Harvard Law School professor Adrian Vermeule ‘93, who is an expert on Constitutional Law, recently reviewed “A Republic of Statutes: The New American Constitution,” by William N. Eskridge, Jr. and John Ferejohn for The New Republic. The book examines so-called “superstatutes” and their role in shaping a “living Constitution.”
In an Oct. 27 review for the new Classics section of the online journal Jotwell, Vermeule presented his assessment of Herbert W. Horwill’s “The Usages of the American Constitution (1925),” a “neglected” and “illuminating” book, which, according to Vermeule, examines “how constitutional usages arise and then persist, change or disappear over time.”
Vermeule’s latest book is “Law and the Limits of Reason” (Oxford University Press 2009).
William N. Eskridge, Jr. and John Ferejohn, “A Republic of Statutes: The New American Constitution”
In 1925, H.W. Horwill, an English scholar, wrote a neglected classic on The Usages of the American Constitution. In an attempt to sort out what counts as “constitutional law” in the United States, Horwill identified a category of constitutional statutes, giving as an example the Electoral Count Act of 1887, which provides rules for counting votes cast for presidential candidates in the electoral college. Horwill went on to quote a passage from the American political scientist and constitutional scholar Charles Beard, in which Beard noted that statutes form a large part of constitutional law. “If we regard as constitutional all that body of law relative to the fundamental organization of the three branches of the federal government–legislative,” Beard wrote, “executive and judicial—then by far the greater part of our constitutional law is to be found in the statutes.”
William Eskridge and John Ferejohn have now dilated Beard’s point into a book of nearly six hundred pages. They claim that the United States is a republic of “superstatutes,” which in some sense possess constitutional importance. Eskridge and Ferejohn know a great deal about America’s major statutes, and have put it all between two covers. The book’s ambition is clear, but in many respects it leaves the subject of constitutional statutes murkier than it was before.
Herbert W. Horwill, “The Usages of the American Constitution”
A great deal of recent work distinguishes the small-c constitution from the Constitution. The latter is the written document, whereas the former is an amorphous and ever-changing body of constitutional norms, customs, and traditions – “constitutional conventions,” to use the umbrella term that Commonwealth lawyers have developed to talk about unwritten constitutions. The recent work on small-c constitutionalism, however, has almost invariably neglected a classic and illuminating book on constitutional conventions in the United States: Horwill’s Usages of the American Constitution. A “neglected classic” sounds like an oxymoron, but Horwill’s book is proof that such a thing can exist.