Partisan expert witnesses, selected, prepared, and presented by the parties, are one of the central features of Anglo-American judicial proceedings. They provide fact finders with essential technical information and are authorized to propound a range of opinions and conclusions that other witnesses are not. Their views are often the deciding factor in hard-fought cases. Yet their association with one party and their apparent partiality have long troubled legal commentators. These concerns have grown in recent years along with the perception, not based on a great deal of empirical evidence, that more and more experts are being used to prove more and more different things in modern American trials.

In his opening lecture at Oxford as Vinerian professor of the laws of England, Dr. William Blackstone introduced his subject with a statement of his “diffidence,” which amounts almost to an apologia for academic study of the law: “He must be sensible how much will depend upon his conduct in the infancy of a study, which is now first adopted by public academical authority; which has generally been reputed (however unjustly) of a dry and unfruitful nature; and of which the theoretical, elementary parts have hitherto received a very moderate share of cultivation.”

It is a well-accepted postulate of Canadian constitutional history that, in the years following the confederation of the colonies of British North America in 1867, the law of the Canadian constitution did not concern itself with individual rights. Rather, constitutional law in the late nineteenth century involved the division of legislative powers between the federal and provincial governments—disputes that neither addressed claims to individual liberty nor the power of an unbridled state. If liberties were at stake, they were subsumed under arguments about which level of government was authorized to legislate on the specific subject matter at issue. In this way, Canadian constitutionalism resembled the “well-regulated society” of the antebellum United States: in the pursuit of the common good, public power was authorized to regulate liberty and private property to the fullest extent possible.

When Milsom enrolled Maitland among the British Academy's Master-Minds, he drew attention to a number of rather strange things about him. Other than Rhys and Keynes, unfairly advantaged in so far as they are commemorated by whole lecture series, Maitland is the sole Academy Fellow to have been the subject of one lecture, let alone (as is now the case) of two. He is also one of very few historians. Alongside Maitland are ranked only Thucydides, Bede, Gibbon, Kemble, Carlyle, Burckhardt, and Bémont—an assortment that would have bemused him as much as the eminence he was thus assigned. But, oddest of all, his repute is of a wholly different order from that of his fellow founders of the Academy, or of the historians it has dignified. It is not just that he is consulted and recycled, unlike Cunningham or Pollock (his joint venture with Maitland apart). They, like Gibbon, Bede, and the rest, are now a chapter in historiography, historical phenomena themselves requiring explanation. We may seek information, even (in some cases) entertainment from them. We do not debate with them as we argue with Maitland. That is what Milsom went on to do. It was, of course, a far greater compliment than that conveyed by the title of Academy Master-Mind. It is also one that would beyond question have been more congenial to Maitland himself. He would have been appalled by his canonization, as Milsom has repeatedly stressed. To adumbrate a motif that will recur in these remarks, he had a Millite faith in the creativity of dissent. The honor done him was to treat a scholar who had been in his Canary Islands grave for the best part of a century as if he were a contemporary colleague.

Ever since Charles Beard published his seminal work, An Economic Interpretation of the Constitution of the United States, in 1913, a vigorous debate has ensued among historians over the purpose and design of the Constitutional Convention. Was it, as Beard claimed, a Thermidorean counterrevolution, a reaction to the leveling propensities unleashed by the Revolution, or was it a conclave of patriots dedicated to the preservation of the Union and intent on strengthening the federal government so as to overcome the centrifugal forces tearing the confederation apart? For about forty years after its appearance, Beard's interpretation reigned supreme. It became the accepted wisdom that the Founders had acted out of selfish class interests in fashioning a constitution that would serve to protect the forms of property with which they were particularly associated. Subsequently, however, during the 1950s, Beard's analysis was subjected to more exacting scrutiny and found wanting. Vigorous challenges against his methodology and conclusions were raised by such writers as Douglass Adair, Cecelia M. Kenyon, Robert E. Brown, and Forrest McDonald. In the wake of their analyses very little of Beard's thesis was left intact.

In 1750, Archibald Kennedy condemned New York's legislators for their radical constitutional innovation. “They take upon themselves to be the sole judges,” he stormed, and “‘insist… that no order for publick money shall issue, till their judgment has been obtained for it.’” Kennedy meant the charge literally. For almost half a century, New York legislators had preserved their power over the purse by determining claims made against the colony for money. In an arrangement sharply at odds with later legal doctrine on the separation of powers, the legislature—not the courts—had since 1706 settled contract claims for services and materials, demands for military pay and salaries, calls for compensation for the impressment of property, petitions for disability pensions, and a range of other claims.

Nineteenth-century American judges and lawyers often claimed that Christianity was part of the common law. From Kent and Story in the early part of the century, to Cooley and Tiedeman toward the end, the maxim that “Christianity is part and parcel of the common law” (or some variant thereof) was heard so often that later commentators could refer to it as a matter “decided over and over again,” one which “[t]ext writers have reiterated and courts have affirmed.” The maxim even received an endorsement of sorts from the Supreme Court, which in 1844 affirmed that “the Christian religion is part of the common law of Pennsylvania.”

I am grateful to the editor of Law and History Review for the opportunity to respond to Professor Shlomo Slonim's article criticizing my interpretation of the formation of the Constitution. I know Professor Slonim personally from a visit I made over a decade ago to Hebrew University where he was a very gracious host. I know too that he is an earnest and meticulous scholar of the United States Constitution who has spent a great deal of energy refuting Charles Beard. So in this brief response I wish to treat his criticism with respect while at the same time I hope to show where I believe he is wrong or has misunderstood and misinterpreted me.

