Toward a Revisionist History of the Supreme Court

Abstract

The bicentennial year provoked a reconsideration of not only the era of the framing but of constitutional history as a whole. At one point I thought that I might participate in that effort by writing a history of the Supreme Court, updating Robert McCloskey's classic book in light of recent scholarship. It turned out that that project was too daunting for me. There was too much material to assimilate before I could feel comfortable in trying to present or even develop a history of the Supreme Court. This essay is, therefore, only a sketch of a revisionist history of the Supreme Court. It is extremely abstract, eliminates a lot of detail and qualifications, and avoids dealing with problems and materials that do not fit the basic pattern I will identify. I must add that the pattern needs so much more elaboration and qualification that I am not entirely comfortable in presenting it in even this sketchy form.