Andrew C. McLaughlin and the Defense of Constitutionalism
Although we commonly say that each generation writes its own history, we do not carry this idea to its logical conclusion and discard past historical writings. Whether this fact suggests that history is a progressive science capable of accumulating a useful body of knowledge, or merely a form of intellectual socialization within a tradition of discourse, the assumption of continuity that it implies can be applied to American constitutionalism. Choosing to govern themselves under written constitutions, the American people have required knowledge and understanding of these legal instruments to carry on their political life. To a significant extent this knowledge and understanding are historical in nature. Moreover, because the United States as a nation is governed under the fundamental law ordained and established by its founders over two hundred years ago, historical knowledge about the Constitution may be of practical importance.
These reflections warrant reexamining the first general synthesis of American constitutional development written in the era of modern professional scholarship, Andrew C. McLaughlin's A Constitutional History of the United States (1935; hereafter CHUS). Although the book was awarded the Pulitzer prize for history in 1936 the only history textbook ever to be so honored it was not long preeminent in its field. McLaughlin appeared to many critics as a defender of the old order who was "more interested in showing how ideas shape institutions than in proving that material interests shape ideas."1 Asserting that McLaughlin's approach to history lacked realism because it failed to distinguish between "the Constitution in the textbooks ... and the living Constitution," liberal scholars objected that his book was "not calculated to encourage the average citizen to apply any engines of criticism and verification to constitutional issues."2 As works more sympathetic to centralized authority and the economic interpretation of history gained favor, McLaughlin's pioneering work was largely ignored.3 Two generations later, when the historiographical assumptions of the 1930s have lost much of their persuasiveness, the time may be propitious for a fresh evaluation of McLaughlin's account of constitutionalism in America.
Twelve years in preparation, and anticipated by historians of McLaughlin's generation as "a classical publication," A Constitutional History climaxed a long and distinguished scholarly career.4 Born in Illinois in 1861 of Scottish Presbyterian immigrant parents, McLaughlin grew up in Michigan and was graduated from the University of Michigan in 1882. After teaching Latin in high school and reading law for two years, he attended the University of Michigan school of law where he became a student of the noted jurist and constitutional scholar, Thomas M. Cooley. Awarded the LL.B. degree in 1885, he was admitted to the Illinois and Michigan bars and practiced law briefly in Chicago. In 1886 he returned to Michigan as an instructor in classics, and in 1887 took over Judge Cooley's course in constitutional history when Cooley left to become the first chairman of the Interstate Commerce Commission. McLaughlin, who never received the doctoral degree, taught at Michigan until 1906, when he accepted an appointment at the University of Chicago. He remained at Chicago for the rest of his career.5
McLaughlin's first published writings were in the fields of western and diplomatic history.6 The interest in constitutional matters evident in these early works became the principal focus in two seminal articles in the late 1890s that marked his emergence as a leading constitutional historian.7 In the next two decades a number of major works followed, including The Confederation and the Constitution 1783-1789 (1905); The Courts, the Constitution, and Parties: Studies in Constitutional History and Politics (1912); "American History and American Democracy," American Historical Review (1915); "The Background of American Federalism," American Political Science Review (1918); and Steps in the Development of American Democracy (1920). Prominent in the affairs of the American Historical Association throughout his career, McLaughlin was editor of the American Historical Review from 1901 to 1905, during which time he also served as the first director of the Carnegie Institution Department of Historical Research. In 1914 he was president of the American Historical Association. Although not a strong advocate of preparedness, McLaughlin during World War I actively supported the Allied effort, writing for the Committee on Public Information and lecturing in England in defense of democracy and against German autocracy. In the 1920s he commenced work on A Constitutional History.8
McLaughlin was a scientific historian whose writings, informed by the insights of law and political science, evinced an abiding concern for the best regime. Although by no means an uncritical defender of existing political arrangements in the United States, McLaughlin's understanding of modern history led him to conclude that liberal democracy under the federal Constitution was the form of government that most closely approximated this ancient standard.
