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Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Constitutional History and the Making of the Modern World
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Friday, November 05, 2021
Constitutional History and the Making of the Modern World
Guest Blogger
For the Balkinization symposium on Linda Colley, The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World (Liveright, 2021). Harshan Kumarasingham There was a time when constitutional history
was a critical part of the curricula in History, Law and Politics. At the beginning of the twentieth century at
the University of Cambridge, for example, a student on the History tripos could
expect to have 70 lectures in ‘English’ constitutional history and up to 15 on
comparative constitutions. During the
period, as Linda Colley points out in her global history of constitutions,
between the 1820s and 1920s, the publication of new constitutional histories
printed across Britain increased by almost twenty times (p. 415). Fast forward a hundred years and the reality
is very different. History no longer
seeks a place at High Table when it comes to covering constitutions and a
History student in the UK and elsewhere, with a few exceptions, would struggle
to find in their reading lists any texts on constitutions or their history, let
alone as a key part of their courses.
Political Science is transfixed by constitutions, especially now as we
are often reminded that we live in ‘interesting times’, but this focus on the
moment can blind the ability to use history to complicate and contest
assumptions and thereby evade the all too common resort to describe events and
issues as ‘unprecedented’. Law has
filled much of the gap left by History and Political Science. It has in recent years seen a growing
analytical legal-historical approach towards constitutions and a resulting
abundance of works on an array of ‘constitutionalisms’ helpfully prefixed to
display the writer’s (not always unique) contribution. However, many of the volumes of this growing
legal genre while theoretically impressive and ambitious in scope still ignore
the opportunities to look beyond the legal documents and include the richness
of culture, personalities, politics and history that permeate the
constitutionalisms they seek to promote. A powerful and eloquent corrective to
the current deficiencies in these disciplines covering the historical
importance of constitutions has come in the form of Colley’s scintillating new
book - The
Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the
Modern World. The 20th
century British ‘Constitution-Maker’ Sir Ivor Jennings argued in his
seminal text Cabinet
Government (1936),on the
history and practices of the British state, that constitutional history is the
‘servant of the lawyer and the politician’.
He might also have added that training in constitutional history was
once a critical part of the Historian’s trade. What made Jennings’ statement more powerful
and influential was that despite being about the United Kingdom it was understood
and interpreted by thousands whose land of birth was far from London’s SW1
postcode. Students from Trinidad like the
Afro-Caribbean Ellis Clarke studying law in 1930s at the London School of
Economics (later his country’s first president) or those at the University of
Ceylon, like Kingsley M. De Silva in the early 1950s (who would become the
island’s premier modern historian) all studied this book as undergraduates. Students
from the ‘white settler’ parts of the British Empire-Commonwealth also shared
this reading experience like the Australian Maurice Byers at Sydney University
who would later draw on Jennings as Solicitor-General during the Australian constitutional
crisis of 1975, when his opinion was needed on the legality of dismissing a
prime minister. Though these states
lacked what Clarke
called ‘geographical
propinquity’ to Britain’s constitution these students and others knew its
transnational value, which did not ‘preclude the growth’ or the ‘nuances of
distinction’ in their own constitutional and cultural contexts. These small linked examples of global
constitutionalism were by new means unique, but a give a feel for the global
constitutional ideas and the rich constitutional
history of decolonisation in the 20th century, which I recently examined that was once
highly active in academia as well as used by freedom movements and colonial
rulers alike. The power of
Colley’s new book is to look earlier at the first real global constitutional
generation that whirled with tremendous influence from the 18th and
19th centuries. Colley shows
that constitutions were not just for the great powers and their acolytes. Communities
from Corsicans to the Cherokees turned to writing constitutions to prove not
just their modernity, but also their legitimacy to withstand the avaricious
attentions of their neighbours. The
Cherokee constitution written in 1827 (in English as well as Cherokee) stated
unequivocally, the claim that the Cherokee were a ‘free and distinct
nation’. As with many such attempts
around the world the effort to assert independence failed. The US Federal
Government with its ‘We the People’ constitution and the all-white legislature
of Georgia, where the Cherokees were mainly situated, rejected the Cherokee
constitution’s legality and validity (p. 150-153). In this Washington rigorously asserted its
monopoly of constitutions. Nonetheless, the
migration and use of constitutions and their ideas as a form of confirming
independence was an attractive and ubiquitous phenomenon, where constitutions
took the form of a legal and political ‘technology’ (p. 3). The transnational power of these constitutional
technologies was such that a revised version of the famous 1812 Cadiz
constitution was dedicated by the reformers to their kindred spirit in Bengali
liberal intellectual Rammohan Roy: ‘Al
liberalismo del noble, sabio, y virtuoso Brahma Ram-Mohan Roy’. Roy had taken great interest in Cadiz and
other liberal experiments (including contributing to a translation of a draft
constitution of Peru) and he was able to learn of such exploits thanks in no
short measure to the rich literary and publishing scene of the great cultural
entrepôt of Calcutta (pp. 142-146, 188). The attraction of constitutional
liberalism was global. Even the sparsely
populated Pacific Island of Pitcairn was not immune to the global
constitutional moment when in 1838 it established through a Scottish Royal Navy
Captain a constitution that contained, for example, progressive clauses to
protect the environment and wildlife and also secured the rights of both women
and men, including in selecting their leader.
Here, as throughout the book, Colley is not content to allow the case
sit alone. The tiny territory’s history
and constitutional experiment is persuasively shown as part of wider currents
stretching from Poland to Chile (pp. 253-260).
Through this wide canvas which sees figures like Japan’s Hirobumi Ito or Tunisia’s Khayr al-Din, who not only read widely, but
travelled extensively in the 19th century, in order to gain ideas as
to how to revive their states in the face of growing Western dominance. As Colley shows, once again, constitutions
were to be the vessel of their quest for reform and modernity on one hand, but
also the preservation of local traditions and civilisations on the other. One of the reasons the
historian of Tudor Government, Sir Geoffrey Elton, believed in the virtues of
constitutional history was its traditional attention to law and evidence, which
gave the historian ‘excellent
training in rigorous analysis’.
Nonetheless Elton’s well-known faith in archives and documents as the
repository of truth blinded him and others to the opportunities of a wider
understanding of constitutional history.
Here in Colley’s book we have global constitutional history that is not
only embracing of so many historical strands of society and life, but also
deeply alive to the significance of law, the reality of politics and the power
of culture. It is to be hoped that The
Gun, the Ship & the Pen emboldens an exciting turn in constitutional
history (or at least the use of history in studying constitutions) since it
showcases the opportunities a wider understanding constitutional history brings
and the bounty to be found in the scholarly exchange between History, Law and
Politics. Afterall, as Colley book
proves, constitutions and their history made the modern world. Dr H. Kumarasingham is Senior Lecturer in
Politics at the University of Edinburgh. Email: harshan.kumarasingham@ed.ac.uk.
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Books by Balkinization Bloggers Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |