context with our own. The problem here is that the Framers' values, even the general ones that they embodied in the Constitution, were part of a larger historical worldview that no longer exists. See William W. Fisher III, Texts and Contexts: The Application to American Legal History of the Methodologies of Intellectual History, 49 STAN. L. REV. 1065, 1106-07 (1997) (arguing that when shifts in "ideology" or "world view" are involved, "then equivalence of the sort Lessig celebrates seems chimerical"). As I showed in Part I, the context surrounding Marshall's interpretation of the Commerce Clause included a commitment to an extremely limited federal role in regulating the economy. Given this value commitment, there is no possibility of maintaining true fidelity with the Marshall Court. If we include all of Marshall's values in our translation effort, we will not be able to justify the New Deal. On the other hand, if we selectively edit the past to remove those values that are antithetical to the modern regulatory state, we have given the game away. Deciding on our own which past values to keep and which to discard does not maintain "fidelity" with those values.
281. See the sources cited supra note 100 on the history of the Due Process Clause and Commerce Clause between the Civil War and the New Deal.
282. See Michael J. Klarman, Race and the Court in the Progressive Era, 51 VAND. L. REV. 881, 886-95 (1998).
283. See Plessy, 163 U.S. 537, 551-52 (1896).
284. Morton J. Horwitz, The Supreme court, 1992 Term - Foreword: The Constitution of Change: Legal Fundamentality Without Fundamentalism, 107 HARV. L. REV. 32, 92 (1993); see also id. at 71-92 (criticizing Casey).
285. Morton J. Horwitz, The Supreme court, 1992 Term - Foreword: The Constitution of Change: Legal Fundamentality Without Fundamentalism, 107 HARV. L. REV. 32, 92 (1993); see also id. at 71-92 (criticizing Casey).
286. See, e.g., Cass R. Sunstein, The Idea of a Useable Past, 95 COLUM. L. REV. 601 (1995).
287. See id. at 602.
288. Id. (emphasis in original). Sunstein's statement illustrates what I mean when I say that constitutional lawyers and scholars use history to produce narratives of continuity.
289. Id. at 605.
290. Id. at 603.
291. Id.
292. See sources cited supra note 173.
293. See Stephen M. Griffin, Legal Liberalism at Yale, 14 CONST. COMMENTARY 535, 546-49 (1997) (reviewing LAURA KALMAN, THE STRANGE CAREER OF LEGAL LIBERALISM (1996))
294. Sunstein, supra note 187, at 604.
295. See id. at 605.
296. See id. 198. For a similar criticism of Sunstein, see Fisher, supra note 182, at 1108.
297. See id. 198. For a similar criticism of Sunstein, see Fisher, supra note 182, at 1108.
298. Thurgood Marshall, Reflections on the Bicentennial of the United States Constitution, 101 HARV. L. REV. 1, 2 (1987). For relevant commentary, see Raymond T. Diamond, No Call to Glory: Thurgood Marshall's Thesis on the Intent of a Pro-Slavery Constitution 42 VAND. L. REV. 93 (1989).
299. Thurgood Marshall, Reflections on the Bicentennial of the United States Constitution, 101 HARV. L. REV. 1, 2 (1987). For relevant commentary, see Raymond T. Diamond, No Call to Glory: Thurgood Marshall's Thesis on the Intent of a Pro-Slavery Constitution 42 VAND. L. REV. 93 (1989).
300. In drawing the distinctions in this Section, I do not wish to be misunderstood. I am not arguing that historians engage in description without the need to assume a normative point of view. The difference between historians and lawyers is not that the former are interested solely in description or explanation while the latter are interested solely in prescription. While historians do focus on description and explanation, the crucial difference is that they bring a much broader normative perspective to bear on historical evidence. To oversimplify, lawyers are interested in resolving cases by building narratives of continuity. Historians are not so limited and often focus on discontinuities between the present and the past.
301. KALMAN, supra note 194, at 180 (footnote omitted).
302. See PHILIP BOBBITT, CONSTITUTIONAL FATE 9-24 (1982).
303. See generally Stephen M. Griffin, What Is Constitutional Theory? The Newer Theory and the Decline of the Learned Tradition, 62 S. CAL. L. REV. 493 (1989) (outlining a new paradigm of rigorous constitutional theory).