In early twentieth-century America, the novel technology called “eugenics”—a potent hybrid of biological science, statistical method, and cultural assumptions—won a diverse following of academics, animal breeders, social workers, criminologists, psychiatrists, institutional superintendents, philanthropists, and activists spanning the political spectrum from socialists to white supremacists. Although heirs to the Enlightenment pursuits of science, reason, and a rationally organized state, eugenicists rejected the Enlightenment's egalitarian strain, insisting that hereditary endowment determined social structure. Fusing Darwin's theory of evolution and Mendel's discoveries in plant heredity, eugenicists claimed to find distinct genetic roots for the many problems of personality and society that alarmed their contemporaries: from “feeble-mindedness” and “psychopathy” to “delinquency” and “hypersexuality.” Within the bright lines of a eugenic worldview, the poverty and crime that pervaded an avowedly meritocratic urban-industrial democracy were comprehended as the offspring of hereditary “mental defects,” racial “mongrelization,” and sentimental charitable efforts that, in a vain attempt to reform deviant individuals, had only assured their survival and reproduction.

At least once during his tenure, the royal governor of colonial New York received a list of questions from London. The Board of Trade, which recommended colonial policy to the king's Privy Council, sought information about the province's geography, population, trade, and legal regime. This last question often came first: “What is the constitution of the Government?” The responses, from the first British governor in 1669 to the last before the Revolution, described the imperial arrangement as a hierarchy of power flowing directly from the Crown. In 1738, for example, the lieutenant governor wrote that “The constitution is such as his Majesty by his commission to his Governour directs, whereby the Governour with the Council and assembly are empowered to pass laws not repugnant to the laws of England.” A decade later, Governor George Clinton replied more insightfully, with the help of his closest advisor, Cadwallader Colden: “The constitution of this Government is founded on His Majesty's Commission & Instructions to his Governor. But the assembly have made such Encroachments on his Majesty's Prerogative by their having the power of the purse that they in effect assume the whole executive powers into their own hands.”

Of all the comments made by British politicians to describe the United States Constitution, Gladstone's remains the most difficult to deny: by calling it “the most wonderful work ever struck off by the brain and purpose of man” he covered the true origins of the document in a mantle of consensus, well understood and coherent in intent, and epitomizing the human capacity for reasoned progress. All of these attributes have little favor among American constitutional historians today, but the remark still makes the rounds.

Gordon Wood mentions that in 1987, as part of the Hebrew University's program of events marking the bicentennial of the U.S. Constitution, he delivered the annual Samuel Paley Lectures in American Civilization at the University in Jerusalem. If I, as chairman of the Department of American Studies was, as he says, a gracious host, he was no less a gracious guest and, moreover, a fascinating lecturer. A synopsis of his remarks is included in the volume that I edited, The Constitutional Bases of Political and Social Change in the United States, comprising lectures delivered at a bicentennial conference later that year and attended by prominent American and Israeli constitutional scholars, including Ruth Bader Ginsburg, now Justice of the U.S. Supreme Court, and Aharon Barak, now President of the Israeli Supreme Court.

The Enlightenment was the age of empathy and abstract identity. The common man no longer was to be pitied for his unfortunate plight. Instead, enlightened gentlemen and reformers strove to empathize with the ordinary person—identify with him—precisely because he was identical to them in some fundamental sense. That sense differed from Enlightenment theory to theory, but the identity remained central. So Bentham insisted that every member of the utility community was like any other because every member's pain and joy equally affected the utilitarian calculus and thus the common good. Contractarians like Beccaria or Fichte portrayed all citizens as identical insofar as they were all signatories to the social contract, a contract grounded in the shared rationality of its signatories who surrendered some of their external freedom to pursue their life plans protected from the chaos of the law of nature. And Kant and Hegel stressed the common capacity for rational deliberation shared by all humans as rational beings.

One of my few unrepressed childhood memories is of a high-school field trip to the Massachusetts State House in Boston. The docent, a hapless but not entirely innocent volunteer, addressed us in a tone of perky condescension usually reserved for precocious six-year-olds. Thus, when he stood before an object of local veneration—the state constitution of 1780, I think, or perhaps one of the royal charters—and clucked, “Now class, does anyone know what ‘constitution’ means?,” it was with casual adolescent malice that a voice from the back answered, “Yeah, it has something to do with metabolism.”

Markus Dirk Dubber has provided the readers of the Review with an erudite and fascinating essay that traces a change in modern western penal thought since the Enlightenment. What he presents is a very brave attempt to mount a left critique not only of contemporary vicious trends toward the escalation of retributive criminal penalties, but also of the therapeutic concepts of fundamental difference that have characterized rehabilitationist theories of punishment. In Dubber's view, rehabilitationism wandered from the path prepared by the Enlightenment and thereby invited barbaric reactionaries once again to dominate the field of criminal punishment. While the essay makes an important point about the blindness of rehabilitationists to the need to justify and legitimize the imposition of punishment, and while it brings to the attention of Anglo-American specialists the importance of figures from the German Aufklärung, such as Fichte, Kant, and Hegel, and rehabilitationists, such as Krause and Röder, it leaves the reader wondering about how to transcend the limits of the formalism of Enlightenment abstract identity and how to root the geistesgeschichtlich erudition of the author's idealism in the soil of social history.