Friday, April 8, 2011

The Survey: Old Debates

In thinking about the exam, I've been reconsidering old debates in American Legal History, several captured in Kermit Hall's edited volume: Main Themes in United States Constitutional and Legal History (New York: Garland, 1987). For example, Hall includes a 1982 article by Wythe Holt pitting Morton Horwitz and Mark Tushnet against Bernard Bailyn and Gordon Wood. Bailyn and Wood, argues Holt, "find the chief motivating factor in the American experience to be ideas," while Horwitz and Tushnet view economics to be the "primary social factor." In Horwitz's "neo-Marxist" view, for example, economic "pressure groups" cleave into two main classes, "one powerful, small, and in control," the other "large, weak, and always fighting for control." Though Wythe acknowledges that earlier "consensus legal historians"noted the interplay between "economics and pressure groups," he concludes that Horwitz pushed the analysis to an extreme, joining Tushnet in producing a model of "materialist history" where the wealthy minority consistently out-maneuvered the poor and dispossessed. Question, what is the status of this debate, within legal history circles, today? I'm interested to know if people think that the old materialist (Marxist) vs. idealist (Weberian) battle is still relevant, and how. Not only am I considering posing this question to students on the exam, but its occurred to me that we may be entering a new era of "consensus" history. According to Holt, consensus historians like Lawrence Friedman espoused a "rigid determinism" in which law always reflects larger patterns of "economic organization" but is not, itself, a terrain of struggle upon which the rich consistently trounce the poor. Isn't this what Barry Friedman's dismissal of the Supreme Court's counter-majoritarian pretensions in Will of the People tries to do -- namely to posit that the Court sides with the people more than it trounces them? And what about Brian Tamanaha's Beyond the Formalist-Realist Divide? It seems that Tamanaha is also out to gore one of the materialist/Marxists' most sacred cows, the rise of formalism as a hoax to advance the goals of unfettered capitalism.