Prevalent among political actors of all stripes today is a worrisome tendency to dismiss the Constitution’s constraints when those constraints run counter to a desired outcome.
Charles Austin Beard (1874-1948) was a more complicated and interesting thinker than the Progressive sage commemorated during the centennial of his An Economic Interpretation of the Constitution of the United States. Perhaps that’s the problem with writing a book with a thesis so simple and straightforward as to discourage careful consideration of the work as a whole.
Such a consideration is overdue, and is the intent of this essay discussing papers presented at a conference on Beard held at the University of Virginia School of Law (published in the Summer 2014 issue of Constitutional Commentary) and a symposium on Beard in the Fall 2013 issue of American Political Thought.
Throughout his illustrious career as scholar and publicist, Charles Beard directed his intellectual energy and moral conviction to the creation of a strong central government that could limit the police power of the states and regulate the private property rights of business corporations. In The Supreme Court and the Constitution (1912) he defended the federal judiciary against radical democratic efforts to curtail the power of judicial review. His Economic Origins of Jeffersonian Democracy (1915) discredited the state-sovereignty tradition as a threat to national unity.
His now century-old An Economic Interpretation of the United States, the principal work in this trilogy of constitutional construction, was intended to show how the framers of the Constitution formed a powerful national government, based on soundly conceived economic interests, in place of the disintegrative state particularism of the Articles of Confederation.
An Economic Interpretation was critically reviewed by economic and legal historians upon publication in 1913. It also achieved instant notoriety because, in the opinion of some notable public figures, Beard impugned the honor, integrity, and historical reputation of the Founding Fathers. Beard claimed that leaders and supporters of the Constitution—“merchants, money lenders, security holders, manufacturers, shippers, capitalists, and financiers”—were guided not by “the vague thing known as ‘the advancement of general welfare’ or some abstraction known as ‘justice.’” Their “direct, impelling motive” was “the economic advantages which the economic beneficiaries expected would accrue to themselves first.” Denying any intent “to show that the Constitution was made for the personal benefit of the members of the Convention,” Beard insisted:
The only point here considered is: Did they represent distinct groups whose economic interests they understood and felt in concrete definite form through their own personal experience with identical property rights, or were they working merely under the guidance of abstract principles of political science?
How does the Beard thesis stand up after a hundred years? The short answer is: not well from the standpoint of historical scholarship on the framing and ratification of the Constitution.
In the era of World War II and the Cold War, the threat of totalitarian domination by Nazi Germany or communist Russia led American Progressives and liberals to reconsider the civic virtue and moral value of constitutional government and the rule of law. A new generation of historians and political scientists interpreted the Revolution and the making of the Constitution as a genuine clash of federal republican principles and ideals rather than an expression of socioeconomic class conflict.
The Beard thesis in its pristine form was demolished. Tracking Beard’s every word and methodological step, scholars demonstrated the fundamental fallacy of the Beard thesis as a figment of Progressive historical imagination and ideology.
This fact is acknowledged by the Virginia Law School conferees. Introducing the symposium, constitutional law professor Mark Graber quotes Richard Hofstadter’s rueful 1968 observation that “Beard’s reputation stands like an imposing ruin in the landscape of American historiography.” He cites historian Gordon S. Wood’s dismissal of Beard’s economic determinist research method as “so crude that no further time should be spent on it.” Graber states that “no contemporary scholar claims that Beard in 1913 correctly mapped the lines of conflict.”
In Graber’s view, the debate over An Economic Interpretation has shifted from a controversy over Beard to a controversy over “uber-Beard.” This allusive term refers to scholars who believe economic interests are the central force, and that they have had valuable normative consequences for American constitutional development. Critics of “uber-Beardian” analysis retort that this discounts the independent influence of ideas on constitutional development. It is fair to say that the general problem addressed at the Virginia conference is not how the Beard thesis can be salvaged, but how the spirit of Beard can be kept alive as intellectual and moral inspiration in the 21st century academic world.
