What is political development? A constitutional perspective

Review of Politics

Volumn 73, Issue 2, 2011, Pages 275-294

  Thomas, George ^a  

^a CLAREMONT MCKENNA COLLEGE   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79956090145     PISSN: 00346705     EISSN: 17486858     Source Type: Journal    
DOI: 10.1017/S0034670511000076     Document Type: Review

References (106)

1. Paul Pierson, Politics in Time: History, Institutions, and Social Analysis (Princeton: Princeton University Press, 2004), 2.
2. Woodrow Wilson, Constitutional Government in the United States (New York: Columbia University Press, 1908), 22.
3. See, especially, W. W. Rostow, The Stages of Economic Growth: A Non-Communist Manifesto (Cambridge: Cambridge University Press, 1960)
4. Samuel P. Huntington, Political Order in Changing Societies (New Haven, CT: Yale University Press, 1968)
5. and Alexander Gerschenkron, Economic Backwardness in Historical Perspective: A Book of Essays (Cambridge, MA: Harvard University Press, 1962).
6. Karen Orren and Stephen Skowronek, The Search for American Political Development (New York: Cambridge University Press, 2004), 9.
7. Ronald Kahn and Ken Kersch, introduction to The Supreme Court and American Political Development, ed. Kahn and Kersch (Lawrence: University Press of Kansas, 2006), 19-21.
8. Orren and Skowronek, The Search for American Political Development, 77-78.
9. Ibid., 25.
10. Interestingly, however, earlier approaches such as "systems theory" and structuralfunctionalism took these questions seriously. See, for example, Gabriel Almond and Sidney Verba, The Civic Culture: Political Attitudes and Democracy in Five Nations (Princeton: Princeton University Press, 1963).
11. James W. Ceaser, Liberal Democracy and Political Science (Baltimore: Johns Hopkins University Press, 1990), 41-69.
12. Alexis de Tocqueville, Democracy in America, ed. and trans. Harvey C. Mansfield and Delba Winthrop (Chicago: University of Chicago Press, 2000), 7.
13. This is true of ancient understandings of constitutionalism insofar as such understandings wrestle with the aims of a polity across time. See Aristotle, Politics 4.1.
14. See, for example, Walter F. Murphy, Constitutional Democracy: Creating and Maintaining a Just Political Order (Baltimore: Johns Hopkins University Press, 2007).
15. See the exchange between Sotirios A. Barber, "Normative Theory, the 'New Institutionalism,' and the Future of Public Law," in Studies in American Political Development, no. 3 (March 1989): 56-102
16. Rogers M. Smith, "The New Institutionalism and Normative Theory: Reply to Professor Barber," in Studies in American Political Development, no. 3 (March 1989): 56-102
17. and Martin Shapiro, "Political Jurisprudence, Public Law, and Post-Consequentialist Ethics: Comment on Professors Barber and Smith," in Studies in American Political Development, no. 3 (March 1989): 56-102.
18. Orren and Skowronek, The Search for American Political Development, 30.
19. Barber, "Normative Theory," 59.
20. Wilson, Constitutional Government in the United States, 28.
21. Herbert Croly, Progressive Democracy (New Brunswick, NJ: Transaction, 1998) (originally published in 1914)
22. and John W. Burgess, "Political Science and History," American Historical Review 2, no. 3 (1897): 403, 405.
23. Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877-1920 (New York: Cambridge University Press, 1982), 16, 10.
24. James H. Nichols Jr., Alexandre Kojève: Wisdom at the End of History (Lanham, MD: Rowman and Littlefield, 2007).
25. Mark Tushnet, "The Inevitable Globalization of Constitutional Law," Opinio Juris (blog), http://opiniojuris.org/2009/06/11/the- inevitable-globalization-of-constitutionallaw/.
26. Orren and Skowronek, The Search for American Political Development, 9.
27. Ibid., 120.
28. Ibid., 123.
29. Stephen Skowronek, The Politics Presidents Make: Leadership from John Adams to Bill Clinton (Cambridge, MA: Harvard University Press, 1997).
30. Intercurrence "refers to the simultaneous operation of different sets of rules, to a politics structured by irresolution in the basic principles of social organization and governmental control, and it describes the disorder inherent in a multiplicity of ordering rules" (Orren and Skowronek, The Search for American Political Development, 118). More simply, intercurrence is defined as "intervening" or occurring while other events are already in progress. The word is drawn from the medical lexicon, which defines it as a disease or pathology occurring while another disease is in progress.
31. Ibid., 77.
32. Ibid., 184-85.
33. See also Karen Orren and Stephen Skowronek, "The Study of American Political Development," in Political Science: The State of the Discipline, ed. Ira Katznelson and Helen Milner (New York: W. W. Norton, 2002).
34. See, especially, Robert Dahl, "Decision-Making in a Democracy: The Supreme Court as a National Policymaker," Journal of Public Law 50 (1957): 562-82.
35. See, following Dahl in variousways, Howard Gillman, "Party Politics and Constitutional Change: The Political Origins of Liberal Judicial Activism," in The Supreme Court and American Political Development, 138-68;
