Vol. 12 No. 11 (November 2002)
A COMMUNITY BUILT ON WORDS: THE CONSTITUTION IN
HISTORY AND POLITICS by H. Jefferson Powell. Chicago: The University of Chicago
Press, 2002.
251 pp. Cloth $35.00. ISBN: 0-226-67723-0.
Reviewed by Mark Kessler, Department of Political Science, Bates College. Email: mkessler@bates.edu .
In this clearly written and engaging book, H.
Jefferson Powell, a professor of law at Duke
University, offers what he calls an
historicist interpretation of American constitutionalism. Such an interpretation
suggests that constitutional argument and outcomes are influenced by historical
circumstances and by the political agendas, outlooks, and commitments of various
actors, including judges. A series of twenty case studies occurring between 1790
and 1944 are presented and skillfully employed to illustrate that constitutional
law is not and has never been divorced from politics and the historical
circumstances in which it is debated. Moreover, constitutional disputes, from
the very beginning, involved ideologically charged and politically divisive
issues that often
form the contours of partisan conflict. Indeed, Powell focuses much attention
on the relation between conflict and law, viewing constitutional disputes as
political conflict presented publicly in legal terms.
Powell writes to challenge work in constitutional theory and history.
Specifically, the idea that constitutional argument and outcomes are contingent
on historical circumstances and the idea that law is political in any sense is
criticized by some who fear that it produces law without legitimacy, authority,
integrity, and coherence. Consequently, constitutional theory, according to
Powell, often seeks to show how constitutional law may avoid politics and
historical contingency by mapping ways to achieve a legal formalism whereby both
constitutional argument and outcomes are firmly grounded in constitutional texts
and previous legal decisions. In a similar way, much work in constitutional
history, according to Powell, seeks to identify a “true” original meaning
for the text that may correct inaccurate “political” interpretations in the past
and guide more accurate “legal” interpretations in the future.
In response to these works Powell argues that “we need not seek to escape the
historicity of our constitutionalism” (p. 5). Indeed, he views links between
constitutional disputes, constitutional law, and historical political conditions
as highly beneficial. Grounding law in history and politics, he argues, gives
constitutional law a coherence and integrity over time. Most importantly,
constitutional argument informed by history and politics provides a shared
language, a shared conceptual framework through which political community is
formed and through which such a
community engages in conflict without fragmenting, fracturing, or
disintegrating. According to Powell, “[c]onstitutional law, viewed across time,
displays continuity and intellectual coherence as well as individual choice and
narrow partisanship. Its integrity and distinctiveness rest, however, not on
some extrahistorical foundation, but in large measure on the very processes of
constitutional argument that make us anxious by their malleability and openness
to the influence of political
predisposition and preference” (p.5).
The propensity to debate fundamental political issues in constitutional terms
affects the ways in which politics and historical circumstances impinge on
arguments and outcomes. According to Powell, the constitutional text establishes
a vocabularly for discussing areas of political disagreement. “This formulation
of issues,” he writes, “the range of considerations that can be considered or at
least openly acknowledged, even one’s own thinking about which political
outcomes are best, are shaped by the constraint of fitting them within whatever
terms and concepts currently are counted as constitutional” (p. 6). Conflict
resolution that employs constitutional vocabulary lasts for varying periods of
time. When challenged by new political actors in changing
historical circumstances, arguments invoke and deploy similar concepts, but
perhaps decisions ultimately reflect different conclusions. The fact that new
understandings and different decisions are produced by people making arguments
that in form and logic resemble those made previously
provides a coherence and integrity to constitutional dispute resolution
unanticipated by those worried about the intrusion of politics and history.
Powell illustrates the historicist interpretation through examination of
carefully selected case studies. Some of the cases cover familiar territory,
such as arguments regarding the constitutionality of the first national bank,
opinions of justices regarding the concept of state
sovereignty in CHISHOLM v. GEORGIA, 2 US 419 (1793), interpretations of the ex
post facto clause of article 1, section 10 in CALDER v. BULL, 3 US 386 (1798),
and decisions in other landmark cases, such as KOREMATSU v. US, 323 US 214
(1944), THE SLAUGHTERHOUSE CASES, 83 US 36 (1873), and the Brandeis concurrence
in WHITNEY v. CALIFORNIA, 274 US 357 (1927). Other cases and issues that Powell
analyzes are less familiar, such as the debate in Congress in 1798 over passage
of the Sedition Act, the opinion of Thomas Jefferson as Secretary of State
regarding the question of who has authority to decide on the level and grade of
diplomatic
representation the United States should employ in foreign lands, arguments made
by the future chief justice, John Marshall, while a member of the House of
Representatives, regarding the role of political branches in resolving legal
questions, a Virginia appellate court decision in KAMPER v. HAWKINS, 3 Va 20
(1793), establishing the principle that state court judges may overturn laws
passed by state legislatures, and decisions in North Carolina and Virginia
dealing with legal issues related to the institution of slavery. In general, the
case studies are quite interesting and informative. They are well researched and
arguments about their significance for the general historicist interpretation
are clearly developed. Powell focuses on elements in each case study, even those
involving the most familiar legal cases, that constitutional scholars tend to
ignore.
