usable past

7/29/2019 Usable Past

1/9

The Idea of a Useable Past

Author(s): Cass R. SunsteinReviewed work(s):Source: Columbia Law Review, Vol. 95, No. 3 (Apr., 1995), pp. 601-608Published by: Columbia Law Review Association, Inc.Stable URL: http://www.jstor.org/stable/1123225 .

Accessed: 03/03/2013 14:30

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of

content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms

of scholarship. For more information about JSTOR, please contact [email protected].

.

Columbia Law Review Association, Inc. is collaborating with JSTOR to digitize, preserve and extend access to

Columbia Law Review.

http://www.jstor.org

This content downloaded on Sun, 3 Mar 2013 14:30:53 PMAll use subject to JSTOR Terms and Conditions
http://www.jstor.org/action/showPublisher?publisherCode=clrahttp://www.jstor.org/stable/1123225?origin=JSTOR-pdfhttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/stable/1123225?origin=JSTOR-pdfhttp://www.jstor.org/action/showPublisher?publisherCode=clra


2/9

THE IDEA OF A USEABLE PASTCass R Sunstein*

When historians write about historical issues associated with theAmerican Constitution,what is their goal? Whatare they trying to do? Atone stage the answer was simple: Offer an accurate description of thefacts. If it turns out that the Framerswere good democratsattempting todiscipline potentially evil representatives by reference to the will of theassembled people, the historian should simply announce that (happy)fact. If, on the other hand, the facts show that the Framerswere manipu-lative, self-interestedaristocratsseeking to limit the power of the public,the historian'sjob is to say so.It is now much disputed whether and to what extent this conceptionof the historian'srole can be sustained.' Of course there is no viewfromnowhere; of course we all stand somewhere. Perhaps any historical ac-count, offered by someone in a particulartime and place, will reflect cur-rent preoccupations and potentially controversial assumptions. To saythe least, it is hard to avoid forms of selectivityin dealing with the past.This possibilityshould certainlynot be read for more than it is worth.2No one ought to doubt that nations, including the United States, havehad a past;no one should doubt that there are reallyfacts to which anyhistorical account must attempt to conform. But human beings see his-tory through their own filters, including their own assumptions,and theresult is, inevitably,something other than unmediated access to whathap-pened before. Whether this is a serious obstacle to the traditional under-standing of the historian's task is a large and disputed question.The traditional constitutional lawyer3tends to view the historian'srole in prettyconventional terms, as a search for "thefacts."4 Often his-torians have been sharplycriticalof constitutionalhistoryas done by con-stitutional lawyers;when they are, they tend to see the constitutional law-yer as an advocate,or as a debased historian, mining the past for insights

* Karl N. Llewellyn Professor ofJurisprudence, Universityof Chicago. I am gratefulto Akhil Amar, Elena Kagan, LarryLessig, DavidStrauss,G. EdwardWhite,Gordon Wood,and especially Richard Ross for helpful comments on a previous draft.1. See Peter Novick, That Noble Dream: The "Objectivity Question" and theAmerican Historical Profession 1-17 (1988).2. SeeJoyce Appleby et al., Telling the TruthAbout History (1994); Gordon S. Wood,The Losable Past, The New Republic, Nov. 7, 1994, at 46 (book review). On similar issuesin philosophy, involving the consequences of critiques of metaphysicalrealism, see HilaryPutnam, Renewing Philosophy 180-200 (1992).3. By this term I mean to refer not only to judges and lawyers involved inconstitutional law, but also to academic lawyers nvolved in constitutional argument.4. MartinFlaherty seems not to be an exception, especially insofar as he challengeshistorical writing for being untrue to the facts or selective about them. See Martin S.Flaherty,History "Lite" n Modern American Constitutionalism, 95 Colum. L. Rev. 523,552-53 (1995).

