Copyright (c) 1993 Northern Kentucky University
Northern Kentucky Law Review
ARTICLE: DEEP-CONVICTION JURISPRUDENCE AND TEXAS V. WHITE: A COMMENT ON G. EDWARD WHITE'S HISTORICIST INTERPRETATION OF CHIEF JUSTICE CHASE
21 N. Ky. L. Rev. 117
Herman Belz *
Although modern historical scholarship in general rests on the philosophical assumption that all truth is historical truth, legal historian G. Edward White is exceptional in his rigorous and self-conscious adherence to this historicist premise. In his magisterial work, The Marshall Court and Cultural Change 1815-1835, Professor White reconstructed the jurisprudential universe in which the Supreme Court acted in the early nineteenth century. Viewing the Court as "a cultural artifact" that reflected the distinctive cultural attitudes of its time, he emphasized "the uniqueness, the 'differences,' and the time-boundedness" of the Marshall Court. 1 The inference to be drawn from White's study, which might be considered the guiding principle of his approach to legal history, is that the legal order in a given historical context is constituted by rules, theories, and ways of thinking that reflect the dominant culture and ideology of the time.
Professor White's analysis of the jurisprudence of Salmon P. Chase adopts this historicist approach. Without rejecting categorically the traditional view of Chase as a judge who possessed political ambitions, White seeks to recover and understand his jurisprudence by focusing on Chase's judicial convictions. This requires entry "into the world of antebellum moral and constitutional theory, a world which is difficult for moderns to fathom." 2 In leading us into this world, White makes a major assumption: on matters of ultimate conviction, Chase was sincere and largely consistent in his views. He proceeds to argue, contrary to previous interpretations of the Supreme Court during Reconstruction, that in ...
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