For his part, Graber believes Beard remains vital because he demystified the Constitution’s framing. Beard was a fair-minded scholar, committed to “balanced analysis,” who believed that all parties to constitutional conflict were moved by economic interests rather than high ideals.
Graber dismisses as implausible and unrealistic the dichotomy between politically-minded liberal judicial activism and neutral-principles conservative judicial restraint. All judges take the law seriously and sincerely desire to make good law. The difference is that some judges have a liberal and others a conservative attitude. Although Beard’s historical conclusions were wrong, Graber believes the last hundred years have confirmed historical insights grounded in a Beardian commitment to “balanced treatment of the factors that motivate political and constitutional behavior.”
G. Edward White, the sole overt critic of Beard at the conference, takes a dim view of the Progressive legacy. Beard’s conception of law was premised on the dissolution of ideas, leaving material interests as the only reality. It left out “the whole area of experience in which ideas and interests are jumbled to a degree that the effort to divorce and counterpose them becomes an artificial imposition [on] the realities of history.”
Beard contributed significantly to the revolution in constitutional history and theory that reduced legal principles and judicial decision-making to social and economic forces. In White’s view, Progressive legal realism brought “skepticism toward the ideal of a ‘rule of law’ in American culture that transcended and constrained the particularistic attitudes and agendas of legal decision makers.” Beard and other Progressive historians imposed “their modernist preconceptions about history, law, judicial decision making, and constitutional interpretation on events from earlier time periods.”
Historian Jonathan Gienapp addresses the historiographical dimension of Beardian thought. He finds fault with the efforts of those who, rejecting Beard’s economic interpretation, analyzed the framing of the Constitution and founding of the Union in terms of federal and republican principles. But he also rejects the universalism of economic determinism. Gienapp wants to convert Beard to historicism—that is, the philosophical proposition that acts and events are contingent on historical context rather than the resultant effect of transcendent principles or ideas. Beard, he asserts, “remains as vital as ever . . . because of the pernicious, yet amazingly compelling, distinction between ideas and interests that he did so much to perpetuate.”
Gienapp claims to find in Beard’s writing a “historicist impulse” buried “beneath classic statements of economic determinism.” An example is Madison’s application of 18th century political science to the construction of the Constitution. Gienapp exhorts:
The day we fully realize that neither principles nor interests exist independently of the perceptual mode that accounts for them, and that it becomes the job of all historians . . . to reconstitute the different perceptual framework of the historical actors in question, is the day we early Americanists and students of constitutional history will leave Beardianism behind.
Law professor and historian Saul Cornell approaches the Beard thesis from the standpoint of contemporary constitutional originalism. Cornell observes that while orthodox Beardianism is rare, scholarship in the field of history “has embraced a form of soft Beardianism” based on the belief that in the Founding era socioeconomic tension was the source of deep division over constitutional ideas. Starting with Raoul Berger and Robert Bork in the 1970s, however, a jurisprudence of original intent emerged as a challenge to liberal judicial activism. Although “living-constitutionalists” themselves have advanced their own form of originalism, Cornell is concerned with the threat to soft Beardianism posed by conservative originalist-minded Supreme Court justices.
Delving into semantic theory, Cornell explains that the point of originalism is to recover the “communicative intent” of the author of a text and the ways readers would interpret the words of the text. He claims that conservative originalists, in disregard of real facts, “have conjured a false historical past masked by consensus.” They erroneously regard the nature of public meaning as “objective” rather than “inter-subjective,” according to the philosophy of language. Cornell avers that “Originalists have generally treated the people as if they were mute bystanders to the great constitutional drama unfolding in 1788.” Using a pseudo-historical approach, originalist justices abandon the search for intent, reject the contested nature of Founding-era constitutionalism, and substitute for actual readers imaginary ones sharing their ideological biases.
“The time has arrived,” Cornell exclaims, “for a new constitutional historicism, a scholarly approach that would unite the top down focus of traditional constitutional history with a bottom up approach informed by an appreciation of Beard’s basic insight into the contested nature of early American constitutionalism.”