601

http://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsp


3/9

602 COLUMBIA AWREVIEW [Vol. 95:601congenial to the lawyer's political convictions.5 One of my prime pur-poses here is to respond to historians who think of the historically-in-clined constitutional lawyer n these terms. What I want to suggest is thatthe historian and the constitutional lawyer have legitimately differentroles. The constitutional lawyer nterested in history need not be a politi-cally motivated scavenger of real historical work, but a different sort ofcreature altogether, with a special and not dishonorable function.In short, the constitutional lawyer thinking about constitutional his-toryhas a particularpurpose and a recognizable project, and what a con-stitutional lawyer inds from history may, for legitimate reasons relating tothat purpose and that role, be quite different from what a historian findsthere. This does not reduce the constitutional lawyer o a mere advocate.But it does mean that the function of the constitutional lawyer,even ifhistorically inclined, is properly and unembarrassinglydistinctive.

Nothing in whatI have said, or will say,denies that the constitutionallawyerowes certain duties of fidelity to the past. The constitutional law-yer should not claim that the history supports a particularview when itdoes not. The history can falsifymuch of what the constitutional lawyermight seek to say, at least if the constitutional lawyer genuinely caresabout history. History imposes constraints on the lawyeras well as thehistorian.If they are reflective, however, many constitutional lawyerswill hap-pily acknowledge that they see their task not as uncovering the "facts,"and not as simply describing what happened, but instead as interpretivein something like Ronald Dworkin'ssense of that term.6 On this view,constitutional lawyers,unlike ordinary historians,should attempt to makethebestconstructiveenseoutof historical ventsassociatedwith the Constitution.They do owe a duty of "fit" o the materials;7 hey cannot disregard theactual events,which therefore discipline their accounts. But they also tryto conceive of the materialsin a way that makes political or moral sense,rather than nonsense, out of them to current generations.Everyone can see that the political or moral commitments of theconstitutional lawyerare an omnipresent part of the constitutional law-yer's constitutional history.8 Whyis this? Is it an embarrassment,or does

5. See Flaherty, supra note 4; Daniel T, Rodgers, Republicanism: The Career of aConcept, 79 J. Am. Hist. 11, 33 (1992); G. EdwardWhite, Reflections on the "RepublicanRevival": InterdisciplinaryScholarship in the Legal Academy, 6 Yale J.L. & Human. 1(1994).6. See Ronald Dworkin,Law'sEmpire 49-55 (1986) (describing interpretivenature oflaw). Dworkin is not, however, speaking of the use of history, and on Dworkin's view ofconstitutional law, the history behind a provision appears to be barely relevant. I do notmean to endorse Dworkin's view of constitutional interpretation; see Cass R. Sunstein,Incompletely Theorized Agreements, Harv. L. Rev. (forthcoming 1995); Cass R. Sunstein,Legal Reasoning and Political Conflict ch. 3 (1994) (unpublished manuscript, on file withauthor).7. See Flaherty, supra note 4, at 580-81.8. As emphasized in White, supra note 5.



4/9

1995] USEABLE AST 603it reveal something disturbing or untoward? I do not think so. Politicalor moral commitments play a role because of the interpretive nature ofthe lawyer'senterprise, which involvesshowing how the historymight beput to present use. I think that this interpretiveenterprise is typified,forexample, in Bruce Ackerman'swork, though Ackermanoften writes as ifhe were simply describing the facts.9 I also think that this interpretiveenterprise is farfrom mere advocacy. The distinction requiresmore elab-orate treatment than I can offer here. For the moment, let me simplysuggest that the true advocate begins with a preestablishedconclusion, isinterested only in persuasion,and allowshis political convictions to domi-nate everything that he says, whereas the historically-inclinedconstitu-tional lawyer s interested in truth, and owes duties of objectivityand fair-ness to the materials that he invokes.10

With this in mind we come to the idea of a useable ast.1I This ideapoints to the goal of finding elements in historythat can be brought fruit-fully to bear on current problems. The search for a useable past is adefining feature of the constitutional lawyer'sapproach to constitutionalhistory. It may or maynot be a part of the historian'sapproach to consti-tutional history, depending on the particular historian's conception ofthe historian's role. The historian may not be concerned with a useablepast at all, at least not in any simple sense. Perhapsthe historianwants toreveal the closest thing to a full picture of the past, or to stress the worstaspects of a culture's legal tradition;certainlythere is nothing wrong withthese projects. But constitutional historyas set out by the constitutionallawyer,as a participant in the constitutional culture, usually tries to putthings in a favorableor appealing light without, however,distorting whatactuallycan be found.

