Editors' Note:  In 1953, Arthur L. Corbin, the noted contracts scholar from Yale Law School, published a review essay (62 Yale Law Journal 1137) of William Winslow Crosskey's much noticed but quite controversial Politics and the Constitution in the History of the United States (University of Chicago Press, 1953, 2 vols.).

We invited Professor Peter Linzer, a contracts and constitutional law scholar, to comment on the Corbin review of the Crosskey work.  We invite you, too, to comment by way of Talkback.

Ronald K.L. Collins & David M. Skover, Editors, Books-on-Law

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Review

Politics and the Constitution in the History of the United States
William W. Crosskey
Chicago, IL: University of Chicago Press, 1953
2 vols. Cloth: $20.00
Pp. xi, 1410

In the two volumes here under review, we have a new and important contribution to the history of our Constitution.  It is a work that cannot be disregarded, either by scholars and teachers of Constitutional law and governmental history or by the courts that must decide the cases that are continually arising in this field.  Least of all can those afford to disregard it whose traditional opinions are flouted, whose political and judicial heroes are criticized, and whose local and sectional interests are deprived of their accustomed Constitutional support.

No important written document, statutory or constitutional, can remain unchanged in its interpretation and legal operation over a long period of time.  However great a boon to mankind, language is in a high degree an uncertain and variable means of communication of ideas; and, along with all the other circumstances of life, it is in constant evolution.  Ancient statutes can be wholly forgotten, or substantially emasculated by judicial and administrative action.  The Statute of Frauds, enacted by Parliament in 1677 and re-enacted in substance by all of the United States, has been subjected to so many thousands of variable and inconsistent judicial interpretations and applications that a court now looks to the current of decisions rather than to the Statute.  If these decisions have, as many competent critics believe, turned the Statute into an instrument for the encouragement of repudiation instead of the prevention of fraud and perjury, is it not time to look back to the words of the Statute itself rather than to the aberrant applications?

The Constitution of the United States, adopted nearly 166 years ago, has served us through the convulsions of foreign and civil wars, through periods of political overturn, and through social and industrial revolution.  Half of its formal Amendments are almost as old.  By judicial interpretation in numberless cases, by conscious and unconscious disregard of its express words, this great document has suffered the same fate as have all other similar writings.  The distribution of governmental power has been frequently and materially changed; often, it seems quite clear, for the worse.

In the present work, Professor Crosskey takes us back to the time of the Constitutional Convention and to the beginnings of the national government.  In immense detail, and with chapter and verse, he analyzes the language of that period, with its word usages and with the educational background of the men who chose the words of the Constitution and of its formal Amendments.  He thus portrays, with convincing skill, what he believes to have been the understanding and the intended meanings of the draftsmen and of some, at least, of the adopting voters.  He, thus, sets forth the intended distribution of the powers of government and the reasons for that distribution. The men of the Convention seized their great opportunity.  The known evils of the time, from which all suffered, made possible the creation of a new nation.  Foreign dangers, governmental impotence, obstructions of commerce, uncertainty of law both common and statutory, ruinous inflation: these overweighed differences in sectional interest, differences in governmental theory, and the, as yet, undeveloped conflicts of political ambition and economic greed.  In no other work are the individual provisions and phrases of the Constitution so thoroughly considered as in Professor Crosskey’s volumes, with the reasons for their adoption and the reasons for the exact words in which they are expressed.

* * *

It is perfectly clear that the .  .  . theses of the author are not those that now generally prevail or that are now supported by the Supreme Court.  That they did generally prevail in 1789 and that they were then in accord with the express words of the great instrument, is supported with great force by the author.  He has collected with great industry and accuracy the word usages of the contemporary period, as found in the newspapers, magazines, political pamphlets, and other publications.  He has made a careful analysis of judicial opinions. In most surprising and convincing fashion, he has shown the influence of Blackstone’s Commentaries on the Laws of England on the thought and the expression of the makers of our Constitution.  He has found in the constitutional ideas and practices of Great Britain most clarifying explanations for the insertion of many of the specific provisions in our written Constitution.  We need not suppose that on these matters Professor Crosskey has said the last word; but he has fully demonstrated that the last word had not previously been said either.

