Andrew C. McLaughlin and the Defense
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
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
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
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
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.
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,
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
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
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
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
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
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
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.
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
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.
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
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,
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
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
32 McLaughlin, "American History and American Democracy," pp. 274-75.
33 McLaughlin, The Foundations of American Constitutionalism, p.
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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