Forgotten Constitutional History: The Production and Migration of Meaning Within Constitutional Cultures

When was the last time you read a serious, recently published work of constitutional history that did not deal mainly with the work of the Supreme Court? When, even among those works, did the author look beyond the immediate litigants to give the reader a sense of an evolving constitutional culture – a culture in symbiosis with the larger political and social culture – its eddies and byways, as well as its mainstream? My strong hunch is that anyone who can triumphantly respond to the implicit condemnation of narrowness in these questions will do so in large measure having read either or perhaps both William Lee Miller’s Arguing About Slavery1 and David Rabban’s Free Speech in Its Forgotten Years. Both books explore unfamiliar contexts of familiar constitutional terms; both thereby enrich and unsettle our complacent modem understanding of such terms; both should excite our historical imaginations and cause us to look for other untold or long-lost stories, which in tum might give us a more capacious and ironic understanding of constitutional institutions. What is more, both works tell us stories-ones with heroes and villains, themes of hope and betrayal, and, unfortunate as it may be, endings that are not necessarily happy. Each book also can teach us about writing history. Each raises questions about the historian’s method. What is more, read together, they put before us the deepest of questions regarding the construction of constitutional meaning. What is most interesting about each work, however, is something so obvious that it may easily be overlooked. These books are about political abstractions embodied in constitutional institutions, structured by our predecessors’ reduction of those institutions to a few words on paper and succeeding generations’ tortured fealty to those abstractions in the face of immediate, real-life, substantive pressures. For lawyers, each book therefore raises, implicitly at least, questions such as whether fealty should be to the precise historical meaning of each clause, whether the values embodied in certain constitutional language may become irrelevant to later polities, and, even more confusing to lawyers, whether such values may be said to migrate from one given constitutional clause to another. Each book thus raises, without answering, the question of what in such abstractions can command loyalty and passion.