Two new studies succeed in revising long-standing narratives of a shallow historical consciousness among nineteenth-century Americans and in the process raise important questions about our twenty-first-century historical practice. Kunal Parker, a historian of law, argues for the vitality and historicist sensibilities of nineteenth-century common-law thinkers in his Common Law, History, and Democracy in America, 1790–1900. Eileen Cheng's The Plain and Noble Garb of Truth argues that historians of the early Republic and antebellum decades were complex historical thinkers for whom objectivity was a philosophical and practical ideal. Both Cheng and Parker set their stories against historical narratives of disciplinary progress constructed around 1900 by modern scholars who, in the process of asserting their own authority, discredited the thought of preceding generations.

On one level, Cheng and Parker are following a similar well-worn path of professional practice, making way for the vision of their own generation by removing the historical blinders of accepted interpretation. But their brief is against the superiority of twentieth-century historical thought and practice itself—against the claims by twentieth-century historians and legal scholars that they have had greater recognition of contingency, greater concern for objectivity, richer and more complex historical consciousness than their nineteenth-century forebears. Both authors have absorbed the critique of historical practice mounted by theorists of the linguistic turn and incorporate some of its lessons into their own narratives without abandoning professional history's task of constructing warranted knowledge of the past. Their books are excellent examples of the strengths and drawbacks of that project, revealing evidence of our own modernist/ postmodernist historical moment.

* * *

Parker and Cheng build their arguments on a now standard narrative of the rise of historicism—the view that all events can be explained historically, as products of human actions in time. Intellectual historians have cast that narrative sometimes as a progression toward deepening historical consciousness, or, better, as a dialectical process of deepening recognition of the contingency of events in time and of successive efforts to contain the uncertainty that contingency and change produced. As historical events were separated from their enduring foundations in custom, divinity, Nature, or Reason, moral values themselves were subordinated to history, so that by the end of the nineteenth century “nothing but history” remained. The “crisis of historicism” that ensued was part of the more general modernist cultural crisis precipitated by the dissolution of foundations and the threat of a human world of “unremitting flux and relativism.”Footnote ¹ From the premise that knowledge had no foundation outside human experience, Nietzsche and his heirs drew pessimistic conclusions about the possibilities of human knowledge—we can have only an aesthetic or ethical relation to reality, which we ourselves must create. American pragmatists were more sanguine, concluding that scientific reason put us in an instrumental relation to reality; progress was not assured but possible.

Professionalizing historians in the United States took a similar tack. They self-consciously abandoned a providential view of history and the nineteenth-century philosophies of history that had grounded events in idealist, universalistic, or deterministic master narratives, putting into doubt the views of American exeptionalism that depended on such premises. With the heightened awareness of contingency that antifoundationalism conferred, the historicist task of contextualizing the past and finding patterns in history useful to knowledge and progress became even more salient. Their methods of historical science and professional discipline, they believed, would allow them, unlike their amateur predecessors, to attain or approach an objective view of the past.

Both Parker and Cheng assert that professional historians continue to write history within the framework that crystallized in that modernist moment. Parker identifies modernist historical sensibility with the critical, antifoundationalist temper of Oliver Wendell Holmes and the Progressives’ revolt against formalism. History became the “iconoclastic practice of revealing the merely temporal origins of phenomena” in order to discredit the past and open the future to remaking (7). Cheng, following Peter Novick, identifies twentieth-century historicism with the related turn-of-the-century Whiggish narrative of American disciplinary formation around the ideal of objectivity.Footnote ²

Both thus narrow the definition of modernist historicism to the iconoclastic or Whiggish thrust of the Progressive generation, although many twentieth-century American historians and legal scholars have turned their antifoundational historicism to more diverse purposes.

