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.