1 Harold M. Hyman & William M. Wiecek, Equal Justice Under Law: Constitutional Development 1835–1875 (New York: Harper & Row, 1982).Google Scholar

2 Again, some quibbles: Hyman and Wiecek adopt too reductionist a theory in describing developments in tort law as a way of passing on the costs of industrialization and as reflecting “a determination to protect risky investments in new technologies” (p. 40). They note Richard Posner's critique of this theory (p. 39 n.61). They do not discuss the apparent tension between the theory and the themes of democracy and popular sovereignty they identified in the first chapter. This is especially striking when they immediately follow with a paragraph on the reduction in the jury's role (p. 40). Similarly they do not discuss the same tension in describing the “conservative elite of American lawyers” who opposed codification, with a large measure of success (p. 47).Google Scholar

3 But see pp. 341–49. Both authors are scholars of national law, and they may have regarded the secondary literature on postwar developments in state law as too thin to rely on. Still, it would have been nice to see Willard Hurst invoked not just for his analysis of the antebellum period as one in which law “sought to promote the release of individuals' creative energy” (p. 50) but also for his analysis of postwar regulation of the lumber industry in Wisconsin.Google Scholar

4 Rev. ed. Urbana: University of Illinois Press, 1951.Google Scholar

5 William M. Wiecek, The Sources of Antislavery Constitutionalism in America, 1760–1848 (Ithaca, N.Y.: Cornell University Press, 1977).Google Scholar

6 The discussion has its seeds in George Fredrickson, The Inner Civil War (New York: Harper & Row, 1965), and Harold M. Hyman, A More Perfect Union (New York: Alfred A. Knopf, 1973). This may be an appropriate place to note that the book contains a comprehensive bibliographical essay (pp. 533–54) with a curious excursion into the theory of constitutional interpretation (pp. 552–53), as well as, oddly enough, an appendix reprinting the Constitution. Its predecessors in New American Nation Series, Loren P. Beth, The Development of the American Constitution, 1877–1917 (New York: Harper & Row, 1971), and Paul L. Murphy, The Constitution in Crisis Times, 1918–1969 (New York: Harper & Row, 1972), do not reprint the Constitution. I assume that the series editors decided that they had made a mistake omitting one. Still, I wonder how useful it is even to the general reader to find in the text a reference to “Article III, section 10 [sic],” with a footnote that reads “See Appendix” (p. 238 n. 10). I suspect that a textual presentation of article III, section 3, which is the reference, would have been more helpful.Google Scholar

7 See Paludan, Phillip S., The American Civil War Considered as a Crisis in Law and Order, 77 Am. Hist. Rev. 1013 (1972), and id., A Covenant with Death: The Constitution, Law, and Equality in the Civil War Era (Urbana: University of Illinois Press, 1975).Google Scholar

8 I suspect that there is an affinity between the ad hoc quality of Hyman and Wiecek's political history and their tendency to evaluate past decisions in terms of their consistency with present-day values rather than with values held when the cases were decided. This is most apparent in their puzzlement about Able-man v. Booth, 62 U.S. (21 How.) 506 (1859), in which the Court held unconstitutional an effort by a state court to grant habeas corpus to a person held by federal authorities for violating the fugitive slave laws. Hyman and Wiecek say that here the values Taney “asserted—judicial power and nationalism—were harmonious,” and contrast Ableman with Dred Scott, where those values “were posed in conflict” (p. 199). The resolution in Ableman promoted national power, that in Dred Scott protected states' rights. It is hard to see how, on the level of political values, one could find a balance between judicial power and nationalism that yielded both results. (I offer an alternative perspective on Ableman and Dred Scott below). Hyman and Wiecek conclude by emphasizing the “enduring relevance” of Ableman (p. 200) and its place as “one of Taney's monuments” (p. 201).Google Scholar

9 These characterizations are meant to describe Stephen Douglas (pp. 161–65), John Crittenden (pp. 221–22), and proslavery constitutionalists (pp. 137–40).Google Scholar

10 The outline is heavily influenced by Duncan Kennedy, Toward an Historical Understanding of Legal Consciousness, 3 Research L. & Soc. 3 (1980); Katz, Al, Studies in Boundary Theory, 28 Buffalo L. Rev. 383 (1979); and Gabel, Peter, Intention and Structure in Contractual Conditions: Outline of a Method for Critical Legal Theory, 61 Minn. L. Rev. 601 (1977), as well as by my own work on the law of slavery, Mark V. Tushnet, The American Law of Slavery, 1810–1860: Considerations of Humanity and Interest (Princeton, N.J.: Princeton University Press, 1981). This may be the place to note that both Hyman and Wiecek reviewed my book. In calling what follows an outline of a more elaborate political history I am suggesting that developing the outline would produce a more complex and nuanced understanding of the relations between constitutional law and what is conventionally regarded as politics. Alternatively, one can read the suggestion to be that we should adopt a broader notion of politics that encompasses intellectual and cultural disputes predicated on fundamental differences in economic organization. See infra text accompanying note 27.Google Scholar

