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Making Sense of Madison: Nedelsky on Private Property

Published online by Cambridge University Press:  27 December 2018

William W. Fisher III
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Review Essay
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Law & Social Inquiry , Volume 18 , Issue 3 , Summer 1993 , pp. 547 - 572
Copyright
Copyright © American Bar Foundation, 1993 

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References

1 See Gordon S. Wood, The Creation of the American Republic, 1776–1787 ch. 10 (Chapel Hill: Univ. of North Carolina Press, 1969) (“Wood, American Republic”); Julius Goebel, Jr., ed., 1 The Law Practice of Alexander Hamilton 197–543 (New York: Columbia University Press, 1964).Google Scholar

2 See Wood, American Republic chs. 11–13; Richard Ellis, The Jeffersoniun Crisis: Courts and Politics in the Young Republic (New York: Oxford University Press, 1971); Edward S. Convin, “The Progress of Constitutional Theory between the Declaration of Independence and the Meeting of the Philadelphia Convention,” 30 Am. Hist. Rev, 511, 517–20 (1924); Robert F. Williams, “‘Experience Must Be Our Only Guide’: The State Constitutional Experience of the Framers of the Federal Constitution,” 15 Hustings Const. L Q. 403, 413–21 (1988); Isaac Kramnick, “The ‘Great National Discussion’: The Discourse of Politics in 1787,” 45 Wm & Mary Q. (3d ser.) 3, 6–8 (1988); Janet A. Riesman, “Money, Credit, and Federalist Political Economy,” in Richard Beernan, Stephen Botein, & Edward Carter II, eds., Beyond Confederation: Origins of the Constitution and American National Identity 150–51 (Chapel Hill: Univ. of North Carolina Press, 1987) (“Beeman et al., Beyond Confederation”).Google Scholar

3 These attitudes are typically associated, not with the Federalists, but with their Anti-federalist opponents and with such later observers of American political culture as Toc-queville. See Wood, American Republic ch. 11; Alexis de Tocqueville, Democracy in America (New York: Vintage Books, 1945).Google Scholar

4 For example, large electoral districts to multiply the number of competing factions and minimize the risk that demagogues would be elected, bicameralism, and a novel conception of the separation of powers. See at 52–66.Google Scholar

5 See Bruce Ackerman, “The Storrs Lectures: Discovering the Constitution,” 93 Yale L.J. 1013 (1984); Ackerman, We the People: Foundations (Cambridge, Mass.: Belknap Press, 1991.Google Scholar

6 See, e.g., Wood, American Republic ch. 13.Google Scholar

7 See Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886 (1992). For discussions of the origins and likely impact of Lucas, see the symposium on the case forthcoming in 45 Stanford Law Review no. 5 (1993).Google Scholar

8 The few statements by Madison that Nedelsky does point to—e.g., an ambiguous reference in a veto message to the public's duty to provide poor relief and an even more cryptic expression of support for “laws, which, without violating the rights of property, reduce extreme wealth towards a state of mediocrity, and raise extreme indigence towards a state of comfort” (at 44, 45)—all seem to have been made after the ratification of the Constitution.Google Scholar

9 Even this aspect of Nedelsky‘s account is, however, oversimplified. Although the courts continued until 1937 erecting barriers against legislative interferences against property rights, the nature of those barriers changed fundamentally. Roughly speaking, prior to the Civil War, the courts were most concerned with preventing the state and federal governments from abridging “vested rights”—entitlements acquired by private parties either from government grants or from other parties in reliance on a body of private law rules. After the War, the courts were less hostile toward impairments of vested rights but more protective of substantive economic freedoms (such as liberty of contract and the ability to make a profit from one's investments) unrelated to prior governmental commitments. The shift in orientation both drew on and amplified a radical change in lawyers' views on political economy— (again, roughly speaking) from a mercantilist or “commonwealth” vision to a classical vision. See Kainen, James L., “Nineteenth-Century Interpretations of the Federal Contract Clause: The Transformation from Vested to Substantive Rights Against the State,” 31 Buff. L Rev. 381 (1982); Herbert Hovencamp, Enterprise and American Law, 1836–1937 at 17–35 (Cambridge, Mass.: Harvard University Press, 1991) (“Hovencamp, Enterprise and Law”). In short, Nedelsky is straining a bit when she asserts that there was “a consistent vision of constitutionalism throughout the nineteenth century. It was essentially Marshall's version of Madisonian Federalism” (at 229).Google Scholar

