American Constitutional History and the New Legal History: Complementary Themes in Two Modes

The approaching bicentennial of the Constitution promises to stimulate interest in scholarship on the history of American law. This prospect coincides with what many practitioners of constitutional history consider to be a genuine crisis in their field-a crisis that recently inspired the program committee of a major scholarly organization to feature the theme "Is Constitutional History Dead?" in preparing its annual meeting.' The essence of the field's problem, as many contend, is that scholarly interest in the traditional core of constitutional history-the doctrines and behavior of courts-has been overshadowed during the last two decades by a distinctly different mode of investigation, one that is often termed the "new legal history." My contention is that, while some troubles do beset the field of constitutional history, there is little reason to proclaim or even seriously debate the "death" of that field. The new legal history, taking the whole legal system as its province and stressing the interactions of change in law with socioeconomic developments, offers perspectives on American history in many vital respects different from the perspectives of constitutional history; yet the two approaches are necessarily complementary both in their logical structures and in their evidentiary bases. Only by integrating their concerns can the full context and significance of change in American legal history be understood. Harry N. Scheiber is professor of law at the University of California, Berkeley. He acknowledges with thanks research support provided by a humanities fellowship of the Rockefeller Foundation. 'This pessimistic session title was adopted by the American Society for Legal History program committee in the planning for the fall 1980 annual meeting. When the final program was prepared, however, the more cautious title "The Crisis in American Constitutional History and Public Law" was adopted. No creation of a straw man was intended; the validity of each title was seriously debated. As to rising interest in constitutional history vis-A-vis the bicentennial: Project '87 has pursued a program of research fellowships and public and scholarly conferences; an encyclopedia of the Constitution, funded by National Endowment for the Humanities, has been announced under the editorship of Leonard W. Levy and Kenneth Karst; and the American Historical Associa