36. Keith E. Whittington, The Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (Princeton: Princeton University Press, 2007);
37. and Mark Graber, "Constructing Judicial Review," Annual Review of Political Science, no. 8 (2005): 425-51. (Pubitemid 40977460)
38. See, for example, Cornell Clayton and J. Mitchell Pickerill, "The Rehnquist Court and the Political Dynamics of Federalism," Perspectives on Politics 2, no. 2 (2004): 233- 48
39. and Kevin McMahon, Reconsidering Roosevelt on Race: How the Presidency Paved the Road to Brown (Chicago: University of Chicago Press, 2004).
40. For a powerful critique of the "regimes" literature, see Thomas Keck, "Party Politics or Judicial Independence? The Regime Politics Literature Hits the Law Schools," Law and Social Inquiry 32, no. 2 (2007): 511-44.
41. Graber, "Constructing Judicial Review," 446.
42. Karen Orren, Belated Feudalism: Labor, the Law, and Liberal Development in the United States (New York: Cambridge University Press, 1991), 1.
43. Long before The Search for American Political Development, for example, Orren defined development as "fundamental reconstruction." For an illuminating discussion of why these differences matter, see John Finn, "Transformation or Transmogrification? Ackerman, Hobbes (as in Calvin and Hobbes), and the Puzzle of Changing Constitutional Identity," Constitutional Political Economy 10, no. 4 (1999): 355-65.
44. Rogers M. Smith, "Which Comes First, the Ideas or the Institutions?" in Rethinking Political Institutions: The Art of the State, ed. Ian Shapiro, Stephen Skowronek, and Daniel Galvin (New York: New York University Press, 2006), 92.
45. Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, NC: Duke University Press, 1993) illustrates how jurisprudential ideas-"legal ideology"-were a powerful source of constitutional development.
46. Jonathan Israel, A Revolution of the Mind: Radical Enlightenment and the Intellectual Origins of Modern Democracy (Princeton: Princeton University Press, 2010), 37. To recognize the potential of ideas, one only need think of placing American institutions- and the formal separation of church and state-on a country like Iraq or Afghanistan. For these institutions to make sense they would have to coincide with a mindset that thought about government and civil society in a particular fashion.
47. Louis Hartz, The Liberal Tradition in America (New York: Harcourt Brace, 1955);
48. J. David Greenstone, The Lincoln Persuasion: Remaking American Liberalism (Princeton: Princeton University Press, 1993), 43.
49. Greenstone, Lincoln Persuasion, 6.
50. Samuel P. Huntington, American Politics: The Promise of Disharmony (Cambridge, MA: Harvard University Press, 1981), 222-25.
51. Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven, CT: Yale University Press, 1997).
52. This has also been true of much of the literature on party realignment, which is often driven by constitutional ideas. See, for example, Sidney Milkis, Political Parties and Constitutional Government (Baltimore: Johns Hopkins University Press, 1999).
53. James W. Ceaser, "Foundational Concepts and American Political Development," in Nature and History in American Political Development: A Debate, by Ceaser et al. (Cambridge, MA: Harvard University Press, 2006), 5.
54. Rogers M. Smith, "What If God Was One of Us? The Challenges of Studying Foundational Political Concepts," in Nature and History in American Political Development, 145, 161.
55. Smith, "Which Comes First," 92.
56. Hartz, Liberal Tradition in America, 32.
57. Greenstone, Lincoln Persuasion, 285.
58. Huntington, American Politics, 261.
59. Smith, Civic Ideals, 9.
60. Jeffrey K. Tulis, The Rhetorical Presidency (Princeton: Princeton University Press, 1987), 7.
61. Ibid., 8.
62. Ibid., 9.
63. James W. Ceaser, Presidential Selection: Theory and Development (Princeton: Princeton University Press, 1979), 10.
64. Tulis and Ceaser, in fact, take up questions of impeachment and demagoguery in this manner: Jeffrey K. Tulis, "Impeachment in the Constitutional Order," in The Constitutional Presidency, ed. Joseph M. Bessette and Jeffrey K. Tulis (Baltimore: Johns Hopkins University Press, 2009).
65. and James W. Ceaser, "Demagoguery, Statesmanship, and Presidential Politics," in The Constitutional Presidency, ed. Joseph M. Bessette and Jeffrey K. Tulis (Baltimore: Johns Hopkins University Press, 2009).
66. Gary Jeffrey Jacobsohn, The Wheel of Law: India's Secularism in Comparative Constitutional Context (Princeton: Princeton University Press, 2003), 27.
67. Thinking in these terms also invites us to consider what Mark Brandon calls "constitutional failure." See Brandon, Free in the World: American Slavery and Constitutional Failure (Princeton: Princeton University Press, 1998).
68. Gary Jeffrey Jacobsohn, "Constitutional Identity," Review of Politics 68, no. 3 (2006): 361-97
69. Gary Jeffrey Jacobsohn, "The Permeability of Constitutional Borders," Texas Law Review 82 (2004): 1763, 1767.
70. Jeffrey K. Tulis, "On the State of Constitutional Theory," Law and Social Inquiry 16, no. 4 (1991): 712.
