In the 1970s and 1980s some of the most exciting work in legal history challenged late-nineteenth-century law as following a false formalism, only pretending to reason from abstract principles isolated from life's realities. Others took a different view, but these scholars insisted that law should be seen as political or economically determined rather than emerging from principle. Law was no more than a system of argumentative exchange. “Of dialectics there is no end,” one observed. In this view, principled law served only as a cover for economic avarice and political strength. If law merely reflects power, then there is really little reason for historians to study law or constitutionalism, and the recent migration of the historical study of constitutionalism, away from history departments and into law schools is well placed.
Christopher Waldrep is Jamie and Phyllis Pasker Professor of History at San Francisco State University. He is the author most recently of Vicksburg's Long Shadow: The Civil War Legacy of Race and Remembrance (2005).
1 Michael Les Benedict, Alan Lessoff, and an anonymous reader for the Journal of the Gilded Age and Progressive Era read earlier versions of this essay and kindly offered helpful comments that helped sharpen my thinking.