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Book Review
Sandra F. VanBurkleo, Kermit L. Hall, and Robert J. Kaczorowski, editors, Constitutionalism and American Culture: Writing the New Constitutional History, Lawrence: University Press of Kansas, 2002. Pp. 463. $24.95 (ISBN 0-7006-1154-1).
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Honoring the late constitutional historian Paul L. Murphy, a group of historians and historically minded lawyers have compiled an eclectic collection of essays that interrogate the field self-described as "new constitutional history." These essays, which present both new research and refreshing reinterpretations of older stories, draw inspiration from Murphy's now forty-year-old charge to historians that they not leave America's constitutional past to lawyers and judges. In examining a wide array of topics, from David Konig's exploration of the theory of history held by America's constitutional founders to John Johnson's alternate social history of the infamous Tinker v. Des Moines (1969) case, these scholars have attempted to follow Murphy's example by relating problems in constitutional history to broader trends in American culture. This collection will prove important to all scholars of constitutional and legal history and particularly vital to those interested in the history of civil liberties. |
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The first of three sections within the collection, titled "Constitutional Contexts," contains three essays that each contextualize one of the three traditional turning points in constitutional history: the 1787 founding, Reconstruction, and the New Deal. Particularly notable here is Kaczorowski's essay, "The Inverted Constitution," that locates the origins of America's modern rights regime—where individuals call upon the federal government and national constitution to protect their national rights—in federal protection of slave holders' rights. Kaczorowski argues that the constitution's fugitive slave clause and the subsequent fugitive slave acts "conferred on slave owners a new constitutional right enforceable under the authority of the national government, independent of the states" (31). Political scientists, historians of "the state," and others will be interested in Kaczorowski's contention that a supreme federal police power, as exercised by federal marshals and the posse comitatus, did indeed exist in the antebellum period. Such power proved highly disputatious in the turbulent 1850s, provoking northern state governments to make their own "state's rights" claims in attempt to nullify federal fugitive slave law and constrain federal power. Kaczorowski suggests that the Civil Rights Act of 1866 and the Fourteenth Amendment, where the traditional story of the modern rights regime typically begins, cannot be understood without taking account of their fugitive slave precursors. |
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The six essays comprising Part II, entitled "The Modern Constitutional Republic in Historical Perspective," deal with disparate twentieth-century constitutional equality and rights issues. Hall's essay "Cultural History and the First Amendment" and Michael Belknap's "The Warren Court and Equality" illustrate that there is still much to disagree over in the realm of constitutional history, for they offer contradictory appraisals of the legacy of the Warren Court. Hall's reassessment of the landmark New York Times v. Sullivan (1964) forces a reconsideration of the case and its legacy by locating its roots in the values of deference and civility that he claims were distinctly embedded in southern political and legal culture. Though one might question Hall's sympathetic account of the culture promoted by moderate white southerners, which he is aware veiled racism and fostered segregation, his piece importantly probes the relationship between southern culture and the national constitution. Hall contends that the legacy of Sullivan was not only one of victory for civil rights, but also a loss of legal support for a cultural vision endorsing civility in public discourse, "for better or worse" (298). Hall's critique of the Warren Court for perhaps overstepping its bounds is countered by Belknap's suggestion that the Court did not go far enough. While most accounts portray the Warren Court as a bastion of legal liberalism, Belknap uses civil disobedience cases to argue that the Court was "not prepared to alter American constitutional law radically in order to promote equality" (227). A majority of the Court, insists Belknap, perceived a breakdown of law and order in the mid- to late 1960s, leading them to promulgate a conservative jurisprudence that protected property rights and public order at the expense of potentially more expansive gains in civil rights and social equality. |
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The final section offers "new directions" for American constitutional history. VanBurkleo implores scholars to delve well beneath the Supreme Court docket to uncover other less obvious chapters in the history of civil liberties and American constitutionalism. Finding free speech rights inextricably linked to feminists' suffrage claims in the antebellum period, VanBurkleo argues that the First Amendment claim made in Minor v. Happersett (1875), which existing scholarship largely overlooks, was in fact indispensable to the feminist quest to gain a "voice" within the male-dominated political culture. Norman Rosenberg suggests even newer terrain by showing how films may be used as a constitutional source base. Analyzing the work of actor Henry Fonda in movies like 12 Angry Men (1957) and Gideon's Trumpet (1980), Rosenberg asserts that the role of the mass media in constructing American constitutional culture cannot be overlooked. |
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The collection demonstrates that the practitioners of "new constitutional history" adhere to no unified historical approach. Although this eclecticism might be open to criticism, especially in the diverse deployments of the idea of "culture," I would counter that the range of themes and methodologies is precisely the field's strength. Fields and sub-fields in American history, whether they be "new social history," "new political history," or "new constitutional history," have stagnated often because of a high degree of historiographical conformity. By contrast, this collection shows "new constitutional history" to be a field that remains dynamic, robust, open to the exploration of less-traditional venues, and accessible to those seeking to marshal unconventional methodologies. |
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Kyle G. Volk
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University of Chicago
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