This essay examines McLaughlin's interpretation of the fundamental constitutional issues in American history that formed the basis for this judgment. These issues, which have lost little of their salience in the intervening years, include federalism and the social compact philosophy, limited government and individual rights, democracy and political parties, and the responsibility of the historian as scholar and citizen. McLaughlin in masterly fashion presented a distillation of his views on several of these questions in lectures delivered at New York University in 1932 and published as The Foundations of American Constitutionalism. In this work and in the comprehensive account that followed three years later, he continued his life-long endeavor of "teaching constitutional principles historically." Among other things, this involved focusing on the essential matters that "the American citizen, not highly trained in the law, should know familiarly," and showing "the relationship between political philosophy and constitutional achievement."9
Federalism was the constitutional principle with which McLaughlin was perhaps most closely identified. He defined federalism as "the distribution of essential powers of sovereign authority among governments" (CHUS, p. 5). Involving more than relations among states or the technical question of intergovernmental relations, federalism in McLaughlin's view was the basic form that constitutionalism in the United States assumed. The idea of limited government for the protection of individual liberty was the starting point in his understanding of constitutionalism. This idea was quintessentially expressed in the founding of political communities based on "the doctrine of individual liberty and the process of association of individuals into a new and more vital whole."10 As individuals by agreement and consent formed political societies based on "compact-or-covenant thinking," so communities of individuals through a social compact could form a political body to which portions of sovereignty were granted. According to McLaughlin, the Constitution of 1787 was a social compact that created a federal state as the political form of constitutionalism in America.11 One of McLaughlin's most seminal interpretations was his view of federalism as the product of the British empire. He argued that although in theory the empire was a unitary state, in reality it functioned as a system of divided sovereignty. The colonies managed internal or local affairs through the colonial assembly, while Parliament regulated commerce and other matters of concern to the empire as a whole. The result of "natural forces" and "spontaneous growth," the idea of divided sovereignty was conceptualized by America's leading political thinkers in the 1760s as an answer to the problem of imperial organization "the central, dominating, irrepressible task of a generation (1750-1788)" (CHUS, p. 17).
With the Revolution, the problem of imperial organization crossed the ocean. Recognizing that complete unification was impossible, Americans provided for a distribution of powers between the states and the Confederation Congress that in broad outline resembled the structure of the old empire. The defenders of state power contested the locus of sovereignty as a legal proposition, however, and succeeded in writing the doctrine of state sovereignty into the Articles of Confederation. While acknowledging that a plausible claim to state sovereignty could be made, McLaughlin argued that the states as political communities could only maintain their independent existence by entering into a union that denied their ultimate sovereignty. Although the logic of "self-government and self-control" tended toward separation and autonomy of states, the paradoxical fact was that the "very desire for political self-determination constituted a common quality and made for cooperation when political interests and economic needs were at stake" (CHUS, p. 19).
The Constitutional Convention solved the problem of imperial organization by forming "a new kind of body public." Although the states' evasion of their responsibilities was the chief problem of the time, the delegates were determined to create "a strong and infrangible union without destroying the state as integral, and in many respects, autonomous parts of an integral system." Accepting the division of sovereignty that was the legacy of the British empire, the Framers made their "signal contribution ... to the political life of the modern world" by creating "a real government" at the center: a federal republic that while it was endowed with certain additional powers, above all possessed legitimate authority and the sanction that resulted from being based directly on the people (CHUS, p. 154).
As a historian and constitutionalist, McLaughlin held to a conception of federalism known as states' rights nationalism. A contradiction in terms to late-twentieth-century scholars, this constitutional outlook affirmed American nationalism while resisting the tendency of unionism to consolidate state powers in a centralized sovereign government (CHUS, p. 173). McLaughlin began his professional career at a time when the constitutional conflicts that produced the Civil War were being refought in the pages of scholarly publications. His states' rights nationalism staked out a moderate position between the extremes of centralization and state sovereignty.
McLaughlin's states' rights nationalism can be seen in his interpretation of John Marshall's theory of the Union. Orthodox nationalist theory attributed to Marshall in McCulloch v. Maryland the view that the Constitution was adopted by the people of the United States acting as a single political community. McLaughlin in contrast contended that "Marshall... believed that the people of the states adopted the Constitution" (CHUS, p. 280n). To support this assertion he relied on Marshall's description, in the McCulloch opinion, of popular ratification of the Constitution: "It is true, they assembled in their several states and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass. Of consequence, when they act, they act in their states. But the measures they adopt do not, on that account, cease to be measures of the people themselves" (CHUS, p. 388). McLaughlin interpreted this passage to mean that Marshall "thought of a supreme law resulting from the action of thirteen bodies of people, a law which when adopted was to be the supreme law of the land."12 Rejecting thus the centralizing nationalist view, McLaughlin also rejected the state sovereignty theory in arguing that the people of the states acted as part of the people of the United States, not as agents of the states in their sovereign capacity (CHUS, p. 388n).13
The second fundamental principle that McLaughlin traced in A Constitutional History was the idea of legally limited government under a written constitution. An inheritance of the struggle to liberalize government under the Stuarts in the seventeenth century, this concept was developed by the American colonists in the eighteenth century in the light of Lockean social contract theory. The essence of Locke's political philosophy was the idea of government established by consent and bound by law for the protection of the natural rights of individuals to life, liberty, and property. While stressing individual rights, McLaughlin also noted Locke's argument that the good of the society is the object of the laws, and further that it is sometimes necessary for the executive power to transcend or go beyond the law, acting "according to discretion for the public good" (CHUS, pp. 94, 96).
Based on Lockean ideas, the Declaration of Independence expressed liberal republicanism as the philosophy of the American Revolution. Among the ideas in the Declaration, McLaughlin called attention to the principle of natural equality. It meant that all men were equally entitled to "certain great rights," not that each individual was as strong, virtuous, or competent as every other. It was not an assertion of social, economic, or political equality. Jefferson's central argument, according to McLaughlin, was that government has only delegated powers, not inherent or intrinsic authority. "The most important word in the Declaration," McLaughlin wrote, "is 'deriving' " (CHUS, p. 103).