Is the constitutional lawyer'sapproach-as I am describing it here-cynical, or dishonest, or debased, or reflective of a form of "history ite"?The question cannot be answeredin the abstract. Sometimes the chargeof cynicism, dishonesty, debasement, or "liteness" s entirely warranted.For example, it is familiar to find a constitutional lawyerreading historyat a veryhigh level of abstraction ("the Framerswere committed to free-dom of speech") and concluding that some concrete outcome follows forus ("lawsregulating obscenity are unconstitutional"). This use of historyis not honorable. It is a bad version of formalism-the pretense that con-crete cases can be resolvedby reference to general propositions, when infact some supplemental valuejudgments are required.'2

9. See 1 Bruce Ackerman,We the People (1991).10. On how the notion of objectivitymight be maintained despite the inevitabilityof aform of selectivity,see Putnam, supra note 2, at 180-200.11. See Akhil R. Amar, Of Sovereigntyand Federalism,96 Yale LJ. 1425 (1987).12. An honorable species of formalismis defended in FrederickSchauer, PlayingBythe Rules 229-33 (1991); this species of formalismcallsfor adherence to the literaltext oflegal materials.



5/9

604 COLUMBIA AWREVIEW [Vol. 95:601Moreover,constitutional lawyers,preoccupied with the idea of a use-able past, may draw from history a lesson that comes pretty much entirely

from their own political commitments, and not at all from the historyitself. Certainly this is true of some of Robert Bork's use of history.13Bork's particular understanding of the so-called Madisonian dilemmawould not be appealing to Madison; consider Bork's suggestion, whichMadison would not find even plausible, that "majoritiesare entitled torule, if they wish, simply because they are majorities."'4 Some of JohnHart Ely'suse of history-to supporta "process-perfecting"onception ofjudicial review-probably belongs in this category as well.15On the other hand, constitutional lawyersshould not argue that theConstitution requireswhateverthey think a good constitution would say,and as a wayof disciplining legaljudgment, constitutional lawyersshouldlook to history as a part of constitutional interpretation. Hence there isnothing at all dishonorable in the idea that constitutional lawyersshouldtry to identify those features of the constitutional past that are, in theirview, especially suitable for present constitutional use. The Americanconstitutional culture givesspecial weight to the convictions of those whoratified constitutional provisions, and though I cannot fully defend theclaim here, I believe that this interpretive practice is legitimate. Constitu-tional law is based on ideas about authority,not just on ideas about thegood or the right. Constitutionalhistoryl6providesa wayof constraininglegal judgments, invoking a set of provisionswith at least some kind ofdemocratic pedigree, and providinga shared set of materialsfrom whichjudicial reasoning can proceed.'7Nothing in these remarks is inconsistent with the proposition thatmuch in our constitutional historyis bad and no longer useable. Someaspects of constitutional history that are of considerable importance to