304. See Keith E. Whittington, Constitutional Theory as Political Science 3-4 (unpublished manuscript on file with The Yale Law Journal).
305. See JURGEN HABERMAS, LEGITIMATION CRISIS 107-08 (1975). See also the views of Rogers Smith, who recently provided a statement of his own ideal of scholarship with respect to his home discipline of political science: I have come to favor a Socratic view of our professional mission. I think we are at our best when we are intellectual gadflies, rigorously questioning and testing accepted political truths, exploring ignored possibilities, courting unpopularity by offering suggestions that markets are not likely to reward and that people in power are not likely to approve. Smith, Still Blowing in the Wind, supra note 7, at 278.
306. See JURGEN HABERMAS, LEGITIMATION CRISIS 107-08 (1975). See also the views of Rogers Smith, who recently provided a statement of his own ideal of scholarship with respect to his home discipline of political science: I have come to favor a Socratic view of our professional mission. I think we are at our best when we are intellectual gadflies, rigorously questioning and testing accepted political truths, exploring ignored possibilities, courting unpopularity by offering suggestions that markets are not likely to reward and that people in power are not likely to approve. Smith, Still Blowing in the Wind, supra note 7, at 278.
307. Recently, Judge Richard Posner defined constitutional theory as "the effort to develop a generally accepted theory to guide the interpretation of the Constitution of the United States." Richard A. Posner, Against Constitutional Theory, 73 N.Y.U. L. REV. 1, 1 (1998). I have explained elsewhere why this common definition is far too narrow. See GRIFFIN, supra note 1, at 3-4. We do not gain much by general definitions, but properly understood, constitutional theory concerns any theoretical issue raised by the distinctive practice of American constitutionalism. See id. at 4. More helpfully, Judge Posner calls for a greater degree of attention to the empirical issues pertaining to constitutionalism. See Posner, supra, at 11-12. As I argued 10 years ago, these issues are certainly relevant to constitutional theory, and it is unfortunate that constitutional scholars have neglected them. See Griffin, supra note 203. But Posner does not use this gesture toward empiricism as an opportunity to rethink the nature of constitutional theory. The historicist perspective I have described in this Essay offers us a better chance to do this.
308. Recently, Judge Richard Posner defined constitutional theory as "the effort to develop a generally accepted theory to guide the interpretation of the Constitution of the United States." Richard A. Posner, Against Constitutional Theory, 73 N.Y.U. L. REV. 1, 1 (1998). I have explained elsewhere why this common definition is far too narrow. See GRIFFIN, supra note 1, at 3-4. We do not gain much by general definitions, but properly understood, constitutional theory concerns any theoretical issue raised by the distinctive practice of American constitutionalism. See id. at 4. More helpfully, Judge Posner calls for a greater degree of attention to the empirical issues pertaining to constitutionalism. See Posner, supra, at 11-12. As I argued 10 years ago, these issues are certainly relevant to constitutional theory, and it is unfortunate that constitutional scholars have neglected them. See Griffin, supra note 203. But Posner does not use this gesture toward empiricism as an opportunity to rethink the nature of constitutional theory. The historicist perspective I have described in this Essay offers us a better chance to do this.
309. Recently, Judge Richard Posner defined constitutional theory as "the effort to develop a generally accepted theory to guide the interpretation of the Constitution of the United States." Richard A. Posner, Against Constitutional Theory, 73 N.Y.U. L. REV. 1, 1 (1998). I have explained elsewhere why this common definition is far too narrow. See GRIFFIN, supra note 1, at 3-4. We do not gain much by general definitions, but properly understood, constitutional theory concerns any theoretical issue raised by the distinctive practice of American constitutionalism. See id. at 4. More helpfully, Judge Posner calls for a greater degree of attention to the empirical issues pertaining to constitutionalism. See Posner, supra, at 11-12. As I argued 10 years ago, these issues are certainly relevant to constitutional theory, and it is unfortunate that constitutional scholars have neglected them. See Griffin, supra note 203. But Posner does not use this gesture toward empiricism as an opportunity to rethink the nature of constitutional theory. The historicist perspective I have described in this Essay offers us a better chance to do this.
