July 20, 2011

Ken Kersch has another post on why Crosskey both had so little influence and was disliked so much.  Quite interesting, especially the parts relating to the Legal Process school. 

Kersch notes that Crosskey was deemed a bad historian by many, but says that Raoul Berger was also tagged with that criticism and still had enormous influence.  The reason Berger had influence, I think, was that he was saying things that some people wanted to hear.  Conservative originalists loved what Berger said about the 14th Amendment and picked it up.  His earlier works on Executive Privilege and Impeachment were loved by liberals, who not only liked his results but are also more likely to consider originalism went it comes to areas without precedent.

As Kersch notes, Crosskey was not providing results that many people liked (except for plenary legislative power, which the liberals had achieved through alternative means).  Thus, he had little influence.  The one exception is his view of incorporation in the debate with Charles Fairman, but even this was not that congenial, as it would have meant full incorporation).

Posted at 3:19 PM