- Introduction:The Constitution and Public Policy in U.S. History
Huzza! My brave boys, our work is complete;The world shall admire Columbia's fair feat;Its strength against tempest and time shall be proof, Andthousands shall come to dwell under our roof:
Whilst we drain the deep bowl, our toast still shall beOur government firm, and our citizens free.—Francis Hopkinson, "The New Roof" (1787)
In 1787, Francis Hopkinson, author, lawyer, composer, and statesman, penned "The New Roof: A Song for Federal Mechanics." A signer of the Declaration of Independence and committed Federalist, Hopkinson saw the new Constitution as a sturdy, weatherproof covering for a "Mansion-house observed to be in a very bad condition." Making the case for such thorough renovation of the nation's political architecture so soon after the construction of the "old Confederation," Hopkinson complained of a fractious American family, too much given over to intrigue, argument, and legal wrangling. He rested his hopes on judges and laws, supports that "divide right from wrong, and strengthen the weak, by weak'ning the strong."1
Hopkinson would prove neither the first nor the last American observer simultaneously to lament what seemed to be a peculiarly litigious [End Page 1] society and to champion the law as a mainstay of American public life. As one group of distinguished scholars recently concluded, law has been and remains "the language of governance in the United States."2 Legal procedures, courtroom proceedings, and lawyers have played an unusually large role in American political history. In particular, law has profoundly influenced public policy—defining the ability of social actors to shape policy, constraining and expanding the scope of government action, and shaping the ways in which political change takes place.
The constitutional system has furnished disfranchised persons and marginalized groups with tools to seek inclusion and equality. Yet it also has muted such claims by entrenching the power of governing elites, taming demands for social change, and bringing into line regional, economic, and political "outliers."3 The constitutional system has tended to channel dissent into particular directions (claims to equal rights, for example) and foreclosed others. Constitutional law greased the wheels of American capitalism, constructing and legitimating markets and aiding business enterprises. But it also safeguarded Americans from some of the market economy's failures and disruptions.4
Despite its crucial importance in United States history, the constitutional system has not been a central subject in American historical scholarship. Even its practitioners have confessed that constitutional history went into eclipse for more than a generation. In the 1970s and 1980s, history departments largely gave up the unfashionable field for forays into social and cultural history, while political scientists embraced rational choice, consigning constitutional scholars, in Martin Shapiro's words, to a "ghetto of little interest to other political scientists."5 As political history reemerged in the 1990s, legal history too often remained outside the purview of this literature, treated as subject matter to be handled by legal history experts rather than material that should be integral to new narratives about political institutions, public policy, and political movements. According to historian Laura Kalman, "Legal historians were having enough trouble making their own field less marginal without teaching constitutional history, which would have been dismissed as irrelevant and old-fashioned."6
In recent years, however, a wide variety of scholars in many disciplines have reinvigorated this once-pivotal, long-neglected field and started to reintegrate the subject into work on American history.7 This development has converged with the revitalization of political history. In particular, a pioneering group of scholars has explored the intersection of law and public policy in the American past, shedding [End Page 2] new light on this crucial and crucially distinctive aspect of the American polity. This special issue collects some of the most innovative and insightful work of a rising generation of historians and legal scholars. While each essay makes its own special contributions, together the essays contribute to an ongoing reconceptualization of the historical relationship between the Constitution and public policy.
First, the essays stress that courts and lawyers do not alone make constitutional meaning. Seeking...