Western Political History:

A Select Bibliography

 

by Jefferson White

Below is a select bibliography of the books that have decisively shaped my understanding of Western political history. I have written a brief annotation for each entry.

 

Before Philosophy: The Intellectual Adventure of Ancient Man (1946)
Henri Frankfort (et al)

Frankfort, along with his wife and two other scholars, authored what was probably the most important twentieth century attempt to explain, to a general audience, the unique character of the ancient consciousness of reality. Before Philosophy is not just a classic work of scholarship; it remains relevant to any attempt to understand the ancient mind.

Frankfort (1897-1954) was an Egyptologist, archeologist, and historian. He was among the first to comprehend the unique character of Israel within the ancient world and the radical break that Israel made with the dominant consciousness of that world. The ancient world was literally incapable of distinguishing between the gods, nature, and the state, which were seen as differing aspects of a single reality. Israel alone broke with this unitary conception of reality, recognizing that God not only transcended nature, but also transcended politics. The prophets sent by God had a spiritual authority that was independent of the authority of the state. This conception of spiritual authority was unique to Israel.  

This was something new in history. The idea of two separate and independent authorities, the spiritual and the political, begins in ancient Israel.

 

Israel and Revelation (1956)
Eric Voegelin

Eric Voegelin (1901-1985), political historian and philosopher, has undertaken the best systematic analysis of the radical difference between the consciousness of the ancient world and that of Israel in relation to politics. Unfortunately, Voegelin's scholarship is framed in terms that make it accessible primarily to the academic specialist. Although I am an admirer of Voegelin's achievement, I am also in radical disagreement with a key aspect of his analysis. That disagreement is spelled out in an essay entitled “The Bad Faith of Eric Voegelin.”

Still: Voegelin's philosophical analysis of the Israelite political order is without parallel.

 

Constitutionalism and the Separation of Powers (1967)
M. J. C. Vile

M.J.C. Vile (1927- ) authored what is widely considered to be the standard history of the separation of powers. If there is one book to be read on the topic, this is the book. Vile has done an extraordinary job in narrating the invention of the idea of separated powers during the seventeenth century and its development during the eighteenth century.

However, Vile's account is concerned with the classic understanding of separated powers. As he notes, both the idea and the phrase first appear during the English Civil War. For the first time, the political belief became widespread that the king and Parliament were independent and equal powers. A century and a half later, this conception of government became the core doctrine of American Constitution, with the judiciary added as a third separation of powers.

My use of the term “separation of powers” is more expansive than Vile's. Although the idea and the phrase do not exist before the seventeenth century, my view is that the idea of “separated powers” is inherent in the Judaic and Christian understanding of politics and that the Christian understanding has radically shaped Western political history from its beginning. 

Separated powers as a political reality begins with the sovereign independence of the prophets of Israel from the kings of Israel. This conception of separated powers enters into the Western political order with the birth of the Christian church and with the radical spiritual independence of that church from the pagan Roman state. This was the direct result of Christ’s teaching that a radical distinction was to be made between the authority of God and the authority of Caesar. The medieval struggles between the popes and emperors of the West were a further historical iteration of this conception of divided powers. The Reformation era only energized this Christian revolution in separated powers, which was followed by the formal invention of the concept during the English Civil War.

Vile wonderfully narrates the birth of the idea of separated powers as the basis of modern constitutional government. But the modern idea is an explicit development of a doctrine already implicit in Judaism and Christianity.

 

Law and Revolution: The Formation of the Western Legal Tradition (1983)
Harold J. Berman

Harold J. Berman (1918-2007) was a legal scholar and historian who fundamentally altered our understanding of the Western legal and political tradition.

During the first half of the twentieth century, historians had already begun to reject the accepted understanding of the European Middle Ages. A comprehensive historical case was made that the twelfth century, in particular, was an era of revolutionary political and legal change. Berman took this analysis to the next level through a study of what he called “The Papal Revolution.” After Berman, it was impossible to understand the political history of the late middle ages except along the lines of his analysis. The twelfth century was one of the great epochs of the political and legal history of the West. It witnessed the creation of a fully independent Western church standing apart from the state, as well as the creation of a fully independent state standing apart from the church. Western law, as an independent political institution, was created during this same period, its independence arising within the interstices of the new system of church and state.

The Western idea of law begins in the twelfth century.

 

The Federalist (1787-88)
James Madison

James Madison (1751-1836) is often called “The Father of the Constitution.”

But this American document was not the product of a single mind. Indeed, had Madison alone been the architect of the Constitution it would have been very different document. However, like the other Founders, Madison viewed the document that did emerge with both misgivings and hope, considering it to be the best constitution possible given the political circumstances.

Together with Hamilton and Jay, Madison published a series of newspaper essays in favor of ratifying the new Constitution. Those essays were later published in book form as The Federalist. As historian Clinton Rossiter wrote in a 1961 introduction to it: “The Federalist is the most important work in political science that has ever been written, or is likely ever to be written, in the United States.”

Above all, it is Madison’s essays that concisely explain the separation of powers doctrine that is the core structure of the Constitution. To understand Madison's essays is to understand the American political experiment.