What, then, has been the cause of these great changes in our constitutional thought and in the distribution of governmental powers among the departments -- legislative, executive, and judicial?  By what processes have these changes been brought about?   The author leaves us in no doubt as to his answer to these questions.  The answer is indicated in the title to his book: Politics and the Constitution in the History of the United States.  It is no new discovery that the Supreme Court is aware of "election returns," or that its decisions have reflected the opinions and the desires of the appointing power.  But there are good "politics" as well as bad "politics."  New issues arise; and newly realized interests create new opinions and desires.  No doubt, after 1800, the opinions and desires of Jefferson and Madison were different from what they had been in 1789; no doubt, also, they preferred to divert attention from that fact.  In 1953, as well as in 1800 and 1860, "States’ rights" rise up in opposition to "National Interest" and affect both elections and judicial decisions.  The author well portrays the work of Taney, C. J., and his Jacksonian Court.  He appears to believe that the effects of "politics" have been generally bad, severely injurious to the general welfare; and he produces evidence, much of it clearly incontrovertible, in support of that opinion.

It is not "politics" alone, however, to which the author ascribes the great and detrimental changes in our governmental system under the Constitution.  One of the special merits of his work is found in his exposition of word usages and his demonstration of the effect of the constant, unconscious changes in those usages.   Linguistic changes; changes in legal theory; changes in the views of scholars as to the nature of "law" and of the "common law;" changes in prevailing views as to the function of the judges in the growth of law: all these played a part in inducing Brandeis to lead the Court in overruling Swift v. Tyson, and to commit, in the case of Erie Railroad Co. v. Tompkins, what the author describes as "the most colossal error the Supreme Court has ever made."  This was not caused by "politics" or the election returns.

The author is thoroughly convincing in his demonstration that the decision in Swift v. Tyson was in exact harmony with the meaning given in 1789 both to the Constitution and to Section 34 of the Judiciary Act, and that it was in exact agreement with the judicial decisions of the 40 years between that date and 1832, the date of the decision.   By that decision, the Court made no changes in the distribution of governmental powers, either because of "politics" or because of word usage.  Story, who wrote the opinion, was the sole survivor of the Federalist regime; but he well knew the antecedent language and legal theories and judicial decisions, and the other eight Justices -- all of them appointed since the Jeffersonian political revolution and the product thereof -- all agreed with Story.  Immediately after the decision in Erie Railroad Co. v. Tompkins, the present reviewer, although he had made no study of its constitutional background and did not repudiate the decision, at once foresaw the morass into which the reasoning of the Court was leading it.  (See Corbin, "The Laws of the Several States, 50 Yale Law Journal 762 (1941); Comment, 47 Yale Law Journal 1351 (1938).)  Professor Crosskey presents to us ten more years of this morass and, at the same time, destroys the supposed constitutional basis for the decision.

This reviewer has no doubt of the correctness of the author’s view that the "common law" in 1789, in 1832, and for long years thereafter, was understood as a single system inherited by all the colonies and the United States; and that the words "trials at common law" as used in the Judiciary Act of 1789, did not include either equity or admiralty or much (if any) of the "law merchant" (in spite of Lord Mansfield’s recent efforts).  This does not mean that our ancestors regarded the "common law" as a "brooding omnipresence in the sky."   Undoubtedly, they had more notions of the existence of "natural law" than most of us now have; and they may have been unaware of the fact that the boundary lines between "law" and "equity" and "law merchant" (and even "admiralty" and "ecclesiastical law" and other local and less well-known systems of law and practice) had never been clean and well-marked, and that these boundaries were becoming and would continue to become wide zones of overlapping uncertainty.  Without doubt, they had not clarified in their minds the part played by the judges in the evolution and proliferation of our legal system.  How many minds are clear on that subject now?  Their minds were at least as clear as have been those of a Court that has told all federal judges (as well as its own Justices) that they must accept as applicable law in diversity cases, the words of a Vice-Chancellor or of a trial judge in a county court, even though no other court in the United States is bound to do so.

