Saturday, July 30, 2011

Founding Father of the Lost Constitution?

This October, Boston College’s Clough Center for the Study of Constitutional Democracy will host an interdisciplinary roundtable on Gerard Magliocca’s new book The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale, 2011), featuring Michael Kazin (History, Georgetown), M. Elizabeth Sanders (Government, Cornell), Magliocca (Law, Indiana-Indianapolis), and yours truly.

Given recent (and current) events in Washington, the timing of a book that examines the origins of late nineteenth century laissez-faire constitutionalism could not be better. Of course, this topic has been treated many times before, including in classic works such as Arnold M. Paul’s, Conservative Crisis and the Rule of Law: Attitudes of Bar and Bench, 1887-1895 (Cornell, 1960). Paul (also) argued that the “crisis psychology” that formed in response to efforts to build the modern state provoked a backlash that unleashed a robust anti-government philosophy that fundamentally transformed the institutional power of the judiciary, and both court-articulated constitutional doctrine, and the nation’s broader constitutional politics.

It is interesting to think about the similarities and differences between Magliocca’s account of this era and these dynamics with that offered by the classic progressive accounts of the same period by scholars like Arnold Paul, Sidney Fine, and others. It would be interesting as well to consider the developmental dynamics of laissez-faire constitutionalism of that earlier era with that unloosed by the purveyors of “the lost Constitution” in our own.

Evincing the sensibility of contemporary scholars interested in “the Constitution outside the courts,” Magliocca’s take casts a presidential candidate (and a three-time losing one at that) at the center of his story: this is constitutional law, but constitutional law nestled in a much broader account of constitutional politics (Magliocca did a great job doing a similar thing in his longer, and more detailed first book on the constitutional politics of Andrew Jackson). Magliocca also foregrounds the politics of “backlash” that has been the subject of hot scholarly discussion since Michael Klarman’s provocative application of the concept to the Supreme Court’s decision in Brown v. Board of Education (1954). In an echo of political scientist Gerald Rosenberg’s classic (and controversial) book, The Hollow Hope: Can the Courts Bring About Social Change (Chicago, 1991), the publisher’s description of The Tragedy of William Jennings Bryan states that “The judicial backlash of the 1890s—the most powerful the United States has ever experienced—illustrates vividly the risks of seeking fundamental social change.”

At one point, Magliocca claims that “William Jennings Bryan … exerted more influence over constitutional law than anyone else at the turn of the twentieth century.” (p. 149). Is that true? How would we assess such a claim, historically?

Yale University Press’s précis for the book tells us that Magliocca “explores how Bryan's effort to reach the White House energized conservatives across the nation and caused a transformation in constitutional law.” One of the odd things about the current situation is that it certainly feels like Barack Obama is being cast by the Right in precisely the light that the late-nineteenth century Right cast William Jennings Bryan – despite the fact (yes, “the fact”), the Obama, a moderate, is nothing at all like Bryan. What are we to make of this?

These days, moreover, the Supreme Court has hardly taken a leadership role in the propagation in extreme forms of laissez-faire (so far), which has been rooted in movement politics. Will this change? Will the two trajectories prove the same? Is that even possible, in a context in which the wider public is deeply accustomed to, and dependent upon, the services of the modern welfare and regulatory state?

Stay tuned….