With such a wide range of objectives and widely different subject matters and approaches in the essays, and the lack of a self-conscious discussion of the "new constitutional history" in most of the essays, it is questionable whether these objectives have been met. However, a good number of the essays are excellent in themselves. These are a must read for historians of constitutional law and for students of American political development. I will

Page 412 begins here

discuss each of the parts of the books and their essays, and conclude with an argument why the book overall is not the equal of its best essays and fails to meet its primary objective "to reexamine the state of American constitutional history" (p. xvi).

The book has three parts: "Constitutional Contexts;" "The Modern Constitutional Republic in Historical Perspective;" and "New Directions in American Constitutional History." Part One provides "three synthetic essays that link constitutional law to society and culture" and "to situate a particular constitutional development in a historical context" (p. xviii).

In Chapter I, "Constitutional Contexts: The Theory of History and the Process of Constitutional Change in Revolutionary America," David Konig addresses questions of the historian's responsibility to the quest for framers' original intentions. He rejects Jack Rakove's view that because one cannot make unequivocal statements about the intent of the framers of the Constitution that the study of originalism is unwarranted. Konig argues that scholars and public officials must confront the framers' theoretical assumptions about history and the uses to which it might be put. Scholars must seek historical legitimacy, so we can better
understand the debate between original meaning and constitutional interpretation. For Konig, the concept of original intent has historical meaning, in which
one must view the founding in terms of how the founders viewed political change and the English Constitution.

Konig argues that the pre-revolution tradition of historical thinking in America was not "static originalism." Konig offers us an interesting analysis of the English and founders' view of constitutional change prior to the writing of the new American Constitution. The process of change was viewed as long periods of gradual progress marked by crises for heroic measures by elected bodies to secure endangered rights or to redefine them (p. 13). Thus, the concept of a new Constitution as written with principles and procedures that were elevated above the power of legislature to make law and limit politics had no institutionalized precedent in
British constitutional law. In England, the Parliament was part of the constitution, not subordinate to it. Reform and recomposition reduced tyranny, not adherence to a written text that could be amended by a complex process rather than ordinary legislation by Parliament. The Founding was a period of rethinking how to protect liberty. The rights of Englishmen and their aspirations were to be achieved by the actions of the people in the Parliament.

Konig argues the Americans were not discovering new rights; they were coming to realize that citizens can not be abused by government in ways previously not suspected nor understood (p. 19). Americans did not trust Blackstone's complacent confidence in Parliament's ability for self-correction. A new Constitution was needed, one which included formal mechanisms to preserve rights on a regular basis. The objective was how to institutionalize the principles of the revolution through written guarantees. The constitutional purpose was to create a permanent and on-going revolution.

Konig emphasizes that this is not the view of history of modern conservative originalists, such as Robert Bork. Konig notes that the concepts of tyranny and rescue, and the theory of an ever-renewing constitution that the framers held were far different than that of contemporary

Page 413 begins here

conservative originalists. The objective was how to institutionalize popular sovereignty as a continuous process that was capable of accommodating the will of the people and ending the need for periodic violent revolution (p. 20). The Federalists were able to articulate new images of a union by justifying them within a theory of
historically-protected constitutionalism. For them history had no discernable beginning; they hoped it would have no end. History was a process of defining rights and institutional and procedural innovations to protect rights. The Founding was not a closed system. Konig emphasizes, "Invoking the authority of a "special" moment in the past had less force in 1787 than it does today" (p. 3). Konig's contribution is to offer the English theory of constitutional change and to question contemporary originalist interpretations of the Constitution, viewed as "the intent of the framers" in narrow content terms.

In making this argument, Konig does not discuss whether the view of change in the Constitution as written is different from the founder's view of history and the British Constitution. Nor does he go into how the Constitution melds natural law principles with concepts of political and legal change in the British Constitution. The findings in this essay do raise questions about whether Bruce Ackerman's theory of constitutional change is valid. Most importantly, the essay suggests that while we
can't know the intent of the framers, as Rakove and other scholars argue, the post-modern attack on originalism may be overdone because the framers' view
of history and constitutional development was far different from contemporary originalists. For Konig, there is little justification for the authority of the founding as "the intent" of the founders because of the deep-rooted secular historiography of legal change held by the Founders.

In Chapter 2, "The Inverted Constitution: Enforcing Constitutional Rights in the Nineteenth Century," Robert J. Kaczorowski describes how contextual change alters legal doctrine. Kaczorowski vividly demonstrates that in order to secure the rights of all citizens after the Civil War, the Reconstruction Congress adapted principles of national government power over the states that were similar to those used to enforce the fugitive slave laws prior to the Civil War. The Civil War Amendments and congressional legislation that were passed to protect the fundamental rights of Americans after the Civil War were largely modeled on those
adopted to enforce slave holders' property rights from the nation's founding to the civil war (p. 30). The editors write, "Kaczorowski urges constitutional historians to understand the Civil War 'framing' process on its own terms, without the usual distortions from scholarly aversion to slavery" (p. xviii).

Kaczorowski emphasizes that the primary justification for this modeling was PRIGG v. PENNSYLVANIA (1846), a case in which the Supreme Court unanimously held the Pennsylvania Personal Liberty Law of 1826 to be unconstitutional while granting the constitutionality of the 1793 Federal Fugitive Slave Act in all aspects but one. Justice Story said the Fugitive Slave Clause of the Constitution was intended to secure the full rights of citizens of slaveholding states to their slaves as property in every state of the Union. There was a positive, unqualified right of a slave owner to his property. The Fugitive Slave Clause nationalized the slave owners' right to his slave. There was a right of slave recaption, just as if one wrongfully detained another's wife, child, or servant under principles of English common law. Story said this common-law property right was

Page 414 begins here

elevated to a federally enforceable constitutional right.

Most importantly, Justice Story said the Court must be deferential to Congress's power to enforce this right and that this power is plenary --complete in itself. Using MCCULLOCH v. MARYLAND'S (1819) notion of Congress's implied powers under the Constitution's Necessary and Proper Clause, the Supreme Court said in PRIGG that Congress had an implied power and duty to enforce this right even though it was not an enumerated power of Congress in Article I. Also, the power to enforce the right of recaption was exclusive to Congress. It was a right created by Congress and not subject to state control because of the need for uniformity in
enforcement and the Supremacy Clause of the Constitution. Kaczorowski documents how after the Civil War forces for slavery and for civil liberties switched sides on constitutional federalism issues. The slave states seceded, based on the state sovereignty compact theory of federalism, when prior to the Civil War they had supported the nationalization of fugitive slave laws and the expansion of federal government power. The seceding states said that the Fugitive Slave Clause,
and the federal Fugitive Slave Act in support of that Clause, were at the core of the national compact that established the Union; without it they had a right to secede. Moreover, since the constitutional compact had been broken by non-slave states when they refused to enforce fugitive slave laws, the slave states had a right to secede (p. 46). In contrast, President Lincoln used a popular sovereignty theory of American government; the Constitution and government came from "the people" in convention, not from the states. Therefore, the national government was supreme over the states and the nation is sovereign in its power to abolish slavery as it did in the Thirteenth Amendment. Lincoln argued that the Civil Rights Act of 1866 was premised on the constitutional theory of a broad delegation
of legislative authority to enforce constitutional rights as stated in PRIGG. The Thirteenth Amendment was an affirmative guarantee of freedom and fundamental rights of freemen. The constitutional guarantee of freedom included a delegation of plenary power of Congress to secure the status and enforce the rights of all US citizens.