310. Recently, Judge Richard Posner defined constitutional theory as "the effort to develop a generally accepted theory to guide the interpretation of the Constitution of the United States." Richard A. Posner, Against Constitutional Theory, 73 N.Y.U. L. REV. 1, 1 (1998). I have explained elsewhere why this common definition is far too narrow. See GRIFFIN, supra note 1, at 3-4. We do not gain much by general definitions, but properly understood, constitutional theory concerns any theoretical issue raised by the distinctive practice of American constitutionalism. See id. at 4. More helpfully, Judge Posner calls for a greater degree of attention to the empirical issues pertaining to constitutionalism. See Posner, supra, at 11-12. As I argued 10 years ago, these issues are certainly relevant to constitutional theory, and it is unfortunate that constitutional scholars have neglected them. See Griffin, supra note 203. But Posner does not use this gesture toward empiricism as an opportunity to rethink the nature of constitutional theory. The historicist perspective I have described in this Essay offers us a better chance to do this.
311. Recently, Judge Richard Posner defined constitutional theory as "the effort to develop a generally accepted theory to guide the interpretation of the Constitution of the United States." Richard A. Posner, Against Constitutional Theory, 73 N.Y.U. L. REV. 1, 1 (1998). I have explained elsewhere why this common definition is far too narrow. See GRIFFIN, supra note 1, at 3-4. We do not gain much by general definitions, but properly understood, constitutional theory concerns any theoretical issue raised by the distinctive practice of American constitutionalism. See id. at 4. More helpfully, Judge Posner calls for a greater degree of attention to the empirical issues pertaining to constitutionalism. See Posner, supra, at 11-12. As I argued 10 years ago, these issues are certainly relevant to constitutional theory, and it is unfortunate that constitutional scholars have neglected them. See Griffin, supra note 203. But Posner does not use this gesture toward empiricism as an opportunity to rethink the nature of constitutional theory. The historicist perspective I have described in this Essay offers us a better chance to do this.
312. For an example of the unconventional view that the theory of constitutional interpretation comes first, see James E. Fleming, We the Unconventional American People, 65 U. CHI. L. REV. 1513 (1998) (reviewing 2 ACKERMAN, supra note 1). Fleming criticizes Ackerman for not offering a theory of constitutional interpretation. See 2 id. at 1522, 1537. What Fleming does not see is that the task of constructing a theory of constitutional change necessarily comes first. It is only through a better understanding of constitutional change that unrealistic narratives of continuity can be avoided.
313. For an example of the unconventional view that the theory of constitutional interpretation comes first, see James E. Fleming, We the Unconventional American People, 65 U. CHI. L. REV. 1513 (1998) (reviewing 2 ACKERMAN, supra note 1). Fleming criticizes Ackerman for not offering a theory of constitutional interpretation. See 2 id. at 1522, 1537. What Fleming does not see is that the task of constructing a theory of constitutional change necessarily comes first. It is only through a better understanding of constitutional change that unrealistic narratives of continuity can be avoided.
314. See H. Jefferson Powell, Rules for Originalists, 73 VA. L. REV. 659, 662-66 (1987).
315. See, e.g., Akhil Reed Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. REV. 205, 212 (1985) (finding no constitutional mandate to create any lower federal courts); Cass R. Sunstein, Constitutionalism After the New Deal, 101 HARV. L. REV. 421, 467 (1987) (criticizing Chevron v. NRDC on the ground that it contradicts Marbury v. Madison).
316. See, e.g., Akhil Reed Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. REV. 205, 212 (1985) (finding no constitutional mandate to create any lower federal courts); Cass R. Sunstein, Constitutionalism After the New Deal, 101 HARV. L. REV. 421, 467 (1987) (criticizing Chevron v. NRDC on the ground that it contradicts Marbury v. Madison).
317. See Posner, supra note 206, at 6.
318. Id.
319. See id.
320. See Horwitz, supra note 186, at 57-65.
321. For how the argument regarding judicial review should proceed given this historical approach, see GRIFFIN, supra note 1, at 63-66.
322. See 1 ACKERMAN. supra note 1, at 64-66.
323. 410 U.S. 113 (1973).
324. For discussion of this model, which I have called the pluralist theory of constitutional interpretation, see GRIFFIN, supra note 1, at 143-52.
325. See, e.g., DWORKIN, supra note 128; RONALD DWORKIN. LAW'S EMPIRE (1986).
326. See, e.g., DWORKIN, supra note 128; RONALD DWORKIN. LAW'S EMPIRE (1986).
327. See SEIDMAN & TUSHNET, supra note 80.
328. See Michael J. Klarman, Rethinking the Civil Rights and Civil Liberties Revolutions, 82 VA. L. REV. 1 (1996) [hereinafter Klarman, Rethinking]; see also Michael J. Klarman, How Brown Changed Race Relations: The Backlash Thesis, 81 J. AM. HIST. 81 (1994).
329. See Michael J. Klarman, Rethinking the Civil Rights and Civil Liberties Revolutions, 82 VA. L. REV. 1 (1996) [hereinafter Klarman, Rethinking]; see also Michael J. Klarman, How Brown Changed Race Relations: The Backlash Thesis, 81 J. AM. HIST. 81 (1994).
330. See, e.g., RESPONDING TO IMPERFECTION, supra note 1; Sanford Levinson, The Specious Morality of the Law, HARPER'S, May 1977, at 35. Levinson's seminal article somehow anticipated both the "republican revival" of the 1980s and the future importance of the issue of constitutional change.
331. See, e.g., RESPONDING TO IMPERFECTION, supra note 1; Sanford Levinson, The Specious Morality of the Law, HARPER'S, May 1977, at 35. Levinson's seminal article somehow anticipated both the "republican revival" of the 1980s and the future importance of the issue of constitutional change.
332. See Martin S. Flaherty, History "Lite" in Modern American Constitutionalism, 95 COLUM. L. REV. 523 (1995); Martin S. Flaherty, The Most Dangerous Branch, 105 YALE L.J. 1725 (1996).
333. See Martin S. Flaherty, History "Lite" in Modern American Constitutionalism, 95 COLUM. L. REV. 523 (1995); Martin S. Flaherty, The Most Dangerous Branch, 105 YALE L.J. 1725 (1996).
334. See Barry Friedman, The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy, 73 N.Y.U. L. REV. 333 (1998); Barry Friedman & Scott B. Smith, The Sedimentary Constitution, 147 U. PA. L. REV. 1 (1998).
335. See Barry Friedman, The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy, 73 N.Y.U. L. REV. 333 (1998); Barry Friedman & Scott B. Smith, The Sedimentary Constitution, 147 U. PA. L. REV. 1 (1998).
336. Klarman, Rethinking, supra note 220, at 31-32.
337. Id. at 32.
338. See also the instructive exchange between Klarman and Michael McConnell on the constitutionality of school segregation in the nineteenth century. From my point of view, Klarman argues as a slightly puzzled historicist against McConnell's aggressive legalist position. See Michael J. Klarman, A Response to Professor McConnell, 81 VA. L. REV. 1881 (1995); Michael W. McConnell, A Reply to Professor Klarman, 81 VA. L. REV. 1937 (1995). Klarman is responding to McConnell's earlier article, Michael W. McConnell, Originalism and the Desegregation Decisions, 81 VA. L. REV. 947 (1995).
339. See also the instructive exchange between Klarman and Michael McConnell on the constitutionality of school segregation in the nineteenth century. From my point of view, Klarman argues as a slightly puzzled historicist against McConnell's aggressive legalist position. See Michael J. Klarman, A Response to Professor McConnell, 81 VA. L. REV. 1881 (1995); Michael W. McConnell, A Reply to Professor Klarman, 81 VA. L. REV. 1937 (1995). Klarman is responding to McConnell's earlier article, Michael W. McConnell, Originalism and the Desegregation Decisions, 81 VA. L. REV. 947 (1995).
340. See also the instructive exchange between Klarman and Michael McConnell on the constitutionality of school segregation in the nineteenth century. From my point of view, Klarman argues as a slightly puzzled historicist against McConnell's aggressive legalist position. See Michael J. Klarman, A Response to Professor McConnell, 81 VA. L. REV. 1881 (1995); Michael W. McConnell, A Reply to Professor Klarman, 81 VA. L. REV. 1937 (1995). Klarman is responding to McConnell's earlier article, Michael W. McConnell, Originalism and the Desegregation Decisions, 81 VA. L. REV. 947 (1995).
