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Brian Leiter
University of Chicago Law School

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Friday, August 12, 2011

Most Important (Non-Living) Constitutional Theorists: The Results

It must be the dog days of summer, because the poll got only a little more than 100 votes; here's the top ten:

1. John Marshall  (Condorcet winner: wins contests with all other choices)
2. John Hart Ely  loses to John Marshall by 57–31
3. Alexander Bickel  loses to John Marshall by 58–28, loses to John Hart Ely by 53–32
4. Joseph Story  loses to John Marshall by 59–12, loses to Alexander Bickel by 38–37
5. Louis Brandeis  loses to John Marshall by 58–21, loses to Joseph Story by 39–33
6. Herbert Wechsler  loses to John Marshall by 60–22, loses to Louis Brandeis by 42–37
7. Felix Frankfurter  loses to John Marshall by 65–13, loses to Herbert Wechsler by 43–33
8. Hugo Black  loses to John Marshall by 68–12, loses to Felix Frankfurter by 34–33
9. Henry Hart  loses to John Marshall by 58–14, loses to Hugo Black by 39–30
10. Gerald Gunther  loses to John Marshall by 65–9, loses to Henry Hart by 37–22

Thoughts from readers?  Omissions (remember:  non-living theorists only!)?  Signed comments only:  full name in signature line, valid e-mail address.  Simple rule, please follow it!

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Comments

Everyone has their favorite, I suppose, but I think that the omission of Charles Black was a real oversight. The greatest academic constitutional theorist ever, in my view. I'd take "Structure and Relationship in Constitutional Law" over "The Least Dangerous Branch" any day. At the very least it's a serious argument!

Posted by: Jonathan Zasloff | Aug 12, 2011 8:24:21 AM

This is a pretty parochial list. Looking a bit further afield, here are four names that come to mind: Thomas Paine, Emmanuel Sieyes, Hans Kelsen, H.L.A. Hart.

BL COMMENT: It was a parochial poll, concerning important U.S. constitutional theorists!

Posted by: Richard Kay | Aug 12, 2011 8:30:40 AM

I'd argue for shortlisting Charles L. Black. His work on the legitimating function of judicial review (The People and the Court (1960)), and, pace Wechsler, especially regarding 'The Lawfulness of the Segregation Decisions' (1960) were influential counterpoints to distinguished advocates for a restrained judicial role in the face of a caste system. Structure and Relationship in Constitutional Law (1969) was also a pathbreaking work in which Black applied his interpretive method such that (more or less) settled controversies were put on firmer ground, and others contemporaneously wending their way through the courts, e.g., the House's expulsion of Adam Clayton Powell, were addressed too. The imprint it left on contemporary theorists, e.g., Philip Bobbitt and Laurence Tribe, seems pretty clear. And books like Capital Punishment: The Inevitability of Caprice and Mistake (1974) and Impeachment: A Handbook (1974) (which thanks to Republican overreach in '98 was timely twice over) spoke, as the foregoing publication dates attest, to the social engagement of his work.

Posted by: Cosim Sayid | Aug 12, 2011 9:14:57 AM

I was surprised to see James Bradley Thayer missing from the list, given the influence of his article The Origin and Scope of the American Doctrine of Constitutional Law (1893) on institutional design theorists & critics of judicial review.

Posted by: Tony O'Rourke | Aug 12, 2011 1:33:12 PM

Missing: Thayer, Roscoe Pound, Christopher Tiedeman, John Marshall Harlan I and II, Robert Hale, Abraham Lincoln, James Madison, F.A. Hayek, James Buchanan, among others. Most of these were more influential (I'm not sure how to judge "importance") than some in the top ten list.

BL COMMENT: Harlan II was in the poll. Was Lincoln a theorist of the Constitution? I'm most surprised, though, by the mention of Robert Hale! Please elaborate when you have a moment. Thanks.

Posted by: david bernstein | Aug 12, 2011 2:33:09 PM

Sorry I missed Harlan II. And my bad, James Buchanan is still alive at 91 years of age. It's been a while since I read Farber, Lincoln's Constitution, but Lincoln, while not an academic theorist, has certainly had huge influence such issues as whether the U.S. is a confederation of states or an indivisible union; the right of other branches to follow their own interpretation of the Constitution despite contrary USSC rulngs (which he enunciated after Dred Scott and held to thereafter), and of course over emergency powers of the president in crisis times.

Hale's influence is given a sympathetic portrayal in Barbara H. Fried, The Progressive Assault on Laissez Faire: Robert Hale and the First Law and Economics Movement 33 (1998). I have a less positive view of Hale, but I do think his influence has been understated, as partciplants in debates for many decades over "neutral principles" often echo Hale's critique of the notion of coherent "negative" rights against the government.

Posted by: david bernstein | Aug 13, 2011 5:57:19 PM

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