10 The source of these insights is Morton J. Horwitz, The Transformation of American Law, 1780–1860 (Cambridge, Mass.: Harvard University Press, 1976) (“Horwitz, Transformation”).Google Scholar

11 William Novak, “The Police Power of the State: The Legal Roots of Regulation in America, 1791–1940” at 29–58 (Ph.D. diss., Brandeis University, 1990) (“Novak, ‘Police Power’”.Google Scholar

12 James Kent, 2 Commentaries on American Law 276 (New York: O. Halsted, 1826–30).Google Scholar

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15 See Novak, “Police Power” ch. 2; William Fisher, “The Law of the Land: An Intellectual History of American Property Doctrine, 1776–1880” ch. 5 (Ph.D. diss., Harvard University, 1991).Google Scholar

16 See Fisher, “Law of the Land” chs. 3 & 4.Google Scholar

17 Hydraulics Works v. Orr, 83 Penn. St. 332, 334, 335–36 (1877) (emphasis in original). Less evocative, perhaps, but similar in orientation are the following remarks by the Supreme Court of Kentucky:.Google Scholar

As a general rule, the owner of land may retain to himself the sole and exclusive use and occupation of it; but as property in lands depends upon municipal law for its recognition and protection, the individual use and enjoyment of it are subject to conditions and restraints imposed for the public good, and from a reasonable and humane regard for the welfare and rights of others. Hence, according to the maxim, sic utere tuo ut alienum non laedas, a party may be made liable for the negligent use of his property, whereby the person or property of another has been injured.Google Scholar

Bransom's Executor v. Labrot, 81 Ken. 638, 641 (1884).Google Scholar

18 7 Cush. (61 Mass.) 53, 84–85 (1851).Google Scholar

19 See Scheiber, Harry, “ The Road to Munn: Eminent Domain and the Concept of the Public Purpose in the State Courts ,” 5 Persp. Am. Hist. 329 (1971); Scheiber, “Instrumentalism and Property Rights,” 1975 Wis. L Rev. 1; Scheiber, “Public Rights and the Rule of Law in American Legal History,” 72 Cal. L. Rev. 217 (1984).Google Scholar

20 See, e.g., David P. Currie, The Constitution in the Supreme Court: The Second Century, 1888–1986 (Chicago: University of Chicago Press, 1990).Google Scholar

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22 See Hovenkamp, Enterprise and Law 199–204 (cited in note 9).Google Scholar

23 See Kennedy, Duncan, “Toward an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850–1940,” 3 Res. Law & Soc. 3 (1980).Google Scholar

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25 See, e.g., Caroline Robbins, The Eighteenth-Century Commonwealthman (Cambridge, Mass.: Harvard University Press, 1959); J. G. A. Pocock, The Machiavellian Moment: Florentine Political Though and the Atlantic Republican Tradition (Princeton, N.J.: Princeton University Press, 1975) (“Pocock, Machiavellian Moment”).Google Scholar

26 See Carl Becker, The Declaration of Independence: A Study in the History of Political Ideas (New York: Harcourt, Brace, 1922) (“Becker, Declaration of Independence”); Arthur Schlesinger, New Viewpoints in American History (New York: Macmillan, 1922).Google Scholar

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28 See Gordon Wood, “Interests and Disinterestedness in the Making of the Constitution,” in Beeman et al, Beyond Confederation 69 (cited in note 2) (Federalists); Lance Banning, The Jeffersonian Persuasion: Evolution of a Party Ideology (Ithaca, N.Y.: Cornell University Press, 1978; Harry Watson, Liberty and Power: The Politics of Jacksonian America (New York: Hill & Wang, 1990; Thomas Brown, Politics and Statesmanship: Essays on the American Whig Party (New York: Columbia University Press, 1985; Sean Wilentz, Chants Democratic: New York City and the Rise of the American Working Class, 1788–1850 (New York: Oxford University Press, 1984) (labor republicanism); Larry May, “Movie Star Politics: Movie Star Politics: The Screen Actors' Guild, Cultural Conversion, and the Hollywood Red Scare,”in Recasting America: Culture and Politics in the Age of the Cold War 125 (Chicago: University of Chicago Press, 1989); Dorothy Ross, “The Liberal Tradition Revisited and the Republican Tradition Addressed,” in John Higham & Paul Conkin, eds., New Directions in American Intellectual History 116, 121–25 (Baltimore: Johns Hopkins University Press, 1979) (“Higham & Conkin, New Directions”).Google Scholar

