Tuesday, May 10, 2011

Justice Who? Kersch reviews Kens, "The Supreme Court under Morrison R. Waite"

The Law & Politics Book Review has posted a review of Paul Kens, THE SUPREME COURT UNDER MORRISON R. WAITE, 1874-1888 (University of South Carolina Press, 2010).
Reviewer Ken I. Kersch (Boston College; Clough Center for the Study of Constitutional Democracy) begins by recognizing "the relative obscurity of the man serving as this book’s organizing subject, and the ostensible dullness (and brevity) of the period it covers," but urges readers to give the book a chance:
While period experts probably won’t learn a lot, the value-added to others from reading this book could be quite high. Moreover, in reviewing the trajectory of constitutional development in the period, even experts might be spurred by Kens’s account to appreciate in new ways the Waite Court’s perhaps surprising contemporary relevance.
Here's a bit more about the Waite Court:
Waite Court (1874-1888) themes included the relation between the national government and the states, the constitutional powers of governments to regulate the economy, and the powers of the community vis-à-vis big business. Significantly, the Court considered these issues not under the conditions of a now vanished “proprietary-competitive,” agrarian order, but at the very moment when our complex, interconnected, corporate-capitalist political economy was struggling to be born (see Sklar 1986). As such, the Waite Court was the first to grapple seriously with the application of the traditional system of government – and the Founders' Constitution – to the political economy of modern America.
And here's Kersch on the take-away:
This book is largely an overview and synthesis, but it is a good one. Although some of his chapter titles are cringe-inducing (e.g. “Waite, Waite, Don’t Tell Me”), Kens is an otherwise engaging writer who is very much at home in the period. He effectively situates the reader within the era’s complicated and sometimes alien legal categories, presented in their rich economic, political, and social contexts. His capsule profiles of the Court’s justices are nicely drawn.

The book prompts thoughts that are far from antiquarian. As debates about originalism continue, it is striking to be reminded of the degree to which there was almost instantaneous confusion, if not bitter contention, on the Waite Court about the original meaning of the Fourteenth Amendment – despite the [*196] fact that all involved clearly recalled the adoption of those amendments, and its context, which had occurred less than a decade earlier. As Kens emphasizes, the antagonism between Justices Waite and Field became a cynosure for this contention (this book has convinced me that, in overlooking the Waite-Field antagonism in his otherwise wonderful book, THE SUPREME COURT: THE PERSONALITIES AND RIVALRIES THAT DEFINED AMERICA (2007), Jeffrey Rosen missed the boat regarding one opposition that plainly continues to define America today).
The full review is here.

Image credit: Justice Morrison Waite, from the Library of Congress