The Strange Career of Legal Liberalism.

• Author: Horwitz, Paul

[W]hen I most want to be contemporary the Past keeps pushing in, and when I long for the Past ... the Present cannot be pushed away.

1. The Stranger at the Party

   In the recent book A Matter of Interpretation,(2) Justice Antonin Scalia offers his latest gloss on the virtues of originalism and textualism in the interpretation of statutes and the Constitution.(3) Following the essay are the comments of three respected law professors -- and a single non-lawyer, the historian Gordon S. Wood, whose remarks precede the law professors' commentary in the book.(4) At the beginning of his comment, Wood writes:

   This is very distinguished legal company, and I confess to

   wondering about my qualifications to be a commentator on

   Justice Scalia's paper. I do not seem to have too many of

   them. I have never been to law school .... I am not a jurist.

   I am not a legal philosopher. I am not a law professor. I am

   not even a legal or constitutional historian. I am just a plain

   eighteenth-century American historian who happens to have

   written something on the origins of the Constitution. I am

   not sure that this suffices. Be that as it may, I am pleased to

   be included among all these learned lawyers.(5)

   For all its becoming modesty, Wood's humble protestation present a fair question. What exactly was he doing there? In a slim volume dealing with the vagaries of constitutional and statutory interpretation, which is selective enough to offer commentary by constitutional scholars of the likes of Tribe and Dworkin but too small to include responses by statutory interpretation scholars such as Eskridge, why devote space to the remarks of one who himself questions (somewhat disingenuously, perhaps) whether he is qualified to comment on Scalia's paper? Of course, Wood might have been invited simply to evaluate specific historical claims raised in the course of Scalia's lecture or, more generally, to address issues in the field of constitutional history. But as he noted, Wood is not a constitutional historian, but simply a historian whose important work has included studies of the ideological background of the American Revolution.(6) In short, what did Wood offer that the legal academy could not provide?

   Laura Kalman's engaging study of the state of constitutional theory, The Strange Career of Legal Liberalism,(7) suggests one answer to this question: Wood and other historians offer a way out -- an escape from the crisis of legitimacy and authority that has held legal theory, and particularly Western constitutional theory, in a death-grip for the better part of a century. More generally, the turn to history in constitutional interpretation exemplifies the legal academy's continuing turn to other intellectual disciplines, both to provide authoritative answers that many concluded could never come from the study of law as a purely autonomous discipline,(8) and to seek a greater measure of legitimacy for the place of the law school within the academic community. In her "[m]andarin legal history,"(9) focusing largely on the experiences of the most important constitutional scholars and theorists at the most prestigious American law schools, Kalman suggests, perhaps more than she would be willing to concede, that the success of both goals has been decidedly mixed.

   Part II of this review will offer a brief synopsis of Kalman's story of the crisis in constitutional theory and the turn to history. In subsequent sections, this Essay puts aside the question of crisis in the legal academy, and focuses on the benefits and snares of history in constitutional interpretation. The discussion is divided into two overlapping parts. Part III will discuss the theory of originalism in constitutional interpretation, as championed by writers such as Justice Scalia; this might be called a discussion of "law as history." Part III will also discuss more innovative forms of law as history, which purport to offer a more faithful method of preserving the original meaning of the Constitution while still allowing for changes in the context in which the Constitution is interpreted; the "translation" theory of constitutional interpretation advanced by Lawrence Lessig(10) is used as an example. Part IV will examine the role of history in constitutional theory for those "non-originalist originalists" or "moderate originalists" who argue that history may be a useful tool of constitutional interpretation, but who ultimately deem history more persuasive than authoritative; this can be called "history in law."(11) While many, if not most, constitutional scholars and jurists likely fall into this category, this Essay draws on the arguments of Cass Sunstein,(12) Michael Dorf,(13) and Kalman herself.

