Monday, July 18, 2011

The Curious Case of William Winslow Crosskey, Part III (Conclusion)

I couldn’t resist ending my previous post about the early originalist constitutional scholar William Crosskey’s intellectual (non?) influence by entertaining the counter-hypothesis: that perhaps he has been influential, although in ways that are not easy to trace. The easier case to make – perhaps to the point of being over-determined -- is that his influence on the subsequent development of originalist thought, and constitutional thought more generally, has been slight. I will conjecture a bit on why.

Theory One: He was an atrocious historian

It is all well and good to use originalist methods, and give them the hard-sell as the only legitimate way of arriving at right answers about the meaning of the Constitution. But if a legitimate method is applied incompetently, the answer you arrive at has no more claim to legitimacy than that of some less justifiable method, applied skillfully. Garbage in, garbage out.

Given Crosskey’s actual findings, I’m pretty sure that many contemporary (conservative) originalists would likely think that Crosskey’s history is bad history. When it first came out, his scholarship was praised by at least one eminent historian, Arthur Schlesinger, Sr. There may have been others. Political scientist Edward S. Corwin, though, dismissed Crosskey’s history as wrong, categorically.

When scholars took another look at Crosskey at the beginning of the Reagan era (because of the belated, posthumous publication of Volume III of Politics and the Constitution in 1980), things weren’t much better. In a review in the American Historical Review (December 1981), Lance Banning pronounced Politics and the Constitution “a tour de force of scholarship subordinated to a point of view.”
“Countervailing evidence is repeatedly ignored or explained away. In passage after passage, contemporary language that might seem clear to any specialist in the history of the Confederation years is tortured into shapes that none will recognize. For all the claims to be recovering an eighteenth century universe of discourse, the work shows little feeling for the period with which it deals. By ordinary standards of the discipline, it is outrageously bad history. By any test, it is a stunning feat of tendentious argumentation, a clever if exhausting brief for a position that Alexander Hamilton himself did not attempt to argue.”

In a review in the American Political Science Review at about the same time, Charles A. Miller described Politics and Constitution as “a work of deliberate constitutional ideology in a historical mode, like that of Louis Boudin.” He added that “Crosskey holds a remarkable view of the nature of history. In place of the complexity, uncertainty, compromise, or even luck, which normally make up political history, Crosskey had discovered a constitutional teleology, a single force that moves through American history in the years preceding the federal convention and knocks aside all other issues….” Politics and the Constitution, Miller concluded euphemistically, a highly idiosyncratic work.

Ok. This is not good for Crosskey. But historians are often not kind to the sort of goal-directed “law office history” that is practiced by many legal academy constitutional law scholars. To conclude that this is what doomed Crosskey, we need to conclude not that the quality of his history was not up to the standards of professional historians, but that it was self-evidently below that standard of the sort of history-as-legal-brief as practiced by other law professors. Maybe so. Maybe the monumental nature of the work, and the resoluteness of the historical approach, kicked the work into the field of history, where it was judged harshly.

That said, sometimes the response to historically-based arguments about the meaning of the Constitution is a raft of counter-arguments setting the history straight. Being wrong in an interesting way is hardly a barrier to subsequent influence. I’ve heard many say that Raoul Berger’s history was “outrageously bad” too. But Berger’s influence has been huge. If we focus on Crosskey’s views on incorporation, I think actually think his debates with Fairman were quite influential. But maybe the rest of Politics and the Constitution simply doesn’t rise to that level. On that, others will have to judge.

Theory Two: Crosskey was a Jerk

Charles Miller’s review, at least, seems as much put out by the claims the originalist method makes upon history as it does by the substance of Crosskey’s history. Crosskey made a lot of claims on behalf of that method. He insisted that it was the only legitimate way to interpret the Constitution. He insisted that any judge who was not an originalist was acting outside his authority: he was doing politics, not law. Crosskey charged living constitutionalists with absurdity.

This is hardly rough stuff by contemporary standards in the legal academy (and probably par for “popular constitutionalism” at pretty much any time). But maybe it offended the more genteel standards of the mid-century legal academy (and the academy more generally). Daniel Boorstin, for one, scored Crosskey for his “bludgeoning dogmatism,” and was infuriated by Crosskey’s insistence that the conclusions he reached were “obvious,” and that no rational (or honest) person could disagree with him.

Maybe this had some effect, it its original academic context.