13. See Robert H. Bork, NeutralPrinciplesand Some FirstAmendment Problems,47Ind. L.J.1 (1971); see also RobertH. Bork,The Tempting of America (1990) [hereinafterBork, The Tempting of America].14. Bork, The Tempting of America, supra note 13, at 139.15. SeeJohn H. Ely, Democracyand Distrust 77-101 (1980).16. In this regardFlahertyrightly points to the importance of consulting the primarysources, and of understandingthe best and most recent work by historians. See Flaherty,supra note 4, at 553-56.17. See David A. Strauss, Common Law Constitutional Interpretation (1994)(unpublished manuscript,on file with Columbia LawReview). Of course there remainsthe question of deciding at what level of generality the historyis to be read. If read at ahigh level, the historycould authorize any decision at all; if read at a very low level, theresult would probably be useless for current problems. It follows that some kind ofintermediatecoursewill make best sense, though I can hardly discussthis complex issue-the issue of "how to read" the past for constitutional purposes-in this space. Doubtsabout the possibilityof the historicalenterprise-how can we knowwhat long-dead peoplereally meant? how can we possibly reconstruct their world?-seem to me overstated inprinciple; but whether or not they are overstated, such doubts are hard for theconstitutional lawyer to entertain. For better or for worse, the lawyerparticipates in aculture in which historicalargumentsare important, and it is therefore unhelpful to throwup one's hands.



6/9

1995] USEABLEAST 605constitutional historians may not be so useful for constitutional lawyers.Slaverywas of course accepted in the Founding period; the Framers'con-ception of free speech was almost certainlymuch narrowerthan anyonewould find reasonable today;the Framers'conception of equalitywouldpermit forms of discrimination that the Supreme Court would unani-mously condemn. It is undoubtedly worthwhilefor people to explore oldand sometimes unacceptable understandings for purposes of graspingour own constitutional past.

What I am suggesting is that the constitutional lawyer, thinkingabout the future course of constitutional law, has a special project inmind, and that there is nothing wrong with that project.18 The historianis tryingto reimagine the past, necessarilyfrom a present-daystandpoint,but subject to the discipline provided by the sources and by the interpre-tive conventions in the relevant communities of historians. By contrast,the constitutional lawyer is trying to contribute to the legal culture'srepertoire of arguments and political/legal narrativesthat place a (styl-ized) past and present into a trajectory eading to a desired future. Onthis view, the historically-minded awyerneed not be thought to be doinga second-rate or debased version of what the professional historians dowell, but is working in a quite different tradition with overlapping butdistinct criteria.My own interest in constitutional history19has largelystemmed froman effort to re-evaluatetwo understandings common in the last genera-tion: that the Framerswere principallyor exclusivelyconcerned with theprotection of preexisting private rights (the so-called Lockean ac-count20), or that they sought instead to set out the terms for interest-group struggle (the so-calledpluralistaccount2l). These understandingsare quite inadequate.22 The Framers were republicans, and they wererepublicans in the distinctive sense that they prized civic virtue andsought to promote deliberation in government-deliberation orientedtoward right answersabout the collective good. We cannot understandour constitutional heritage without resort to these points.Republicanism, thus understood, does not stand opposed to liber-alism, and indeed the opposition between republicanism and liberalism

18. I am very grateful to Richard Ross for helpful discussion of the thoughts in thisparagraph.19. See Cass R. Sunstein, The Partial Constitution 17-39, 123-61 (1993); Cass R.Sunstein, Beyond the Republican Revival, 97 Yale LJ. 1539 (1988); Cass R. Sunstein,Interest Groups in American Public Law, 38 Stan. L. Rev. 29 (1985). Historical claims alsoplay a central role in Lawrence Lessig & Cass R. Sunstein, The President and theAdministration, 94 Colum. L. Rev. 1 (1994).20. See Louis Hartz, The Liberal Tradition in America 3-20 (Harcourt BraceJovanovich 1991) (1955).21. See Robert A. Dahl, A Preface to DemocraticTheory 4-32 (1963).22. The best demonstrationsare Gordon S. Wood, The Creation of the AmericanRepublic: 1776-1787 (1969); Gordon S. Wood, The Radicalism of the AmericanRevolution (1992).



7/9

606 COLUMBIA AWREVIEW [Vol. 95:601has been quite damaging to the academic study of law (and to the profes-sion of history as well).23 But republicanismis sharply opposed to inter-est-group pictures of governance. It favors instead a conception ofdeliberative democracy. For constitutional lawyers as well as historians,this is a matter of considerable importance. It bears on how we thinkabout the Founding document and it also relates to, though it certainlydoes not resolve, a range of concrete constitutional controversies.

