Thursday, July 14, 2011

The Curious Case of William Winslow Crosskey, Part I

In the annals of the history of originalism, there is perhaps no more intriguing case than that of William Winslow Crosskey (1894-1968), professor of law at the University of Chicago (1935-1968), and author of the three volume work Politics and the Constitution in the History of the United States (University of Chicago, 1953, 1960, 1980 [posthumous]). Recently, over lunch, my BC Law School colleague Mary Bilder brought Crosskey to my attention. She had had a research assistant prepare a dossier on him – which she kindly shared with me – with the aim of answering the question she put to me that day: ‘Why did people hate him so much?’

I hadn’t known that, despite having a few high-profile defenders, Crosskey was something of despised (or dismissed) figure. I had remembered him only from his debates with Charles Fairman about whether the Fourteenth Amendment was originally intended to incorporate the Bill of Rights. Fairman (a Stanford Law Professor, taught an undergraduate course on constitutional history that inspired and influenced William Rehnquist, who took it as a freshman) took on Justice Hugo Black’s historical defense of total incorporation; Crosskey responded, rising to Black’s defense, and the history Black had used to justify his position. Whether Crosskey had the better of the argument or not, there was certainly nothing in his argument about to inspire dismissal: the argument had legs, and debates about it continued amongst prominent scholars long afterwards. Mary, however, was focused on something I had not known about: Crosskey’s charge that James Madison had doctored his notes from the constitutional convention. This seemed to move us a little clearer toward a fuller perspective on his subsequent pariah status in constitutional studies.

In method, Crosskey was an originalist. While it not hard to mine American constitutional history for statements that suggest originalist interpretative approaches (or, for that matter, other interpretive approaches), Crosskey, it seems to me, interestingly, was an originalist in the modern Bork/Meese sense (more about this shortly). He thought he was making a new departure in this regard, telling readers at the outset of his book that he “will propound a unitary theory of the Constitution based, in part, upon the antecedent usage of the words in which the document is cast, and based, for the rest, upon certain legal and political ideas of the period in which the Constitution was written.” Reviewing Politics and the Constitution in 1954 in the American Bar Association Journal, Cornell Law professor William Tucker Dean was struck by the ostensible novelty of Crosskey’s approach, commenting with wonder about “This simple plan, so simple that it is astounding no one pursued it before in the constitutional area….” In Politics and the Constitution, Tucker observed, Crosskey “explains the startling contrast between the Constitution as it was written and the Constitution as most lawyers view it today as the consequence of over 150 years of partisan politicking, judicial error run wild and subtle changes in concepts and terms in everyday use.”

Crosskey understood the Constitution as having a discernable unified meaning, which one could get either wrong or right. He insisted that that meaning was discoverable through historical research into original sources. Using 18th century dictionaries, canons of construction, and other research into eighteenth century sources, in his massive, multi-volume (life’s) work, he set out that meaning. He argued, moreover, that almost from the beginning, courts (and others) had departed from that meaning, pursuing politics, rather than following law. Along with this, came other corruptions, like theories of “living constitutionalism,” which he dismissed, with dripping contempt, as a vehicle for the introduction of politics into law.

Does this sound promising in light of subsequent developments? As noted above, however, although he was a well-known figure in his day, his work has (ostensibly) had little apparent influence. Why? [to be continued].

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