* * *

Professor Crosskey gives very convincing support for his theory that the Constitution granted general legislative power to Congress, and that its powers were not limited to those that are more specifically mentioned.  He shows the particular reasons why the draftsmen thought it was necessary to put these specific provisions in express words.   As much can be said also for his theory that the "power to regulate commerce among the several States" included the regulation of all gainful employment within the entire country, and not merely transactions across State boundary lines.  What a vast amount of wasteful "jurisdictional" litigation would have been avoided had "politics" not limited the meaning of the express words of the Constitution!   Both the first Roosevelt and the second one made strenuous efforts to recover some of the lost legislative power, largely in order to expand executive power also; and the recent Supreme Court has done much to expand the content of "interstate commerce" and to extend Congressional power over a large portion of purely intrastate commerce.  .  .  .  Is the Court now repairing past errors, and doing it by the pin point pricking method in a thousand cases (while "politics" permits)?

What a difference the recognition of general legislative power in Congress would have made in the matter of Uniformity of Commercial Law!  The new Uniform Commercial Code would need but one legislative enactment, instead of forty-nine separate ones.  The author dedicates his volumes "To the Congress of the United States in the Hope that It May be Led to Claim and Exercise for the Common Good of the Country the Powers Justly Belonging to It under the Constitution."  But if the loss of power was due to "politics," it is only by more and better "politics" that it can be restored.

A national "Uniform Commercial Code" would be given its final interpretation by the one Supreme Court of the United States, binding upon all the State courts alike.   Forty-nine "Uniform Commercial Codes" will be subject to final and varying interpretation by forty-nine Supreme Courts; and in diversity cases, at least, the federal judges (including the Justices of the Supreme Court) will have to determine which State Code to apply and will be required to follow the interpretations of the vice chancellors and trial judges of that State.

* * *

What, then, is the Constitution of the United Sates today, the Constitution that all the judges and other officials, both state and federal, have taken oath to support?   Is it the very same Constitution that was signed and submitted to the people of the United States in 1787, by George Washington and some 38 other notables (with such variations and additions as appear in 22 Amendments)?  The printed words, filling only 8 pages in the volume under review, and divided into 8 Articles, are certainly the same words as those that George Washington signed.  But words are merely symbols by which men attempt to convey their thoughts to others; and the degree of success attained in this process is extremely variable.  The ideas that the words of the Constitution expressed in 1789 to the signers thereof, and to the limited number of people who then voted for it, could not have been identical, although we may believe that there was a high degree of uniformity.  .  .  .

Whose meaning then, and whose interpretation, do our judges and legislators and executives take an oath to support?  Is it the meaning and the interpretation of the 39 signers in 1787? Their hands wrote, in the language of that day, the thoughts of their active and intelligent minds.  Shall we still be governed by the dead hand?

Professor Crosskey differs plentifully with Justice Holmes; but in one matter he accepts his theory.  Opposite the title page he thus quotes Holmes: "We ask, not what this man meant, but what these words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used."  The present reviewer does not accept this dictum as a just rule for the interpretation of a contract (see 3 Corbin, Contracts sections 532 et seq.); it may work better when applied to a Constitution or to a statute.  Who is a "normal speaker of English"; and who is a "normal" man?  The reviewer agrees unreservedly, however, with the author of the present work, in his condemnation of cocksure judgments in ignorance of our constitutional history and of the usages and conditions and education of the men of 1789, and of judgments rendered without a re-reading of the express words in the light of that history and those usages and conditions.  Interpretation and application of the words of the old document to the circumstances of later times is the continuous function of men living in those later times, particularly the judges.