341. Among recent works by historical institutionalists, the two that are most suggestive for future constitutional theory are STEPHEN SKOWRONEK, THE POLITICS PRESIDENTS MAKE: LEADERSHIP FROM JOHN ADAMS TO GEORGE BUSH (1993) and ROGERS M. SMITH, CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY (1997). Smith's book is particularly relevant to what I have argued here in that it shows that American constitutionalism cannot be reasonably represented as a narrative of continuity. For other works by political scientists that are relevant to the project of a contextualized constitutional theory, see GILLMAN, supra note 100; SKOWRONEK, supra note 7; and Graber, supra note 125 . See also the following recent works: MARK A. BRANDON, FREE IN THE WORLD: AMERICAN SLAVERY AND CONSTITUTIONAL FAILURE (1998); WAYNE D. MOORE, CONSTITUTIONAL RIGHTS AND POWERS OF THE PEOPLE (1996); and KEITH E. WHITTINGTON, CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING (forthcoming 1999).
342. Among recent works by historical institutionalists, the two that are most suggestive for future constitutional theory are STEPHEN SKOWRONEK, THE POLITICS PRESIDENTS MAKE: LEADERSHIP FROM JOHN ADAMS TO GEORGE BUSH (1993) and ROGERS M. SMITH, CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY (1997). Smith's book is particularly relevant to what I have argued here in that it shows that American constitutionalism cannot be reasonably represented as a narrative of continuity. For other works by political scientists that are relevant to the project of a contextualized constitutional theory, see GILLMAN, supra note 100; SKOWRONEK, supra note 7; and Graber, supra note 125 . See also the following recent works: MARK A. BRANDON, FREE IN THE WORLD: AMERICAN SLAVERY AND CONSTITUTIONAL FAILURE (1998); WAYNE D. MOORE, CONSTITUTIONAL RIGHTS AND POWERS OF THE PEOPLE (1996); and KEITH E. WHITTINGTON, CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING (forthcoming 1999).
343. Among recent works by historical institutionalists, the two that are most suggestive for future constitutional theory are STEPHEN SKOWRONEK, THE POLITICS PRESIDENTS MAKE: LEADERSHIP FROM JOHN ADAMS TO GEORGE BUSH (1993) and ROGERS M. SMITH, CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY (1997). Smith's book is particularly relevant to what I have argued here in that it shows that American constitutionalism cannot be reasonably represented as a narrative of continuity. For other works by political scientists that are relevant to the project of a contextualized constitutional theory, see GILLMAN, supra note 100; SKOWRONEK, supra note 7; and Graber, supra note 125 . See also the following recent works: MARK A. BRANDON, FREE IN THE WORLD: AMERICAN SLAVERY AND CONSTITUTIONAL FAILURE (1998); WAYNE D. MOORE, CONSTITUTIONAL RIGHTS AND POWERS OF THE PEOPLE (1996); and KEITH E. WHITTINGTON, CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING (forthcoming 1999).
344. Among recent works by historical institutionalists, the two that are most suggestive for future constitutional theory are STEPHEN SKOWRONEK, THE POLITICS PRESIDENTS MAKE: LEADERSHIP FROM JOHN ADAMS TO GEORGE BUSH (1993) and ROGERS M. SMITH, CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY (1997). Smith's book is particularly relevant to what I have argued here in that it shows that American constitutionalism cannot be reasonably represented as a narrative of continuity. For other works by political scientists that are relevant to the project of a contextualized constitutional theory, see GILLMAN, supra note 100; SKOWRONEK, supra note 7; and Graber, supra note 125 . See also the following recent works: MARK A. BRANDON, FREE IN THE WORLD: AMERICAN SLAVERY AND CONSTITUTIONAL FAILURE (1998); WAYNE D. MOORE, CONSTITUTIONAL RIGHTS AND POWERS OF THE PEOPLE (1996); and KEITH E. WHITTINGTON, CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING (forthcoming 1999).
