To Secure These Rights: The Declaration of Independence and Constitutional Interpretation.

• Author: Presser, Stephen B.

For some time, Constitutional interpretation in the American courts and academy has been borrowing from other disciplines. At the height of the Warren Court's adventures in Constitutional law-making, for example, sociology and social psychology were useful adjuncts to Constitutional law, most famously in Brown's Footnote 11. As academics sought to understand, or perhaps to justify, what the Warren Court had done, other bodies of knowledge were turned to, most prominently moral philosophy, as in the work of Ronald Dworkin, Michael Perry, and others. John Hart Ely, and those influenced by him, tried to recast Constitutional Law as applied pluralistic political science. In the meantime other scholars, most notably Richard Posner, had been experimenting with borrowing from classical economics, and, in just the recent past, Constitutional theorists have raided the domain of American historians.

While the lawyers were up to all that, among historians, something called "republicanism" was all the rage, as Americanists sought to argue that it wasn't Lockean liberalism (with its purportedly attendant possessive individualism) that was at the bottom of the struggle for the Federal Constitution, but rather an altruistic and disinterested attempt to promote communitarian values in general and civic virtue in particular. I can't speak for the fate of most of the other disciplines, but I can say with some confidence that it wasn't long before historians decided that "republicanism" was a much more complex matter than simply a desire to promote civic virtue, and the historical fraternity appears to be on the way to concluding that the early history of our republic can best be understood by considering Republicanism as only one of at least three important civic ideologies -- the other two being the formerly discredited Lockean Liberalism and the once popular-but more recently neglected -- Protestant Christianity.(3) These developments in historiography have not yet adequately been reflected in Constitutional jurisprudence, which tends superficially to borrow from the other social sciences, as other disciplines lose their degrees of nuance when employed by lawyers.

In any event, at the same time these attempts to raid social science for guidance on the Constitution were under way there was always a feeling that perhaps law could be regarded as at least a semi-autonomous scientific discipline. This feeling was manifested, surely, by Herbert Wechsler's famous effort to discern neutral principles for constitutional interpretation, and perhaps in the work of several of his disciples, most notably Alexander Bickel. Most recently the jurisprudence of neutral principles, now in the guise of original intention or original understanding, was carried out -- primarily by critics of Warren Court expansionism -- by Messrs. Meese. Bork, and Berger.

The newest game in constitutional interpretation town, I suspect, is the effort by several scholars of late eighteenth century history (among whose numbers I modestly include myself)(4) to move beyond what might have been perceived as a negative approach to original intention or original understanding, and to appreciate the early Constitution on its own terms, informed not by current philosophical fads in the legal or arts and sciences faculties, but (adopting the latest work by American historians) rather by an understanding of the complex of philosophical, political, and economic conceptions that were prevalent at the time of the Constitution's drafting and adoption. This is a tricky business, because to do it properly requires not only legal training, but probably professional training in history (or at least enough years to get grandfathered in), and/or perhaps even an advanced degree in political science or government.

As if this were not enough, an attempt must be made to appreciate the social sciences in the manner of our Framers, when law, politics, economics, history, moral...