While it is the function of the courts to act as the selective and creative agents of society in the evolution of any legal system, it cannot be regarded as their function to make new interpretations and applications of a Constitution that materially vary the granted powers of any branch of the government, either (1) with full consciousness of the variation and with intent to improve the constitutional distribution (supported, it may be, by a political party then in the ascendant), or (2) in sublime ignorance that any variation is being affected.

It is a different question whether the Supreme Court should overrule previous decisions that have been acquiesced in for 100 years, on the ground that when first rendered they were not in accord with the Constitution as then understood (or as now understood -- for example, Swift v. Tyson).  The reviewer will not here assent to the statement by Holmes (in the Black and White Taxicab case) that when some "fallacy has resulted in an unconstitutional assumption of powers by the Courts of the United States" it is one "which no lapse of time or respectable array of opinion should make [the Supreme Court] hesitate to correct."  But the reviewer will definitely support Professor Crosskey in advocacy of the prompt overruling of Erie Railroad Co. v. Tompkins and its numerous and insufferable progeny of 15 years.

* * *

This is a controversial work, but a work that has long since been overdue.  It is a work of originality and a work of courage.  It is a work that evidences immense industry and keen analytical power.  Its author is a man with much important experience as an active practicing lawyer and as a law school professor and research scholar.  His work shows no temporary political motivation, the kind that destroys objectivity and invalidates judgment.  His opinions, strikingly and sometimes shockingly unusual as they are, are his own honest opinions based upon careful and extensive research.  His thinking is "wishful thinking"; but only in the sense that he wishes our country had been run by greater men, men with clearer minds, men less motivated by temporary and merely local interests.  Throughout, his work is written in a clear and attractive style; and his quotations and citations of authorities fill an appendix of more than 200 pages.

It seems inevitable that this work will receive some uncomplimentary and even angry reviews.  This is because the author’s opinions are so often contrary to opinions that are currently held by respected scholars and judges and accepted as a matter of course by large numbers of people, and because they are expressed in such positive and uncompromising form.  He often does much to dim, in varying degrees, the effulgent halos that we have rejoiced to create about the heads of our political and judicial heroes.  Certainly he would have created less disapproval, and possibly he would have been more effective in attaining his ends, if he had been more considerate of human feelings and opinions and more moderate in his criticisms.  In no case, however, was the present reviewer offended, even when his views were contradicted and his own heroes belittled.  This is because he was convinced at every point that the author’s only desire was to present the truth, that he had used the proper methods of research to determine the facts, and that the facts as he found them had induced the opinions that are expressed.

The editors gratefully acknowledge the permission of the Yale Law Journal to reprint Professor Corbin's review.

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Commentary

Corbin, Crosskey & Erie v. Tompkins
by Peter Linzer

In the spring of 1953, Arthur Linton Corbin -- then seventy-eight years old, but with almost fifteen years of mental acuity left -- published one of his few works on constitutional law, a review (62 Yale Law Journal 1137) of W.W. Crosskey's still controversial Politics and the Constitution in the History of the United States (2 vols. 1953).  (Corbin had also published an earlier comment, like this book review, concerned with Erie R. R. v. Tompkins (1938).  See "The Laws of the Several States," 50 Yale Law Journal 762 (1941).)

Crosskey put forth an idiosyncratic history of the Constitution, arguing (1) that the Constitution was intended to give Congress general legislative powers, not limited to those enumerated in Art. I, sec. 8; (2) that the limitations on federal power over the next 150 years were illicit; and (3) that the expansion of federal powers beginning in 1937 achieved the historically correct result, if by an artificial and circuitous route of using the effect, direct or indirect, on commerce to reach matters that courts over the years had incorrectly deemed not to be "commerce" itself.