In the most general sense, A Constitutional History is the story of a democratic state founded on the idea of legally limited government for the protection of individual rights. The two principal institutions for implementing this idea are constitutional law, depending mainly on the courts and judicial review, and constitutional politics, consisting of legislation and policy making by the political branches in the context of political parties. Having explained the origins of these institutions in the era of the Revolution and constitution-making, McLaughlin focused on the way in which Americans used them to deal with the two great social and political problems of the nineteenth century: slavery and industrialization. His account of these problems provides further insight into the nature of his constitutionalism.
Throughout most of McLaughlin's career the legitimacy of judicial review and the role of the courts in American government were deeply contested issues. Progressive reformers and scholars attacked the newly developed doctrine of comprehensive and final judicial review as a usurpation of power by the courts aimed at protecting propertied interests against regulation by democratically elected legislatures. Conservatives justified heightened judicial scrutiny of state and national legislation as an exercise of the rightful power of the courts to determine the meaning of the Constitution in all cases whatsoever, rather than simply in those of a judiciary nature.14 In this debate McLaughlin adopted a moderate position that defended judicial review within the framework of political constitutionalism.
Rejecting the progressive interpretation, McLaughlin said the exercise of judicial review in Marbury v. Madison was consistent with the Framers' design. He denied, however, that the judiciary had a general power to fix the meaning of the Constitution as a rule of political action for the political branches. McLaughlin differed from many conservative commentators in holding that the power of a court to declare a legislative act void could not simply be asserted as a formal logical argument from a written constitution. The practice could only be justified by reference to "historical forces" and "fundamental theories upon which constitutions and laws must be supposed to rest" (CHUS, p. 309). The relevant history and theory on which Marbury rested consisted of the idea, rooted in English history and taken for granted by the delegates to the Philadelphia Convention, that the Constitution is law, an act against the Constitution is not law and no one is bound to obey it, and the Constitution is enforceable in the courts and is "to be handled as any other law is handled,... for the duty of any court is to announce and apply the law." Ultimately McLaughlin concluded that judicial review was based on the philosophy of the American Revolution and was justified as the attempt of a free people to establish and maintain a nonautocratic government (CHUS, pp. 184-85, 310).
The separation of powers was an essential basis for judicial review because under it the judiciary is an independent and coordinate branch of government. Reciprocally the separation principle prevented judicial review from developing into judicial supremacy over constitutional interpretation. Denying that it is the peculiar function of the Supreme Court to pronounce legislative acts void, McLaughlin said the Court is "not charged with the special and exclusive duty of upholding the Constitution which is law." It was "the duty of any and every court to announce the law and to apply the law in distributing justice to litigants" (CHUS, p. 308). This analysis implied that judicial review was limited to cases of a judiciary nature, and was improper in political questions. The corollary was that the executive was under no obligation to regard the constitutionality of a given policy matter as settled by a Supreme Court decision. Referring to Andrew Jackson's bank veto and his theory of departmental constitutional review, McLaughlin acknowledged the validity of Jackson's assertion that every officer had a right to support the Constitution "as he understands it." McLaughlin further denied, with Lincoln, that the Dred Scott decision as a constitutional opinion established a rule binding on voters, lawmakers, and executive officers. "From the acknowledgment of the Court's right and duty to interpret the Constitution," he observed, "to the declaration that the Court by its decision fixes upon the Constitution an interpretation that must last forever and beyond, it is a far cry" (CHUS, pp. 414-15, 582).
McLaughlin offered a moderate interpretation of substantive due process and expanded judicial review in the late nineteenth century. He explained that the judiciary was called upon to adapt constitutional law to rapidly changing social conditions at the very time when "there was new need of determining what was the nature or the limits of liberty" (CHUS, p. 724). The problem was to balance regulation of property with the protection of individual property rights. McLaughlin criticized Munn v. Illinois as a solution to the problem. Instead of holding that a business affected with a public interest could be regulated, he said the Court should have declared more broadly that when a business assumed such a character that there was need for legislative control of rates, measures for that purpose would be constitutional (CHUS, p. 736).
McLaughlin was sympathetic to the new judicial review, with its concern for the reasonableness of legislation, because it affirmed the principle of limited government and individual rights. At the same time he noted that expanded review, which a later generation would refer to as judicial activism, "allows a modification or an accommodation to new conditions of society and to a changing belief concerning the essence of liberty." This approach was able to accommodate decisions expressing public opinion and the legislature's judgment "as to what constituted justice, and what was reasonable interference with private property and liberty of contract." It was "far better than any rigid definition of right and justice or any highly technical formulas which give no opportunity for development" (CHUS, pp. 755, 758).