It was first thought that the Fourteenth Amendment extended fundamental rights to all citizens along with the plenary power to Congress to enforce such rights through the enforcement of due process and equal protection of law, as in PRIGG. Congress wanted these amendments to be self-enforcing to ensure the constitutionality of the principles in the Civil Rights Act and to stop a future Congress from repealing the Civil Rights Act. The lower federal courts adopted this plenary power of Congress notion. However, the Supreme Court, in a stunning reversal, rejected the notion that Congress had plenary power to enforce fundamental rights under the Fourteenth Amendment. In doing so, the Court engaged in textual literalism and rejected Story's view of MCCULLOCH. In rejecting the polity and rights principles enunciated in PRIGG, the Supreme Court allowed racism to flourish in the law. Kaczorowski concludes, "Understanding the extent
to which slave owners' constitutional rights were enforced before the Civil War reveals the starkness of the Court's rejection of constitutional rights enforcement after the Civil war. We still suffer the legacy of the last century's inverted constitutionalism" (p. 51).

Although legal scholars know this

Page 415 begins here

story, young readers might be mislead in reading this chapter, because one would assume that PRIGG was the only case before the Civil War that dealt with the power of the national government over the states and how to interpret the Constitution. While the contrast between the CIVIL RIGHTS CASES, SLAUGHTERHOUSE CASES, and PRIGG is great, there were pre-Civil War cases which did not so starkly grant national government power over the states. Southern states could draw upon them to fight the power of Congress to enforce the Civil War Amendments. Also, there is no discussion of why the Court changed its doctrine. Nor is there an attempt to talk about courts and law as forums for political change. What role did the Fourteenth Amendment, which contained more general language than that the Fugitive Slave Act, have on the Supreme Court's decisions with regard to the Fourteenth Amendment? What does this say about the role of stare decisis in Court decision making? Were there any doctrinal roots about national and state power other than PRIGG? We need a more filigreed
doctrinal and contextual analysis to fully explain the change in the Supreme Court's view of national and state power between PRIGG and the cases involving the Civil War Amendments.

This chapter is especially cogent in showing that principles of national and state power can have very different effects in policy terms in different time periods, as evidenced in the decision by the Supreme Court not to follow polity principles in the PRIGG case. Unfortunately, there is no discussion about how this analysis of doctrinal change informs a central objective of the book, which is "Writing the New Constitutional History." Nor is there specific analysis of how constitutionalism is informed by American culture, also one of the primary objectives of this volume.

Chapter 3 is William Wiecek's "The Rise and Fall of Classical Legal Thought: Preface to the Modern Constitution." Wiecek explores the classic ways in which judging and the rule of law were viewed prior to the Judicial Revolution of 1937. These include views on how judges should apply political institution and rights principles, and the degree to which judging should adjust to the political and social realities of the world outside the Court. Wiecek argues that, prior to 1937, principles and doctrine were viewed as objective and outside the will and interests of individuals and groups. Judges discovered and applied these principles
and norms; judges used reason, not will or interest, to find the law within a constitutional order established by the Constitution, custom and the common law. Statute law was suspect because it was the result of stark political power. According to Wiecek, Chief Justice Marshall laid the foundation for this classicist view of judging, law, and courts.

This methodology resulted in rules of law being viewed as strictly different from policy. There was a hierarchy of principles, with a transcendent value that trumped others. The first among these principles was individual liberty (p. 65). There was an assumed tension between government and rights of individual liberty, which were to be protected by common law contract, tort, and due process principles. Governmental redistribution of wealth was viewed as the largest threat to the
liberty of property and contract. Courts were to protect the liberty of property from the democratic polity. In light of these concepts of liberty of property
and contract, the wealthy and the poor, employers and employees were viewed as equals before the law in a laissez faire economy even though

Page 416 begins here

employers and employees had different economic, political, and social resources.

In contrast to Konig, Wiecek does not emphasize the common law basis of American law. Rather, he views the Constitution as subordinating positive law to higher rights principles in the Constitution. The people, as sovereign in making the Constitution, are to be protected from government abuse by both a written Constitution and the higher fundamental rights principles behind the Constitution. The Supreme Court is a body between the people as sovereign and the legislature. The law and politics distinction in the classicist position is most clear in the case of CALDER v. BULL (1798) where Chief Justice Chase emphasized the importance of natural law. However, Wiecek argues, too strongly I believe, that the concept of higher law principles outside of the Constitution died with the DARTMOUTH COLLEGE CASE. With this, he argues, a faith in the rights of contract and property grew as the basis to protect citizens from the abuse of government.

Wiecek argues that there was a Constitutional Revolution in 1937 which Lochner era principles borne of classical legal thought were overturned by the Supreme Court. Wiecek writes, "Its authority was undermined by inherent contradictions that were piled atop assumptions divorced from social reality" (p. 67). Some of these assumptions included the notion that the state should not redistribute wealth; nor should there be an equality of results. Drawing upon the work of Howard Gillman, he argues that the Court had the view that the state should not make policy which favors one class of citizens over other classes, such as with regard to
health, safety, and labor laws. Wiecek argues that the constitutional crisis that accompanied the Great Depression showed innate flaws in the classicist dogma.

Wiecek also provides a well-written overview of the role played by critics of classical legal thought in the rejection of that thought. Wiecek writes, "The ferment in the legal academy laid the foundation for tectonic shifts that rumbled below the surface of American law in the social and economic upheavals of the Great Depression." (p. 85). Wiecek argues that the Supreme Court packing episodes "long-term significance lay in the disintegration of legal classicism. That dissolution and its consequences have decisively formed the modern constitution" (p. 87).

After 1938, he argues a new legitimizing paradigm not of comparable authority to classicism began to be constructed. Wiecek writes, "Between 1937 and 1963, the Court dismantled the doctrinal structure of classicism..They have not yet succeeded, and the ideological struggles on the Court in the1990s suggest that we will not soon see a replacement of the classical vision" (p. 86). Wiecek most abhors is that no holistic doctrinal "superstructure" or dominant judicial philosophy has replaced classicist legal thought. He writes, "Even today, more than a half century later, constitutional thought is struggling to come to terms with the loss of the classicist outlook" (p. 86). He also argues that after the fall of classicist legal thought, a new doctrinal superstructure is needed because of inadequacies in the double standard under the preferred freedom doctrine after the CAROLENE PRODUCTS case in which non-economic freedoms such as under the First Amendment and Due Process Clauses (abortion rights) are protected while economic and social legislation is subject to minimal Court scrutiny. Wiecek writes, "The lack of an overarching explanatory and

Page 417 begins here

legitimating ideology of judicial authority comparable to classicism accounts for much of today's dysfunctional constitutional dynamic" (p. 89).

However, it is not clear what Wiecek means when he says no paradigm has replaced the classicist view given the constitutional law of the 1990s. Does he mean simply that there is more conflict about the role of judges and the rule of law in society? Does he mean that the doctrine itself suffers from a lack of agreement? Does he mean that neutrality, stare decisis, rule of law, and common law principles do not influence constitutional law today or that not enough of them influence
constitutional law? Is the problem caused by the effects of interest group liberalism on the law of that judges' think like elected officials? It is not clear what would constitute a new paradigm of equal magnitude to that of classical legal thought.

Perhaps Wiecek overstates the degree to which classicist legal thought was so closed-ended. There were legal realist elements in the law long before the growth of legal realism in law schools and the 1937 Revolution. The problem with his "dominant superstructure" view is that it may never have been or be the case that one legal vision completely replaces another. Rather, legal visions may simply become more filigreed, because law must meet the needs of a more complex social, political, and economic world outside the Court.