29 See Joyce Appleby, Capitalism and a New Social Order: The Republican Vision of the 1790s (New York: New York University Press, 1984; John Diggins, The Lost Soul of American Politics: Virtue, Self-interest, and the Foundations of Liberalism (New York: Basic Books, “1986); Isaac Kramnick, Republican Revisionism Revisited,” 87 Am. Hist. Rev. 629 (1982).Google Scholar

30 See Kloppenberg, James, “The Virtues of Liberalism: Christianity, Republicanism, and Ethics in Early American Political Discourse,” 74 J. Am. Hist. 9 (1987); Hendrik Hartog, “Imposing Constitutional Traditions,” 29 Wm & Mary L Rev. 75, 77–78 (1987); William Fisher, “Ideology, Religion, and the Constitutional Protection of Private Property: 1760–1860.” 39 Emory L J. 65, 71–82 (1990); Rodgers, Daniel T., “Republicanism: the Career of a Concept,” 79 J. Am. Hist. 11 (1992).Google Scholar

31 See, e.g., Becker, Declaration of Independence 98–100.Google Scholar

32 See Horwitz, , Transformation 63–66 (cited in note 10); William Treanor, “The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment,” 94 Yale L. J. 694 (1985); Morton Honvitz, “History and Theory,” 96 Yale L. J. 1825, 1833 (1987); Stephen Siegel, “Understanding the Nineteenth Century Contract Clause: The Role of the Property-Privilege Distinction and ‘Takings’ Clause Jurisprudence,” 60 S. Cal. L. Rev. 1, 8 & n.22 (1986). The dissenting opinion of Justice Blackmun in Lucas v. South Carolina Coastal Council (discussed in note 7 above) was strongly influenced by this body of scholarship.Google Scholar

33 See Stuart Bruchey, “The Impact of Concern for the Security of Property Rights on the Legal System of the Early Republic,” 1980 Wis. L Rev. 1135; John Philip Reid, Constitutional History of the American Revolution: The Authority of Rights 27–33 (Madison: University of Wisconsin Press, 1986); Fisher, 39 Emory L J. at 95–107; Bernard Bailyn, Faces of Revolution: Personalities and Themes in the Struggle for American Independence 225 ff. (New York: Knopf, 1990) (“Bailyn, Faces of Revolution”); Fisher, “Law of the Land” 41–44, 307–16 (cited in note 15); James Ely, “‘That due satisfaction may be made’: The Fifth Amendment and the Origins of the Compensation Principle,” 36 Am. J. Leg. Hist. 1 (1992).Google Scholar

34 See, e.g., Sunstein, Cass, “Interest Groups in American Public Law,” 38 Stan. L. Rev. 29 (1985); Suzanna Sherry, “Civic Virtue and the Feminine Voice in Constitutional Adjudication,” 72 U. Va. L Rev. 543, 547–57 (1986); Michael Sandel, “Democrats and Community,” New Republic, 22 Feb. 1988, at 20; Note, “A Communitarian Defense of Group Libel Law,” 101 Harv. L. Rev. 700 (1988); Mark Tushnet, Red, White, and Blue 4–14, 280–88 (Cambridge, Mass.: Harvard University Press, 1988).CrossRefGoogle Scholar