Corbin applauded the Crosskey book, which seems a bit odd for the time, since Corbin was a political conservative, though one with humane values.  (See, e.g., his letter of Oct. 29, 1964, explaining why he was supporting Barry Goldwater for President: "He is the more honest of the candidates and the less likely to get us into a nuclear war.  Also, he is himself more sympathetic with the Negro than is Johnson."   Joseph M. Perillo, "Twelve Letters From Arthur L. Corbin to Robert Braucher," 50 Washington & Lee Law Review 755 (1993)).

What was Corbin doing with the Crosskey book in the first place?  The answer, I think, lies with another of Crosskey's theses, that the framers understood the common law as a single system, and therefore that they intended the federal courts to apply general common law and not state law in diversity cases.  As a result, Crosskey bitterly attacked Erie R.R. v. Tompkins; Corbin quoted his description of it as "the most colossal error the Supreme Court has ever made."  Corbin spent most of his review applauding and justifying Crosskey on the Erie question.

Almost all American lawyers -- at least those under eighty -- have spent some of their professional lives with Erie. Erie must be the most cited case ever, since it decides the governing law in every diversity case in the United States.  It directs the District Court to pretend that it is a state trial court and to do whatever the local state court would do.  Corbin was almost sixty-five years old when Erie came down.  He had spent his whole life under the rule of Swift v. Tyson, the 1842 opinion of Justice Joseph Story that was already more than thirty years old when Corbin was born, and which Erie overruled.

In seeking to understand Corbin's passion against Erie, we should remember what Grant Gilmore told us in The Death of Contract (Ohio State University Press, 1974).   Under Swift v. Tyson, the United States Supreme Court became the leading commercial law court in this nation.  Until the Uniform Sales Act and the Negotiable Instruments Law began the uniform laws movement at the turn of the 20^th Century, a commercial transaction crossing state lines was subject to a patchwork of conflicting state court decisions that undermined legal planning.  In England a unitary legal system, and a small number of royal judges (most notably Lord Mansfield) had nationalized commercial law as the Industrial Revolution required more uniformity than had been provided by pre-industrial local courts.  In mid-19^th Century America, there was no similar agency for uniformity -- that is, until Joseph Story seized the day in 1842.  (Consider Richard Danzig's great article, "Hadley v. Baxendale: A Study in the Industrialization of the Law," 4 Journal of Legal Studies 249 (1975). Hadley, which limited consequential damages to those foreseeable at the time of contracting and greatly restricted local and jury discretion in English contract cases, was decided only twelve years after Swift v. Tyson.)

Swift v. Tyson was a routine bills and notes case, a diversity action brought in the Circuit Court for the Southern District of New York.  New York State's case law was not completely clear, but arguably had an unusual rule that undermined the plaintiff's status as a holder in due course.  Under the Rules of Decision Act, section 34 of the federal Judiciary Act of 1789, "the laws of the several states . . . shall be regarded as rules of decision in trials at common law in the Courts of the United States, in cases where they apply."  There was little doubt that under the then-prevailing choice of law rules New York law applied, and the plain words of section 34 seemed to reinforce the conflicts rule to apply the New York case law to deny holder-in-due-course status to the plaintiff.

But Story had a way around section 34:

There are two ways of looking at Story's opinion in Swift, instrumentally and jurisprudentially.  Story was a federalist who spent his long judicial career trying to nationalize and standardize the law.  He managed to write treatises on almost every topic of private law, and this while sitting on the Supreme Court (1811-1845).   Swift perfectly served his nationalizing fervor, and it succeeded brilliantly, as Gilmore told us.  But by 1938 the uniform laws, the great treatises -- like Williston on Contracts and Williston on Sales -- and the Restatements had led to a largely standard body of commercial law, which no longer needed the Supreme Court as its expositor.  On top of that, the Court had bigger fish to fry.   Unlike the 19^th Century Court, it now was deeply involved in constitutional law, both with respect to national and state powers and with respect to individual liberties.  In addition, the Court-Packing Crisis of 1937 had led to the Court's withdrawal from the second-guessing of Congress and state legislatures in economic matters, and the deference extended into other areas of law as well.  (See, e.g., South Carolina State Highway Dept. v. Barnwell Brothers (1938), showing great deference to idiosyncratic state highway regulations even though they were burdensome to interstate truckers.)

