The Online Library of Liberty

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• Editorial Staff
• Associate Editors
• Editorial
• Bibliographical Essay: John Lukacs, Alexis De Tocqueville: a Historical Appreciation
• I: Legal Philosophy and Norms
• The Transformation of English Common Law
• From Royal to National Treason
• Natural Law Vocabulary
• Are Legal Norms Universally Valid?
• The New Legal History & Constititutional History
• Legal Realism & a Science of Law
• Efficiency As a Common Law Norm
• Animal Rights
• II: History & Liberty
• Locke, Liberalism, and the Historical Sense
• Levellers: Historical Continuity & Rights
• Scholastic Origins of Popular Resistance Theory
• The Glorious Revolution & Contract
• History: the Master ‘science’ of Human Knowledge
• Tocqueville: the Old Regime & Liberty
• Coppet: French Liberal Culture and Politics
• Benjamin Constant & Liberty
• Political Expediency Vs. Principle
• Aristocratic Liberty
• The Protean Enlightenment
• Antifederalism: Country Vs. Court
• Tom Paine, Bourgeois Radical Democrat
• Economic Peace Vs. People's Peace
• Indian Freedom & the American Revolution
• III: Economic History & Theory
• Adam Smith: Sympathy & Self-interest
• Adam Smith & Paradigm Shifts
• Was There a “british Industrial Revolution”?
• Patterns In Federal Intervention
• Market-assured Contract Performance
• ‘political’ Economists
• The Political Economy of Bank Regulation
• Understanding the Socialist Calculation Debate
• Mises & Economic Theory
• IV: Social Science Methodology & Individual Freedom
• Montesquieu: Holism & Natural Law
• From Political Philosophy to Sociology
• Chicago Social Science & Quantification
• Human Freedom & Psychology
• How Self-efficacy Develops
• The History of Motivation
• Individualism & Interdependence
• Institutionalism Vs. Radical Individualism
• Freedom & Destiny
• Error: the History of Life & Knowledge
• The Philosophical Review Edited By the Sage School of Philosophy Cornell University

The New Legal History & Constititutional History

Harry N. Scheiber

• University of California at Berkeley

Is Constitutional History Dead?” This was an ominous title suggested for the annual meeting of the American Society for Legal History in 1980. That question, as even the organizers of the meeting decided, takes perhaps too drastic a view of the current state of Constitutional history. Nonetheless, there is no doubt that the field's prime interest in the doctrines and behavior of courts has been over-shadowed during the last two decades by a distinctly different mode of investigation, one that is often termed the “new legal history.” While acknowledging the potential value of the new legal history's perspective on the American legal system, Prof. Scheiber asserts that only by integrating these perspectives with the concerns of Constitutional history can the full context of change in American legal history be understood.

The current decline of Constitutional history results from several factors. First of all, behavioral theory, quantification, and self-proclaimed “value free” analysis have crowded the normative values of Constitutional history from the scene. This development is parallelled by the rise of the “new social history” which subordinates law, policy, and public affairs to what is termed “private place,” that is, the family, the bedroom and nursery, voluntary associations, and nonpolitical institutions.

The traditional province of Constitutional history embraced the decisions of the Supreme Court, the institutional history of the Court, and biography of the justices. The field therefore proved an easy target for critics who deplored limiting study to what they viewed as a rarified universe of data out of touch with the realities of social, economic, and cultural change.

The literature of the new legal history well reflects the ascendancy of this view. Common law has been pushed to the very center of analytic focus—with an emphasis on how judges have shaped contract and tort law and with what consequences for economic institutions and allocations of income and power. Considerable attention is also being devoted to law-making agencies other than the federal courts, to the making and incidence of state law, and to reappraising of landmarks in Constitutional law in the light of legal, social, and political developments in the states.

Despite their differing emphases, Prof. Scheiber feels that the two areas of study are not inimical. He firmly believes that the new legal history can enrich and revitalize the investigations of Constitutional historians. He cites two examples where the new legal history has already made such contributions.

The first example involves research on nineteenth-century implementation of the Commerce Clause. From investigations in state archives, scholars have learned the ways in which state canal officials rigged tolls to disadvantage out-of-state interests—a violation of the Marshall Court's nationalistic doctrines which went unchallenged until the railroad era. Research by Charles W. McCurdy, Gabriel Kolko, and Albro Martin on big business objectives and tactics in state and federal courts has considerably altered our understanding of the Commerce Clause in Constitutional law and of the actual exercise of power in the states.

A second example concerns the new legal history's contribution to our understanding of property law. Through close analysis of doctrinal areas in which enormous discretion was left to state judges—nuisance law, trespass, torts, eminent domain—we can identify differences among the states, thereby obtaining a much more accurate sense of working federalism.

In Prof. Scheiber's view, achievements already on the record, together with logical and evidentiary requirements of public-law study, promise a new phase of interest in legal and Constitutional history as vitally interrelated fields. Once integrated, research in these two areas of interest will attain much of the former status and influence of Constitutional history within the historical profession.