The problem with this conventional analysis of legal thought and change is that it accepts the notion of a Constitutional Revolution in 1937 rather than presenting a more nuanced theory of constitutional change. Perhaps it might be more useful to see the development of legal principles and the role of courts in society as changing incrementally since the 1890s, G. Edward White and Alan Alschuler have argued. Under such a view, the seeds of the post-1937 Court are to be found in doctrinal changes since the 1890's, and thus there was not a revolution. Accepting the validity of the classicist view of law leads one to overstate the degree to which there was a separation between law and politics in pre-1937 America and not after it, and to understate the degree to which law and legal institutions and
politics can have an affect on each other. Thus, Wiecek understates the degree to which there were differences in viewpoints about the separation of law and politics prior to1937. He also understates the degree to which Supreme Court decision making is bounded by legal norms after 1937, and thus continues to fit aspects of the classical model. This is most evident when he emphasizes, really bemoans, that after 1937 America no longer had a sense of shared enterprise and language that provided a theater for constitutional debate (p. 87). Wiecek argues that the loss of faith in classical legal thought "in 1937 created a void in our national dialogue that has not been filled yet" (p. 87). This is primarily a normative argument about legal process and outcomes before and after 1937. It does not explain change in constitutional law nor does it demonstrate that unanimity in viewpoint is a normative good.

Thus, one can ask whether unanimity of legal vision is possible and necessarily good in such a diverse nation as exists today. Are 5-4 decisions on the Supreme Court and conflicts over appointments necessarily bad or do they reflect real differences in the nation? Perhaps the loss of consensus that Wiecek bemoans is not simply a product of the decline in classical legal thought, but also a reflection of a wider set of societal and legal values. Wiecek writes, "The lack of a legitimating ideology

Page 418 begins here

of judicial power today invites extremist initiatives to fill doctrinal vacuums or to innovate in radically destabilizing ways" (p. 90). For Wiecek, these include "specious theories of originalism," "doctrinal fantasizes that have superficial plausibility because criteria to critique them are lacking," and PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA v. CASEY (1992), the abortion rights decision, and UNITED STATES v. LOPEZ (1995), the case limiting Congressional power over the states under the Commerce Clause, which he calls "radical initiatives" by the Supreme Court (p. 90).

In conclusion, while Wiecek does a fine job in characterizing classical legal thought, he understates the importance of differences within doctrine and the process of change within classical legal thought prior to 1937, and he does not adequately explain its decline. In what respects was the decline do to "inherent contradictions that were piled atop assumptions divorced from social reality?" (p. 67). To what degree was it due to the success of the legal realists in the legal academy? How does one explain a significant change: by the Supreme Court's view of the social and economic world outside the Court, by doctrinal change, or by developments in the interpretive community and in the political system? This essay is better when it discusses the elements of classicist legal thought that when it is normative or when it seeks to explain the effect of that thought on constitutional change. These problems are evident when the editors write,

"This essay is notable for its emphasis on the doctrine as an important element of historical context, particularly in scholarly attempts to say how and why the events of 1937 were 'revolutionary,' and may well point the way to surmounting the internal-external dichotomy. Wiecek maintains that a signal achievement of the New Deal was its severance of constitutional law from its traditional moorings in classical legal theory--a source of moral and constitutional authority for all branches of government, but especially for the Supreme Court. As a result, according to Wiecek, the Court has become subject to the forces of history with disastrous
consequences for its legitimacy and authority in the years since the 'court-packing' episode" (pp. xviii-xix).

Unfortunately, little in this essay helps to explain or to "surmount the internal-external dichotomy," clearly an important focus of a new constitutional history. Because of this and because of the normative focus of this essay, there needs to be clarification as to why this essay should not be viewed as an exemplar of the old constitutional history.

The objective of Part II, "The Modern Constitutional Republic in Historical Perspective," is to move the New Deal story forward in chronological order to recent times with an emphasis on civil rights and civil liberties. It offers narratives of cases as viewed by those external to Court; it emphasizes the differences between the narratives of those seeking a Court decision and those of the Supreme Court decision. In Chapter 4, "Free Speech and the Bifurcated Review Project: The
"Preferred Position" Cases," G. Edward White offers a superb essay which seeks to correct Barry Cushman's view that post-1937 jurisprudence was built on
political economy cases. For White, the post-New Deal Revolution is built upon the foundation of the First Amendment cases, with their faith in democracy and speech--rather than

Page 419 begins here

the Court's rejection of the political economy cases of the Lochner Period in appreciation of the need for a stronger administrative state due to the social and economic effects of the depression, as Cushman argues.

White argues that scholarly analysis of the double-standard of constitutional review, one which favors Court review of laws involving non-economic rights and disfavors Court review of economic legislation, "has significantly underestimated the importance of free speech decisions in generating that project" (p. 99). The chapter centers on the relationship between culture and law. White argues that the democratic model of politics as part of the American culture was taken more
seriously than the capitalistic model of economics when freedom of speech came to be seriously considered as a constitutional ideal many years before the
Constitutional Revolution of 1937 or the preferred freedoms doctrine in the CAROLENE PRODUCTS case. As this idealized theory of the possibilities of
democracy grew and the laissez faire capitalist model declined, questions arose as to the fairness of inequalities in wealth and power. In such a culture, free speech became viewed as constitutionally and culturally special. The reason for this is not explained in this chapter; White refers to his works on modernization.

White cogently argues that there is no a priori reason to believe that a preferred position of First Amendment speech before the law and non-preferred position of economic actions would both come out of the expanded notion of the administrative state after 1937. For White, the speech cases, not the CAROLENE PRODUCTS footnote, are the key to the bifurcation between speech and economic rights. The answer for White is that free speech is related to democracy as an aspirational value (p. 105). A society based on freedom to expression opposed the arbitrariness and tyranny of totalitarian nations, such as Germany, Italy, Japan, and Russia in the 1930s and 1940s and in Russia in the Cold War period. Free speech was viewed as unlike rights of material possession, contract, and economic
excess after 1937. The preferred position for speech and democracy also meant, implicitly, that the freedoms associated with the economic model of unregulated capitalism were less democratic, and hence less preferred and less indispensable to an open society (p. 115). Implicit in this explanation is that the outside world comes into the law through the interpretive community, including the legal academy, social sciences, and humanities, and by judicial reflection on cases in light of the world outside the Court. In the late 1930s and 1940s this involved the comparison of how democracy must be different from totalitarianism.

White reflects on the doctrinal effects of this period of constitutional history. White does not completely like the results of the change. He cogently argues that conflict between the search for truth, marketplace of ideas, self-government, and individual autonomy rationales for the freedom of speech threaten the juristic goals of bifurcated review (p. 101). The acceptance of a general value of individual autonomy as a basis for the freedom to speak undermines the bifurcation of the political and the economic under the First Amendment as a basis for the strong protection of political speech. White notes, with regard to the expansion of
commercial speech rights, "When everyone can speak, and everything can be said, speech has ceased to become special and has become the equivalent of noise (p.
117). To value

Page 420 begins here

political speech as special-we need to say some speech is not special and thus not protected under the First Amendment.

Although White provides brief insights into the role of courts and law in the larger processes of political and social change in our nation, he does not explore directly the role of the Supreme Court and law in American political development. Without providing a more elaborate theory of constitutional change, it is hard to fully demonstrate the significance his findings that the First Amendment cases were more important than the political economic cases to the Constitutional Revolution of 1937. Moreover, if there were no Revolution, as is implied by White's argument, than what theory of constitutional change replaces "Revolution" theory? What is the new historiography or "the New Constitutional History" that replaces the old historiography? White should be explicit on this point. Finally, this is an excellent essay centers on the doctrinal roots of post-1937 jurisprudence. Therefore, one can question why the editors placed it is Part II of the book, which is supposed to include chapters on narratives of action outside the Court.

