Searching for the Prehistory of American Constitutionalism

In some respects, the selection of Edward S. Corwin’s 1955 book The “Higher Law” Background of American Constitutional Law for inclusion in Liberty Fund’s catalogue of reprint classics on liberty is an unusual one. The catalogue as a whole may be said to incline to the Right, broadly speaking—though there is very great breadth indeed, from classics of free-market economics to Enlightenment texts on natural law, and from The Federalist to Tocqueville, from Acton and Bryce to Maritain and Pieper, from Locke to Mill to Oakeshott.

Corwin, however, might be described as a man of the moderate center-Left in his politics. He was a protégé of Woodrow Wilson (his predecessor as Princeton’s McCormick Professor of Jurisprudence) early in his career, later remarking that he had voted for Wilson for president in 1912 “with great enthusiasm” but for Wilson’s opponent Charles Evans Hughes four years later “with somewhat less enthusiasm.” Notwithstanding his vote for Hughes, when the U.S. entered the First World War in 1917, Corwin volunteered to serve on the Committee on Public Information, serving as one of three co-editors of War Cyclopedia: A Handbook for Ready Reference on the Great War, published the following year by the Government Printing Office.

Twenty years later, Corwin was nearly alone among academic scholars of constitutional law in supporting Franklin Roosevelt’s “court-packing” proposal, testifying for it under heavy rhetorical fire in the Senate Judiciary Committee in March 1937. Corwin had in fact been instrumental in the germination of the proposal, though he never admitted his role publicly. He had by that time published two books and quite a few articles highly critical of the “conservative” Court that had frustrated FDR’s New Deal early on, and he seems to have coined the triumphant phrase, “Constitutional Revolution of 1937,” to describe the new pattern of decision-making that took hold after Roosevelt reshaped the Court’s membership beginning in that year.

Yet it ill-serves historical understanding to impose our obsessions on past thinkers. Corwin did think of himself as a certain kind of conservative, even a kind of “originalist” (a term that risks the anachronism we just warned against), and he had used the slogan, “Back to the Constitution,” as the subtitle of one of his books criticizing the “laissez-faire” Court (his term now) of the Lochner era. He was also capable of rethinking old questions as circumstances and experience compelled him to do so. Corwin had been the primary popularizer in the 1910s of the term “judicial review” as a shorthand expression for the judiciary’s power to declare legislation or executive action unconstitutional, and from the first he had really meant by that phrase what we call judicial supremacy. Yet by the mid-1930s, Corwin had come to question the easy equation of the one with the other, expressing skepticism of the claims of judicial supremacy and over the next two decades espousing an increasingly “departmentalist” view. (For more on the events and themes described in the last two paragraphs, see my introduction to Transaction’s 2014 reprint of Corwin’s The Doctrine of Judicial Review.)

No work of Corwin’s appears so conservative as The “Higher Law” Background of American Constitutional Law. Ranging from Cicero to Bracton to Fortescue to Coke to Locke to Blackstone, from Magna Carta to the Petition of Right to the American Revolution, Corwin’s work is a rapid survey of the development of constitutionalism, understood as the limitation of political power by some form of law higher than the transient decisions of political authority. Uniquely among Corwin’s major writings, it stops just at the beginning of the American story, and contains none of the legal analysis of American judicial decisions that made the author’s reputation. Since Supreme Court rulings, old as well as new, are fuel for partisan disputation, the absence of such material from The “Higher Law” Background is perhaps the major reason why it endures today as an introduction to its subject whose appeal is strong to conservatives and liberals alike. For what American is not a partisan of liberty and suspicious of authority?

The genesis of the book is interesting, and little known. From very early in his studies—even as an undergraduate—Corwin was keenly interested in what he called the “vested rights” doctrine of American law, the idea that courts could invoke such rights in the interpretation of the law, even invoking them to defeat legislation. Where did the doctrine come from? What was its connection to the institutional development of judicial review as a feature of the American Constitution? Corwin’s studies for his doctorate led him into the examination of the treaty power, national supremacy over the states, and the bounds of presidential authority—but these themes too led back to the question of judicial review, generating the landmark work on Marbury v. Madison that still frames discussion of that case today.