Theory Three: The Warren Court/Hart & Sacks Whipsaw

To me, historically speaking, this theory is the most interesting. The issue is one of the confluence of timing and substance. Crosskey’s case put me in the mind of perhaps the most famous “curious case” of mis-timed legal scholarship – from precisely the same time period – that of Henry Hart and Albert Sack’s The Legal Process (1958). As William Eskridge details in his introduction to the (first!) publication of this classic book (Foundation Press, 2001), although highly influential through its use as a classroom text at Harvard Law School, and passed around in (unpublished) manuscript form, the authors simply couldn’t bring themselves to publish this book because, anchored as it was in the structural/process liberalism of the new administrative state, it had almost nothing to say about Brown v. Board of Education (1954) – about the substance of civil rights and civil liberties more generally, subjects which were coming to define the liberal constitutionalism of the Warren Era. Simply put, the liberalism of Hart and Sacks, formed chiefly in an earlier time, did not match the liberalism that was ascendant, and soon to be predominant, at the time their book was poised for publication.

From my own research on my current book, I can tell you that there were certainly lots of scattered accusations that the Founders’s understanding of the Constitution was being betrayed by the Warren Court in the late 1950s. I’m sure that there were lots of scattered accusations of the same in the 1940s (though, in that case, focused on the betrayals of the New Deal itself – with the Court not leading, but as a passive accomplice). Of course, Crosskey’s originalism was of no use to these people. He was arguing, on the contrary, that the original Constitution, in fact, gave the national government all the authority it needed to act broadly for the general welfare. He argued, e.g., that originalism, in fact, justified an exceptionally broad reading of Congress’s powers under the commerce clause. Problem is, however, that the modern, activist, national regulatory and administrative state didn’t need him for this, practically or theoretically. By 1953/1960 that battle had been won. By this point, the mainstream of the opposition party – the Republicans under Eisenhower – had accepted the constitutional legitimacy of the New Deal. Theoretically, the theory of “living constitutionalism” was at the height of its popularity. There was no need for Crosskey’s odd, originalist foundation for a practical and theoretical fait accompli.

But there is more to it than that, and this is where the Hart & Sacks whipsaw comes in. It is important to recognize that twentieth century constitutional liberalism (or progressivism) was not any one thing. The mid-century advent of the Warren Court represented a critical juncture in its development. In two of its core themes, Crosskey’s originalism was advanced in service of an old, increasingly outdated progressivism, rather than the new liberalism that was sprouting all around him. Crosskey was, in essence, a pure majoritarian. For all intents and purposes, he argued that the powers of the Congress were plenary. He was also a skeptic about judicial power and judicial review. This is progressivism circa 1912. It too is ill-matched to the emergent Warren Court liberalism.

Mary Bilder tells me that no one was more infuriated by Crosskey’s opus than the folks at Harvard Law School (Henry Hart, et al.). I’m blogging, and not doing research … I haven’t read Hart’s reviews of Politics and the Constitution. But I can see why a work like Crosskey’s would infuriate him. Hart and Sack’s legal process approach emphasized structural architecture, equipoise, institutional balance, and expertise (as updated later by their students and others who did engage with the Warren Court – Wechsler, Alexander Bickel, John Hart Ely, e.g. – it emphasized neutrality and principle). Crosskey, by contrast, edged toward pure democracy/majority rule. This must have seemed to them to amount to no constitutionalism at all, whether in the (outdated?) form of the Founders, or in a form (ostensibly) better suited the the needs of modern administrative government. It is possible that this anti-constitutionalist thrust (as seen from a Legal Process perspective) drove the Hart so far around the bend that it was all he could do to keep from taking a tire iron to Crosskey’s head. That Crosskey justified his understandings with appeals to the Founders probably seemed irrelevant to Hart et al. – and my guess is that it seemed really off-base as well. It probably seemed irrelevant to the questions posed by the modern regulatory state as well. It was wrong as history, and wrong as a constitutional theory suited to modern government.

This gets my vote as the core of the answer to Mary Bilder’s question to me concerning the curious case of William Winslow Crosskey.

Are there lots of things in Politics and the Constitution that might have been undervalued for having been born into this moment, and constitutional maelstrom? It just might be the case (I haven’t done the work. I don’t know). What is Crosskey’s relationship to the subsequent trajectory of his originalist method? Jonathan O’Neill’s Originalism in American Law and Politics: A Constitutional History (Johns Hopkins, 2005) has only one index entry on Crosskey, which reads “Crosskey, William Winslow, on incorporation, 70.” But, although purporting to be about originalism generally, O’Neill’s short book is really almost entirely about tracing contemporary conservative originalism backwards. In an era of nascent liberal originalism, and an aggressively activist conservative Supreme Court, might Crosskey’s work be of some contemporary relevance?

I will leave it at that ….

The Curious Case of William Winslow Crosskey, Part I

The Curious Case of William Winslow Crosskey, Part II