35 See Michelman, Frank, “Conceptions of Democracy in American Constitutional Argument: The Case of Pornography Regulation,” 56 Tenn. L. Rev. 291, 293–94, 314–15, 319 (1989). For other essays in a similar vein, see Michelman, The Supreme Court, 1985 Term-Foreword: Traces of Self-Government,” 100 Harv. L. Rev. 4 (1986); William Simon, “Social Republican Property,” 38 UCLA L. Rev. 1335, 1338–50 (1991). Fallon, Cf. Richard, “What Is Republicanism, and Is It Worth Reviving 102 Harv. L Rev. 1695, 1715–17 (1989) (describing and commending use of “the liberal and republican traditions … [as] ideal types—intellectual constructs … [that] shed light on actual theories, arguments, and doc-trines by showing how they fit with or can be explained by paradigmatic sets of assumptions and beliefs.Google Scholar

36 See, e.g., Treanor, , 94 Yale L. J. at 704–5.Google Scholar

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38 See Michelman, Frank, “Law's Republic,” 97 Yale L. J. 1493, 1495 (1988); Cass R. Sunstein, “Beyond the Republican Revival,” 97 Yale L. J. 1539, 1558–64 (1988).CrossRefGoogle Scholar

39 For a recent example, see Seidenfeld, Mark, “A Civic Republican Justification for the Bureaucratic State,” 105 Harv. L. Rev. 1511, 1515–16, 1528–41 (1992).CrossRefGoogle Scholar

40 See, e.g., Hovencamp, , Enterprise and Law (cited in note 9); Thomas Grey, “Lang-dell's Orthodoxy,” 45 U. Pitt. L Rev. 1 (1983); Novak, “Police Power” (cited in note 11); Fried, Barbara, Robert L. Hale and Progressive Legal Economics (forthcoming, Harvard University Press).Google Scholar

41 See Martin Jay, “Should Intellectual History Take a Linguistic Turn? Reflections on the Habermas-Gadamer Debate,” in Dominick LaCapra & Steven Kaplan, eds., Modern European Intellectual History: Reappraisals and New Perspectives 86 (Ithaca, N.Y.: Cornell University Press, 1982).Google Scholar

42 Toews, John, “Intellectual History after the Linguistic Turn,” 92 Am. Hist. Rev. 881–82 (1987). “See also Michael Ermath, Mindful Matters: The Empire's New Codes and the Plight of Modern European Intellectual History,” 57 J. Mod Hist. 507 (1985).CrossRefGoogle Scholar

43 See Peter Novick, That Noble Dream: The “Objectivity Question” and the American Historical Profession 593–95 (New York: Cambridge University Press, 1988) (“Novick, Noble Dream”). The journal in which much of this reflection appeared was History and Theory.CrossRefGoogle Scholar

44 See, e.g., Hollinger, David, “The Return of the Prodigal,” 94 Am. Hist. Rev. 610 (1989).CrossRefGoogle Scholar

45 A more accurate—but also much less familiar—label for the latter approach is “disintegral textualism.” See Martin Jay, “The Textual Approach to Intellectual History,” in Gisela Brude-Firnau & Karin J. MacHardy, eds., Fact and Fiction: German History and Literature, 1848–1924 at 77 (Tubingen: Francke, 1990) (“Jay, ‘Textual Approach’”).Google Scholar

46 See Perry Miller, The New England Mind: The Seventeenth Century (New York: Mac-millan, 1939; Pocock, Machiavellian Moment (cited in note 25); Charles Gillispie, Genesis and Geology: A Study in the Relations of Scientific Thought, Natural Theology, and Social Opinion in Great Britain, 1790–1850 (Cambridge, Mass.: Harvard University Press, 1951); Dorothy Ross, The Origins of American Social Science (Cambridge: Cambridge University Press, 1991 (“ROSS, Origins of Social Science”).Google Scholar

47 See, e.g., David Hollinger, “Historians and the Discourse of Intellectuals,” in Higham & Conkin, New Directions 42–63 (cited in note 28); Ross, Origins of Social Science (emphasizing the mentally imprisoning power of American social scientists' common commitment to a set of excepcionalist assumptions). Daniel Rodgers is the most vocal of the critics of this aspect of contextualist intellectual history. See Rodgers, 79 J. Am. Hist. (cited in note 30); Rodgers, “Fine for Our Time,” 13 Intell. Hist. Newsl. 41, 43–44 (1991).Google Scholar

48 Appleby, Joyce, “Ideology and the History of Political Thought,” 2 Intell. Hist. Newsl. 10, 15 (1980) (quoting Pocock).Google Scholar