71. I do not mean to rule out original meaning or suggest that a constitution must "evolve." Development is different from evolution. Indeed, development is primarily concerned with constitutional foundations and identity and, therefore, takes some form of original meaning seriously insofar as original principles must be kept "alive" if the constitution is to endure.
72. Jacobsohn, "Constitutional Identity," 394.
73. Ceaser, Liberal Democracy and Political Science, 41.
74. As president of the American Political Science Association, Gabriel Almond insisted that "whatever political science may become, one of its peculiarly important ingredients will be what it has been." He even insisted, against some contemporary behavioralists who sought to be too "scientific," that there was "no cause for shame in this past," a past, as Almond explained it, that included the likes of Aristotle, Montesquieu, and The Federalist (Gabriel A. Almond, "Political Theory and Political Science," American Political Science Review 60, no. 4 [1966]: 878).
75. See also Gabriel A. Almond and Stephen J. Genco, "Clouds, Clocks, and the Study of Politics," World Politics 29, no. 4 (1977): 489-522.
76. Politics 1252a20.
77. The translation is from Aristotle, The Politics, ed. Stephen Everson (New York: Cambridge University Press, 1988).
78. Politics 1288b29-30.
79. Tocqueville, Democracy in America, 7.
80. Ibid,.
81. Alexis de Tocqueville, The Old Regime and the Revolution, ed. Alan S. Kahan et al., vol. 1 (Chicago: University of Chicago Press, 1998), 241-47.
82. See also Democracy in America, 45-53.
83. Orren and Skowronek, The Search for American Political Development, 1.
84. Ibid., 194.
85. Ceaser, Liberal Democracy and Political Science, 45;
86. Murphy, Constitutional Democracy, 37.
87. Ken Kersch, Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law (New York: Cambridge University Press, 2004), 8.
88. See George Thomas, "The Qualitative Foundations of Political Science Methodology," Perspectives on Politics 3, no. 4 (2005): 858
89. Thomas, "What Dataset? The Qualitative Foundations of Law and Courts Scholarship," Law and Courts 16, no. 1 (2006): 9-10.
90. See, respectively, Skowronek, Building a New American State, 38;
91. Kersch, Constructing Civil Liberties 12;
92. Rogers M. Smith, "Beyond Tocqueville, Myrdal, and Hartz: The Multiple Traditions in America," American Political Science Review 87, no. 3 (1993): 549-66.
93. Murphy, Constitutional Democracy, 13.
94. Stephen Macedo, Diversity and Distrust: Civic Education in a Multicultural Democracy (Cambridge, MA: Harvard University Press, 2000).
95. John Locke, A Letter Concerning Toleration, in Two Treatises of Government and A Letter Concerning Toleration, ed. Ian Shapiro (New Haven, CT: Yale University Press, 2003);
96. James Madison, "Memorial and Remonstrance Against Religious Assessments," in The Mind of the Founder, ed. Marvin Meyer (Indianapolis: Bobbs Merrill, 1973).
97. See George Thomas, "James Madison: Secularism and the Logic of American Constitutionalism," in Secularism and the Enlightenment, ed. Christopher Nadon (New York: Columbia University Press, Forthcoming).
98. Numa Denis Fustel de Coulanges, The Ancient City: A Study on the Religion, Laws, and Institutions of Greece and Rome (Baltimore: Johns Hopkins University Press, 1980), chap. 7.
99. Thus an APD work like James Morone's Hellfire Nation: The Politics of Sin in American History (New Haven, CT: Yale University Press, 2003) rests on a normative understanding of religion and morality (a point Morone is aware of).
100. See, for example, Jacobsohn, The Wheel of Law and Ran Hirschl, "The Rise of Constitutional Theocracy," Harvard International Law Journal Online 49 (2008): 72.
101. Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning (Cambridge, MA: Harvard University Press, 1999).
102. Whittington, Constitutional Construction, 10.
103. Keith E. Whittington, Constitutional Interpretation: Original Intent, Judicial Review, and Constitutional Meaning (Lawrence: University Press of Kansas, 1999).
104. A work like Kevin McMahon's Reconsidering Roosevelt on Race, for example, seeks to describe the New Deal as "pursuing a more rights-centered agenda," but this fact depends on a value judgment about how we define rights. Other scholarship has illustrated that the Progressives were often "anti-rights" and many New Dealers sought to limit what counted as "civil liberties." See, for example, George Thomas, The Madisonian Constitution (Baltimore: Johns Hopkins University Press, 2008), 115.
105. These "facts" quickly engage us in a debate about "values." Similarly, a work like Ran Hirschl's Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge, MA: Harvard University Press, 2004), which is preoccupied with an empirical analysis of the emergence of powerful judiciaries across the globe, is at root concerned with the health of this development. Hirschl is concerned that the rise of judicial power is being used in ways that empower elites and is harmful to democratic government.
106. Jeffrey K. Tulis, "On the State of Constitutional Theory," 714.