A Community Built on Words

H. Jefferson Powell offers a powerful new approach to one of the central issues in American constitutional thinking today: the problem of constitutional law's historicity, or the many ways in which constitutional arguments and outcomes are shaped both by historical circumstances and by the political goals and commitments of various actors, including judges. The presence of such influences is often considered highly problematic: if constitutional law is political and historical through and through, then what differentiates it from politics per se, and what gives it integrity and coherence? Powell argues that constitutional theory has as its (sometimes hidden) agenda the ambition of showing how constitutional law can escape from history and politics, while much constitutional history seeks to identify an historically true meaning of the constitutional text that, once uncovered, can serve as a corrective to subsequent deviations from that truth. Combining history and theory, Powell analyzes a series of constitutional controversies from 1790 to 1944 to demonstrate that constitutional law from its very beginning has involved politically charged and ideologically divisive arguments. Nowhere in our past can one find the golden age of apolitical constitutional thinking that a great deal of contemporary scholarship seeks or presupposes. Viewed over time, American constitutional law is a history of political dispute couched in constitutional terms. Powell then takes his conclusions one step further, claiming that it is precisely this historical tradition of argument that has given American constitutional law a remarkable coherence and integrity over time. No matter what the particular political disputes of the day might be, constitutional argument has provided a shared language through which our political community has been able to fight out its battles without ultimately fracturing. A Community Built on Wordswill be must reading for any student of constitutional history, theory, or law.

H. Jefferson Powell is professor of law at Duke University.

Preface Introduction Part One I. 1790: Secretary Jefferson and the Foreign Affairs Power II. 1791: The National Bank and the Point of Interpretation III. 1793: The Supreme Court and the Metaphysics of Sovereignty IV. 1794:Kamper v. Hawkinsand the Role of the Judiciary V. 1798 (1): Justice Paterson and the Missing Fundamental Principle Part Two VI. 1798 (2): How to Think about the Sedition Act VII. 1800: Marshall and the Role of the Political Branches VIII. 1802: How Not to Think about the Judiciary Repeal Act IX. 1804:Turpin v. Locketand the Place of Religion X. 1806:Hudgins v. Wrightand the Place of Slavery XI. 1808-1809: A Forgotten Crossroads in Constitutional History Part Three XII. 1817: President Madison Vetoes His Own Bill XIII. 1818: The Congress Thinks about Internal Improvements XIV. 1821: The Attorney General and the Rule of Law XV. 1829: WritingState v. Mann Part Four XVI. 1859: The Supreme Court and the Metaphysics of Supremacy XVII. 1862: Four Attorneys General and the Meaning of Citizenship XVIII. 1873:SlaughterhouseRevisited XIX. 1904: Clay May, the Railroad, and Justice Holmes XX. 1927: Justice Brandeis and the Final End of the State XXI. 1944: Constitutional Injustice Part Five XXII. 2001: Common Ground after Two Centuries Conclusion Notes Index