Of course the republican tradition, in some of its incarnations, hasbeen associatedwith unappealing and unusable ideals-exclusion of wo-men, militarism,lack of respect for competing conceptions of the good,and more. But the commitment to deliberativedemocracyis not logicallyconnected with those unappealing ideals; indeed, as an abstraction it is inconsiderable tension with them. Constitutional lawyerswho are inter-ested in republicanismneed not be embarrassedby its contingent histori-cal connection with unjust practices. Nearly all traditions,and nearly allexpositors of traditions, can be shown to have had blind spots, and thisdoes not mean that it is wrong to attend to traditions and to their bestexpositors.

To be sure, there is a freestanding, nonhistorical argument fordeliberative democracy as a central political ideal.24 But for constitu-tional lawyers,the argument for deliberativedemocracyshould be inter-pretive (in the sense I have described) rather than freestanding. Thatargument drawssubstantialsupport from historical understandings. Allthis leaves open a wide range of questions, to saythe least;but I think thatit helps to explain the interest in republicanismas an historicalphenome-non from the standpoint not just of historians,but also of constitutionallawyers n particular. I think that it also helps explain why the constitu-

23. Liberalismand republicanismare opposed, for example, in White, supra note 5,and Rodgers,supra note 5. Rodgersin particular dentifies liberalismwith an "inability oimagine politics as anything other than interest group pluralism,"and as committed to"proceduralneutrality." These understandings of liberalism, found in much historicalwork, are extremelyodd, and based at most on certainstrandsin liberalism. Those strandsshould hardly be identified with the liberal tradition itself. Mill, Rawls, and Raz, forexample, thoroughly reject these ideas, and reject them because of their understanding ofwhat liberalism entails. See John Stuart Mill, Considerations on RepresentativeGovernment (Gateway Editions 1962) (1861); John Rawls,A Theory of Justice (1971);Joseph Raz,The Moralityof Freedom (1986).

To say this is not to deny that some republicansemphasized some goals that someliberals tend to view skeptically. Some liberals,for example, emphasize the likely role ofself-interest in politics, whereas some republicans stress pre-modern ideas involvingcorruption in government and the concept of "virtue."See White, supra note 5, at 7. Butthese differences of emphasis should not be taken to suggest that the liberal andrepublican traditionsare at waror even distinguishable. Better antonymsto republicanismare interest-group pluralism and conceptions of politics that see protection of privaterights as the sole purpose of constitutionalstructure.

24. See, e.g., Joshua Cohen, Deliberation and Democratic Legitimacy,in The GoodPolity 17, 18-26 (Alan Hamlin & Philip Pettit eds., 1990); Jurgen Habermas, ThreeNormative Models of Democracy, 1 Constellations10 (1994).



8/9

1995] USEABLEAST 607tional lawyer'sconception of republicanism need not entirely track thatof the historian.

In his instructivearticle, Flahertydoes not contest the view that theFramerswere republicans in a distinctive sense, nor does he challengethe claim that the Framers sought to promote deliberation in govern-ment. Insofar as he discusses my views, Flaherty'sprincipal argument isthat I have stressed the Framers'emphasis on political deliberation at theexpense of their concern about rights and, in particular,about naturalrights. This is an important and complex issue, and it is good to see theissue raised at the level of both historical understanding and constitu-tional theory.25 Byway of response, I offer a few brief remarkshere, in-tended not to resolve this complex issue, but to point to some directionsfor future inquiry.

