Friday, January 2, 2009

Siegel on Historism in Late 19th C. Constitutional Thought

Historism in Late Nineteenth Century Constitutional Thought by Stephen A. Siegel, DePaul University - College of Law, has just been posted on SSRN. It appeared in the Wisconsin Law Review (1990). Here's the abstract:

It has long been a truism of American constitutional history that the late-nineteenth century proponents of laissez-faire constitutionalism grounded themselves in natural law jurisprudence. Unfortunately, this truism is an oversimplification that limits our understanding of constitutional jurisprudence in late-nineteenth and early twentieth centuries, the jurisprudence of Lochner-era.

Without doubt, many of the early proponents of laissez-faire constitutionalism believed in the reality of natural law. Nevertheless, this Article argues that these same jurists also accepted the distinction between natural law and positive law. They regarded their task as the study and enunciation of the latter, not the former. The originators of laissez-faire constitutionalism adhered to the doctrine that law expressed the will of an earthly, not divine, sovereign; and they claimed to describe what American constitutional law was, not what it should be. They accepted, in short, the jurisprudence of legal positivism as well as the reality of natural law.

Most fundamentally, however, this Article argues that the originators of laissez-faire constitutionalism grounded themselves in a third mode of jurisprudence: a jurisprudence which this study calls "historism." Historism conceived law as an evolving product of the mutual interaction of race, culture, reason and events. Moreover, historism taught that objective legal principles were discernible through historical studies, not rationalistic introspection. Today, historism is a thoroughly discredited and largely forgotten mode of thought. Yet it flourished in the nineteenth century. Laissez-faire constitutionalism was, of course, the product of many factors. But historism was its central jurisprudential determinant.

This study explores the relation of historism and laissez-faire constitutionalism through a study of three prominent late nineteenth century constitutional commentators: John Norton Pomeroy, Thomas McIntyre Cooley and Christopher Gustavus Tiedeman. All three of these scholars supported laissez-faire constitutionalism. Two of them are regarded as the preeminent formulators of that doctrine. This study shows that these commentators grounded their constitutionalism in legal positivism as much as in natural law. Moreover, it shows that historism mediated their conflicting jurisprudential commitments. Historism was the linchpin of their constitutional thought.

Part I of this study describes historism as a style of normative social theory and discusses its rationalist, positivist and teleologic branches. Part II analyzes Pomeroy's, Cooley's, and Tiedeman's private and public law jurisprudence, showing the varying ways they blended natural law, legal positivism and historism into a theory of constitutional law. Part III discusses three implications of this study for a revision of our understanding of Lochner-era jurisprudence.
Images: Pomeroy and Cooley.