   Finally, Part V will draw on both of Kalman's twin themes -- the crisis in legal scholarship and the turn to history. This Essay suggests that, in a sense, Kalman has done her work too well. The Strange Career of Legal Liberalism offers a persuasive discussion of the crisis in constitutional theory and an incisive view of history's frailties. While I tend to sympathize with her tentative conclusion that there is a role for responsible "public history" in legal argument,(14) Kalman's larger project successfully kicks out the support from under this conclusion, leaving those who would employ history in law with the sinking feeling that they have passed from one crisis to another. To the degree that history may nevertheless be a useful part of constitutional argument, it should be recognized that its value stems more from the questions we ask of the past than from the answers we receive. This suggests that Mark Tushnet's counter-intuitive assertion seems right: "[O]ne might think that legal scholars using history in law would perform badly if they got the facts wrong. One might think that, but one would be wrong."(15) Ultimately, however, I am forced reluctantly to conclude that even those methods of constitutional interpretation that I consider pragmatically useful, or personally attractive -- such as the use of a stylized, mythical history to ask questions of ourselves, or a reliance on the older virtues of legal craft-have been rendered uncertain by the critiques described and developed in Kalman's fine and finally disturbing book.

   Before proceeding to offer an outline of Kalman's narrative, it might be appropriate to offer a narrative admission of my own. Since Kalman's book inspires an awareness of the dangers of careless interdisciplinary borrowing, I ought to confess that I am only a legal scholar, and not a trained historian. In daring to critique Kalman's arguments about history, often relying on the very sources Kalman provides in her copious footnote citations, I might be accused of little more than what Brian Leiter has aptly called "intellectual voyeurism."(16) It may be a fair criticism. At the same time, since Kalman's book itself argues that even non-historian lawyers ought to dare to use history for their own ends, albeit often with the assistance of a professional historian, it is surely not unreasonable for a non-historian lawyer to attempt to evaluate the attractiveness of that argument. Moreover, since this Essay concludes that history in law ought to operate at a reasonably high level of generality, and is more important as a signpost of contemporary concerns than for the answers it provides, I am not convinced that my relative inexperience relegates me to the mere status of voyeur. Of course, that is ultimately for others to decide.

2. Crisis

   This Part offers a brief precis of Kalman's book. In particular, it offers a brief gloss of her discussion of the crisis in legal and especially constitutional theory, which dominates the first half of her book. Since this Essay takes the narrative she offers to be largely correct, and useful for present purposes mainly to set the stage for a discussion of the turn to history in constitutional law, this Part offers a summary rather than a more thoughtful discussion of this portion of her argument.

   Though she surely recognizes that the pedigree of the crisis in legal theory arguably precedes this century,17 and would likely agree that the ideas she discusses often interrelate in complex ways over time and at any given time, and so are not necessarily reducible to a simple historical pattern,18 Kalman nevertheless tells an often straightforward story of the decline, rise, and subsequent renewed decline of consensus in constitutional theory in the twentieth century. She begins with the rise of Legal Realism, which she has chronicled so ably elsewhere.(19) In their exposure of "indeterminacy" and "idiosyncrasy" in judicial decision-making, and in their insistence on the value of empirically based legal reform, the Realists helped to shatter the once commonly held assumptions of the formalistic era of classical legal thought.(20) Importantly for her purposes, Kalman notes that while in superficial respects the "New Dealers' faith in progress clashed with the legal realists' critical vision,"(21) in fact most prominent Realists were liberals who supported the goals of the New Deal and served as key architects or officers of Roosevelt's revolution.(22) Hence, "[l]egal realism proved the jurisprudential analogue of reform liberalism, and the realists became midwives to the birth of the contemporary constitutional order."(23)

   As Kalman notes, there was more than one branch of the Realist school.(24) Because the programs of both Legal Realism and the New Deal were forged against the background of the conservative Supreme Court of the Lochner(25) era, one element of Legal Realism was a concern about the anti-majoritarian nature of activist courts, and an argument for judicial deference to the legislative experiments of other branches of government.(26) In particular, those scholars who went on to form the "Legal Process" school, such as Justice Felix Frankfurter and Professors Henry Hart of Harvard Law School and Herbert...