But Corwin was convinced that back behind Marbury was not simply a decision at Philadelphia to vest the new federal judiciary with the power we now (thanks to Corwin!) call “judicial review.” There was, he thought, an entire pre-history of judicial review, woven of several strands in the history of political and legal thought—strands of classical and medieval natural law, English common law, Lockean social contract theory, and finally the American innovation of written constitutions. Exploring these strands in original sources from Aristotle to the American Founding, but also leaning heavily at times on historians such as Frederick Pollock, Otto von Gierke, John Neville Figgis, and Charles Howard McIlwain, Corwin wove them together in a compelling way in “The ‘Higher Law’ Background of American Constitutional Law,” a pair of articles first appearing in successive numbers of the Harvard Law Review in November 1928 and January 1929.

Corwin moved on after publishing these articles, turning to his usual meat and drink of American legal history and commentary on current constitutional controversies. Twenty years later he condensed and tweaked “The ‘Higher Law’ Background,” integrating it with other work on doctrinal developments in decisions of the Supreme Court, for a lecture series at Louisiana State University, which he expanded and published with LSU Press in 1948 as Liberty Against Government: The Rise, Flowering, and Decline of a Juridical Concept. The material he reused from “The ‘Higher Law’ Background” in Liberty Against Government was so unchanged in substance that it was clear Corwin had not modified his views about any of the history he had related two decades earlier.

So it happened that a half dozen years after that, Corwin was receptive to a request from his former graduate student Clinton Rossiter that the pair of articles published by Harvard Law Review a quarter century earlier be reprinted as a book. Rossiter, by then a young professor at Cornell, wrote to his old teacher on November 29, 1954:

Dear Professor Corwin,

For some years now I have been having the devil’s own time trying to make your wonderful “The Higher Law Background of American Constitutional Law” available for my students.  Now I have an idea how to make it available, and I wonder if you will give me your frank opinions [sic] on it.

The Cornell University Press, under the really sound leadership of my good friend Mr. Victor Reynolds, is going to issue a variety of “classics” in American thought. . . .

Rossiter went on to propose that he write a brief introduction, and that the press reproduce the two Harvard Law Review articles exactly as they had been originally published. We do not have Corwin’s reply to Rossiter (whose letter quoted above is in the Corwin papers at Princeton), but we know he readily agreed to his former student’s proposal, for Cornell University Press had the book out the following year. The Cornell paperback remained in print for many years; I bought a new copy (cover price $1.95!) as an undergraduate in 1979. Liberty Fund has done students and scholars a good service by bringing The “Higher Law” Background back into print at an affordable price.

The teacher who introduced me to Corwin, the late Richard G. Stevens, wrote somewhat critically of this little book, arguing among other things that Corwin failed to perceive the truly revolutionary character of the modern political philosophy of Hobbes and Locke, and its break with the classical world of Aristotle and Cicero; that he was “taken in” by the superficial difference between Hobbes and Locke, missing the extent of their real agreement; and that he takes “every historical instance of someone mentioning a ‘higher law’” and then goes on to “assure us that judicial review is the lineal descendant of that mention.”

On rereading the book myself, I find myself admiring it more than Stevens did, yet I’m mindful that my admiration should be qualified. It is one thing to survey the history of political thought on the subject of positive law being kept to the standard of natural law. It’s another to treat it, as Corwin does, as substantially identical to the history of legal institutions—particularly the bench and bar of England and its colonies—evolving as the decisive locus for the enforcement of natural law norms in positive law. This can sometimes produce a muddle of sorts. And careful readers will notice that when Corwin discusses political philosophy, he leans more heavily on secondary sources by his elder contemporaries—the aforementioned Figgis and Gierke, and also William Archibald Dunning—whereas in the history of strictly legal thought, he is truly in his element and writes with a truly confident grasp of Bracton, Fortescue, Coke, and Blackstone. His discussions of Magna Carta’s place in English history in Part II of the book, and of Coke’s career and influence in Part III, are particularly subtle and informative.