Although judicial review was an essential feature of limited government, the success of liberal democracy depended mainly on the political branches and the people. The development of constitutional law was accordingly subordinated in A Constitutional History to a general survey of political history, with special emphasis on political theories and legal aspects of political controversies.15 The political party system was a pivotal institution that altered the constitutional order. A means by which citizens could control the formal legal government and direct the working of the constitutional system, parties were intended to accomplish "the two supreme jobs of democracy": electing officers whom the people wanted, and transferring the people's desires into legislation and administration. McLaughlin understood that parties had problematic features insofar as they tended to serve their own interests rather than promote the common good. Reformers therefore faced the constitutional problem of controlling "the government that would control the government" (CHUS, p. 403). On balance, however, McLaughlin maintained a positive view of party as a democratic institution that, by reason of its quest for votes, tended toward inclusiveness and promoted national unity and social solidarity against "mere individualism," group factionalism, and "class-selfishness" (CHUS, p. 404).
The party system had a major effect on the slavery controversy, which McLaughlin viewed as a conflict between liberalism and autocracy. At issue was the struggle between free rational discussion as a way of conducting government, in order to protect personal liberty and fundamental human rights, and "the right of the strong and those possessed of assumed authority to be served by the many, whether ... black or white" (CHUS, p. 489).
Constitutional questions were of course pertinent to this struggle.
The fight over the gag rule, for example, showed that the essential issue was "the right and the duty of free speech, free discussion, and interchange of opinion" versus the rule of force and enforced silence demanded by slavery. McLaughlin held that although the Constitution recognized the existence of slavery in some of the states, it marked it as a local institution. This could be seen in the fact that while it was not considered necessary to say in the Constitution that if horses should escape from one state into another they would remain the property of the person from whom they fled, it was thought necessary to say this of persons held to service or labor. McLaughlin subordinated technical legal discussion of slavery issues, however, to the political philosophical ideas that guided his analysis. When considered in relation to "the perennial question" of "whether the strong shall inherit the earth and rule it with their strength," he reasoned, "constitutional history in the ordinary sense falls into the background of obscurity" (CHUS, pp. 483, 492, 495, 612).
McLaughlin analyzed the slavery issue in relation to the forces of national integration that were transforming American society. He observed that improvements in transportation and communication were often said to have the effect of unifying people and creating one world. In fact they revealed not the unity but the dualism of the world, as the slavery struggle showed. The "dualism of America by the mid-nineteenth century had become more evident because of the integrating forces drawing North and South together," McLaughlin reasoned. "The more nearly North and South came together, the farther they were apart."16 A striking passage in A Constitutional History expressed the division into which the country had fallen as well as the urgent sense of nationalism that was driving it toward a resolution of the slavery conflict. McLaughlin wrote: "Slavery belonged to the south, and the south must be left alone; slavery was a local matter, so local that to discuss it a thousand miles away endangered its existence; so local that it must be national at least there was national obligation binding Massachusetts and Vermont not to discuss the denial of human rights by South Carolina" (CHUS, p. 492). Both sides struggled to define the principle of American nationality in an irrepressible conflict between "the developing forces of occidental civilization" and the South's "worn-out system of economic order" (CHUS, p. 475).
McLaughlin's philosophical idealism, concern for the evolution of ideas and institutions, and belief that "the long course of history seems to find its culmination in the establishment of the American constitutional system" are reasons for regarding him as a conservative historian.17 His substantive view of American history, however, was socially progressive and liberal nationalist in outlook.18 This can be seen in his interpretation of the antislavery movement and the response to industrialization.
Nineteenth-century humanitarian reform was directed at industrial, social, and labor problems, which McLaughlin said were perceived in the United States as early as the 1830s. Americans could not deal with these issues, however, until slavery "a system of labor as old as the pyramids" was eliminated. Agitation against slavery therefore was "one of those movements for liberalism and social righteousness humanitarianism which were transforming the modern world." A positive result of the struggle was that it "brought into clear relief the value of freedom." Yet McLaughlin critically observed also that "men were induced to indulge in further glorification of their own freedom and likewise, to suppose that, if the laborer were not owned by the capitalist, he was free." He wrote that "one would expect to find men, upon the extirpation of slavery, also anxious, at the first opportune moment, to reach out the hand of helpfulness to the serfs of the machine and the factory." This humanitarian response was long delayed, however, and only after the issues of the war lost their appeal did the movement for the social control of industry begin (CHUS, pp. 721-22).
Sympathetic to the social reform purposes that guided American political thought in the early twentieth century, McLaughlin adopted a historical approach to constitutionalism that was grounded in the normative perspective of political science or political philosophy. To be sure, he emphasized obedience to law and viewed the Constitution as law to be applied by ordinary courts. Yet there was nothing of judicial supremacy in his concept of judicial review, and he denied that constitutional interpretation and the preservation of liberal democratic government were primarily a matter of applying "abstract principles of disembodied law, if there be any such thing" (CHUS, p. 300). The substance of constitutional history and the essence of constitutionalism was not "judicial pronouncements, but great controversies, discussed and rediscussed by statesmen and the common people." In the resolution of these controversies, judgments and decisions about the constitutionality of public measures involved the ends, purposes, and objects of the Constitution in relation to social needs and political philosophy. Government officials did not burn candles "before the altar of a disembodied principle of constitutional interpretation," McLaughlin noted, and consistency in the application of constitutional principle was not honored as a criterion of statesmanship. In the political crisis caused by the Alien and Sedition Acts, for example, the real issue was not whether specific words of the Constitution were violated or given an improper construction, but whether the acts were "contrary to the spirit of the Constitution and ... at variance with the elementary principles of free and liberal government" (CHUS, pp. vii-viii, 233-34, 295, 271).