Parker wants to “provincialize,” Cheng to “historicize” those modernist sensibilities in order to get a fresh look at the past. Legal historians’ modernist lens, Parker argues, distorted understanding of nineteenth-century common-law thought and the relations between history, law, and democracy. Only by removing professional historians’ founding narrative, Cheng says, can she take antebellum historians “seriously” and see them “as products of their historical context” (4). Both Cheng and Parker have programmatic purposes in setting these narratives aside, but their first and substantial purpose is to reconstruct the intellectual world of nineteenth-century historical consciousness in its own terms and in its own context—a purpose, if not an achievement, basic to historicism in all its varieties.

* * *

What, then, do they tell us about the historical consciousness of their nineteenth-century subjects? Cheng is focused on historians who wrote during the early Republic and antebellum decades. She finds that her antebellum historians in particular display the social and intellectual markers of “an autonomous discipline defined by a commitment to the ideal of impartial truth” (2), markers generally placed only at the end of the century with the first university-based, fully professional generation. Antebellum historians were already adherents of the critical historical methods that Ranke and his colleagues had developed by 1848, and, in mutual exchange and critique, they formed “a scholarly community of sorts” (30); they were also, like their successors whom John Higham analyzed, members of a largely conservative, nationalist elite for whom writing histories conferred authority in a democratic political world.Footnote ³

Cheng's strength, however, is not in making antebellum historians look like turn-of-the-century professionals, but rather in bringing their own complex world of historical thought to life. For her antebellum historians, “objectivity” often meant Ranke's standard of “an unbiased account of facts” (10). But what kind of facts and what did it mean to be unbiased? They inherited older meanings of objectivity forged within realist understandings of truth and mimetic theories of art that centered on “impartiality”: disinterested judgment, a skeptical attitude, or a balanced or comprehensive viewpoint. In contrast, the newer romantic aesthetic valorized the writer's creative, interpretive role in reaching truth. Moreover, facts, grounded for these historians in Christian divinity, nature, and philosophical idealism, were not bare but proclaimed larger moral and political lessons. In contrast to Lester Cohen's portrait of the Revolutionary historians as thoroughly secular historians of human agency or David Levin's classic account of leading antebellum historians as coherent romantics, Cheng's originality is to tease out their conflicting assumptions and the multiple ways they resolved and debated the tensions between these different conceptions of truth and objectivity.Footnote ⁴

William H. Prescott emerges as her most sophisticated romantic. Like his antebellum cohort of historians, Prescott was both challenged and influenced by the prestige of Sir Walter Scott's novels and the rise of Romanticism. He self-consciously used a romantic literary style to enhance the truth of his historical actors’ subjective experience and mitigate presentist moral judgment of their actions. At the same time, he adapted the German critical apparatus of primary sources and citation both to warrant his basis in fact rather than fiction and to serve his romantic theory. His extensive notes laid out the provenance and biases of his sources and his own reasoning upon them, inviting readers to recognize his interpretive role and judge for themselves the soundness of his conclusions. For Prescott, Cheng suggests, Truth transcended the multiple opinions of it, even his own.

The critical apparatus of primary sources and citations also converged with romantic theory around the value of originality. It was this romantic value, Cheng argues, aided by the rise of a literary marketplace, that increasingly proscribed the practice of copying from earlier secondary works and set off a flurry of charges of plagiarism. George Bancroft made his way through these multiple commitments with considerable ambivalence. Despite charging others with plagiarizing his work, he sometimes paraphrased and took verbatim sections from other historians, sometimes giving their words a different interpretation. Originality for Bancroft seemed to lie in overall perspective rather than specific words, as well as in extensive use of primary sources. Cheng sees Bancroft's center of gravity in German critical method rather than in romanticism. He claimed that archival sources and citations conferred on his histories not romantic truth but the accuracy of facts. For Bancroft, however, as for Ranke himself, the objective facts of history disclosed the idealist truths of providential design. What we can see as Bancroft's presentism seemed to him an exercise of impartiality in making political and moral judgments on the facts of history. In the antebellum context of objective moral truth, the political and nationalist purposes for which he and his cohort frankly wrote history could not dislodge that claim.