In Chapter 5, "The Role of Lawyers in a Civil Liberties Crisis: Hawaii during World War II," Harry Scheiber and Jane L. Scheiber tell the quite interesting story about the strange bedfellows created as Hawaiians struggled to put an end to the wholesale suspension of basic procedural rights after the wartime emergency caused by World War II had passed. The ACLU and other civil rights groups along with corporate leaders and political conservatives sought to regain the basic freedoms for the people of Hawaii. The editors note that these findings based on archival research and oral histories "cast serious doubt on the conventional wisdom about the behavior and motives of President Franklin D. Roosevelt's allies" (p. xix).

The argument is made that lawyers in different roles, as advocates, administrators, and elected officials, took different positions on whether to continue military rule. A corporate lawyer, the Attorney-General of Hawaii, and Hawaii's Territorial Delegate to Congress led the fight to return to civilian rule only to be thwarted by members of the FDR administration, such as John J McCloy, who oversaw Hawaii matters in Washington, D.C. A key point for the Scheibers is that the initial
articulation of the legal and constitutional questions about military rule made by non-military Interior Department lawyers was central to the internal framework for the debate within the FDR administration as well as to public debate in the media. Also, it proved to be essential to ending military rule well after it could be argued that such rule was necessary for military reasons.

Since there is no comparison with other case studies or a larger body of knowledge about the FDR Administration, we don't know what sense to make of this story and the authors' conclusion that the FDR Administration was not as liberal on civil liberties as some scholars have thought. An interesting, detailed history of litigation is provided, with government lawyers preparing the case for military rule, even though they had private reservations. All parties followed constitutional principles and procedures. It was not a win at any cost fight for government lawyers. But win they did, even though government lawyers advised self-restraint by
the army and an army commander threatened a federal judge with imprisonment if he acted against military rule. Army generals supported their actions to keep military rule over the courts after World War II, and they prospered even

Page 421 begins here

though their constitutional position and specific acts ultimately were not supported by the government.

There is no discussion of legal ethics, other then the point that lawyers viewed their role as officers of the Court as important and they did not violate legal norms. It is difficult to make conclusions about the importance of the chapter, since the findings are not built into any wider literatures. It is not clear how this adds to a new constitutional history. However, the case study raises interesting contemporary questions as to whether today there are pockets of non-military lawyers in agencies
that will question civil liberties violations that might occur from institutional changes in the aftermath of the 9-11 crisis.

In Chapter 6, "Constitutional Equality for Women: Losing the Battle But Winning the War," Cynthia Harrison argues that the complex intentions of women in the 1920-23 National Women's Party to seek an Equal Rights Amendment to the Constitution to guarantee full legal equality of women may ironically have been realized. This occurred even though the Equal Rights Amendment was not formally placed up for ratification until the 1970s, and it failed to be ratified by the requisite number of states. After listing the intentions of those who argued for the ERA, most of the chapter is a quite conventional analysis of major sex discrimination cases starting with BRADWELL v. ILLINOIS (1872) and ending with UNITED STATES v. VIRGINIA (1996). Harrison argues that the intentions of the original advocates of the ERA have been met by Supreme Court decisions and state and federal legislation, even though not enough states ratified the Equal Rights Amendment in the 1970s.

One can ask in what way this chapter adds to the recognition a "New Constitutional History" or to our understanding of culture and history. The author makes the important point that constitutional change can result even though new words, an Amendment, are not added to the Constitution. However, there is no analysis of the relationship between political activism and how or why traditional venues make constitutionally important choices, or how venues like the Supreme Court and Congress relate to each other in response to such activism.

In Chapter 7, "The Warren Court and Equality," Michael Belknap argues that Warren Court doctrine is not as egalitarian as many commentators emphasize. The argument in this chapter, like those of Wiecek and Harrison, is primarily normative, not empirical or structural. Belknap argues that the Warren Court abhorred civil disobedience and political radicalism to the point that equality values were sabotaged by the "liberal" Warren Court, an argument which Belknap admits other scholars have made. Unfortunately, Belknap fails to provide an analysis of the full range of Court concerns and values that limit the equality principles, or of how the process of Supreme Court decision-making allows the Warren Court to limit equality as a value. As noted by Belknap, this author and other scholars have
commented on the conservative aspects of the Warren Court.

Nor do we get a thorough overview of the areas of doctrine in which the Warren Court supported and rejected equality as a value. The chapter is best in analyzing cases involving demonstrations by African-Americans in the South. At first, Belknap argues that African-American were protected by innovative interpretations of law and procedure, such as with regard to what constitutes state action, only not to be

Page 422 begins here

not fully supported with regard to engaging in civil disobedience. Belknap argues, "The Warren Court was not willing, however, to alter constitutional doctrine sufficiently to give African-Americans a right to be treated as equals to whites. Nor was it willing to protect those black activists whose tactics seemed to a majority of the Court to endanger public order and individual liberty. The author writes, "other concerns tampered the Warren Court's enthusiasm for the promotion of equality, causing it to stop well short of guaranteeing even African-Americans treatment as equals" (pp. 211-12).

It is not clear whether the Court can ever meet that goal, since "equality" is an open-ended concept without clear specification in absolute terms. Also, it is not clear that, nor is evidence presented, that African-Americans secured less First Amendment speech rights than the public in general, since Belknap emphasizes that the Supreme Court was partial to the NAACP.

The author explains that that the emphasis on equality as a value on the Warren Court was a result of the less privileged backgrounds of Justices on the Warren Court, including Justices Black, Brennan, Goldberg, Douglas, and Marshall, which gave them empathy for the less fortunate (p. 115). However, this view has been tested and found wanting, especially when one looks at the backgrounds and doctrinal positions of justices on the Burger and Rehnquist courts. No new insights on constitutional history are provided here. There is no discussion of the relationship between doctrine and internal and external contextual influences that might inform
doctrine. Nor is there an explanation of the principles and conflicting values that led the Warren Court to not be robust in its support of civil disobedience, the one doctrinal area well covered in this essay.

Finally, in the Introduction, the editors write, "Among other contributions, Belknap's essay affirms the value of primary non-legal sources as part of any attempt to reimagine and rewrite American constitutional history."(xx) The notes refer to the usual list of constitutional scholars who are experts on the Warren Court, such as
Philip Kurland, Gerald Gunther, Morton J. Horwitz, Mark Tushnet, Lucas A. Powe, Jr., and Tinsley Yarbrough. The notes also refer to major Warren Court
cases and Supreme Court conference notes that are available in justices' papers. Therefore, it is not clear what constitutes the non-legal sources that are used in this essay.

The editors introduce Chapters 8, "The Overlooked Litigant in TINKER v. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT (1969)," by John W. Johnson, and Chapter 9, "Cultural History and the First Amendment: NEW YORK TIMES v. SULLIVAN and its Times," by Kermit L. Hall in the following way:

"These case studies underscore the value of approaching the high court not as a fount of judicial wisdom but as the flash point of embedded social conflicts that seek resolution through constitutional adjudication. This approach means that in many ways the 'external' story of the case (the way in which it made its way to the high court) is as important as what happened to it once it landed on the docket. Such an approach has particular value in opening constitutional history to the light of human drama" (p. xx.).

It is important to emphasize that

Page 423 begins here

Johnson tells the "external" story in a very different way than does Kermit L. Hall. At the core of Johnson's Chapter is the notion that the role of a plaintiff, who is not listed in the formal citation of the case, usually by caprice, may be just as important as the plaintiff named in the title. Johnson presents a quite detailed study of the important role played in the TINKER case by Paul Eckhardt, the unnamed plaintiff. In the TINKER case, the Supreme Court said that students had a right to wear a black armband in public schools to demonstrate their opposition to the Viet Nam War, since the demonstration was passive, not disruptive, and elicited no more speech than is communicated by the wearing of permitted jewelry.