Jurisprudentially, Swift also was something of an embarrassment in 1938.   Story's description of courts not making law, but discerning the general principles of the (unitary and universal) common law certainly clashed with what the legal realists had been saying for twenty years, and sounded like the view of the common law that Holmes had derided as "a brooding omnipresence in the sky," a "transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute." (Kuhn v. Fairmount Coal Co. (1910)).

Ironically, Corbin, while not a card-carrying legal realist, had certainly contributed to the erosion of the notion of the common law as a tangible thing rather than the continuously changing product of judges.  Indeed, he took pains in the book review to disassociate himself, Crosskey, and the framers from the "brooding omnipresence" approach (62 Yale Law Journal at 1140-41).  But like many a trailblazer, Corbin seems not to have fully appreciated how completely he had helped to demolish the past.  What he really was saying was, I think: "Even if there is no transcendent common law, the Court has done a wonderful job creating a relatively uniform commercial law jurisprudence for our nation; why should it now abdicate to a babble of state courts that know much less about the problem than the Supreme Court does?"

Despite Corbin's criticisms and fears, the time had come in 1938 to abandon Swift, and it is not surprising that the Court, via Justice Brandeis, seized the opportunity of a routine railroad negligence case to overrule Swift.  Brandeis flirted with a rather unconvincing constitutional argument (see 304 U.S. at 77-80), but his real emphasis was on the forum-shopping and uncertainty that Swift had caused.  In fact, the parties to Erie did not even brief or argue the issue of overruling Swift, and it seems clear that the Court had simply decided that Swift had outlived its usefulness.  (See 304 U.S. at 66 (argument for petitioner: "We do not question the finality of the holding of this Court in Swift v. Tyson . . . ."); id. at 68 (argument for respondent: "In cases involving questions of general law, federal courts will exercise their independent judgment," citing Swift)).

Should we rethink Erie in light of Corbin's criticisms?  To me, the answer is yes and no.  Yes, we might want to rethink it in areas like mass torts, where there is little connection with any state, and a uniform federal standard might make sense.  And, no, the area that least needs federal intervention is, ironically, commercial law.  The issue of what law should govern in federal diversity actions is simply not monolithic.

In commercial law, however, the UCC, which was just being sent to the states when Corbin wrote his review, has proved to be a great success, whatever its faults.  On the whole, the UCC has proven the wisdom of Erie.  It simply isn't necessary for the federal courts to get back into commercial law.

Yet there is a major area, nominally considered part of commercial law, where a uniform state law may or may not be superior to a single federal statute, and where it is possible that the federal courts should apply a federal common law if the states and Congress both fail to act.  This is the area of cyberspace, where there is almost no tangible connection with particular states, and where Proposed Article 2B of the UCC, dealing with the licensing of computer software, has been criticized both on substantive grounds and as intruding into the federal field of copyright.  But again, this is a matter for Congress to deal with.

If Congress chooses to do nothing and Article 2B fails to be widely adopted, there is a good argument that the Internet should be treated as unitary and not the subject of state law.  The Supreme Court early on found exceptions to Erie in areas like money and banking litigation; it could do so with cyberspace.  It would be both ironic and fitting if the arguments of the seventy-five year old Arthur Corbin were vindicated because of an Information Revolution that did not occur until a generation after his death.

Peter Linzer is the Law Foundation Professor at the University of Houston Law Center and the editor of A Contracts Anthology (Anderson Publishing, 2^nd ed., 1995).

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© Ronald K.L. Collins and David Skover, 1998. —————————————————————————————
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