The most important truth of history for Bancroft and for virtually all the Revolutionary and antebellum historians, Cheng says, was American exceptionalism. God had given the United States a special and leading role in history, one that exempted America “from the normal processes of historical change and decay” (161). Here Cheng “draws on and challenges” (6) my view that, for Bancroft and Americans generally during much of the nineteenth century, exceptionalism weakened the strands of historicism present in their work and delayed the full recognition of historicism until the end of the century when the exceptionalist frame was directly challenged.Footnote ⁵ Cheng argues that exceptionalism did not impede—and actually deepened—Bancroft's historical consciousness. In the effort to achieve impartiality, he put American developments in a cosmopolitan, European context and attributed bad English policies not to villainy but to complex historical causes such as the structural decline of the English aristocracy. Alert to the irony of providence's singular and unexpected ways, he repeatedly traced the causes of American liberty not only to American virtues but also to the inadvertent effects of English despotism. It was the providential view of history behind Bancroft's exceptionalism, Cheng argues, that led him, as providentialism had led Kant, to recognize the role of unintended consequences in history. Thus Cheng concludes that Bancroft's adaptation of European historicism to exceptionalist assumptions, as well as the general attention to history exceptionalism stimulated, helped to create a modern historical consciousness in the United States. Cheng makes her point. Future examinations of nineteenth-century historical consciousness will have to take into account the ability of American exceptionalism to dramatize contingency as well as extrahistorical foundations, to deepen historical awareness as well as annul the perception of historical change.

Cheng deals with a large cast of characters beyond these major figures, all of whom prove amenable to her grid of competing intellectual and market forces. Gender too appears as one of the axes on which tensions emerge. One of her most intriguing subjects is the scattered antebellum interest in a social or “domestic” history of the everyday that seldom reached fruition due to its gendered associations.

* * *

Kunal Parker's subjects are common-law thinkers rather than historians, but his focus is on their historical consciousness.

Parker acknowledges the instrumental political-economic purposes that made common lawyers, in most accounts, allies of the expansion of capitalism and, by the end of the nineteenth century, reactionary individualists in a dawning age of social democracy. But that account, he argues, has its roots in modernist iconoclasm and thus obscures the understandings of time and politics that shaped their thinking. The facet of the political with which common lawyers had most fundamentally to contend was democracy, for their authority did not rest obviously on consent, popular sovereignty, or legislative will. Parker suggests that nineteenth-century Americans understood the deep power with which history and nature circumscribed democratic will. Common lawyers thus had room to negotiate spaces for their own authority by inserting the common law into history and nature. The political policy motives of his subjects are often noted, but Parker concludes that common lawyers were not engaging in “clandestine politics” (282); rather they were thinking of the common law in relation to history.

The intellectual world of nineteenth-century common-law thinkers that Parker reconstructs is, like Cheng's, one of multiple, disjunctive intellectual orientations. Parker's focus is on different historical sensibilities—what he calls “times.” For common-law thinkers, “the nonhistorical premodern times of the common law” encountered “the changing teleological and foundational times of the nineteenth century” (14). The efforts of common lawyers to “fit the common law to the imperatives of history,” Parker argues, kept the tradition vital and allowed them to “see bits of law as contingent and therefore as subject to reform” (18, 20). Despite wide belief in American exceptionalism, the discussion of history was complex and informed by European discourse. In Parker's reading, as in Cheng's, the nineteenth century was, for Americans as for Europeans, the century of historicism.

Parker begins in seventeenth-century Britain, when the common law was glossed as an immemorial continuity of insensible change in opposition to new positivist and historical understandings of law that threatened to enhance monarchical power and weaken the power of common-law jurists. During the early eighteenth century, common-law thinkers like Blackstone grafted the common law's time of immemoriality and insensible change onto the Scottish Enlightenment's understanding of history as the movement from a feudal past to a commercial present. In the post-Revolutionary United States, however, this common-law mystification faced the republican demand that law be based on transparent democratic consent. James Wilson, Parker shows, mingled both historical tempers: the Constitution was wholly new, founded by contemporaneous consent, but recovered the immemorial Saxon common-law rights of the British constitution; the common law emerged from custom but custom emerged from the natural social ground in which the Scots had rooted history.