Of course the Framerswere committed to rights, and of course theysometimes spoke in terms of natural rights. No eighteenth-centuryAmerican or British republican opposed rights, or saw the slightest ten-sion between his commitment to republicanismand his commitment torights. But-my first point-many of the rights that the Framers prizedwere in fact a precondition for political liberty and thoroughly under-stood as such.26 The right to freedom of speech is the best example, butit is complemented by the right to ajury trial, the right to bear arms, theright to private property, and much more. To this extent, an emphasison rights, and even natural rights, is not inconsistent with the emphasison deliberative democracy as a conception of republicanism. On thecontrary, a properly-functioning deliberative democracy prizes rights.The Framers well understood this point.As Flahertyshows,the Framersdid not believe that all rights, to qual-ify as such, must be associated with political deliberation; and the cate-gory of naturalrights, extending beyond politics, was one with which theFramerswere familiar. But-and this is my second point-we should beextremely carefulwith the idea of "naturalrights"as it was understood inthe eighteenth century. It would be interesting to ask random constitu-tional lawyersa triviaquestion: How manytimes does the phrase "naturalrights"appear in TheFederalist apers?The term occurs not a hundredtimes, not twenty times, not ten times, but only once-and then in aninconsequential place.27 The notion of naturalrights was much less of adefining theme than many observersthink.Moreover, the phrase "naturalrights,"when used, had certain com-plex meanings, and it is importantfor modern observersto be careful in

25. As to constitutional theory, compare James E. Fleming, Constructing theSubstantive Constitution, 72 Tex. L. Rev. 211 (1993), with Cass R. Sunstein, LiberalConstitutionalismand LiberalJustice,72 Tex. L. Rev. 305 (1993).26. See generally Akhil R. Amar,The Bill of Rights as a Constitution, 100 Yale LJ.1131 (1991).27. See The FederalistConcordance343 (1988). Bycontrast,the term "rights" ccurs149 times. Id. at 475.



9/9

608 COLUMBIA AWREVIEW [Vol. 95:601reconstructing those meanings. Even those who believed in naturalrights need not have thought that there was a correspondence betweensuch rights and the rights guaranteed by the Constitution. Recall thatHume conceived of property rights as part of convention rather than na-ture.28Jefferson thought in the same terms.29When the Founding gen-eration spoke of "natural rights,"it is not simple for twentieth-centuryobservers to understand what they meant. Often the term "nature"hasbeen identified with the best conception of human flourishing, ratherthan withwhat would happen without governmentalinterference. This isthe classical understanding,30and it had a strong influence on the Fram-ers. Perhapsthe Framers,when speaking of naturalrights,were respond-ing to those who spoke of the "divineright"of kings, and perhaps theywere deploying the rhetoric of "nature" or the distinct purpose of meet-ing that wayof seeing things.31Notwithstanding these points, Flaherty is undoubtedly correct topoint to the area of eighteenth-century"rights" s one that modern con-stitutional commentators have inadequatelyunderstood, certainlyin law.There is a great deal more to do on this important subject. PerhapsFlaherty'sessay can help constitutional lawyersto embark on this longoverdue task. When they do so, it will probablybe as part of their inter-pretive enterprise, and whatI am emphasizinghere is that this enterprisehas special characteristicsthat distinguish it from the enterprise of theordinaryhistorian.

28. See David Hume, A Treatise on Human Nature 491 (1973) ("Our property isnothing but those goods, whose constant possession is establish'dby the laws and society.... A man's property s some object relatedto him. This relation is not natural...." Id.at 501-13.)29.It is agreed bythose who have seriouslyconsidered the subject,that no individual

has, of naturalright, a separate propertyin an acre of land, for instance. By anuniversal aw,indeed, whatever,fixed or movable,belongs to all men equallyandin common, is the propertyfor the moment of him who occupies it, but when herelinquishes the occupation, the propertygoes with it. Stable ownership is thegift of social law,and is given late in the progressof society.Letter from ThomasJeffersonto IsaacMcPherson,Aug. 13, 1813, in The Life and SelectedWritingsof ThomasJefferson 576 (Adrienne Koch & WilliamPeden eds., 1993).30. See Aristotle,Aristotle'sPhysics25-27 (HippocratesG. Apostle trans., 1980).31. I am grateful to Stephen Holmes for this suggestion.

Thi d l d d S 3 M 2013 14 30 53 PM
http://www.jstor.org/page/info/about/policies/terms.jsp

usable past

Documents