The editors write, "Johnson persuasively argues that this litigant [Eckhardt], while hidden from official view, probably held the trump card in the case and, in later years, LIVED the human consequences of the change in judicial public policy much more completely than did the Tinkers. Johnson's essay reminds us of the value of looking beyond the formal edges of a case as defined by lawyers and judges" (p. xx). Johnson successfully demonstrates that unless the plaintiff is named first in a case at the time of filing, the plaintiff will usually be ignored by history. This chapter is a detailed, step-by-step history of Eckhardt's life before and after the case. Unlike the Tinker children, Eckhardt was portrayed by case participants as a catalyst for destruction. Only in the 1990s, when the Tinkers did not show up at an event, was Eckhardt invited to commemorate the case. While one can emphasize with the plight of Eckhardt, there is simply very little in this essay about a new constitutional history, culture, or method, or about constitutional change. Nor is much said about the nature of legal activism in the 1960s, which is different from
today.

Kermit Hall's chapter also is a street-level analysis of a case that went to the Supreme Court. Hall does a fascinating job of relating how the local culture of Montgomery, Alabama, and the South helps explains why NEW YORK TIMES v. SULLIVAN (1964) got to the Supreme Court. In so doing, it complements Anthony Lewis' MAKE NO LAW (1991) and provides an important window to how culture relates to constitutional change.

In the SULLIVAN case, the Supreme Court concluded that for a public figure to successfully sue for defamation, he must prove the defaming party engaged in actual malice; he must demonstrate a reckless disregard for the truth, not simply the falsity of statements. The case constitutionalized and nationalized the law of defamation. In so doing, political criticism of public officials was to be privileged under the First Amendment. The simple truth of the speech was no longer the only defense one had against libeling a public official.

In the interpretive community and outside the South, this case was viewed as a great victory for freedom of the press, expression, and a robust marketplace of ideas. Hall cogently argues that most scholars typically saw this case as the Supreme Court's defense of the First Amendment that is rooted in a Court's bias in support of the civil rights movement. Anthony Lewis saw the case as shielding civil rights leaders from "constraining effects of state-administered common-law rules of political libel" (p. 270). Most accept a liberal legalist viewpoint which Hall says teaches us much. However, Hall, unlike Lewis, argues that the case was not primarily a suit involving the destruction of

Page 424 begins here

the civil rights movement, even though court findings against some civil rights activists do hurt them financially. Rather, for Hall, this is a case about competing values of what should constitute public discourse. It is about whether local or national manners and habits of civility, honor, and dignity should be allowed to govern public affairs. Hall writes, "the southern white vision of civil discourse might have intrinsic worth" (p. 271). He insists that southern protagonists in the initial lawsuit held a
view of habits and manners of civility that were altogether supportable in the context of Montgomery, Alabama, and the South's political culture. In Hall's view, a long-standing tradition of civility among southerners, even if tainted by racism, was sacrificed on the civil liberties altar. The chapter centers on "legitimate assertions made by some moderate segregationists that the path to racial progress was strewn in SULLIVAN with the wreckage of broken civil discourse" (p. 267). Hall argues that moderate Southerners saw this case as an example of the North(east) foisting its "egalitarian individualism on the region that relied on shared community values to structure its race relations" (p. 270).

Hall presents a careful and sensitive history of the political and social context from which the case reached the Supreme Court... In this history, which took place in the period of the Montgomery Bus Boycotts in the late 1950s and their aftermath, Hall introduces us to a political machine in shambles, no longer able to keep radical segregationists from political power; a white, moderate (in Montgomery terms) middle and upper middle class trying to keep a lid on order, while supporting a very slow, moderate process of racial change; a segregationist Police Chief who allowed a segregationist crowd to attack African-American demonstrators for ten
minutes; a Northern liberal paper pursuing this case while writing articles about racial oppression in the South; local newspaper editors who were bone fide moderates pursuing the case because they viewed aspects of the advertisement at issue in the NEW YORK TIMES case as untrue, and as demonstrating a blanket disrespect for the political culture and values of the South which they held dear; a moderate, ambitious Harvard-trained lawyer who used this case to sustain the tradition of habits and manners of civility he so closely tied to the moderate, upper class white community which he aspired to join (pp. 278-9), and who viewed the advertisement at issue in the SULLIVAN case and the civil rights movement as "mean-spirited, wrong, and as contributing to a high level of misunderstanding and
distrust" (p. 284). Although the moderates excoriated those who engaged in racial demagogy, such as lower-class whites, Hall tells us, "they all shared a common disdain for an implacable northern press and active black civil rights movement" (p. 288). Their honor and that of the region was impugned by it. In this finely-crafted essay, one also is witness to institutional racism, as demonstrated by the capricious and arbitrary manner in which judges heard the case at the state level. The Alabama courts also wanted to rid the state of agitators, and uphold the honor and dignity of the South.

In the South, the political culture emphasized that there were universal rules that encompassed all social classes and roles. These norms favored a notion that there is a need to protect the reputation of public officials through enforcement of strict libel law. The North questioned the norm that the reputations of public officials should be favored over public and robust debate. This view reinforced ideas of wide-ranging individualism and egalitarianism over civic

Page 425 begins here

republicanism (p. 297). In the South, reputation was viewed as central to individual honor and dignity; it also was central in a culture of public deference and respect for the social and political elite. With the bus boycotts and civil rights activity, this deference and respect for social and political hierarchy was undermined by a dual threat. One threat came from Eastside Montgomery, white, lower-class segregationists who dismissed this tradition of respect as pretentious. The other threat came from the Northern press, which viewed strong defamation laws as a limitation on robust political speech which was central to democracy.

Hall argues that the response in Montgomery and the South to both the NEW YORK TIMES-Northern view of this matter and to the civil rights movement cannot be explained simply by pure mean-spirited racism. In Montgomery and the South the political culture favored order, harmony, and moderate racial progress that could be fostered by a libel law that protected political and social elites.

Hall emphasizes that the case of NEW YORK TIMES v. SULLIVAN expanded First Amendment rights, but did so at considerable social and cultural costs with regard to the quality of journalistic practices. Hall cogently argues that the SULLIVAN case had long-term effects doctrinally with regard to political speech not only in the South, but for the entire nation. Previously repugnant forms of discourse were now allowed. Spite, ill will, and the desire to injure were no longer a defense against libeling a public official or a public personality. The SULLIVAN case would redefine the meaning of community, the conduct of public affairs, the nature of reputation, and of civility, as contemporary legal scholars such as Robert Post have demonstrated.

This is a superb essay, for it demonstrates well both the day to day account of how the SULLIVAN case got to Court and how different cultural views in Montgomery, the South, the North, and at the NEW YORK TIMES, affected the path of the case to the Supreme Court. Hall clearly argues that the case was not simply about the pure racism of the leaders of Montgomery who opposed a change in the defamation rule and the nationalization of the rule. It had deeper cultural roots.

Hall does not decide whether the Southern or Northern view on public debate is best. However, he seems to imply that the South should be able to choose its view of political debate-that we should not use First Amendment principles and the Supreme Court to nationalize one view of political culture and debate. Nor must we assume that the Northern view of political speech is best, especially today when some liberals are questioning the NEW YORK TIMES v. SULLIVAN view of political speech as hate speech issues arise today. In answering such a question, one also would have to ask what long-term price is paid by maintaining the order and harmony of the old system of governance that is supported by libel laws which were more protective of public figures found prior to the SULLIVAN case. In such a study both short and long terms effects of the old system, and a changed system, need study. One would need a deeper, more sustained analysis to see whether or not the cultural values held by the leaders of Montgomery sustained a system of racial oppression in Montgomery and the South. Was the North simply imposing its speech and political system values on the South, or had it identified not simply the racism of a few individuals, but rather a political system that in the long run

Page 426 begins here

made it easier to deny equal protection of the law?

