In constitutional studies, the topic of “original intent” is typically treated as a debate within normative constitutional theory about the most appropriate way for interpreters to orient themselves to the text of the Constitution. The central question is whether American constitutionalism, properly understood, obligates interpreters to base decisions on what the framers had in mind when they wrote the Constitution or whether it obligates interpreters to adapt general constitutional principles to changing circumstances or more enlightened sensibilities. Originalism views interpretation as a matter of decoding a set of specific instructions but runs the risk that our institutional arrangements and conceptions of justice will be inappropriately tied to the antiquated experiences and prejudices of generations long gone – what Corwin referred to as “rotting structures” or “discarded” and “unworkable” theories. Non-originalism, or some notion of the “living Constitution,” encourages judges to keep the Constitution relevant for contemporary concerns and purposes but runs the risk that this will lead them to enforce a version of the fundamental law that was never formally authorized by the people.

In the late nineteenth century – an age when the phrase “all politics is local” contained even greater truth than it does today – the distinctive institution of urban public life was the political machine. In assessing the machine's importance, some scholars have emphasized the machine's role in integrating newly arrived immigrants into the American political system, its provision of basic material goods to the impoverished, its promotion of upward mobility of immigrants, and its coordination of a socially and politically fragmented city. Other scholars have focused on the long-range effect of the political machine on American politics and policy, arguing that the cross-class coalitions built by machine politicians muted the development of a politicized working class in the United States. Some extend this causal chain, arguing that the lack of a stronger class-based politics produced in turn the relative weakness of the American welfare state compared to other Western democracies.

In 1916, Charles A. Beard was denouncing Germany as “a danger to civilization” and calling for American participation in World War I on the side of the Entente Allies. Like John Dewey and other social-democrats, Beard saw the Great War as an opportunity to advance the interests of the European working class by breaking “the union of the Hohenzollern military caste and the German masses whose radical leaders are Social Democrats”. Even after the Versailles Treaty, Beard continued to embrace the Wilsonian theme that the Great War had been fought to make the world safe for democracy. However, by the mid–1980s, he was staunchly opposed to war with Germany and Japan, had come to embrace the revisionist history of World War I, and even testified before Congress against the Lend-Lease Act. Thus, intellectual historians agree that somewhere between the end of World War I and the 1930s, Beard shifted from internationalism to isolationism and, indeed, a few critics have referred to him as a pacifist in his later years. Within the umbrella of this consensus, debates among biographers, intellectual and diplomatic historians, have come to center largely on identifying the timing and the reasons for Beard's “conversion” to isolationism. Not coincidentally, during the 1960s and 1970s, Beard's writings on foreign policy and diplomatic history enjoyed a resurgence among many on the New Left who were constructing their own revisionist history critical of America's political and military involvement in various Third World countries. Today, Beard's views are still cited in international relations and history textbooks as an example of isolationist theory in American foreign policy.

Conventional wisdom states that where ideas and values have mattered in American political life they have usually been the product of a single, overarching political culture. The United States, it is argued, has had political conflict but not ideological conflict. Perhaps nowhere is this premise more noticeable than in the study of political parties. According to Du-verger, “[T]he two parties are rival teams, one occupying office, the other seeking to dislodge it. It is a struggle between the ins and the outs, which never becomes fanatical, and creates no deep cleavage in the country.” Everett Carll Ladd writes, “[T]he need to seek support within an overarching ideological consensus, has historically imposed certain characteristics on the major American parties – social group inclusiveness, accommodationism, a ‘non-ideological’ stance vis-a-vis their principal opponents (which, after all, accept the same ideology).”

Over the past few decades, historians engaged in the study of American Populism have advanced a number of conflicting interpretations of the last great protest movement of the nineteenth century. Among the most influential representations of Populism have been the following: Populists as reactionary and vaguely anti-Semitic predecessors of American fascism, as agrarian romantics nostalgically clinging to the Jeffersonian ideal of the independent yeoman, as modern reformers embracing an American version of social democracy, as agrarian republicans aiming to build a cooperative commonwealth on the basis of mutuality, and as true radicals offering the final challenge to the rise of corporate capitalism in America. Although no final agreement on the true nature of Populism has been achieved, despite the impressive scholarly output that has made the study of Populism into a minor cottage industry among historians, there has been a powerful trend toward a renewed appreciation of the radical character of Populist protest. In challenging the dominance of the two major parties and in advocating a comprehensive program of economic and social reform, American Populists are widely regarded as reflecting a ground swell of opposition to corporate America. With the demise of Populism after the disastrous election of 1896, the hopes for building a radically different America faded.

The 1970s saw a dramatic increase in the success rate of U.S. women's organizations pursuing congressional support of legislation designed to remove barriers to the progress of women in economic, political, and social arenas. While women's organizations, including both older organizations such as the National Federation of Business and Professional Women's Clubs (NFBPWC) and newer organizations such as the National Organization for Women (NOW), had lobbied Congress before 1970, that year saw their first major lobbying success. House passage of the Equal Rights Amendment (ERA) in 1970 was followed in 1972 by full congressional passage of the ERA and Title IX of the Educational Amendments Act (prohibiting sex discrimination in education), the Equal Credit Opportunity Act and the Women's Educational Equity Act in 1974, the Pregnancy Discrimination Act and the (unprecedented) congressional extension of the ratification period for the ERA in 1978, as well as a host of measures prohibiting sex discrimination in federal programs. The legislative success of women's organizations has continued, albeit with some fits and starts, into the 1980s and 1990s with pension equity reform, child support enforcement legislation, child care subsidies, and parental leave legislation as important examples. As documented by numerous scholars, in all these cases women's organizations provided the primary lobbying support for the successful legislation.

These quotes point to a puzzle, the puzzle with which this study begins: Within the past forty years, national member-states not only accepted the interpretive authority of the European Court of Justice (ECJ) as the supreme decision maker for conflicts between member-state authority and central federal authority of the European Community (since 1994, the European Union) but also accepted this court's dictates that the treaties forming the community had constitutional status as supreme law in every member state and that European-level law had higher law status within every member state, superseding any national law to the contrary. Indeed, European member-state acceptance of this development advanced much more rapidly than state acceptance of the U.S. Supreme Court in its first several decades. Yet this pattern of respective acceptance of central federal authority runs counter to prevailing understandings of sovereignty.

In a 1987 essay on labor and the American constitutional order, Leon Fink observed that, in “American labor history the law has yet to be fully explored.” Fink's observation is less true today than when he made it some ten years ago; indeed, even as the essay appeared, a number of historians, legal scholars, and political scientists were already beginning to construct new interpretations of American labor history by focusing on the complex and often decisive impact of the law and legal discourse on labor strategy, politics, and ideology. Although Fink's wide-ranging essay surveyed labor's encounters with the Constitution from the antebellum period to the post-World War II era, he concentrated on the late nineteenth and early twentieth centuries, a period in which organized labor moved away from a broad politics of reform toward a more conservative, apolitical trade unionism. Fink notes that it was during this period of “‘exceptionalist’ drift” – when the developmental trajectory of the American labor movement be gan to diverge from its European counterparts – that “legal issues took on their most determining historical role.”