Nor has England advanced far beyond us in the critical interpretation of legal evolution—its explanation in terms of, or in relation to, the shifting economic processes and methods in which the law is tangled. It is true that English scholars have produced admirable histories of the law in its outward aspects, such as the monumental work of Pollock and Maitland; and they have made marvellous collections of raw materials, like the publications of the Selden Society. But apart from scattered and brilliant suggestions thrown off occasionally by Maitland[[13]] in passing, no interpretation has been ventured, and no effort has been made to connect legal phases with economic changes.
In the absence of a critical analysis of legal evolution, all sorts of vague abstractions dominate most of the thinking that is done in the field of law. The characteristic view of the subject taken by American commentators and lawyers immersed in practical affairs is perhaps summed up as finely by Carter as by any writer. “In free, popular states,” he says, “the law springs from and is made by the people; and as the process of building it up consists in applying, from time to time, to human actions the popular ideal or standard of justice, justice is only interest consulted in the work.... The law of England and America has been a pure development proceeding from a constant endeavor to apply to the civil conduct of men the ever advancing standard of justice.”[[14]] In other words, law is made out of some abstract stuff known as “justice.” What set the standard in the beginning and why does it advance?
The devotion to deductions from “principles” exemplified in particular cases, which is such a distinguishing sign of American legal thinking, has the same effect upon correct analysis which the adherence to abstract terms had upon the advancement of learning—as pointed out by Bacon. The absence of any consideration of the social and economic elements determining the thought of the thinkers themselves is all the more marked when contrasted with the penetration shown by European savants like Jhering, Menger, and Stammler. Indeed, almost the only indication of a possible economic interpretation to be found in current American jurisprudence is implicit in the writings of a few scholars, like Professor Roscoe Pound and Professor Goodnow,[[15]] and in occasional opinions rendered by Mr. Justice Holmes of the Supreme Court of the United States.[[16]]
What has here been said about our private law may be more than repeated about our constitutional history and law. This subject, though it has long held an honorable position in the American scheme of learning, has not yet received the analytical study which its intrinsic importance merits. In the past, it has often been taught in the law schools by retired judges who treated it as a branch of natural and moral philosophy or by practical lawyers who took care for the instant need of things. Our great commentaries, Kent, Story, Miller, are never penetrating; they are generally confined to statements of fact; and designed to inculcate the spirit of reverence rather than of understanding. And of constitutional histories, strictly speaking, we have none, except the surveys of superficial aspects by Curtis and Bancroft.
In fact, the juristic theory of the origin and nature of the Constitution is marked by the same lack of analysis of determining forces which characterized older historical writing in general. It may be stated in the following manner: The Constitution proceeds from the whole people; the people are the original source of all political authority exercised under it; it is founded on broad general principles of liberty and government entertained, for some reason, by the whole people and having no reference to the interest or advantage of any particular group or class. “By calm meditation and friendly councils,” says Bancroft, “they [the people] had prepared a Constitution which, in the union of freedom with strength and order, excelled every one known before.... In the happy morning of their existence as one of the powers of the world, they had chosen justice for their guide; and while they proceeded on their way with a well-founded confidence and joy, all the friends of mankind invoked success on their endeavor as the only hope for renovating the life of the civilized world.”[[17]]
With less exaltation, Chief Justice Marshall states the theory, in his opinion in the case of McCulloch v. Maryland: “The government proceeds directly from the people; is ‘ordained and established’ in the name of the people; and is declared to be ordained ‘in order to form a more perfect union, to establish justice, insure domestic tranquillity, and secure the blessings of liberty’ to themselves and to their posterity. The assent of the states, in their sovereign capacity, is implied in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it; and their act was final.... The government of the Union, then (whatever may be the influence of this fact on the case) is emphatically and truly a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.... It is the government of all; its powers are delegated by all; it represents all, and acts for all.”[[18]]
In the juristic view, the Constitution is not only the work of the whole people, but it also bears in it no traces of the party conflict from which it emerged. Take, for example, any of the traditional legal definitions of the Constitution; Miller’s will suffice: “A constitution, in the American sense of the word, is any instrument by which the fundamental powers of the government are established, limited, and defined, and by which these powers are distributed among the several departments for their more safe and useful exercise, for the benefit of the body politic.... It is not, however, the origin of private rights, nor the foundation of laws. It is not the cause, but the consequence of personal and political freedom. It declares those natural and fundamental rights of individuals, for the security and common enjoyment of which governments are established.”[[19]]
Nowhere in the commentaries is there any evidence of the fact that the rules of our fundamental law are designed to protect any class in its rights, or secure the property of one group against the assaults of another. “The Constitution,” declares Bancroft, “establishes nothing that interferes with equality and individuality. It knows nothing of differences by descent, or opinions, of favored classes, or legalized religion, or the political power of property. It leaves the individual along-side of the individual.... As the sea is made up of drops, American society is composed of separate, free, and constantly moving atoms, ever in reciprocal action ... so that the institutions and laws of the country rise out of the masses of individual thought, which, like the waters of the ocean, are rolling evermore.”[[20]]
In turning from the vague phraseology of Bancroft to an economic interpretation of constitutional history, it is necessary to realize at the outset that law is not an abstract thing, a printed page, a volume of statutes, a statement by a judge. So far as it becomes of any consequence to the observer it must take on a real form; it must govern actions; it must determine positive relations between men; it must prescribe processes and juxtapositions.[[21]] A statute may be on the books for an age, but unless, under its provisions, a determinate arrangement of human relations is brought about or maintained, it exists only in the imagination. Separated from the social and economic fabric by which it is, in part, conditioned and which, in turn, it helps to condition, it has no reality.
Now, most of the law (except the elemental law of community defence) is concerned with the property relations of men, which reduced to their simple terms mean the processes by which the ownership of concrete forms of property is determined or passes from one person to another. As society becomes more settled and industrial in character, mere defence against violence (a very considerable portion of which originates in forcible attempts to change the ownership of property) becomes of relatively less importance; and property relations increase in complexity and subtlety.