I raise these questions because I question the position of those who lost the SULLIVAN case. Hall writes, "Viewed from their perspective [those who lost the SULLIVAN case], the cultural and social history of the SULLIVAN case has a meaning integral to yet removed from the civil rights struggle of which it was such an important part" (p. 268). However, it is not clear that such removal is possible. In raising these questions, it must be emphasized that one should not read this excellent case study as a apologia for the racism of the leaders and citizens of Montgomery or "the South" or for the lack of respect for "Southern" values in the North.

This study is also simply superb at showing how the "framing" of the case by locality, region, the Supreme Court, and future generations can vary. The larger questions that Hall raises as to the effect of this case on First Amendment theory and practice are fascinating. The Supreme Court justices chose a Northern, modern, conception of libel law that was designed to encourage robust exchange of ideas in political debate, over protecting manners of civility in public discourse. Hall rightly demonstrates that this "has been, for better or worse, the most lasting legacy of the litigation that formed NEW YORK TIMES v. SULLIVAN." One
can see the effects of the First Amendment principles enunciated in the SULLIVAN case in such cases as R. A .V. v. ST. PAUL (1992), the case which
invalidated a hate crimes law which limited hateful speech by the bigoted, but not those seeking tolerance, and the neutral speech principles in TEXAS v. JOHNSON (1989), the case in which the Supreme Court said that flag burning is permitted.

Part III, "New Directions in American Constitutional History," offers three essays that the editors say are speculative and intellectually restless. The editors write that these essays "by no means exhaust the envelope pushing possibilities in the field," but do "suggest something of the range of new thinking, particularly among historians interested in expanding constitutional history's focus to include previously excluded subjects and tests. These essays borrow eclectically from adjacent
disciplines such as anthropology, literary theory, political science, gender studies, and critical race theory" (p. xxi).

In Chapter 10, "Words as Hard as Cannon Balls: Women's Rights Agitation and Liberty of Speech in Nineteenth Century America," Sandra VanBurkleo provides an excellent essay that links constitutional and women's history. The editors do well in introducing this essay. They write,

"This essay focuses on nineteenth century women's experiences of speech freedom and the partial elision of the struggle for liberty of speech with suffragism, particularly after the Civil war, when women's loss of constitutional ground led many activists to think that a metaphoric 'voice' (the ballot) would be more effective than face-to-face confrontations with men in debating halls and newspaper columns. It also examines the masculine character of First Amendment freedoms, at least in practice, and the possibility of remaking the narrative of American constitutional history to take account of female and, by extension, black and working-class experiences of freedom" (p. xxi).

The author asks the reader to look at

Page 427 begins here

premodern texts, acts, and beliefs that included popular understandings of what liberty of speech and press consciousness entailed. She comments that we are too stuck on modern theory and notions of speech rights. In the 19th century the Supreme Court ignored the free speech fights by women, which centered on their right to speak on an equal basis with men at public lecterns. The reason that VanBurkleo gives for why constitutional historians fail to associate women's efforts to secure liberty of speech with the history of the First Amendment is that the discipline is too centered on unitary state and federal law, judicial opinions, amendments, and statutes, rather than on families and local political and civic associations. Constitutional history fails to look at the informal government of the family and church, and men as fathers, husbands, and masters as unofficial gatekeepers of rights (p. 311). Unlike most of the other essays, VanBurkleo openly explores questions of historiography in traditional constitutional history.

She cogently argues that the law of marriage shaped the right of women to speak. The shift from the 19th century emphasis on spoken arguments in public debates to written arguments and to legal language and forums is a problem for VanBurkleo. She argues that First Amendment jurisprudence gives an illusion of free speech in a society where so many know or believe that they cannot speak. Moreover, conventional constitutional history rarely views how the sex neutral language of constitutional law implies assumptions about race, sex, and class that were part of First Amendment principles, as they were viewed by the founders and as developed in the 20th century (p. 311). She argues that there is a need to attack original meanings because public liberty was confined to the liberty of men,
limited in part by the social control of men in family and association settings.

The author forcefully argues that constitutional history should view the fight of women to take their place at public lecterns as important to the development of the freedom to speak. The public-private distinction in constitutional law hurt women, because it spoke only of the right to speak in public realms while social norms limited the right to speak and required women to fight to speak in public. Wonderful details are presented in this essay on efforts by reform groups, churches, and political leaders to keep women from public lecterns. This fight to speak helped make the inequality of women (in public and private space) known to the wider society prior to the Civil War, when public face to face debate was the primary forum for exploring public issues. VanBurkleo demonstrates that the fight for the
right to vote shifted the question of gender inequality from the right of women to speak at a public lectern to a public debate about legal rights and voting. The discourse changed to law-talk during and after Civil War (p. 313). Susan B. Anthony's Declaration of Rights in 1876 resembled a lawyer's brief when compared to the1848 Seneca Falls Declaration (p. 314). Women's struggle for public voice was dislodged by the women's right to vote (p. 314). Before the Civil War, the debate was over women's public silence and how in 1790 women were shut out of the founding of the Constitution. By 1837, women's rights advocates had constructed a distinct political culture for the women's movement around the right to public speech and assembly and the right to mixed sex lecturing.

Women fought for the right to speech, but temperance organizations, churches, and reform groups would ban

Page 428 begins here

women from public speaking. For example, women fought for the right to preach at liberal Oberlin College, and won; however, they continued to be banned elsewhere. An active Christian women's movement grew in the battle for the pulpit. Women could write scientific papers, but not present them publicly (p. 333). In this fight, speech came to be viewed as action for women, and securing the right to speak publicly for women was a way to demonstrate that the lives of women should not be relegated to the private sphere of the home. The author documents story after story of platform denials.

VanBurkleo argues that the experience of the Civil War and Reconstruction finally persuaded many reformers of the inadequacy of face-to face oratory as the main lever in women's rights battles. She writes, "The strong medicine of ballots would be necessary" (p. 335). VanBurkleo argues that this decision to switch the battle from the right to speak publicly to the right to vote, from the right to be on a platform with men to the right to the voting booth, had a significant and negative effect of the women's rights movement. She writes, "Women's rights activism yielded decisively to legalization and secularization" (p. 339) with the move to seek political equality. Supreme Court rulings and constitutional amendment remedies for civil wrongs were now emphasized. VanBurkleo continues, "The idea of woman's 'voice' came to be synonymous not with physically transgressive oratory but with relatively ladylike utterances at the polls. As women (and most Americans) embraced electoral speech through the vote as the primary objective, the more radical aspiration of women to be public figures, which were at the heart of antebellum communities, more or less collapsed, at least within the mainstream movement. She writes, "Women's voices would merge anonymously with men's at the polls; face-to-face exchanges of views (and the dynamic construction of solutions across gender lines) would largely cease-especially if women found themselves
possessed only of ballots, without the ancillary rights (e.g., jury service) customarily extended to voters" (pp. 339-40).

The goals were now political freedom as seen in the vote as the basis to open college doors, secure equal pay for equal work, and dignify the marriage relation and make women equal partners is society. The vote would produce the right to speech. There was less belief in the simple power of oratory. There was less call for face to face speech and action. The new view was that "Political power would allow women to remake society as insiders" (pp. 342-43).

VanBurkleo questions whether class solidarity can survive campaigns for political individualism, that is, the right for individuals to vote (p. 343). Speech communities were not so much relinquished as transmogrified. Voting was now seen as voice. She asks whether women's voice can last when mixed in the vote with men. The relationship of the political and social is important. She writes, "Voting thus was an avenue by which anxious women might be heard politically and remain ladies" (p. 345). Formal rights to vote do not change automatically the social relations among men and women in private space. No longer were women seen as fighting for
speech. They got the right to speak "privately" in the voting booth.

