Wednesday, June 13, 2007

Smith reviews White, History and the Constitution: Collected Essays

History and the Constitution: Collected Essays, by G. Edward White, (Carolina Academic Press, 2007) is reviewed in the Law and Politics Book Review by Christopher E. Smith, School of Criminal Justice, Michigan State University. Smith begins with a discussion of the pitfalls of assembling a collection of previously published essays. Then he turns to White, whose collection he finds to be largely successful.

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

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

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

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

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

For the full review, click here. White's Table of Contents is here.