Mingled temporalities become more complex when Parker adds in the romantic historical sensibility that formed during the post-Revolutionary era. A compound of a “heightened sense of contemporaneity and anachronism” and a desire to recuperate something of the solidity of the pre-Revolutionary past, it was encapsulated, he argues, in the romantic belief in “the spirit of the age.” That belief, Parker shows, joined the “demystifying concept” of “age,” which instrumentally located objects within or outside an era so as to demonstrate their historical contingency, with an idealist “mystifying concept” of “spirit” that gave meaning to the age by recuperating something of the spirit of the past (118–19). Thus in the Jacksonian era in which democracy was declared the spirit of the age, Bancroft found the unifying spirit of medieval Catholicism in the democratic people. Following out the logic of unintended consequences, we might say that once the gulf between past causes and present consequences had been opened up, the past was available to take on different forms in the present and future and thus to provide a sense of continuity as well as change.

Joseph Story is the major figure in Parker's account of “romantic era metaphysics” and its “conflicted relationship with the past” (164). While it is well recognized that Story drew from disparate sources, romanticism among them, that Story's multiplicity might be encompassed within a romantic sensibility—albeit a discordant one—is a novelty.Footnote ⁶ Story's common law was simultaneously the spirit of the historical past, “the old law” (138), with its property rights selectively appropriated, and the spirit of the future commercial age being created by history. Likewise the common law was a Baconian, inductive science that yielded general principles, anchored ultimately in universal principle but immediately in the practices of the modern commercial world. “The past is the ‘spirit’ of the forward-looking principle.” What Richard Hildreth said of his contemporary theologues—“They feign and believe simultaneously”—Parker says of his metaphysical common lawyers, though “we never know exactly what is feigned and what believed” (166, original emphasis).

During the middle decades of the century, Parker finds a new sensibility of “antipolitical” and “scientistic” historicism (172). During the 1850s the romantic vision was abandoned, he says, replaced by a search for the underlying natural laws of society that governed history. Parker is especially suggestive in linking that search to the “intractability of slavery.” Faced with sectional political conflict, common lawyers, like American thinkers generally, sought “to relativize or cabin the sphere of the political” (171). Thus radicals north and south planted free or slave principles in scientific-style social laws and used the common law to reinforce them. For George Fitzhugh the true constitution, at the foundation of state rather than federal government, was the common law—“the indefinable tie that binds man to man . . . the law of man's nature . . . the vital principle or constitution of the social being” (193). Parker notices that Fitzhugh is influenced not only by Comte but by “Carlyle's nostalgia and transcendentalism” (190). He could have noted that the romantics’ recuperation of the past was still at work more generally in his mid-century thinkers. What was being recovered in “the social” and relocated in nature was the sociability and interdependence of the pre-Revolutionary, pre-commercial past. The vocabulary of scientism, the attribution of the permanence of a static nature to laws of the changing phenomena of history, continued rather than overcame the romantics’ conflicted relationship with the past.

Thomas Cooley figured the social as an Anglo-Saxon past, a realm of liberal sociability grounded in common-law principles: communal self-regulation, local self-government, and decentralization. Common-law judges, Cooley said, created a principled science by reading off the usages of the community and grasping the principles beneath such practices even before they appeared—principles which he glossed as existing immemorially and changing insensibly. If Cooley was mixing temporalities, he was also intervening in the debates between centralization and decentralization that Parker traces through the quarrels over slavery, war and Reconstruction. Natural and common law worked together to limit not only the political in general, but “the centralizing imperatives of Radical Republicanism” in particular (201).

