Thursday, March 8, 2012

Ted White Q&A: On The Marshall Court and Cultural Change

Yesterday's Q& A with Ted White, which concerned Law in American History and the writing of synthetic scholarly treatments of history, generated a comment from Al Brophy (UNC-law) about one of Ted's earlier works, The Marshall Court and Cultural Change, originally published as Volumes III-IV of the Oliver Wendell Holmes Devise History of the Supreme Court. Ted's response follows.

Courtesy of UNC
Q: This talk of synthesis reminds me of The Marshall Court and Cultural Change -- which is my favorite of White's books and one of my two or three favorite works of American history. It synthesizes a ton of literature on republicanism and what we're now calling the market revolution. I know that this series of posts is focused around the Law in America, but I'd be most interested in your thoughts on Marshall Court and Cultural Change. Hard for me to believe that it's been out, what, 24 years. Seems like it may be time for a retrospective on it and how it's influence the writing of constitutional history and also history of the period 1810s to 1830s.

   A: My overriding goal in writing The Marshall Court and Cultural Change was to achieve some integration of the institutional dimensions of the Court's work during Marshall's tenure (not just its decisions but the arguments of counsel, communications among the justices, and a recovery of the Court's deliberative process) and historical literature on early nineteenth century American culture. I wanted readers to see the Marshall Court not just as a phase in the ongoing history of the Supreme Court of the United States, but as what I called a "Court of its time": a distinctive historical actor. That's why I chose, as one reviewer pointed out, to delay detailed discussions of any of the Court's opinions until I reached the seventh chapter of the book. I used early chapters to talk about cultural themes and to explore the way in which the Court made decisions, which was radically different from modern Courts and had not received much attention in the literature.

Making the decision not to take up the Court's decisions before supplying an institutional and cultural context resulted in my needing to read and synthesize a good deal of late eighteenth- and early nineteenth-century historical literature. At the time I was reading that work and determining how I might integrate it into my narrative, the topics of republican political and legal theory, and of competing attitudes toward what we would now call promotional, regulatory, and "free market" approaches to an expanding commercial economy, were of great interest to historians. I was convinced by that literature that the historical contemporaries of the Marshall Court were concerned with those topics as well, although they described them in their own terms (using words such as "luxury," "improvement," or "consolidation,"). So I thought that by giving an overview of cultural issues which blended my extraction of themes from the historical literature with the language of early nineteenth-century actors addressing those themes, the reader would be better prepared for my subsequent analysis of the cases.

A challenge for me in the portion of the book that dealt directly with the Court's decisions and opinions was the fact that many of the Court's decisions during Marshall's tenure were "famous" in the sense of having been written about regularly and anthologized in casebooks and textbooks. I wanted to treat those cases afresh, reading them as historical and biographical as well as legal documents. I intended the cultural and institutional syntheses presented in the book's initial chapters to help serve as a framework for my readings of cases.

I used a variant of that technique in some chapters in Law in American History, most prominently the two on law and the founding of the American republic, the one on the emergence of the Supreme Court, and large portions of the second of the two chapters on the dissolution of the Union, where I devoted a good deal of space to the Court's fugitive slave decisions. Not all of my discussion in those chapters involved judicial decisions, but I sought to use themes I had extracted from historical literature to make sense of the thought processes and language of legal actors.
All by way of saying that I guess there are some continuities between the approach I took in The Marshall Court and Cultural Change and that which I employ in Law in American History, although the challenges in writing those books were very different.