McLaughlin's conception of constitutionalism was fundamentally political rather than legalistic or juridical in nature. Historically it was best illustrated in the statesmanship of John Marshall and Abraham Lincoln. McLaughlin wrote that Marshall's duties as chief justice "called for the talent and the insight of a statesman capable of looking beyond the confines of legal learning and outward onto the life of a vigorous people entering upon the task of occupying a continent." He suggested that if Marshall had been more of a technical lawyer, steeped in the history and intricacies of the law, he would have been a less effective jurist. Marshall's greatness lay not in any constitutional creativity he possessed, but in his ability to understand and expose the very foundations of the constitutional system (CHUS, pp. 300, 383).
McLaughlin's most considered analysis of constitutionalism focused on Lincoln's exercise of executive power during the Civil War. While noting Lincoln's conscientious adherence to the forms and procedures of constitutional government, he said the president acted on the premise that encroachments on constitutional limitations were justified by the necessity of preserving the life of the nation and its fundamental law. "No one would deny Lincoln's moral right to break the Constitution in order to save it," he wrote. Although conceding that from the standpoint of constitutional precedent Lincoln's action at the start of the war "bears an ominous look," McLaughlin declared that "safety from tyranny lies not so much in the technicalities of law as in the constitutional conscience of officials and people and in the intelligence of the voting masses, who, if they use discretion, will seek to place in office men of wisdom and of rectitude rather than greedy graspers for power" (CHUS, pp. 615, 619, 627).
McLaughlin believed executive discretion, exercised for the public good and the ends of the political community, is an essential feature of constitutionalism.19 His study of Lincoln led him to state that the Constitution was "the actual structure of a nation, ... the common and conventional attitudes of the citizens, the principles which animate them, their substantial concepts of justice, liberty, and safety." Forced to go beyond legal forms, Lincoln "penetrated the foundations of democratic government restrained by law" and acted on the premise that "It is the prime duty of a democratic statesman to maintain the very system on which his power rests." Calling him an "arch-constitutionalist," McLaughlin concluded that the "primal and elemental responsibility of free government" responsive to the people's needs was "the central principle of Lincoln's constitutionalism."20
In McLaughlin's writings the constitutionalist's concern for the best regime existed in tension with the obligation of a scientific historian to refrain from moral judgment. Rejecting the notion that the purpose of history was "to garner a few well-phrased precepts ... whereby virtue may be obtained," he disavowed the idea that the historian was a philosopher or moralist. At the same time, McLaughlin said the problem of teaching American history "was complicated by what may be the need of inculcating Americanism or of building up of national spirit." Concerning this "difficult and distracting subject" he concluded: "We cannot deny a certain amount of obligation" to teach patriotism and develop the spirit of American nationalism.21
McLaughlin explained the sense in which the historian had a civic obligation in advice he offered, as editor of the American Historical Review, to a high school history teacher. Asserting that "the stress that is laid upon industrial history is in great danger of being overdone," he stated that "with the great majority of students it is of vastly greater importance to give an understanding of the declaration of independence and the constitution of the United States than the discovery of coal or the development of the sewing machine." Economic and social facts could be of value if "treated in a really historical way in order to develop the historical spirit in students," he conceded. "But every boy and girl must be a citizen of the United States whether he will or not." McLaughlin reasoned, "and he must perform his political and social duties whether iron can be made out of pit coal or charcoal alone."22
Mutatis mutandis, McLaughlin delivered essentially the same message in his presidential address to the American Historical Association in 1914. Taking "the whole democratic regime" as the paramount subject for the American historian, he declared: "We may well question whether a nation can ever become truly great without intense self-consciousness and self-appreciation, and, however closely the historian may cling to ideals of scientific objectivity, he may well believe that one duty of historical study and writing is to help make a nation conscious of its most real self, by bringing before it its own activity and the evidences of its own psychology."23 When two years later the United States entered the world war, McLaughlin placed his scholarship more directly in the service of the nation. "In my judgment," he wrote in April 1917, "the value of the historian now is chiefly in pointing out the route into the future which his various experiences have enabled him to see. In other words, it is time for us to dare to use our historical information for purposes of prophecy and actual guidance."24
In the broadest sense, A Constitutional History embodied the view expressed in McLaughlin's AHA presidential assertion: "The history of a popular state must be no other, at its inmost heart, than the story of the attempt to become and remain a popular state."25 Approaching his subject from the standpoint of an objective historical observer and a constitutionalist, McLaughlin conceived of the study of constitutional history as "on the very brink of political science and political philosophy." Its essential task was to provide "the proper interpretation of constitutional documents and speeches bearing upon the most significant questions." And this involved showing that the authors of public documents often "were thinking differently from the men of the present day on certain fundamental things, that terms have lost or changed their meaning in the lapse of one hundred and twenty-five years."26
The dual perspective of historian and constitutionalist concerned for the regime of liberal democracy are evident at many points in A Constitutional History. McLaughlin wrote, for example, that "In an attempt to decide where at a given moment sovereignty resides in any nation, the investigator is engaged in an historical task." Yet "his conclusion is within the field of law," and "though he be a mere historian, he is under no obligation to withhold from his readers his own conclusion which is a necessary product of his historical study" (CHUS, p. 132). Tension between constitutionalist and historical perspectives also appears in McLaughlin's practice of evaluating constitutional actions and decisions in the light of subsequent developments in constitutional law. The historian Robert Livingston Schuyler commented that this approach implied "that constitutional liberty is a constant, unaffected by historical developments."27 The political scientist Robert E. Cushman nevertheless believed McLaughlin satisfied the criterion of historical mindedness. His book expressed the view that "the Constitution for any generation in our national history is what that generation conceives it to be, as disclosed by what it says and does about it."28 Henry Steele Commager was right when he said that McLaughlin, addressing themes of abiding significance that transcend a single historical period or nation, sought an orderly sequence of facts "not for narrative purposes, but for philosophical."29