Taken as a whole, then, the synoptic character of Corwin’s work suggests that it should be read as opening up lines of inquiry about the “background” of American constitutional law, rather than being the last word on the subject. The book may seem a bit Whiggish to us today—in the sense made famous by Herbert Butterfield, of squeezing a great deal of selected material from a complicated past into a simple story of progress toward our more enlightened present. But we should bear in mind three things that may induce us to approach Corwin’s book modestly, as one we can still learn from.

First, some of the most interesting work of recent years in the history of political thought—by scholars as different as Brian Tierney, Larry Siedentop, and the late Leslie Rubin—has given us cause to reconsider how sharp the break truly is between the “ancients” and the “moderns.” Siedentop in particular, whose 2014 book Inventing the Individual concludes its history in the 15th century, makes a compelling case that all the elements of modernity’s exaltation of the individual and his natural rights were in place before the Machiavellian revolution in political philosophy. Viewed in this light, Corwin’s tale of essential continuity in the development of the “higher law” idea—amid much upheaval and conflict in historical events—no longer looks so naïve, even if his interpretations of some thinkers strike us as unsophisticated.

Second, it is worth remarking that Corwin’s historical tour of the “higher law” idea bears a family resemblance to the eclectic method of America’s Founders themselves. Jefferson wrote, a little more than a year before he died, that the Declaration of Independence drew from “the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, &c.,” without any apparent awareness that he was committing an intellectual blunder in associating the first pair of thinkers with the second. Perhaps he wasn’t. Corwin’s inclusion of religious elements of the story, from John of Salisbury to Calvin to Lilburne and the “Independents,” is not amiss either, even if his treatment of them is sometimes brief to the point of being glib. For the American Founding, as some of our best historians of the period have shown in recent years, can hardly be said to have been an exclusively secular or Deist or rationalist undertaking.

Finally, the charge of Whiggery will not stick against Edward Corwin if we turn to the great works of his career on American constitutional jurisprudence since the Founding. For no scholar of the early 20th century was less inclined to triumphalism about the “progress” of American constitutional development. Yet neither was Corwin ready to ally himself with the most cynical of the Progressives; he once wrote of the central factual claims in Charles Beard’s An Economic Interpretation of the Constitution: “With all due respect, this is the most unmitigated rot.” It’s hard not to like a fellow who can write that line.

The best capsule summary of Edward S. Corwin’s lifetime of work is that no one was better at asking the right questions about American constitutionalism, and about the historic work of the Supreme Court. In some cases he was the first to ask the most important questions. That he sometimes erred in the answers, or that we would give different ones, takes nothing away from his signal achievements. Readers of the The “Higher Law” Background of American Constitutional Law should come to the book in the same spirit of searching inquiry that animated its author’s career.

Reader Discussion

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on October 09, 2018 at 13:17:22 pm

Good article! I was just in an argument with someone the other day where I wish I had remembered this book. This book by Corwin is especially useful in the debate over the authority of law. Law professors use the term "natural law" differently than philosophy professors; Corwin's book is an excellent resource for discussing natural law in the former sense

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CJ Wolfe
on October 12, 2018 at 09:57:13 am

I have just discovered this website in a search for information about Sir Edward Coke, Roger Williams and the Mayflower Compact or the Deed of Goverment as Bradford called it.
Wounderful treasure trove. Thank you for your wook.

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Charles Akins
on November 02, 2018 at 14:58:51 pm

A good place to start is "Puritanism and Revolution" by Christopher Hill but be aware, you're going to have to immerse yourself in 17th C. religious thought and be able to easily distinguish high church from low church; Catholic from Anglican from Puritan; Presbyterians from Independents; and orthodox Independents from sectaries because in 17th C. England and its American colonies where you stood on points religion very much determined the political faction you aligned with.

