HISTORY AND THE CONSTITUTION

Vol. 17 No.6 (June, 2007) pp.477-480

HISTORY AND THE CONSTITUTION: COLLECTED ESSAYS, by G. Edward White. Durham, N.C.: Carolina Academic Press, 2007. 516pp. Cloth. $65.00. ISBN: 9781594602818.

Reviewed by Christopher E. Smith, School of Criminal Justice, Michigan State University. Email: smithc28 [at] msu.edu.

Authors face special challenges when organizing and revising previously published articles in the form of a book. One approach might be to present the articles as discrete and potentially disconnected book chapters that embody an author’s most important contributions to scholarship. Such an approach provides readers with an individual’s most influential works within a single volume. Alternatively, published articles can be selected, organized, and revised to create a thematic connection between them. This thematic thread can provide order and coherence as a reader works her way through the volume.

The latter approach, however, creates certain risks. The chosen theme may be so broad that it genuinely touches some aspect of each chapter yet fails to make the chapters feel adequately linked together. Even worse, the theme may seem so superimposed and tenuously connected to the disparate works that comprise the book’s chapters that the reader fails to grasp its applicability to each chapter. If this last risk emerges, it is difficult to avoid concluding that the author would have been better off by casting the book as presenting discrete, representative works of importance.

There are, of course, other risks, too. Chapters may vary widely in quality and importance. In the case of heavily-footnoted law review articles turned into chapters, there may be editing difficulties when making choices about incorporating or excluding comments and explanations from the footnotes. In addition, authors may also face challenges if they wish to make highly technical articles accessible for an audience of general bookreaders rather than disciplinary specialists.

In HISTORY AND THE CONSTITUTION: COLLECTED ESSAYS, G. Edward White confronts the foregoing challenges and, happily, is largely successful in avoiding the associated pitfalls. Because White, one of the nation’s preeminent legal historians for the past three decades, is an accomplished book author, it would be difficult for him to organize and present a collection of published articles as representing his most important work. Thus, he selected and organized law review articles, published from 1999 through 2006, by focusing on the theme of “the resurgence of history and historical analysis” (p.3) in the U.S. Supreme Court’s constitutional cases as well as in scholars’ evaluations of those decisions. He revised the articles “with a view toward eliminating some details designed for specialist readers” (p.xi), but he retained the law review format of numerous citations and explanatory comments presented as footnotes. [*478]

White divides the essays within the book into three “clusters.” Each cluster begins with a brief introductory chapter prepared for this book followed by three substantive chapters that, except for the book’s final chapter, previously appeared in law journals. The first cluster “traces the emergence of historically oriented constitutional jurisprudence in the late twentieth century. . . . to show the close connection between the emergence of historically oriented constitutional jurisprudence and changing theories of judicial review and the nature of judicial decisionmaking” (p.5). The second cluster “brings historical analysis to bear on one of the most contested issues recently entertained by the Supreme Court: to what extent should international law be part of the corpus of American legal decisions?”(p.5). The final cluster of chapters “examines the distinctive character of the Rehnquist Court in light of the contrasting theories of historical interpretation” outlined earlier in the book (p.6).

As indicated by White’s description of each cluster, the book’s theme concerning the emergence of history in constitutional decision making on the Supreme Court does not carry the reader through a logical progression of topics. One might argue that White, to some degree, succumbed to the pitfall of organizing the book according to a broad theme that is relevant to each chapter but does not adequately connect the chapters closely together. Indeed, White implicitly admits as much by organizing the chapters into distinctive topical clusters. However, the distinctiveness and degree of disconnection between the clusters, especially between the second group and the other two, do not ultimately diminish the importance and value of the book. White is a scholar with impressive knowledge and insight about jurisprudential history, and he has provided a valuable service to the community of constitutional scholars and other interested readers by making his recent work accessible in a single volume.

The first collection of essays will be of great interest to those who teach constitutional law. The three substantive chapters, entitled respectively “The Arrival of History in Constitutional Scholarship,” “The Constitutional Journey of MARBURY v. MADISON,” and “Historicizing Judicial Scrutiny,” provide valuable insights about the development and application of theories of constitutional interpretation. The first chapter is especially strong in tracing the development of influences on constitutional theory, analyzing the advocacy of originalism that emerged in the 1980s, and explaining history’s emerging influence as the countermajoritarian difficulty no longer served as the defining feature of constitutional debates. The second chapter provides an especially cogent analysis of the development, definition, and use of judicial review from the time of MARBURY through the twentieth-century.

