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.