The Supreme Court decision in District of Columbia v. Heller (2008) is exhibit A in Cornell’s brief against public meaning originalism. Instead of focusing on what actual historical actors said and believed, the conservative majority conjured “a new type of law office philosophy to justify the old law office history.” In Cornell’s view, the lesson of Heller is that “originalism places almost no meaningful restraints on judges and is an open invitation to judicial activism.”
Law professor Adrian Vermeule further considers the significance of the Beardian tradition for constitutional adjudication. Beard posed the problem of the relation between the external standpoint of the historian and political scientist and the internal perspective of lawyers and judges. Vermeule takes his cue from Justice Oliver Wendell Holmes, who criticized Beard’s sneering attitude toward the Constitution’s framers. In Vermeule’s view, however, Holmes was “more Beardian than he knew.” From the English law writer James Fitzjames Stephen, Holmes conceived the notion of a “nonideal theory of judging under political constraints.” The gist of the theory is that “the rational judge chooses the course of action that, at lowest possible cost, adjusts constitutional law and policy to match ‘the actual equilibrium of force in the community—that is, conformity to the wishes of the dominant power.’”
Although An Economic Interpretation was largely irrelevant to public law adjudication, Vermeule says Beard broke the “taboo” in historical writing that protected the framers of the Constitution against obloquy and detraction. He made it “professionally permissible to offer an external explanation of the behavior of constitutional actors as a product of their preferences, beliefs, and political opportunities.” Vermeule concludes that Beard, with the unwitting assistance of Justice Holmes, bridged “the gulf between external and internal perspectives.” The Beardian tradition thus assimilated historical realism and legal realism in the long march of Progressive constitutionalism.
Demolition of the pristine original interpretation of An Economic Interpretation leaves “uber-Beardians” in pursuit of a variety of social science paradigms informed by strands of Beardian intellectual sensibility. Summarizing the general temper of the conference, University of Virginia law professor Jessica Lowe appeals to the original intent of Beard’s “unrelenting insistence” that the Founders were motivated by “their certificates and bonds and pocketbooks,” rather than by lofty ideals. The brilliance of An Economic Interpretation, Lowe asserts, consists not in its research or analysis but in “its moral force—its muckraking—which casts aside popular and scholarly veneration to expose a rank, self-interested underbelly.”
“So where does Beard’s work leave us?” Lowe asks. It reminds us that “scholarship can be both brilliant and wrong.” But “even where Beard is wrong, there is something about the book’s orientation, its protest, that is also profoundly right.” Beard deconstructed the Constitution not merely for deconstruction’s sake, but “with the radical moral end of social change in mind.” His “activist jumble of past and present,” Lowe believes, “allows us to move toward the future through confrontation and corrective, continuing the flawed but important tripping towards truth and justice—the journey upon which Beard so fervently insisted.”
In contrast to the moral-reform spirit of the Virginia conference, the Beard symposium in American Political Thought considers the proposition that, despite systematic scholarly debunking, “somehow Charles Beard abides.” The symposium essays make it clear, however, that world-historical events affecting the United States have inexorably rendered the Beard thesis obsolete. Beard’s preoccupation with domestic social-political reformism has been superseded by a continuing crisis in international affairs.
Max Edling, organizer of the symposium, reminds us that the Founders sought to reform the government organized under the Articles of Confederation by constructing a union strong enough to protect American national security. America is a states-union, or, in the language of The Federalist, a federal republican union. Edling observes that the necessity of national security for the preservation of individual and local liberty in the states was “difficult to reduce to a mere expression of class interest.” Beard’s “belief in the power of the domestic to shape the international and his virtual neglect of the reverse relationship” was problematic. His greatest intellectual error of all, however, was to assume that “motives rather than consequences capture the meaning of the founding.”
