The most significant collaborative effort in the literature of American constitutional history, the Oliver Wendell Holmes Devise History of the Supreme Court of the United States, is nearing completion. A generation has passed since the appearance of the first volume, authored by Julius Goebel, Jr., and (after many vicissitudes affecting several of the works in the series) the appearance of this volume marks the antepenultimate stage. Though Professor Fiss's remarkable achievement deserves to be viewed primarily on the basis of its own merits as a study of the Fuller Court, a just appreciation of its contribution to the literature requires us to explore two historiographic questions: the book's place within the intergenerational effort that Holmes inspired and its contribution to the very active contemporary reexamination of the jurisprudence usually epitomized by reference to Lochner v. New York. Viewed against the historiographic background, I submit that Troubled Beginnings of the Modern State is a splendid example of this trend in American constitutional history in our time. In what follows, I attempt to describe the book's role in the new scholarly synthesis and to indicate the respects in which I find myself not entirely in agreement, both with the book and with the synthesis it so ably represents. But, though it delays us somewhat in taking up the book's substantive content, we should first consider the great significance of finding a book like this as part of the Holmes Devise History at all.
Law | Legal History | Supreme Court of the United States
Holmes's Legacy and the New Constitutional History,
Harv. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3004