 

Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom (1995)
Steven D. Smith

Steven D. Smith (1952- ) is a law professor, legal historian, and constitutional scholar. If there is one book to read on the American legal conception of religious freedom, this is that book.

It is one of Smith’s key insights that most Americans today no longer possess the original American understanding of religious freedom. This is not the familiar argument between liberals and conservatives over the "proper interpretation” of the First Amendment. Instead, Smith conclusively shows that modern liberals and conservatives are both arguing from the same fundamental misunderstanding of the meaning of the First Amendment.

Smith shows that the First Amendment is entirely jurisdictional in meaning. That is to say: the First Amendment established only that Congress had no authority on religious questions, which meant that the states were the proper political jurisdiction in which such questions were to be decided. Smith demonstrates that this was always understood to be the meaning of the First Amendment until the very middle of the twentieth century.

Of course, today most Americans are taught from childhood that the Supreme Court exists to define the rights that are listed in the Bill of Rights, including the right of “religious freedom.” However, as a matter of historical truth, every right that is listed in the Bill of Rights was always defined in the common law and in state laws – and never by the Supreme Court – until the middle of the twentieth century. This is why no federal judge today, whether liberal or conservative, has a "proper interpretation" of the First Amendment. And that is because the First Amendment never defines that right. It merely lists it. Nor are any of the other rights found in the Bill of Rights defined in the Bill of Rights, with only minor exceptions. 

In the original American political experiment, Americans created a radical decentralization of political authority. The authority to define rights listed in the Bill of Rights was found in the common law and in state law, with the Supreme Court having no role in the definition of the rights found in the Bill of Rights, until it unconstitutionally seized that role during the twentieth century. 

 

Democracy in America (1835)
Alexis de Tocqueville

Alexis de Tocqueville (1805-1859) is on virtually everyone’s short list of major political philosophers. Tocqueville visited America in the early nineteenth century and the book that he wrote is still considered to be probably the best analysis of American democracy ever written.

One of Tocqueville’s chief insights concerned the role that voluntary associations played in American life. Tocqueville was impressed by America’s Constitution, but he was even more impressed by the reality that Americans organized their society through voluntary associations of ordinary people. Where the central government in France directly controlled society, and where the upper classes in England ruled over the British social order, ordinary Americans banded together to create the voluntary organizations that formed their society.

Government, Tocqueville noted, played only a limited role in American life. Thus voluntary associations enabled American democracy to be organized on the basis of individual liberty and preference, rather than upon elite governmental or social control. Tocqueville considered the American voluntary association to be something new in the world and the real revolution in American politics. Democracy and voluntary associations went together, Tocqueville argued, because such associations allowed the people to express their will through organizations of their own choosing.

Thus the separation of powers was not only the foundation of the American political order, but of its social order as well. 

 

Government By Judiciary: The Transformation of the Fourteenth Amendment (1977)
Raoul Berger

Raoul Berger (1901-2000) was a legal scholar and constitutional historian. In his book Government By Judiciary he brilliantly demonstrates how, as a matter of history, the Fourteenth Amendment had been falsely used by the modern Supreme Court to substitute rule by federal judges in place of rule by the people.

It was in the late 1940s that the Supreme Court first declared that the 14th Amendment gave them the authority to “apply” the Bill of Rights to the states. However, since that Amendment had been ratified in 1867, this meant that it had taken the Supreme Court some 90 years to “discover” this constitutional authority. Berger conclusively shows that the Congressmen, Senators, and state legislators who ratified the 14th amendment never imagined that they were giving the Court that kind of power.

Unfortunately, Berger’s book is not written for the general reader, but for the legal specialist. His book spawned a number of academic books in reply, which Berger answered in detail in subsequent works such as The Fourteenth Amendment and the Bill of Rights (1989) and in a revised version of Government By Judiciary (1997).

Raoul Berger is an indispensable guide to the decline and fall of constitutional government in America.

 

“The Rise and Rise of the Modern Administrative State” (1994)
Gary S. Lawson

Gary S. Lawson (1958- ) is a legal scholar and constitutional historian whose essay on the unconstitutional character of the administrative state makes him the third member of my trinity of constitutional scholars (Smith, Berger, and Lawson) who have restored the original understanding of the American Constitution.

In Lawson’s case this achievement came through writing the law review article “The Rise and Rise of the Modern Administrative State,” Harvard Law Review, Vol. 107, 1231-1254 (1994).

Many Americans today are aware that the American federal system no longer exists, having been abolished during the nineteen thirties and forties. A fewer number of Americans understand the extent to which the Supreme Court has gone far beyond its legitimate constitutional role in usurping the authority of the people to determine their fundamental laws. But what Lawson demonstrates, in this brief and concise essay, is that the separation of powers between the Congress, the presidency, and the judiciary also has been abolished.  The unitary authority of the modern federal bureaucracy, of what is called the administrative state, has largely taken the place of the constitutional branches of American government.

More recently, a mammoth, five hundred page exposition on Lawson’s theme has appeared. Written by legal scholar Philip Hamburger, Is Administrative Law Unlawful? (2014) is an exploration in depth of what Lawson outlined in only a few thousand words. But there is nothing that can beat Lawson’s masterful summary of the rise of the American administrative state and its abolition of the Constitution's separation of powers.