You can start in 1620 but be aware that it all began with Henry VIII's break with the Catholic Church in the 1530s and the dissolution of the monasteries; events that both increased the power of the Crown at the expense of the old nobility and transferred about 1/3 of wealth of England from the Roman Catholic to the new Church of England and ultimately to the class of "new men" the Tutors created and advanced to oppose the old Anglo-Catholic nobility. By and large the new men were the commoners who became revolutionary Puritans in the 1630s.

Anyways, between 1590 and his death in 1634 Coke was universally recognized as the master and champion of the common law and the ancient rights and liberties of Englishmen against the competing prerogative courts directly controlled by the Crown and the ecclesiastical courts also controlled by the Crown through the Church of England.

Coke was dismissed by James I from his position of Chief Judge of the King's Bench in 1617 and he entered Parliament in 1620 where he aligned with the emerging Puritan faction. Coke was not a Puritan but Coke does seem to have come to the conclusion that James I and Charles I were a clear threat to both the common law and to the ancient liberties of Englishmen.

Coke and the Puritans organized themselves in opposition to the Crown with the objective of establishing that the English constitution made Parliament at least the equal of the Crown. To this end they began impeaching James I's ministers and clients (Sir Francis Bacon was one of those impeached) on the point that the only law was the common law and the ancient constitution and not "the king speaking."

All this came to a head in 1628 when Parliament compelled Charles I to approve the Petition of Right which made "no taxation without representation" and "due process of law" essential elements of the English constitution. The same year, Charles I granted a charter to the Massachusetts Bay Company.

The events are not unrelated. The grantees of the charter were all Independents as opposed to Presbyterians and the Independents believed that individual congregations should be self-governing notwithstanding any established church. Roger Williams was an Independent and he had also been Coke's stenographer and the beneficiary of Coke's largess in the 1620s. Coke treated Williams like a son.

The Pilgrims of 1620 and the Winthrop migration of 1630 were all Independents and more or less separatists from the CoE. In New England, their form of civil government reflected the form of their self-governing congregations. That is to say just as the minister, teacher and deacons were elected by the congregation so the town officers were elected by the townsmen and the governor and magistrates of the colony were elected by the freemen who governed with the consent of deputies who were freely elected by the towns. All this is reflected in the Mayflower Compact, the Fundamental Orders of Connecticut and particularly in the Massachusetts Body of Liberties of 1641. The Independents were radical constitutional democratic-republicans.

By 1640, the Puritans in both Old and New England had divided into a Presbyterian faction, which wanted an established church along the lines of the Scottish Kirk, and an Independent faction, which wanted liberty of conscience and no established church. By 1660, the Presbyterian faction included Thomas Hobbes. After 1688, the Presbyterian faction had become the Hobbes, Locke, Burke, Hamilton, Jay and Madison (before 1790) strain of Anglo-American Whigs.

Between 1642-49 there were two civil wars in England. The first between Parliament and the Crown, which Parliament won, and a second civil war between the Independent parliamentarians and the Presbyterian parliamentarians, which the Independents won.

The Independent faction, led by Cromwell and Henry Vane, the younger, failed to establish a republic but Independent New Englanders did manage form stable constitutional democratic republican colonies. They were in fact, Leveller republics. They reflected the Coke, Winthrop and colonial populist line of political thought and they eventually became the Jefferson and Madison strain of constitutional democratic republicans.

The republican strain is most clearly reflected in the Declaration of Independence and both the republican and whig strains are clearly reflected in the Constitution of 1789. Franklin and Adams had their feet planted in both factions.

This is a very my own abbreviated and revisionist summary.

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Image of EK
on November 23, 2018 at 16:20:43 pm

Just read this article about Corwin and wish to thank the editors for shining the light of fond memory on that forgotten outstanding scholar and his fine little book and to thank EK for his useful guide through an English thicket of religious, political and legal history that I have never beeen able to penetrate.

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Pukka Luftmensch

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.