Constitutional history is the area of historical study covering bothwritten constitutions anduncodified constitutions, and became an academic discipline during the 19th century.The Oxford Companion to Law (1980) defined it as the study of the "origins, evolution and historical development" of the constitution of a community.[1]
The English term is attributed toHenry Hallam, in his 1827 workThe Constitutional History of England.[2] It overlapslegal history andpolitical history. For uncodified constitutions, the status of documents seen as contributing to the formation of a constitution has an aspect ofdiplomatics.
By the beginning of the 20th century, constitutional history, associated strongly with the "Victorian manner" in historiography, had come under criticism that questioned its relevance.[3] Both before and after the period of so-called "traditional constitutional history" in the English-speaking world, its themes in political history have been seriously contested.
SeeCategory:Constitutional history.
In the European tradition, Pocock in his book on theancient constitution of England argued a common pattern, seen inFrançois Hotman, a French lawyer of the 16th century, of valuingcustomary law, in tension with acode of law, and taking support for the customary to the point of creating a "historical myth" around it. Historical priority had political consequences formonarchy.[4]
The status of monarchy in Europe played a large part in its constitutional history until the end ofWorld War I. Shortly after 1918, the surviving European monarchies, diminished in numbers, were all examples of theconstitutional monarchy, and the constitutions involved were all written, with the exception of theBritish monarchy which is part of an uncodified constitution.[5]Mark Mazower states that "Most of the new constitutions began by stressing their democratic, national and republican character."[6]
The constitution of the United States, as a historical research area, was considered to be in decline by Menard in 1971, citing alsoGeorge Athan Billias and Eric Cantor.[7]Harry N. Scheiber in 1981 noted that some historians in the field saw a "genuine crisis", which he reported was widely attributed to competition from newer approaches inlegal history to the behaviour oflaw courts.[8] At this time there was a view that constitutional history was linked toliberalism andindividual rights, and in tension withcritical legal studies and its approach to legal history.[9] Lewis Henry LaRue, from the side of critical legal studies, in 1987 defended the proposition thatconstitutional law should be studied in the context of constitutional history.[10]
Many nations have aconstitutional court deciding matters ofconstitutional law. The force of judgements in such a court may beerga omnes, in other words applying broadly, rather than just to the case in question.[11] Theodore Y. Blumoff writing of the Supreme Court of the United States stated that "Through its decisions and resulting precedents, the Court makes history as it decides it."[12]
The political history ofAthens after thePeisistratids (from about 510 BCE onwards) is amply documented in literary sources, and has traditionally been cast as an evolution away from thetyrant (absolute ruler).[13]John Robert Seeley in the 19th century took the major difference constitutionally between ancient Athens of that period and theRoman Republic to be that theRoman Senate, controlled by thepatricians, was adeliberative assembly, while the assemblies of theplebeians were not.[14]
De re publica, a partially-recovered work byCicero, contains some political and constitutional history of the Roman Republic about three decades before its end. It used the concept of amixed constitution going back toAristotle, and its evolution.[15] In Cicero's view an "ancestral constitution", an organic development based on themos maiorum, had been ruptured some eighty years before, by theGracchi and their reforms.[16]
From theHigh Middle Ages in Western Europe, the effective diplomacy of thePapacy, itself regulated bycanon law, played a large part in the constitution ofLatin Christendom as apolity, for example in theCrusades. The secular constitution of theHoly Roman Empire was uncodified. Its background was studied in depth in the 19th century byGeorg Waitz, considered the effective founder of the GermanVerfassungsgeschichte, as part of legal history. His eight-volume workDeutsche Verfassungsgeschichte covered the period from the 9th to 12th centuries. The school of Waitz andHeinrich Brunner was later challenged by the "new constitutional history" of Theodor Mayer (de:Theodor Mayer (Historiker)),Otto Brunner andWalter Schlesinger.[17]
The three-volumeConstitutional History of England (1874–78) byWilliam Stubbs was influenced by German scholars, particularly Waitz andGeorg Ludwig von Maurer.[18] Thehistory of Anglo-Saxon England had standing in theVictorian period, to substantiate claims that the Westminster parliament descended from thewitangemot and free assemblies.[19]
Karl Leyser in the 1980s criticised the type ofinstitutional history given of theOttonian period Empire, on the grounds that it assumed without sufficient justification that such institutions existed in an operational sense.[20] He also argued that parallels drawn between Germany and Anglo-Saxon England of the tenth century were ultimately quite misleading.[21]Timothy Reuter in 2002 stated in this context that "constitutional history in the old style has clearly gone out of fashion."[22]
According to the final volume ofThe Cambridge Modern History (1910), Hallam'sConstitutional History of England of 1827 contains the "authoritative Whig presentation of modern English history", and it "immediately took its place as a textbook in the Universities". The context is a contrast with the conservativeHistory of Europe ofArchibald Alison, which pointed to theFrench Revolution and the dangers of political change.[23]
From the 1860s there were in the English-speaking world professors of constitutional history, withCosmo Innes at Edinburgh becoming one, by change of official title, in 1862.[24]Francis Lieber was Professor of Constitutional History atColumbia College Law School in the US from 1865.[25] He lectured onThe Rise of Our Constitution. He recommended reading for theBill of Rights 1689, which he took to be foundational for the US Constitution, fromEdward Shepherd Creasy'sRise and Progress of the English Constitution, then Hallam's book, then from an annotated edition ofJean-Louis de Lolme's work on the English constitution, before the legal works ofWilliam Blackstone and others.[26]
With the work of Stubbs, succeeded bySamuel Rawson Gardiner as an author of British constitutional history derived from close reading of documents (traditional diplomatics), it played a central role in British historiography.[27] During this period of "traditional constitutional history", theSecond British Empire expanded, but its history initially was kept separate. The Whigs of the 18th century had often been supporters of American independence. Radicals of the 19th century distrusted imperial thinking.[28]
In the twentieth century, Gardiner's approach was attacked by Roland Greene Usher (1880–1957), and bothHerbert Butterfield andLewis Namier rejected the tradition.[27] Theinterwar period was, however, still a time when the history of the British Empire was very largely taught through constitutional history. A representative figure is the historianKenneth Wheare.[29] Butterfield, who coined the term "Whig history" as a criticism, by the period ofWorld War II saw the imperial or "Tory" history as inseparable from it.[28]
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