As a scientific historian and liberal constitutionalist, McLaughlin attached great importance to reason, reflection, deliberation, and debate as critical forces in history. At a time when many historians were adopting the economic interpretation of history, he acknowledged the relevance of the new approach. "There is no reason for denying the influence of economic causes on the Revolution," he wrote. Nevertheless, "men have and had their pride as well as thrift," he argued, "and it is folly not to see the immense significance of the struggle for constitutional liberty" (CHUS, p. 62). The Constitution represented the triumph of reason in pursuit of liberty. "Men of mind," "thoughtful men," "those willing to think" were responsible for the Federal Convention, in which "results were reached by debate, by interchange of opinion, by deliberate but earnest consideration of problems." No faction worked its will and no leader dominated. "For once at least in the course of history," McLaughlin wrote, "opinions were formed and changed as the result of argument." In the adoption of the Constitution, as in the making of the state constitutions, "the principles of political philosophy were to be put to the test" (CHUS, pp. 142-43, 148, 108).
From the standpoint of late-twentieth-century constitutional history, McLaughlin's contribution can be shown in a variety of ways. As indicated earlier, a number of recent works express intellectual obligation to McLaughlin or employ the concept of liberal republican political philosophy that informed his writings.30 Moreover general accounts of constitutional history emulate his broad, political-institutional approach to the constitutional system.31 A more important reason for consulting A Constitutional History is that it identifies perennial problems in American history and government. It seems unnecessary to add that federalism, judicial review, limited government and individual rights, and the nature and tendency of liberal democracy continue to be vital issues in American politics. On all of these matters McLaughlin's commentary remains penetrating and perspicacious.
More broadly, McLaughlin's unifying conception of liberal democratic constitutionalism is pertinent at a time when historians are busily engaged in disaggregating the American past into the discrete experiences of racial, ethnic, and gender groups, in effect denying the possibility of a coherent synthesis of our national history. The purpose and motive of this historical deconstruction may be to secure the inclusion of previously excluded groups into the society. The historical conclusion it reaches, however, and the political logic on which it rests deny the existence of a common culture and national political community. In McLaughlin's era comparable pressures, born of industrialization and emphasizing the conflict of social classes, threatened the liberal democratic order that formed the basis of American nationality. McLaughlin warned of a new sectionalism, functional rather than geographic in nature, by which "men and women in the same locality are divided into classes by impervious walls which belie real nationalism and already betoken disintegration." Asserting that "men should have a chance and not be sorted or sifted on any artificial or traditional theory of worth," he declared: "We look with foreboding on stratification and classification which will either benumb personal effort, or by setting up group barriers, prevent free play of common sentiments and motives."32
McLaughlin saw the issue as nothing less than the existence of the nation. This involved more than blood and race, or subjection to a government and inclusion in territorial limits. Nationality depended on the common possession of ideals and beliefs, which in the United States were preeminently equality before the law, protection of individual rights, and the responsibility of government to the people. In McLaughlin's view these ideals constituted "the ethical principle of justice," grounded in the Declaration of Independence, that held the American nation together as a living thing.33
It is instructive furthermore, at a time when a new normativism is evident in the fields of history and political science, to consider the balance in McLaughlin's scholarship between constitutionalism and objective historical analysis. Over a decade ago Michael Kammen reported that historians have rejected the values of nationalism and detachment and allowed their subjective relationship with their subject to guide the moral judgments to which they are increasingly given.34 In a recent analysis the political scientist James W. Ceaser describes the complementary role that historians of the republican ideological school play in the effort of political scientists to design a communitarian regime of democratic participation and egalitarian justice.35 Of this attempt to define the political tradition the historian Gordon S. Wood comments: "the stakes are high: nothing less than the real nature of America."36
If it is true that all serious historical writing is ultimately normative, it is all the more important for historians to approach their subject in a disciplined and scientific way. Perhaps the most that can be achieved is a constructive tension or balance between these conflicting pressures. McLaughlin's morally grounded yet judicious and restrained scholarship may serve as an example. Declaring that "History is not written or taught for the purpose of inculcating any particular moral or immoral lesson," he said that "careful, accurate, truthful examination of historical facts and evidences is a virtue itself."37 The task of the historian was to present the long story of human life as it actually was and the succession of events as they really took place. At the same time the historian was part of "the stream of human energy that was carrying mankind onward and perhaps forward."38 McLaughlin could therefore acknowledge that while "as a laborer in the field of history, I ought not, I suppose, be pleading for anything,... I feel free to suppose that as citizens as well as historians, we are interested in the vicissitudes of democracy and all its connotations."39 McLaughlin reminds us that rules guiding historical investigation, although necessary, are not sufficient, and that good history, like good government, depends on prudential judgment and practical reason.