VanBurkleo shows how oratory and symbolic speech paved the way to ballots" (p. 346). However, the right to parade and vote replaced a discussion of unequal social

Page 429 begins here

roles, which was at the core of battles over the right to the lectern. She writes, "Yet, a century ago, the ballot could be conceptualized in a constitutional sense as an alternative to (or as an aspect of) liberty of speech, and therefore as a way to remake both individual women and republican society without incurring the wrath of social conservatives, and without sacrificing the whole of women's cultural inheritance" (pp. 346-47). The argument is that "a number of nineteenth-century reformers clearly conceived of the right to speak, listen, and print political opinions as an underpinning of republican citizenship INCLUSIVE of the right to vote, and properly a subject of federal constitutional and political superintendence" (p. 347). VanBurkleo writes, "These realities, in turn, provide a foundation for reconsidering the architecture and content of the master narrative of American civil liberties (and perhaps of First Amendment) history" (p. 347).

Women's rights champions 19th century, not only post-World War I jurists and scholars, thought of liberty of speech as a precondition for the practice of republican citizenship. Legal tropes of law words used by women to write "alternative visions and accounts of social reality" as they called for the right to speak allowed women to explore social reality and raise questions of their social position in private as well as public space.

VanBurkleo argues that the discussion changed to the right to vote as citizens' issues of the social reality differences were less important to the rhetoric of difference. She makes an important point when she asks the reader "to rethink rigidly partitioned, formalized categories of analysis in constitutional history writing" (p. 348). She asks constitutional historians to look at how gender-laden words at the core of the fight for the lectern and political speech give way to the "sex-neutral electoral
'voice"' in the fight for the right to vote (p. 348). Moreover, this change to the right to vote has resulted in too great a faith in the ballot box and the political system as forums for change.

VanBurkleo makes a powerful argument. One is witness to a view of how language and the transmogrification of social oppression to questions of political oppression can inform political change. Success for women, defined as formal access to the political system through voting may limit the ability of women to demonstrate the level of oppression in both the social and political worlds, as well as to explore the relationship of social to political change.

This is an excellent essay, which, unlike most of the essays in the book and the introduction, provides a discussion of new methods of analysis that can be part of a new constitutional history. One can ask VanBurkleo, is the problem of conventional constitutional history based on its highlighting of Supreme Court cases, courts in general, and rights language, rather than social oppression in private space and its relationship to public gender inequality and law? Or is the problem of
constitutional history that it does not take seriously the matter of how legal arguments and rights talk neutralize gender inequality as an issue and the normative element of oppression--since both women and men now have the equal right to vote?

One can question some of the assumptions made by the author-not about how discourse about voting rights and the assumptions that political incorporation will settle problems of women's oppression.

Page 430 begins here

One can question whether rights talk automatically, or simply, replaces social equality talk. This may have occurred when the fight switched from the battle for the lectern to the battle for the vote. However, as Cynthia Harrison demonstrates, women (and men) have made significant gains through the application of Equal Protection Clause principles to gender discrimination. Rights principles were defined and worked out by courts as the Supreme Court made gender classifications subject to intermediate scrutiny, and recently in the VIRGINIA MILITARY INSTITUTE case subject to almost strict scrutiny. All one must do is read that case to see how the social relationship of men and women is the subject of discussion. The same is so for the CASEY decision, a case in which rights to privacy were
replaced by a right to personhood for women as a basis for the right of abortion choice. Much more discussion is needed before one can accept VanBurkleo's assumptions about the conservative quality of law and courts, compared to political activism, even though she forcefully demonstrates that there were important negative implications for the women's movement when it sought and won the right to vote.

Moreover, more linkages between political mobilization and Court action, and the feedback effects of court action, on politics could be provided. Julie Novkov's excellent book CONSTITUTING WORKERS, PROTECTING WOMEN (2001) offers such linkages. In contrast to assumptions and conclusions about politics and law one might conclude from reading VanBurkleo's excellent essay, it is not usually a zero sum game between law (and law talk) and politics or political mobilization. Rather law and politics work synergistically over time, with social change activists trying to secure the forum that will secure as much reform as possible. One sees this fact of political/social life in Michael W. McCann, RIGHTS AT WORK (1994).

The findings and methods of analysis in this superb essay raise additional questions of what would constitute a new constitutional history. How does change in discourse relate to change in social activism in later years? Were there any events in the 20th century that produced an awareness of social inequality of women that is similar to that found in the fight to secure lectern rights in the 19th century? Can we compare later events with how legal questions and the Courts were used for social change in prior centuries? How is court action like or unlike political action? Did women's rights to be a citizen, as a voter, have to be won before
legitimacy could be secured for social inequality of women before the law? Is there as stark a public-private division in the law today as there was in the first half of the 20th century? What are the public and media events today that raise social equality issues, such as the right of lesbians and gay men to adopt children? We can learn much by discourse analysis; however, we can learn even more when such an analysis is placed within a structural, long-term institutional focus, some aspects of
which are reminiscent of aspects of the "old" constitutional history.

Finally, VanBurkleo does an excellent job in analyzing factors affecting mobilization and citizen consciousness of social and economic inequality before and after the decision by women's groups to secure the right to vote in place of the right to the lectern. However, more work needs to be done as to see whether, and to what degree, the neutral language of the law and Court action retards the development of gender equality.

Page 431 begins here

In "Race, State, Market, and Civil Society in Constitutional History," Mark Tushnet contributes a superb essay, in which he makes a complex argument about how the Constitution, civil society, and the economic market relate to each other in constitutional law. At times civil society could resist expansionist urges of state and market; at other times, the Constitution performed some of the roles of civil society by restraining government (p. 360). In so doing Tushnet makes a forceful argument about the pervasiveness of racism in the political and legal system. Tushnet "finds racial 'markers' in regions of law quite remote from the law of slavery and contends that such marking effectively binds seemingly disparate realms of human activity together, such as the state, the market, and civil society" (p. xxii).

As in the Kermit Hall contribution, Tushnet demonstrates how the Constitution and judicial politics papered over differences between the South, born of a slave society, and the market-oriented society of North (p. 360). The Supreme Court confronted, but ultimately avoided, questions of the relation between the national government and slavery in all cases dealing indirectly with Congress's power to regulate interstate and foreign commerce (p. 361). An expansive notion of exclusive national government power over commerce would leave too much unregulated if Congress had decided not to regulate and states were not permitted to regulate.
Therefore, in the antebellum period, the Supreme Court recognized states' concurrent power even to regulate commerce when the Congress did not act.

Tushnet shows how issues of slavery lurked even in Commerce Clause cases. Were slaves simply an object of commerce or something else? How would the
answers to these questions inform national versus state power over slavery? Must slaves be treated as commercial objects in opposition to the ideological position that people could not be transformed into property? (p. 363). States argued that they could regulate slavery if it were a subject that demanded diverse local regulations. Antebellum constitutional law found the relation between slavery, the market, civil society and the Constitution impossible to define (p. 364). Moreover, there was no solution to the problem of slavery if states where viewed as sovereign.

The most important contribution of this chapter is that it demonstrates the relationship between cases involving racial oppression and cases that limited government power over the economy. In PLESSY v. FERGUSON (1896) segregation statutes were justified by a state police power that allowed state governments to operate under the customs and traditions of people (p. 366). This allowed the customs and usages of civil society to be translated into law, as they were in the PLESSY decision. In that case, the Supreme Court said that social prejudice cannot be overcome by law; legislation cannot eradicate racial instincts, and to do so makes things worse (p. 366).

