Crosskey and the Constitution: A Reply to Goebel

The immediate purpose of this paper is to demonstrate the inadequacies of the most embittered of the reviews of Crosskey’s book which I have read, “Ex Parte Clio,” written by Professor Goebel (hereinafter sometimes referred to as “the reviewer”). Demonstrating these things will involve repeated reference to the thesis and the methodology of the book, and comparison of the book with the contentions advanced by the reviewer. The reading will probably be as tedious as the writing has been, but that cannot be helped, for the longer aim of this paper cannot be achieved in any other manner. That aim is to help bring to a close the first phase of the reception of Crosskey’s work, the phase which may be called that of “initial shock,” and to encourage the commencement of the more constructive phase, that of cool-headed critical evaluation.

In order to make my own attitude toward the book perfectly clear, I wish to state the conviction that as people continue to learn that Crosskey’s conclusions are not “preposterous” merely because they are not now generally shared; as it begins to be established that the book, despite its frank appraisal of such historical figures as Jefferson and Madison, is an extraordinarily prudent, balanced, and perceptive evaluation of evidence of a most widely varied and complicated kind, set forth in a manner so exhaustive and meticulous as to be unprecedented; and as the inevitable and desirable testing and re-testing establish that the theory of the Constitution which Crosskey sets forth is in the strictest sense scientifically sound, since it meets the requirements of scientific method-then statesmen, judges, lawyers, and perhaps even legal scholars will come to realize that to Crosskey is owed the profound appreciation which sensitive and intelligent persons always accord a supreme performance, eventually. I am not sure that our constitutional law and constitutional structure will ever become what Crosskey so convincingly shows us they were intended to be. But I think the book will live a long time as a reminder to everyone in and around the legal profession of the worth of their field of action, and as a model of the lawyer-historian’s art and science.