PANEL: Roundtable: Post-Modern Constitutional History: Problems and Possibilities Saturday, October 24, 3:30-5:00 Moderator: Sanford Levinson, University of Texas School of Law Text & Context: Intellectual History and the Post-Modern Constitutional History William Fischer, Harvard Law School Since the 1950s, most scholarship in American legal history has taken the form of social, political, or economic history--studies of how the development of particular systems of legal rules reflected or affected the shifting of fortunes of socioeconomic classes. In the past two decades, however, a growing group of legal historians have been employing modes of inquiry and analysis best described as intellectual history. In these studies, law is characterized, not as a weapon in the war of parties and interest groups, but as a discursive system, connected in myriad ways to the development of other discursive systems (economic theories, political theories, popular ideology, etc.). Intellectual history has itself become embroiled in a number of controversies. Post-Structuralist theory has challenged many of the assumptions of contextualism. How should constitutional and legal history respond to the challenges posed by Structuralism, Contextualism, Textualism, and New Historicism. This paper will consider these issues. Constitutional Narratives and Constitutional Interpretation J.M. Balkin, Yale Law School Narrative construction and deployment are essential features of American constitutional interpretation. These narratives frame past and present experience and prescribe future activity. They are forms of shared "cultural software" that bind together members of a common political culture. Often they are adapted from older sources, including the Bible and classical history. These narratives are inevitably incomplete, compressed versions of more complicated events, which provide ample opportunities for improvisation and contestation. Narratives are reshaped as they meet with recalcitrant experience, yet they also have the power to "make themselves true" in practice by shaping people's expectations and behavior in response to those expectations. Although narrative construction is deeply implicated in all constitutional interpretation, no questions of constitutional law features a single, comprehensive narrative that can take pride of place among all others. Rather, constitutional interpretations may differ because multiple narratives can be deployed, and often one can contest a narrative only by offering another one in its place. The questions for constitutional theory are how to become conscious of the power of narratives in interpretation, now to deal with competing narrative constructions and how to persuade one's self and one's audience to choose among them. Engendering the Jury: Theories of Spectatorship and Doubts About Democracy Nancy Isenberg, Department of History, University of Northern Iowa This paper examines the ways in which gendered assumptions have informed American legal and constitutional practice. It focuses on the jury as a site of cultural contestation. Concern about the capacity of juries to function within a democracy are deeply rooted in American democratic theory. This paper argues that public criticism of juries is an effect of discourse, registering more basic cultural fears about democracy encoded in American life. The rise of the mass media, particularly film and television, have transformed the way in which the role of juries and the notion of the public have been constructed. Gender has been central to the way juries have been constructed in recent popular culture. This paper examines these gendered constructions. It focuses on three celebrated cases of the post-war period and links them to various movements in popular culture. The first case study looks at the connections between film noir and the Rosenberg trial. The second examines the connections between Hollywood conceptions of the rebel, particularly Bonnie and Clyde, and the Patty Hearst case. Finally, I examine the ways in which gender and race were encoded in the treatment of the O.J. Simpson case in the media. Deconstructing the Constitution Canon: A Pragmatic Agenda for Post-Modern Constitutional History Saul Cornell, Department of History, Ohio State University Many commentators have suggested that deconstructive reading is inimical to historical practice. The version of deconstruction that has drawn the ire of historians is rooted in the theoretical writings of French post-structuralism. A different variant of deconstructive practice emerges in the work of neo-pragmatists such as Richard Rorty. When recast in Rortyean terms, a post-modern constitutional history would reunite the perspective of social history with that of recent intellectual history. At the core of this agenda would be the deconstruction of the existing canon of American constitutional history. The critique of the canon contains two inter-related methodological process: ideological deconstruction and historical reconstruction. The first step is designed to expose the ideological forces that have shaped the creation of an approved body of texts and demonstrate the historical forces that favored some texts over others. The second step involves unearthing those texts that did not achieve canonical status. When the canonical and non-canonical are examined together, it is possible to restore a voice to alternative constitutional visions. In place of the dominant Whig and declension narratives that shaped so much writing about American constitutional history, a post-modern constitutional history would focus on the past as a contested terrain in which competing visions vied for dominance.

Representatives of Their Own Choosing? Certification, Elections, and Employer Free Speech in the U.S. and Canada, 1933-59
John Logan, Department of History, University of California, Davis

In the late 1950s, the leading scholar of Canadian labor law, Harry D. Woods, criticized Canada's labor policy on trade union certification, which, he argued, presented formidable obstacles to the establishment of collective bargaining arrangements. With the support of many national Canadian labor leaders, Woods proposed the reform of provincial and national labor law along the lines of US labor policy. Woods concluded, "Canadian policy is not as favorable to the promotion of collective bargaining relationships ... there has been a more positive attitude toward collective bargaining in the United States than in Canada. Canadian policy regarding union membership and voting quotas... has made recognition more difficult to attain in Canada."

In the 1990s, in contrast, few North American labor leaders or their academic friends would dispute that Canadian labor policy governing certification promotes unionization and collective bargaining to a far greater extent than its US counterpart. My paper analyzes the development of labor policy on state certification of bargaining representatives in the US and Canada during the crucial formative years 1933-1959, and explains why many Canadian labor advocates wanted the US certification system in the 1940s and 1950s, but forty years later resist any attempts to introduce US-style certification elections at the national or provincial levels.

The paper analyzes why the NLRB "voluntarily" abandoned authorization cards as a regular means of certifying workers' bargaining representatives in 1939, examines how employers' organizations influenced and responded to NLRB decisions, court rulings, and congressional statutes defining certification policy, and evaluates the impact of these policy changes on unions' declining success rates in NLRB-supervised elections. In the 1940s and 1950s, the Canadian labor movement lobbied persistently, but unsuccessfully, for the adoption of a Wagner-style certification policy. Much to the consternation of the Canadian labor leaders, national and provincial labor boards required that, prior to certification, unions demonstrate that a majority of workers in designated bargaining units were "members in good standing," or that unions win the support of a majority of eligible voters in secret ballot elections. In the postwar decades, labor leaders criticized the Canadian law's emphasis on extensive documentary evidence of union membership and its high requirements of support during elections. Today, Canadian unions adamantly defend certification based on union membership cards and Canadian law's tough legal sanctions against employer interference during election campaigns.

Comment: Christopher L. Tomlins, American Bar Foundation