4



     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.



Notes



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



39 Ibid



40 Ibid., p. 263