Noted populist historian Woody Holton views Beard as a middle class reformer who was unable to conceive of farmers and laborers as political agents. The 1787 Constitution was a capitalist document intended to attract capital. According to Holton, Beard was “blinded by the glare from the framers.” He could not focus on “the indirectly influential farmers or on the wannabe borrowers,” beset by fiscally irresponsible state legislatures, who had an economic interest in creating a stronger central government. Beard’s “awe for the founding fathers” kept him from seeing the Framers “in the supplicating role of trying to coax capital into the American economy.” Holton whimsically confesses to criticizing Beard “for excessive veneration of the founding fathers!”
Literary scholar Eric Slauter observes that if Henry Steele Commager, a student of Beard’s, was right 40 years ago in claiming “we’re all Beardian we can’t help ourselves,” then it’s true now “there are no practicing Beardians—that is, no readers who hew dogmatically to the interpretation Beard put forward in 1913.” Slauter, however, notes the irony of their being neo-Beardians who advance a class-consensus explanation of the making of the Constitution. As demolition of the Beard thesis proceeded in the 1960s, New Left historians formulated an interpretation of the Founding that aligned market-minded elite capitalists and ordinary working class people in support of the Constitution.
Slauter notes that in Beard’s view, conflict is “the heart of history and politics.” The underlying philosophical question is “What is a political act?” Beard denied that “a jural test” involving abstractions such as “liberty” or “the state” could provide an answer. History, economics, and sociology—the domain of reality—was the true source of political contestation. Slauter finds a parallel to the Beardian sensibility in the “commitment to an expansive understanding of politics” in an arc extending from the Revolution to Beard’s time and into 21st century America. The fact that we recognize “angry artisans, sad soldiers, and conspicuous consumers as political actors,” Slauter concludes, is “a legacy of both Beard and the conflicts he aroused, especially in the most sympathetic of his readers.”
Law professor R. B. Bernstein claims that Beard’s significance lies in the challenge he posed to the idea of original interpretation of the Constitution. Throughout the 19th century the Founders were viewed as disinterested statesmen opposed to radical democratic and states’ rights excesses of the Confederation era. By1900, this reverential attitude was weakened by Populist and Progressive criticism. Beard’s attack on the Founders’ pecuniary motives in An Economic Interpretation undermined their authority and discredited originalism as a method of constitutional interpretation. Lamenting the “mechanical originalism” of conservative Supreme Court justices, Bernstein endorses Beard’s appeal to the public “to become skeptical of incantatory invocations of the founders, or the fathers, or the founding fathers.”
In conclusion, demolition of the Beard thesis in its pristine form raises the question whether An Economic Interpretation still sets the terms of debate over the framing and ratification of the Constitution. From the Founding era through the 19th century, the central issue in constitutional law and politics concerned the nature of the American Union as a federal republican national government. Recent work in history and political science focuses on the question of whether America was better conceived as an extended federal republic or as a multiplicity of state republics. The threat to American independence from interstate anarchy and European intervention was real. National unity in a country founded as a fragment of English and European society could not be taken for granted.
From the outset, local variations of liberal bourgeois community took hold. Properly understood, republican America was not the setting for revolutionary class conflict. As historian Louis Hartz observed 40 years ago: “The Federal Convention helped to create a nation, but it also inherited a nation.” Post-Beardian scholarship on the debate over the Constitution has concerned, not controversy between aristocrats and democrats, but deliberations among states and sections on how best to organize America. In The Constitution and America’s Destiny (2005), for example, David B. Robertson depicts pluralistic bargaining over regional, state, and local political and economic interests on which a consensus formed in support of the Constitution.
An Economic Interpretation of the Constitution has been a scholarly icon for three generations. In a recent survey of the most influential books on early American history, however, it was not selected in the top 64 works. Its notoriety long since having been exhausted, the persuasive appeal of Charles Beard’s famous book has seriously declined. In the opinion of Professor Graber, “if Beard still lives,” the question “whether continued resurrection or reinterment is the appropriate response remains contested.”
 Louis Hartz, The Founding of New Societies (Harcourt, Brace, and World, 1964), p.79.