The Project of the Harvard 'Forewords': A Social and Intellectual Inquiry
Tushnet, Mark V., Lynch, Timothy, Constitutional Commentary
Since 1951 the editors of the Harvard Law Review have selected a prominent scholar of constitutional law to write a "Foreword" to the Review's annual survey of the work of the Supreme Court. Within the community of scholars of constitutional law the "Forewords" are widely taken to be good indications of the state of the field. The Foreword project defines a vision of the field of constitutional scholarship. After describing the history and current reputation of the Forewords, this Essay examines some of the structural constraints on the project. It concludes with an analysis of some dimensions of the intellectual project the Forewords have defined. In addition to proposing a modest revision of the accepted understanding of the intellectual history of constitutional law scholarship, we hope that, by suggesting a less-than-obvious connection between constitutional scholarship and constitutional law, the analysis can give us insight into the directions constitutional law scholarship may take in the next decade.
1. HISTORY AND IMPACT
The Harvard Law Review began to publish student-written Notes surveying the prior Supreme Court Term in 1949. Two years later the first Foreword appeared.(1) Since 1985, the Review's Supreme Court edition has included a legal scholar's case comment on one major decision of the previous term.(2)
The Forewords continue a tradition at the Review examining the work of the Court on a term-by-term basis.(3) The tradition began with a series of articles on the Court written by then Harvard Law Professor Felix Frankfurter,(4) who was joined by James M. Landis and Adrian S. Fisher, and by Henry M. Hart, Jr., who was to have his own Foreword in 1959.(5) At first these articles considered only one Supreme Court term, but in 1937 they began to consider two terms in one article.(6) Frankfurter's participation ended in 1938, a year before he was appointed to the Supreme Court. The series ended shortly after Frankfurter left.(7) The articles begun by Frankfurter are similar to the successor Forewords in that both rely predominantly on legal scholars, not students.
Over time, the Forewords have gained a considerable prestige and influence. For example, to support the proposition that "[o]ur age is obsessed with equal protection," James Liebman notes that "11 of the last 26 Forewords ... have been principally concerned with equal protection."(8) The so-called "Republican Revival" was validated by Frank Michelman's Foreword of 1986.(9) This growing prominence is reflected in stylistic changes within the Forewords themselves, frequent citations to previous Forewords by subsequent Foreword authors and other scholars, and generalizations about the Forewords or their authors.
Two stylistic changes mark the transformation to prominence. First, through 1955 the Foreword author's name appeared at the end of the article, although lead articles placed the author's name at the front. In 1956 the name of the Foreword's author appeared at the front. The shift in 1956 acknowledges that the Forewords had become the intellectual equivalent of the lead articles.(10)
A second stylistic shift seen in the Forewords is their increasing length.(11) Although this increase in size was part of a general increase in the size of law review articles,(12) it does suggest that the Forewords were becoming more important. The change in length between the first and second decade of Forewords brought about a greater than proportional increase in quality. Among the first ten Forewords, several are brief, inconsequential essays likely dashed off rather quickly; unlike later Forewords, they do not attempt any systematic or extensive approach to the preceding Court. term. Indeed, the Forewords' increasing length is one function of the authors' efforts. As the Forewords became more highly regarded, scholars might have been inclined to write more; they may have felt that they had to measure up to the standards set by their predecessors. …