345. Among recent works by historical institutionalists, the two that are most suggestive for future constitutional theory are STEPHEN SKOWRONEK, THE POLITICS PRESIDENTS MAKE: LEADERSHIP FROM JOHN ADAMS TO GEORGE BUSH (1993) and ROGERS M. SMITH, CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY (1997). Smith's book is particularly relevant to what I have argued here in that it shows that American constitutionalism cannot be reasonably represented as a narrative of continuity. For other works by political scientists that are relevant to the project of a contextualized constitutional theory, see GILLMAN, supra note 100; SKOWRONEK, supra note 7; and Graber, supra note 125 . See also the following recent works: MARK A. BRANDON, FREE IN THE WORLD: AMERICAN SLAVERY AND CONSTITUTIONAL FAILURE (1998); WAYNE D. MOORE, CONSTITUTIONAL RIGHTS AND POWERS OF THE PEOPLE (1996); and KEITH E. WHITTINGTON, CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING (forthcoming 1999).
346. Among recent works by historical institutionalists, the two that are most suggestive for future constitutional theory are STEPHEN SKOWRONEK, THE POLITICS PRESIDENTS MAKE: LEADERSHIP FROM JOHN ADAMS TO GEORGE BUSH (1993) and ROGERS M. SMITH, CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY (1997). Smith's book is particularly relevant to what I have argued here in that it shows that American constitutionalism cannot be reasonably represented as a narrative of continuity. For other works by political scientists that are relevant to the project of a contextualized constitutional theory, see GILLMAN, supra note 100; SKOWRONEK, supra note 7; and Graber, supra note 125 . See also the following recent works: MARK A. BRANDON, FREE IN THE WORLD: AMERICAN SLAVERY AND CONSTITUTIONAL FAILURE (1998); WAYNE D. MOORE, CONSTITUTIONAL RIGHTS AND POWERS OF THE PEOPLE (1996); and KEITH E. WHITTINGTON, CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING (forthcoming 1999).
347. Among recent works by historical institutionalists, the two that are most suggestive for future constitutional theory are STEPHEN SKOWRONEK, THE POLITICS PRESIDENTS MAKE: LEADERSHIP FROM JOHN ADAMS TO GEORGE BUSH (1993) and ROGERS M. SMITH, CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY (1997). Smith's book is particularly relevant to what I have argued here in that it shows that American constitutionalism cannot be reasonably represented as a narrative of continuity. For other works by political scientists that are relevant to the project of a contextualized constitutional theory, see GILLMAN, supra note 100; SKOWRONEK, supra note 7; and Graber, supra note 125 . See also the following recent works: MARK A. BRANDON, FREE IN THE WORLD: AMERICAN SLAVERY AND CONSTITUTIONAL FAILURE (1998); WAYNE D. MOORE, CONSTITUTIONAL RIGHTS AND POWERS OF THE PEOPLE (1996); and KEITH E. WHITTINGTON, CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING (forthcoming 1999).
348. Among recent works by historical institutionalists, the two that are most suggestive for future constitutional theory are STEPHEN SKOWRONEK, THE POLITICS PRESIDENTS MAKE: LEADERSHIP FROM JOHN ADAMS TO GEORGE BUSH (1993) and ROGERS M. SMITH, CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY (1997). Smith's book is particularly relevant to what I have argued here in that it shows that American constitutionalism cannot be reasonably represented as a narrative of continuity. For other works by political scientists that are relevant to the project of a contextualized constitutional theory, see GILLMAN, supra note 100; SKOWRONEK, supra note 7; and Graber, supra note 125 . See also the following recent works: MARK A. BRANDON, FREE IN THE WORLD: AMERICAN SLAVERY AND CONSTITUTIONAL FAILURE (1998); WAYNE D. MOORE, CONSTITUTIONAL RIGHTS AND POWERS OF THE PEOPLE (1996); and KEITH E. WHITTINGTON, CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING (forthcoming 1999).
349. See A New CONSTITUTIONALISM: DESIGNING POLITICAL INSTITUTIONS FOR A GOOD SOCIETY viii (Stephen L. Elkin & Karol Edward Soltan eds., 1993).
350. Karol Edward Soltan, What Is the New Constitutionalism?, in id. at 3, 3.
351. See Stephen L. Elkin, Constitutionalism: Old and New, in id. at 20 . Also exemplary in this regard is the important recent article by Michael C. Dorf and Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 COLUM. L. REV. 267 (1998).
352. See Stephen L. Elkin, Constitutionalism: Old and New, in id. at 20 . Also exemplary in this regard is the important recent article by Michael C. Dorf and Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 COLUM. L. REV. 267 (1998).