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Journal of Interdisciplinary History 34.3 (2003) 474-475



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A Community Built on Words: The Constitution in History and Politics. By H. Jefferson Powell (Chicago, University of Chicago Press, 2002) 251pp. $35.00

Powell offers a series of historical vignettes to support his argument that "[c]onstitutional law is an historically extended tradition of argument, a means (indeed, a central means) by which this political society has debated an ever-shifting set of political issues" (5-6). Powell is less concerned with the content of constitutional law at any particular time than he is with the ways in which those supporting diverse results presented their arguments. His argument provides historical grounding for Bobbitt's justification of constitutional law in what Bobbitt calls the modalities of constitutional argumentation.1

Powell draws his vignettes from constitutional practice in Congress and the executive branch, as well as from the courts. The earlier sections focus more on Congress and the presidency than on the courts; the later ones reverse the priority. His service in the Clinton administration helps Powell in insisting on the importance of constitutional argument in [End Page 474] Congress and the executive branch. The book contributes to an expanding literature on constitutional interpretation outside the courts, complementing Keith Whittington's Constitutional Construction (Cambridge, Mass., 1999).

Powell provides interesting brief accounts of episodes in the conflict between Jeffersonians and Republicans during the early 1800s—the Jonathan Robbins affair (involving the extradition of a seaman to Great Britain despite his contention that he was a U.S. citizen) and the repeal of the Judiciary Act of 1802, for example. About two-thirds of the book deals with the early republic through the Jacksonian era. Powell's vignettes are interesting in themselves, and many will be unfamiliar to all but specialists in the history of the early republic (for example, how many people know about the debates concerning whether the Senate had the power to specify whether a U.S. representative abroad should be an ambassador or a mere minister?). Each part ends with a study of the place in constitutional law of racial subordination—Powell suggesting that the issue of race has constrained tendencies in U.S. constitutionalism "to extend the community to those who are excluded from it" (7).

Powell's vignettes establish one of his major themes, but the book does not develop another in sufficient detail. The author of a classic article about the views of the founding generation about the role of originalism in constitutional interpretation, Powell succeeds in showing that constitutional argument has never been solely originalist, or, indeed, solely anything. Throughout U.S. history, a range of arguments, including appeals to ideological commitments and to prudence, has always been within bounds. As Powell puts it, constitutional interpretation has always been "driven beyond the words of the text precisely because of the need to address a question presented by the text" (20-21).

Powell makes another historicist claim, for which he provides less support. For him, "the range of considerations" in constitutional argument is "shaped by the constraint of fitting them within whatever terms and concepts currently are counted as constitutional (or by the need tochange those terms and concepts to accommodate different forms of argument)" (6). This proposition suggests that Powell might offer a series of maps to illustrate the constraints existing during each historical period, with some indication of how political actors re-drew the maps as needed. But, perhaps because of his interest in combating single- argument approaches like originalism, Powell more often seems to be asserting that all forms of constitutional argument have always been available and used. If so, however, the idea that each era's concepts act as constraints is drained of content.



Mark Tushnet
Georgetown University Law Center

Footnotes

1. Philip Bobbitt, Constitutional Fate: Theory of the Constitution (New York, 1982).

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