11 In a less stringent version the authorities are not completely isolated from one another, but there is a strong presumption against intrusion by one into another's sphere.Google Scholar

12 Other polar structures exist, e.g., one that has at one pole a notion of a common law not subject to legislative or judicial revision and at the other a notion of law as entirely discretionary. Compare Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842) (judicially unrevisable), and Lochner v. New York, 198 U.S. 45 (1905) (legislatively unrevisable), with Munn v. Illinois, 94 U.S. 113(1877) (discretionary). A full political history would identify these other structures and map their relation to what I suggest is the predominant one, see infra note 28.Google Scholar

13 I claim here only that these two models order constitutional development until around 1900. After that the rise of the welfare state altered the social psychology that links the model of isolated authority to capitalism, see infra note 25, and the classical view of law as a unity became harder to sustain. See Kennedy, supra note 10. Patrick Gudridge, The Persistence of Classical Style, U. Pa. L. Rev. (forthcoming), argues that such a view remains powerful though it no longer seems to be the only one sensible people can hold.Google Scholar

14 14 U.S. (1 Wheat.) 304 (1816).Google Scholar

15 22 U.S. (9 Wheat.) 1, 209 (1824). Hyman and Wiecek refer to the “potential excesses of Marshall's and Johnson's opinions in Gibbons v. Ogden” (p. 84).Google Scholar

16 The theoretical basis for preemption theory in the model of interpenetrating authority was laid in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), where the Court distinguished between a federal tax on state-created banks and a state tax on the federal bank on the ground that representatives of the states would make up the Congress that enacts a federal tax while no federal representatives participated in the state political process. In the License Cases, 46 U.S. (5 How.) 504 (1847), Chief Justice Taney made clear the model of interdependence that lay behind Gibbons by arguing that states could regulate interstate commerce in the absence of congressional preemption.Google Scholar

17 62 U.S. (21 How.) 506, 516 (1859).Google Scholar

18 80 U.S. (13 Wall.) 397, 406 (1872).Google Scholar

19 41 U.S. (16 Pet.) 539 (1842).Google Scholar

20 Hyman and Wiecek state that Story “erroneously claimed [this dictum] to be a ‘Triumph of Freedom’” (p. 109). Had it been followed, the dictum would have established the dominion of Northern states within their geographical bounds, a not insubstantial achievement. On Northern concerns about this issue, see Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity (Chapel Hill: University of North Carolina Press, 1981).Google Scholar

21 53 U.S. (12 How.) 299 (1851).Google Scholar

22 In theory national regulation could respect the diversity of local conditions. But this theoretical possibility has rarely been realized. The Tort Claims Act is the most important exception to this generalization, and there one might well argue that Congress respected local interests even though diversity was not imperatively demanded. Congress's unwillingness to regulate local matters has made it unnecessary for the courts to enforce a Cooley-like limitation on congressional authority. Yet even in cases involving state regulation of commerce the Court has failed to ask as a preliminary question whether the subject is one imperatively demanding local diversity. See, e.g., Allenberg Cotton Co. v. Pittman, 419 U.S. 20 (1974).Google Scholar

23 Cf. George Lakoff & Mark Johnson, Metaphors We Live By (Chicago: University of Chicago Press, 1980) (same point as to all human activities).Google Scholar

24 See Tushnet, supra note 10, at 31–37.Google Scholar

25 After 1900, the political economy associated with the welfare state revived the power of the metaphor of interdependent authority, which now seems to dominate our understanding of federalism, the police power, and under Katzenbach v. Morgan, 384 U.S. 641 (1966), the positive duties of state and national governments. The metaphor of isolated authority remains important in the rhetoric of individual rights. It may be, however, that the conservative reaction in contemporary constitutional law will have the effect of reuniting the world under the single metaphor of interpenetration, thus rationalizing the constitutional law of the welfare state after a period of awkward ideological and metaphorical incoherence.Google Scholar

26 This is suggested at the conclusion of Tushnet, supra note 10, at 230–32. Eugene Genovese has challenged the argument. Eugene Genovese & Elizabeth Fox-Genovese, The Fruits of Merchant Capital 377–78 (New York: Oxford University Press, 1983). I plan to address his concerns in another essay.Google Scholar

27 This perspective illuminates the shift from Justice Story's use of the model of interpenetrating authority in Martin v. Hunter's Lessee, supra text accompanying note 14, to his use of the model of isolated authority in Prigg v. Pennsylvania, supra text accompanying notes 19–20, as well as the similarity between the constitutional theories of Calhoun and Cooley, supra text accompanying note 22.Google Scholar

28 Because no mode of production exists in a pure form there will always be metaphors available from past and competing modes of production as well as from such spheres of life as the family which are less closely connected with economic activity. My hypothesis, however, is that the metaphors I have identified will play a more important role in imposing structure on the ways people perceive the world than the less economic, past, or competing ones.Google Scholar