Powell argues that the case studies establish several principles. They show
that there is more than one correct answer to most, if not all, constitutional
questions. Constitutional law develops as it is grounded in historical
circumstance. Constitutional decisions, resolving political disputes, vary over
time and are justified in different ways. Although the decisions may vary,
Powell shows continuity over time in the terms and concepts, most of which are
extracted from the Constitution’s text, employed in debate. Powell also
demonstrates that important constitutional debate and interpretation takes place
outside of the United States Supreme Court, in state courts, legislative
chambers, and executive branch agencies. Finally, Powell suggests that
text-based arguments that occur in so many locations “maintain the political
community across conflict” and serve to “extend the community to those who are
excluded from it” (p. 7).
Powell’s case studies and analyses will be of great interest to all
constitutional scholars. The cases, in particular, shine a light into often
overlooked areas where constitutional law gets debated and made. The problem
with the book, however, is that it is narrowly developed to address weaknesses
in constitutional scholarship that the author does not identify with any
specificity. Although it is surely the case that some constitutional theory
seeks to find ways of avoiding politics and that some constitutional histories
seek the one true” meaning of constitutional provisions, there is also much
theoretical work, by scholars like John Hart Ely (1980), Cass Sunstein (1993),
and critical legal scholars (e.g., Kelman, 1987), and constitutional histories,
produced by scholars like Howard Gillman (1993) and William Forbath (1989), that
does not seem to fit the target description. Moreover, the argument that law and
politics intersect in beneficial ways in the judicial and
constitutional realm has been made before, most recently by Peretti (1999). In
general, the strength and significance of Powell’s arguments would have been
enhanced with more attention to and connection with these types of scholarly
works.
Powell is least persuasive in identifying what he calls “the Constitution’s
fundamental democratic ambition” (p. 7). The case studies suggest to Powell that
American constitutionalism is “a tradition of talk in which a persistent theme
has been the inclusion of people within the conversation, within the community
of discourse that the Constitution announces and constitutional law, at its
best, safeguards” (p. 213). While it seems reasonable to write that
constitutional law may shape the
contours of political community—that, as Powell puts it, “political community
can be built on words” (p. 212)—it does not necessarily follow that “American
constitutional law...offers...the means by which people of fundamentally
different views, beliefs, origins, and visions can become
and remain a political community” (p. 213). Of course, Powell may be correct on
this last point. But he has an obligation, it seems to me, when making such a
point to address those who disagree with his assessment. There is now a solid
tradition of critical legal scholarship—feminist, critical race, and gay and
lesbian legal theory, for example—that suggests that the “community” created in
law is fundamentally exclusionary. Works in these traditions agree completely
with the argument
that law helps to constitute community, but suggest that the community that is
constituted elevates as normative the experiences and interests of a small elite
segment of the population. Richard Delgado (1987: p. 314), a critical race
theorist, in a critique of the communitarian leanings of some critical legal
scholars, quotes an African-American leader who is heard to say, “community
don’t look like me.” Recognizing this dilemma, works in political and legal
theory increasingly ask how to reconcile “community” and difference (e.g.,
Corlett, 1989; Minow, 1990; Young, 2000). It seems significant in this regard
that Powell’s case studies, so nicely developed to illustrate the political
nature of constitutional interpretation, center on discussion and debate among
elites in
legislative, executive, and judicial institutions. How, if at all, does
political power and political, social, and economic inequality affect the nature
and characteristics of those who participate meaningfully in constitutional
argument and the resulting community that gets “built on words?” Powell’s
provocative and important book would have been even better with more attention
to these issues.
REFERENCES:
William Corlett. 1989. COMMUNITY WITHOUT UNITY. Durham: Duke University Press.
Richard Delgado. 1987. “The Ethereal Scholar: Does Critical Legal Studies Have
What Minorities Want?” HARVARD CIVIL RIGHTS-CIVIL LIBERTIES LAW REVIEW 22:
301-322.
John Hart Ely. 1980. DEMOCRACY AND DISTRUST. Cambridge: Harvard University
Press.
William E. Forbath. 1989. “The Shaping of the American Labor Movement.” HARVARD
LAW REVIEW 102: 1109-1256.
Howard Gillman. 1993.
THE CONSTITUTION BESIEGED. Durham: Duke University Press.
Mark Kelman. 1987. A GUIDE TO CRITICAL LEGAL STUDIES. Cambridge: Harvard
University Press.
Martha Minow. 1990. MAKING ALL THE DIFFERENCE: INCLUSION, EXCLUSION, AND
AMERICAN LAW. Ithaca: Cornell University Press.
Terri Jennings Peretti. 1999.
IN DEFENSE OF A POLITICAL COURT. Princeton: Princeton University Press.
Cass R. Sunstein. 1993.
DEMOCRACY AND THE PROBLEM OF FREE SPEECH. NY: Free
Press.
Iris Marion Young. 2000. INCLUSION AND DEMOCRACY. NY: Oxford University Press.
CASE REFERENCES:
CALDER v. BULL, 3 US 386 (1798).
CHISHOLM v. GEORGIA, 2 US 419 (1793).
KAMPER v. HAWKINS, 3 Va 20 (1793).
KOREMATSU v. US, 323 US 214 (1944).
THE SLAUGHTERHOUSE CASES, 83 US 36 (1873).
WHITNEY v. CALIFORNIA, 274 US 357 (1927).
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Copyright 2002 by the author, Mark Kessler.