As in the book’s other clusters, the material in these chapters helps to inform the reader’s understanding of the others in the specific cluster, but the chapters are sufficiently freestanding that interested readers could gain [*479] significant benefits by selectively reading individual essays of greatest topical interest to them. In particular, those readers with significant background knowledge about Supreme Court history and constitutional law need not read all of the chapters in order.

For teachers of constitutional law, the relative narrowness of the second collection of chapters may make this cluster less useful. Those who devote significant attention to presidential power and foreign relations under the Constitution will, however, find it especially valuable. The three substantive chapters in this cluster are entitled, respectively, “The Transformation of the Constitutional Regime of Foreign Relations: The Old Regime Under Stress,” “The Triumph of Executive Discretion in the Constitutional Regime of Foreign Relations,” and “A Customary International Law of Torts.” As a legal historian, White traces the historical influences over the development of law for each topic. However, this group seems less closely connected to the book’s announced overarching theme of the emergence of history in the Supreme Court’s interpretations of the Constitution. When reading the book’s introduction, I had hoped that the second cluster might delve into the contemporary Scalia-versus-Kennedy debate about the citing of foreign legal authorities in the Supreme Court’s opinions, but White’s chapters focus specifically on the areas of foreign relations and tort law.

For political scientists who teach about the Supreme Court, the third cluster may be of greatest interest and value. The three substantive chapters are entitled respectively “Unpacking the Judicial Center,” “The Internal Powers of the Chief Justice: The Nineteenth Century Legacy,” and “The Jurisprudence of the Rehnquist Court.” The first chapter presents a historian’s view of the development of judicial behavioralism in political science with an interesting focus on the concept of a “center” and “centrist justices” on the Supreme Court. As White notes, “the spatial meaning of center does not simply suffer from the difficulties incumbent on locating justices on an ideological continuum[;] [i]t also fails to clarify what a centrist judicial stance MEANS for individual judges” (p.391, emphasis in original). White criticizes the varied and inconsistent uses of the “center” concept in analyzing the Supreme Court but he does not ultimately reject the concept’s utility for some purposes.

The second chapter in the cluster provides valuable historical perspective on the role of the chief justice, especially with respect to the development of formal protocols for opinion assignments and deliberative processes. The final chapter provides perspective on the Rehnquist Court’s jurisprudence, primarily by examining the historical development of constitutional theory as it relates to decision making tendencies in the Burger and Rehnquist Courts, rather than by analyzing the Rehnquist Court’s specific decisions. In this chapter, as he does elsewhere in the book, White demonstrates his command of the scholarly literature on constitutional theory by analyzing the works of important authors. [*480] Throughout, there are detailed discussions of major works and arguments by John Hart Ely, Martin Shapiro, C. Herman Pritchett, Cass Sunstein, Raoul Berger, and other important scholars. These discussions of significant literature give the book added value and make individual chapters within the volume potentially attractive for use in graduate courses on the Supreme Court and constitutional theory.

If someone’s ideal vision of a book demands close connections between chapters and a coherent theme that carries the reader through the chapters in a logical progression, then White’s volume falls short of those expectations. However, it seems clear from the generality of White’s title for the book that he did not intend to create such expectations. Indeed, any volume that includes the phrase “collected essays” is generally acknowledging the relative independence of various chapters.

Despite the relative disconnection between the second cluster of chapters and the other two groups, White has performed an exceptionally valuable service for the community of scholars interested in the Supreme Court and constitutional interpretation. It can be extremely difficult to keep abreast of important literature on specific areas of law when so much of it is published in a wide array of law journals. All of us are cognizant of those law reviews with the greatest prestige and, indeed, several of White’s chapters were originally published in such widely-read outlets as the VIRGINIA LAW REVIEW and the UNIVERSITY OF PENNSYLVANIA LAW REVIEW. However, many valuable articles are published in law reviews with less visibility. What are the odds, for example, that many interested readers would have discovered White’s article on “Historicizing Judicial Scrutiny” that was published in the SOUTH CAROLINA LAW REVIEW in 2005? Most of us recognize that there are elements of politics (e.g., prestige of institutional affiliation), networking, and luck that affect the placement of articles in law reviews so that one cannot automatically ascribe quality and importance to an article merely based on the prestige of the outlet in which it is published. White’s effort to organize and revise his fine scholarship into an accessible volume helps to overcome the daunting challenges readers face in seeking to identify exceptionally valuable scholarly contributions among the hundreds of law review articles published annually. Moreover, the historical perspective and analytical insights contained in this volume of collected essays confirm that White’s work has much to offer political scientists and legal scholars who teach and write about the U.S. Supreme Court and constitutional interpretation.

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