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Patriots and Cosmopolitans: Hidden Histories of American Law.

Patriots and Cosmopolitans: Hidden Histories of American Law. By John Fabian Witt. (Cambridge, Mass.: Harvard University Press, 2007. Pp. 392. $29.95.)

There are some books that simply take your breath away for their daring. Patriots and Cosmopolitans is one of these. In this work the author covers the entire sweep of legal and constitutional history, from the founding generation to the late twentieth century. He tackles private law, lawyering, politics, reform, and legal theory; as well as war, peace, race, gender, and ideas of nationalism.

John Fabian Witt focuses on individuals and their legal fate, and he does not play favorites. Some, like James Wilson, were famous. Others, like Elias Hill, the author has rescued from undeserved anonymity. Some, like Catherine Crystal Eastman and Roscoe Pound, were true cosmopolitans and intellectuals--although she was a radical and he a moderate reformer turned conservative. Others, like Marvin Belli, the "king of torts," were simply very successful advocates.

The tension between progressive ideas and conservative instincts, a kind of Hegelian dialectic that lies at the center of American law, becomes clear by the end of the book. We have a tradition of "American exceptionalism" that accepts the influence of the world on our nation but denies that foreign institutions and ideas are better than native grown. We believe that American constitutionalism is far superior to any other, and that continental legal systems are alien at best and pernicious at worst.

Yet our intellectuals look to Europe with admiration. Thus Witt's concern is that our "nationalism" is at heart divided. Are we part of the world or isolated from it? The question is not an academic one, for today in our highest courts patriots and cosmopolitans carry different banners. "Here and elsewhere," Witt concludes, "we can see the dynamic of American nationhood at work almost every day" (283). Universal ideals expressed in law are bounded by narrow self-interests; some rooted in fearful patriotism, and some in racism and other forms of discrimination.

Although this argument is not especially new, Witt tells his stories well. James Wilson should have been a hero of the post-Revolution era, but he was out of touch with the world he had helped create. His model pyramid of the good society was soon replaced by the republican machine metaphor, a noisier, less-harmonious representation of competing interests. Minister Hill and his congregation found no freedom in the freeing of the slaves, and migrated to Liberia after the Civil War. Promises of civil liberties and civil rights in Reconstruction legalism were empty words. Eastman spoke freely of a more egalitarian economic system, but the law did not protect her freedom of speech during World War I. Pound, Dean of Harvard Law School, and Belli, a flamboyant litigator, were friends from very different generations, each in his own way making peace with existing law, accepting the boundaries it imposed on meaningful reform.

As cautionary as these tales may be, Witt's conclusion is not a concession to gloom. His argument itself is proof that well-written and forcefully argued legal history can still elevate, inspire, and improve our thinking.

Peter Charles Hoffer

University of Georgia

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Author:Hoffer, Peter Charles
Publication:The Historian
Article Type:Book review
Date:Jun 22, 2008
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