In LOCHNER v. NEW YORK (1905), the Supreme Court said that the Constitution defended the contract and property rights of all market actors, employers and employees; thus social and economic laws that were prejudiced against employers and employees without sufficient public interest reasons were not to be allowed. However, Tushnet emphasizes that the Supreme Court refused to protect blacks who were subject to social market prejudice, even though it was in the economic interest of railroads not to have two sets of train

Page 432 begins here

cars: one for whites, the other for African-Americans.

Tushnet argues that racism was the only difference in the cases. In the Lochner era, the Constitution was allied with protecting market forces against civil society, that is, against states pressing for social reform legislation, while in PLESSY, it was allied with civil society, that is, with the prejudice of whites, against market forces. Tushnet writes, "The only difference appears to be racism" (p. 367). The pre-political state of affairs in PLESSY is assumed to be the white majority's social and racial prejudice against African-Americans; in LOCHNER the pre-political state of affairs is viewed as an economic system that provides a basis for (equal power) relations between employers and employees.

Most interestingly, Tushnet shows how it was the intersection of race and political economy which lead to the beginning of the end of segregation. In MCCABE v. ATCHISON, TOPEKA & SANTA FE RAILWAY (1914) the Supreme Court said that the trains for blacks and white can be separate, but they must be
of equal quality. However, the economic market would not pay for the difference. In BUCHANAN v. WARLEY (1917), the Supreme Court held that a statute prohibiting whites from occupying a residence in a block where a majority of houses were occupied by blacks, and vice versa, violated the Fourteenth Amendment. This was a denial of a citizen's right to use, control, and dispose of property. The Court distinguished this from PLESSY by arguing that unlike WARLEY in PLESSY the citizen continued to have a right to ride on a train, only subject to reasonable rules in regard to the separation of the races. In PLESSY, the market had to stand aside while civil society engaged in race prejudice; with the influence of LOCHNER in BUCHANAN, the Court said the Constitution stood with the economic market against social prejudice in the civil society. Race was not a special condition which authorized greater government regulation over the market
than anything else.

Tushnet also demonstrates how the self-organization of blacks in civil society through the growth of intermediate institutions, which were helped by doctrinal innovations under the First Amendment, such as freedom of expression, contributed to the erosion of the ability of white prejudice in civil society to have dominance over the economic market. The NAACP brought suit to require states to pay equal salaries and provide equal school buildings or to integrate.

Tushnet shows how race, doctrine, and changes in institutions in civil society interacted to have rights of contract and property that were exercised in the 18th and 19th replaced in the 20th century. In BROWN v. BOARD OF EDUCATION (1954) schools and the state were viewed as replacing private contract and property as protectors of equal citizenship. Education as a function of state and local government now played the role of socialization as citizens, which in the days of PLESSY were done by institutions in civil society. Tushnet notes, "But, like the institutions of civil society, education, even public education, was the source of
values that later become inputs into political life: "Segregation," Warren wrote in BROWN v. BOARD OF EDUCATION (1954), "may affect [children's] hearts and minds in a way unlikely ever to be undone" (p. 375).

Tushnet argues that by the 1960s

Page 433 begins here

constitutional law no longer imposed limits on the government's power over the economic market. However, Tushnet writes, "By the 1980s, the Supreme Court revitalized the Constitution as a means of limiting government attempts to restructure the market's treatment of African-Americans" (p. 377). Tushnet argues that the strict scrutiny for race classifications enunciated in KOREMATSU v. UNITED STATES (1944), which led to strict Court scrutiny for race classifications and barring of school segregation in BROWN, was also applied to undermine affirmative action policies in the 1990s. No longer was race a special condition requiring government action; the Supreme Court now views the civil rights movement as a special interest group. Tushnet writes, "The Court sees affirmative action programs "as a 'RACIAL spoils system,' aimed in the first instance at racial goals rather than economic ones," not as social and political legislation that is subject to minimal Court scrutiny" (p. 378).

In Chapter 12, "Constitutional History and the "Cultural Turn": Cross Examining the Legal Reelist Narratives of Henry Fonda," Norman L. Rosenberg offers a stirring analysis of four Henry Fonda films: YOUNG MR. LINCOLN; 12 ANGRY MEN; GIDEON'S TRUMPET; and THE WRONG MAN. Rosenberg argues that Fonda, as an ironic "star," both conveyed and helped to conserve bedrock American values. Among these values are the sanctity of the Constitution and republicanism. For Rosenberg, these "filmic texts" epitomized the mass cultural narrative. In these films, we see quite different views of criminal defendants and defense lawyers. In writing this interpretive essay, Rosenberg is meeting Paul Kahn's call for scholars to demonstrate the "representative character of law's appearance" (p. 393) and to show how "the IMAGINATION shapes political MEANING in the American polity" (p. 383).

In writing about law and culture in film, Rosenberg seeks to cross-examine scholarly assumptions about primary sources. Rosenberg emphasizes the importance of moving beyond a received canon of "constitutional texts" to understand how law makes culture and culture makes law. Only by expanding the canon to include this broader range of "texts," such as movies, will scholars begin to appreciate the power of constitutional law and institutions within the larger culture. By examining non-traditional texts for the meaning of constitutionalism, "scholars will be forced to take culture a good deal more seriously as part of constitutional history than they presently do" (p. xxii).

It is fun to read Rosenberg's dissection and comparison of roles within films and Fonda as an actor. I can see students in a Law and Society course learning about law and legal roles by looking at these films and reading this essay. One can get a feel for American culture and the place of law in that culture, as it changes over time and among contexts. However, this most interesting chapter is more about film and culture than about explaining the development of law, constitutional history, or legal change. I do not question that this chapter might be a good teaching device-however, the critical theory and analysis presented here is about cultural studies more than about constitutional history and development. I do question Rosenberg's claim that movies and non-legal texts can maintain the fabric of constitutionalism better than the study of legal opinions, legal commentary, and social science scholarship. In order to accept Rosenberg's claim that constitutional history might be enriched by

Page 434 begins here

embracing some of the insights and methods of "cultural studies" and critical theory, a more clear-cut analysis of the specific nature of the relationship between such study and explanation of law, legal change, and institutions is needed. Can we make any generalizations or even informed guesses about law and legal institutions over time by viewing four films and one actor in those films? I question whether constitutional history will regain its stature, a goal of this book and the aim Rosenberg makes for film study as constitutional history, if the methods of inquiry and interpretation are so different from what is being studied by the most inventive of constitutional historians such as those whose work are explored above.

In conclusion, all the essays in this collection provide informative reading for undergraduates and graduates. I emphasize the importance of the essays by Hall, Kaczorowski, Konig, Tushnet, VanBurkleo, and White because they are particularly insightful, especially about the relationship between culture and law. Also, they are truly original, creative, and important works which can inform a new constitutional history. In addition, they will be of most interest to political scientists who
study law, culture, constitutional change, and American political development.

However, this collection would have better met its primary scholarly objective, to be a prospectus for a new constitutional history, if the contributors (and the editors through the introduction and in a concluding chapter) would have spoken more directly about how their findings, historiography, methods of inquiry, and views on historical change inform a new constitutional history. Finally, to meet the important objective of a new constitutional history, it would be wise for historians to draw upon the works of New Historical Institutionalist scholars of constitutional law and politics, such as Pam Brandwein, Howard Gillman, Mark Graber, Ken Kersch, Wayne Moore, Julie Novkov, Karen Orren, Rogers Smith, and Keith Whittington, who seek to systematically study the relationship between history and politics with a particular regard for methods of inquiry and for the study of American political development.

***************************************************************************

Copyright 2002 by the author, Ronald Kahn.