Parker centers the evolutionary historical sensibility that appeared during the last decades of the century on a metaphor of time as “a perpetually, inexorably, and silently moving ‘life’” (225). The mixture of Spencerian and Darwinian ideas, he shows, focused inquiry on the production of relations of correlation and sequence among objects over time. This contextual method allowed the plotting of change over the long time span of life and imparted a new degree of contingency to nature and thence to history. Translating the antipolitics of mid-century into this evolutionary machine, Spencer used it to “cabin” democracy and support laissez-faire. Parker examines how common lawyers of the American historical school used it for the same purpose, arguing that “the common law captured precisely the ‘unconscious’ functioning of ‘life’ that . . . legislation would be unable to capture or defeat” (229).

The big payoff from Parker's perspicuous analysis is his ability to “deconstruct” (251) the conflict between legal formalism and antiformalism, in particular Holmes's claim to the sole possession of historical sensibility in contrast to the conception of law as logic of his teacher, Christopher C. Langdell. Parker shows that both operated within the influential Spencerian–Darwinian philosophy of history. Moreover, the examples of “experience” or “life” Holmes used in The Common Law (1881) were remarkably abstracted from history, indeed were drawn from the thought of the legal formalists, who had selected them precisely to “surmount historical specificity” (268). The only difference between Holmes and Langdell, Parker argues, was that Langdell planted the logic of succession between historical objects in the nature of things, whereas Holmes, more like Darwin than Spencer, rejected determinism and hence any necessary direction to history. The result was Holmes's effort to show that the history of the common law was guided not by logic, but rather by “mistake, linguistic confusions, and survivals . . . an antifoundational, destructive use of history” (263). How important we should consider that only difference is a point to which I will return in a moment.

* * *

There can be no doubt that Parker and Cheng deepen understanding of American historical consciousness in the nineteenth century. German historicism and American exceptionalism, Enlightenment and romanticism, scientism and evolutionism, republicanism, liberalism, and common-law conservatism all entailed modes of historical understanding that nineteenth-century Americans found meaningful and that conflicted, interpenetrated, and combined as they were put to disparate purposes.

More broadly, Parker and Cheng tell us something about the mix of modernist and postmodern interpretive strategies historians are using in our own compound moment. As readers can readily see, if Parker and Cheng are engaged in a modernist historicist effort to contextualize nineteenth-century historical consciousness, they do so by using techniques of analysis and composition that can be called postmodern. In each period they address, they look for multiple historical logics at work and focus on the contradictions, tensions, and disjunctions thereby produced.Footnote ⁷ Parker argues that common lawyers inhabited different times “simultaneously” (21) and he emphasizes the incongruity of the ideas and consequences that resulted: common-law thinkers placed the common law both inside and outside history, subjecting it to the judgment of history yet constituting history by it. Cheng too works throughout to heighten tensions within her subjects’ intellectual constructions and to emphasize their paradoxical historical outcomes: exceptionalism generated historicism, historiographical nationalism aggravated sectionalism, claims of impartial truth provoked partisan conflict.

The focus on multiplicity and contradiction breaks up any smooth developmental story of the rise of modern historicism. Still, the narrative of progression toward deepening historicism remains in the background of their work. The intellectual-historical account of how nineteenth-century historical consciousness arose and developed within the languages of Scottish Enlightenment, Revolutionary republicanism, post-Revolutionary romanticism, and Victorian and evolutionary scientisms stands as the skeleton on which their narratives are hung. Indeed, the insightful and original ways they link the historical thinking of their subjects to moments in this intellectual history are among the best parts of their books and one reason why the books should have a wide readership among intellectual historians. But Parker is not interested in how or why the understandings of historical consciousness he finds change over time. Each chapter stands in its proper chronological place, but separate, a fine-grained snapshot. Cheng too goes out of her way to avoid a teleological narrative, in her case by organizing the book into thematic chapters, each of which moves from the Revolutionary to the antebellum generation. More rooted in professional historical practice than Parker, Cheng pays some attention to change over time and grounds her story in a thicker social-historical context. By the same token, she implies at times that the narrative of development toward disciplinary professionalism remains a progressive story and needs only to be revised to give antebellum historians a more creditable role.