Finally, McLaughlin's view of the significance of American democracy in world perspective is probably still valid. "We must remember," he said in his AHA presidential address, "that, if we have in our later days judged ourselves by other standards and lost our sense of what we are and mean, Europe has not ceased for one moment in the last hundred and fifty years to watch us in war, diplomacy, industrial growth, education, and religion as a democracy."40 Now that free institutions appear to have prevailed in eastern Europe over the repressive autocracies that darkened McLaughlm's world, it is perhaps worthwhile to reflect on the development of ordered liberty in the nation that supported the struggle and inspired this transformation For that purpose McLaughlin's judicious account of the regime of liberal democracy is timely and pertinent.
1 Homer C. Hockett, Book Review, Mississippi Valley Historical Review 22 (March 1936) 610.
2 Sidney Ratner, Book Review, Political Science Quarterly 52 (Dec. 1937) 611, Charles A Beard, "The Constitution in Cotton Wool," The New Republic 92 (Sept. 15, 1937) 163.
3 Obituary of Andrew C. McLaughlin, Proceedings of the American Antiquarian Society 57, part 2 (1947) 259.
4 Robert E. Cushman, Book Review, American Political Science Review 30 (June 1936) 565, J. Franklin Jameson to Andrew C. McLaughlin, Feb. 15, 1926, Box 110, J. Franklin Jameson Papers, Manuscript Division, Library of Congress.
5 Dictionary of American Biography, Supplement Four, 1946-1950 (1974), pp. 530-32, National Cyclopedia of American Biography (1950), 36 137, Obituary, American Historical Review 53 (Jan. 1948) 432-34, Obituary, Proceedings of the American Antiquarian Society 57, part 2 (1947) 258-60, John Higham, History Professional Scholarship in America (1983), p. 23.
6 A History of Higher Education in Michigan (1891), Lewis Cass (1891), Elements of Civil Government in the State of Michigan (1892), "The Western Posts and the British Debts," American Historical Association Annual Report for 1894 (1895) 413-44.
7 Andrew C. McLaughlin, "James Wilson in the Philadelphia Convention," Political Science Quarterly 12 (March 1897) 1-20, and "Social Compact and Constitutional Construction," American Historical Review 5 (April 1900) 467-90.
8 Andrew C. McLaughlin to J. Franklin Jameson, June 7, 1916, Box 110, J. Franklin Jameson Papers, Manuscript Division, Library of Congress.
9 Andrew C. McLaughlin, The Foundations of American Constitutionalism (1932), pp. XI-XII, CHUS, p. VII.
10 McLaughlin, The Foundations of American Constitutionalism p. 21.
11 Ibid., pp. 28, 80. Drawing in part on McLaughlin, Daniel J. Elazar has recently developed the idea of federalism as a new constitutional form for organizing political life, not simply a structural compromise that permitted unification of separate states into a larger polity. See his The American Constitutional Tradition (1988), pp. 13-38.
12 Andrew C. McLaughlin, "Social Compact and Constitutional Construction," American Historical Review 5 (April 1900) 480n.
13 McLaughlin distinguished between Marshall's theory of the Union and that of Daniel Webster. He said that in the debate with Robert Y. Hayne of South Carolina in 1830, Webster "took a definite step forward, declaring the Constitution to have been ordained and established by the people of the United States in the aggregate." According to McLaughlin, Webster held that "the Constitution emanated from a single will, the people as a whole" (CHUS p. 438).
Edward S. Corwin disputed this interpretation of Marshall, asserting that McLaughlin's "State Rights Federalist" sympathies led into "positive error." Corwin read McCulloch as expressing the purely popular origin of the Constitution, and denied that there was any difference between the views of Marshall and Webster Book Review, American Historical Review 41 (Jan. 1936) 349-50.