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50 Harlan, David, “lntellectual History and the Return of Literature,” 94 Am. Hist. Rev. 581, 585 (1989). See also Jay, “Textual Approach” at 83; John Keane, “More Theses on the Philosophy of History,”in Tully, Meaning and Context 206, 211–12 (“Keane, ‘More Theses’”).CrossRefGoogle Scholar

51 See Jay, “Textual Approach” at 80–82.Google Scholar

52 Rethinking Intellectual History: Texts, Contexts, Language 27 (Ithaca, N.Y.: Cornell University Press, 1983).Google Scholar

53 See id. at 84–117 (criticizing Wittgenstein's Vienna).Google Scholar

54 See LaCapra, Dominick, “Canons and Their Discontents,” 11 Intell. Hist. Newsl. 3, 10 (1991); Harlan, 94 Am. Hist. Rev. at 587–89.Google Scholar

55 See, e.g., Keane, “More Theses” at 213, 217.Google Scholar

56 See, e.g., Hayden White, “The Burden of History,” in Tropics of Discourse: Essays in Cultural Criticism 47–48 (Baltimore: Johns Hopkins Press, 1978); Alan Megill, “Recounting the Past,” 94 Am. Hist. Rev. 627, 636 (1989).Google Scholar

57 John P. Diggins, The Bard of Savagery: Thorstein Veblen and Modem Social Theory (New York: Seabury Press, 1978).Google Scholar

58 P. F. Strawson, The Bounds of Sense: An Essay on Kant's “Critique of Pure Reason” (London: Methuen, 1966). The quotation comes from Richard Rorty's comment on the book, quoted in Harlan, 94 Am. Hist. Rev. at 603.Google Scholar

59 Noam Chomsky, Cartesian Linguistics (New York: Harper & Row, 1966).Google Scholar

60 LaCapra, , 11 Intell. Hist. Newsl. at 9. In the recent essay from which this quotation is drawn, LaCapra goes on—in an uncharacteristically conciliatory vein—to acknowledge that “contextualization and dialogic exchange … supplement one another in a number of important and, at crucial moments, tense or even conflict-ridden ways in our attempts to read and interpret texts.” Too much of either, he suggests, is a bad thing. Id. at 10.Google Scholar

61 I explore some of those issues (and their implications for legal history) in a forthcoming essay, “Ways of Reading (Old) Legal Texts”.Google Scholar

62 Nedelsky does not offer us a sustained discussion of the Antifederalists until page 163, and her purpose in bringing them forward is not to establish the intellectual context within which the Federalists moved but rather “to reinforce the implicit critique of Morris and Wilson by making it explicit” and to “show that the weaknesses Morris and Wilson indirectly reveal were in fact incorporated into the Constitution”.Google Scholar

63 See notes 9 and 11 supra.Google Scholar

64 Roth, Michael, “That Noble Narcissism,” 13 Intell. Hist. Newsl. 37, 38 (1991); Joseph Levine, Objectivity in History: Peter Novick and R. G. Collingwood, 21 Clio 109, 110–11 (1992).Google Scholar

65 Roth, , 13 Intell. Hist. Newsl. at 38.Google Scholar

66 Ithaca, N.Y.: Cornell University Press, 1982.Google Scholar

67 See, e.g., Wood, Gordon, “Novel History,”N.Y. Rev. Books, 27 June 1991, at 12; Russell Jacoby, “A New Intellectual History 97 Am. Hist. Rev. 405, 419–21 (1992) (denouncing Sande Cohen's Historical Culture as virtually “unreadable”).Google Scholar

68 Novick, Noble Dream 628–29 (cited in note 43.Google Scholar

69 R. G. Collingwood, The Idea of History 297 (Oxford: Clarendon Press, 1946).Google Scholar

70 R. G. Collingwood, An Autobiography 97–98 (London: Oxford University Press, 1939).Google Scholar

71 Levine, 21 Clio at 124.Google Scholar

72 See James Kloppenberg, “Why Intellectual History Matters to Legal History, and Vice Versa”; Joan Williams, “Supple Structuralism and Radical Contextualism: History as the Study of Certainty”; and Fisher, “Ways of Reading (Old) Legal Texts” (all forthcoming).Google Scholar