The deeper message of the narrative she constructs, however, like Parker's, is that the overarching narrative of the history of historicism itself requires a different, and postmodern, narrative. Replacing linked development with contradictions, tensions, and disjunctions is one dimension of that new narrative. Another is the focus on the cultural work each historical sensibility repeatedly performs. Each is presented not as a step in a progression toward modern historical consciousness but as performing similar tasks that are imbedded in the nature of historicism. Cheng shows each generation of historians grappling with and negotiating workable solutions to the unresolvable dilemmas of objectivity. For Parker, each historical sensibility both produces and tames contingency, enables and contains change, fixes events in time and mystifies their relations.

The result is a flattened historical landscape from which the depth of change over time is elided. Parker suggests that his own “simultaneous emphasis on and erasure of differences” is the mode in which common lawyers themselves operated (23), but it is also a postmodern technique for dismantling master narratives. Just as he warns against making “the Holmesian, modernist, pragmatist moment . . . the definitive shift in American legal thought,” his narrative makes the modernist, antifoundationalist move at the turn of the twentieth century no longer the definitive shift in historical consciousness (283). Nineteenth-century providential and foundational views of history, he claims, were “no less effective” than antifoundational ones in producing contingency and “unsettling knowledge” (21). Cheng too deliberately minimizes the differences and magnifies the similarities between antebellum and twentieth-century historians’ struggles with objectivity. The deepest purpose of both Cheng's and Parker's narratives is to deny the unprecedented character of the move to antifoundationalism and the historical sensibility of “nothing but history” it ushered in.

For both authors that purpose is aimed at the contemporary practice of history. The modernist crisis opened the historical profession to fears of historical relativism and threatened legal scholars with the “erosion of the boundary between law and politics” (5), but historians and legal scholars found ways to live with those threats without resolving them for much of the twentieth century. By the 1970s and 1980s, however, scholars were listening to postmodern theorists who magnified the radical implications of antifoundationalism. Cheng and Parker reflect the more cautious attitude of recent historians who have sought both to accept and to disarm the threat of radical historicism.Footnote ⁸ They prove once again that there is a deep impulse in historicism to contain the uncertainty it lets loose.

Cheng is overtly reassuring. The challenges contemporary historians face all have antebellum analogues, she argues, whether challenges presented by the disputed line between history and fiction, historians’ own political and moral purposes, or the popular market for history. Her historical work implies, she says, that the ideal of objectivity “was a powerful and malleable doctrine that could be adapted to many different social contexts and functions” and can be again today. “Take heart” (6, 261).

Parker too wants the past to inform and meliorate a postmodern present. He presumably calls his project an effort to “provincialize” rather than “historicize” the antifoundational moment in order to link it to postcolonial theories that decenter rather than negate, submitting both terms to interrogation and renegotiation.Footnote ⁹ “One way to confront the dilemma of thinking ‘after’ metaphysics,” he says, “is to examine carefully how the world appeared to work before the alleged end of metaphysics. We might be surprised by the results” (282).

The question remains, what kind of narrative arc can emerge from Parker's and Cheng's historical methods? Neither constructs a postmodern genealogy. Parker expresses skepticism of what he calls the “now more post-modern” outcome of modernist historical consciousness, its belief in radical contingency and the openness of history to unconstrained remaking (11). The narrative of modern historicism as a developmental progression still hangs suspended over both texts, its chronology assumed and its substance called on repeatedly, even as the postmodern narrative that lies in the foreground abandons progression for the repeated multiplication and erasure of differences, the repeated effort to face and evade the enduring problematics of truth and time. Cheng and Parker have shown their compound of modernist critical depth and postmodern reimagining to have substantial propaedeutic value. Their strategy surely reflects our present moment, when the shape of the future is deeply uncertain and the ability of the present to be part of any narrative of progression is unclear. How compelling and enduring it will prove to be—as a narrative of historicism or of the modernity/postmodernity it stands athwart—time will tell.