14 Robert Lowry Clinton, Marbury v. Madison and Judicial Review (1990), pp. 161-91.
15 This characterization of the work was provided by W. W. Willoughby, Book Review, ABA Journal 21 (Sept. 1935) 605 Willoughby criticized McLaughlin's conception of constitutional history because it failed to give sufficient attention to the institutional structure, functions, and activities of government.
16 Andrew C. McLaughlin, "Lincoln, the Constitution and Democracy," International Journal of Ethics 47 (Oct. 1936) 15-16.
17 McLaughlin, The Foundations of American Constitutionalism, p. 156, Higham, History, p. 166.
18 Referring to McLaughlin's emphasis on ideas and institutions, Clifford K. Shipton said that "Inevitably he was a conservative in his constitutional views, although much more devoted to social work than are most liberals" (Proceedings of the American Antiquarian Society 57 part 2, 1947 259).
19 For an extended treatment of this view, see Harvey C. Mansfield, Jr., Taming the Prince: The Ambivalence of Modern Executive Power (1989).
20 McLaughlin, "Lincoln, the Constitution, and Democracy," pp. 2-3, 5-7 Emphasizing the philosophical tendency of Lincoln's constitutionalism, McLaughlin pointed out that although he was an able lawyer, Lincoln did not undertake a critical examination of the legal right to exclude slavery from the territories, made no attack on the vulnerable parts of the fugitive slave law, and presented no technical argument against the validity of the main holding of the Dred Scott decision Reflecting the same sense of intellectual priorities, McLaughlin, in analyzing Lincoln's position on some technical questions in constitutional law, did so "only that I may not appear to have wilfully ignored it" (ibid, p. 7). For recent commentary expounding on the idea of constitutional statesmanship, see Gary L. Jacobsohn, The Supreme Court and the Decline of Constitutional Aspiration (1986), and John Agresto, The Supreme Court and Constitutional Democracy (1984).
21 Andrew C. McLaughlin, "Teaching War and Peace in American History," The History Teacher's Magazine 7 (Oct. 1916) 259, 261 An illustration of this tension in McLaughlin's thinking is provided in the recollection of Philip S. Klein, the biographer of James Buchanan, of graduate instruction at Chicago in the 1920s According to Klein, McLaughlin would "take a controversial subject, talk a bit, and say 'Who is to judge, who is to judge?' Well, he was to judge " Klein said McLaughlin "did not give the Democrats or the slaveowners a fair shake," and was "so pro-Republican and anti-Democratic in handling the years 1854 through 1933 that one could think he was a politician rather than a historian." Michael J. Birkner, "A Conversation with Philip S. Klein," Pennsylvania History 56 (Oct. 1989) 252.
22 Andrew C. McLaughlin to John A Butler, Feb. 10, 1902, American Historical Association Papers, Box 258, B-1902, Manuscript Division, Library of Congress.
23 Andrew C. McLaughlin, "American History and American Democracy," American Historical Review 20 (Jan. 1915) 258.
24 Andrew C. McLaughlin to J. Franklin Jameson, April 25, 1917, Box 110, J. Franklin Jameson Papers, Manuscript Division, Library of Congress.
25 McLaughlin, "American History and American Democracy," p. 276.
26 Andrew C. McLaughlin to J. Franklin Jameson, Oct. 15, 1900, Box 110, J. Franklin Jameson Papers, Manuscript Division, Library of Congress.
27 Robert Livingston Schuyler, Book Review, The Social Studies 26 (Oct. 1935) 422.
28 Robert E. Cushman, Book Review, American Political Science Review 30 (June 1936) 565.
29 Henry Steele Commager, "Foreword," in Andrew C. McLaughlin, The Confederation and the Constitution 1783-1789 (1962), pp. 7-8.
30 See Jack P. Greene, Peripheries and Center Constitutional Development in the Extended Polities of the British Empire and the United States 1607-1788 (1990), p. x, Peter S. Onuf, The Origins of the Federal Republic Jurisdictional Controversies in the United States 1775-1787 (1983), p. XIV, Ralph Lerner, The Thinking Revolutionary Principles and Practice in the New Republic (1987), Michael P. Zuckert, "Federalisms and the Founding," Review of Politics 48 (Spring 1986) 166-210, William E. Nelson, "Reason and Compromise in the Establishment of the Constitution 1787-1801," William and Mary Quarterly 44 (July 1987) 458-84.
31 Mark Tushnet, Book Review, Law and History Review 8 (Fall 1990) 311-12.
32 McLaughlin, "American History and American Democracy," pp. 274-75.
33 McLaughlin, The Foundations of American Constitutionalism, p. 156.
34 Michael Kammen, ed., The Past Before Us Contemporary Historical Writing in the United States (1980), pp. 22-23.
35 James W. Ceaser, Liberal Democracy and Political Science (1990), pp. 114-18.
36 Ibid., p. 115
37 McLaughlin, "Teaching War and Peace in American History," p. 259
38 McLaughlin, "American History and American Democracy," p. 276
40 Ibid., p. 263
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