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Sep 2, 2006 5:32 pm


Distinguished historian Leonard W. Levy dies at 83



From R. B. Bernstein, posted on H-Shear:

Leonard W. Levy, a distinguished constitutional historian who won the
Pulitzer Prize for History in 1969 and who taught at Brandeis
University and the Claremont Graduate School, died on 24 August 2006 in
Ashland, Oregon, at the age of 83.

Born in Toronto, Canada, on 9 April 1923, Levy was educated at Columbia
University, where he earned his Ph.D. degree under the mentorship of
Henry Steele Commager, with whom he remained close friends until
Commager's death in 1998. (With another former Commager student, Harold
M. Hyman, he later co-edited the festschrift for Commager that appeared
in 1967.) His Columbia Ph.D. dissertation formed the basis of his first
book, _The Law of the Commonwealth and Chief Justice Shaw_ (Belknap
Press of Harvard University Press, 1957). His study of Chief Justice
Lemuel Shaw was hailed as a model of judicial biography and a
badly-needed corrective to the overemphasis on biographies of members
of the United States Supreme Court.

Levy wrote more than 40 books, all distinguished by extensive research,
rigor of argument (noteworthy in a historian of law who was not himself
a lawyer), and a vigorous, combative writing style. The most notable,
in addition to his life of Shaw, probably are _Legacy of Suppression:
Freedom of Speech and Press in Early America_ (Belknap Press of Harvard
University Press, 1960), revised as _Emergence of a Free Press_ (Oxford
University Press, 1985); _Jefferson and Civil Liberties: The Darker
Side_ (Belknap Press of Harvard University Press, 1963); _Origins of
the Fifth Amendment_ (Oxford University Press, 1968); Original Intent
and the Founders' Constitution (Harper & Row, 1988); and the massive
and learned reference work (co-edited with Kenneth L. Karst), _The
Encyclopedia of the American Constitution_ (Macmillan, 1987, with
supplementary volumes).

With _Legacy of Suppression_, Levy transformed the scholarship of
original-intent jurisprudence. Up to that time, following the model
defined by judges such as Justice Hugo L. Black, those who sought to
define and apply an original-intent reading of the Constitution
generally followed a Whiggish approach that traced confident lines from
a modern civil-liberties perspective to its invention by enlightened
Founding Fathers and their contemporaries. By contrast, Levy read the
history of freedoms of speech and press in colonial, Revolutionary, and
early-national America to show that Americans of that era tended to
read those freedoms narrowly, to prohibit the imposition of prior
restraints but not the punishment of spoken or written utterances after
the fact. "I have been reluctantly forced to conclude," he wrote, "that
the generation which adopted the Constitution and the Bill of Rights
did not believe in a broad scope for freedom of expression,
particularly in the realm of politics." Only in the 1790s, with the
rise of what Levy termed a new libertarian consensus associated with
the Jeffersonian Republicans' opposition to the Alien and Sedition
Acts, did that view come to influence interpretation of the First
Amendment's speech and press clauses.

Levy's book provoked extraordinary controversy and criticism, notably
from Justice Black. In later years, specialists in journalism history
challenged Levy's argument, insisting that he had paid too much
attention to law on the books and not enough to law as actually
applied, nor to the actual behavior of writers and printers in early
America. Levy revisited the issue, in 1985 publishing a revised version
of _Legacy_ under the title _Emergence of a Free Press_ (Oxford
University Press, 1985). This later version, while maintaining Levy's
reading of the law on the books, added extensive discussion of the
actual behavior of journalists, accommodating the findings of
journalism historians to present a more subtle, nuanced interpretation
of the subject.

A pendant to Levy's original 1960 study was his 1963 monograph,
_Jefferson and Civil Liberties: The Darker Side_ (Belknap Press of
Harvard University Press, 1963). This book, which in retrospect
launched a new and more critical chapter of Jefferson historiography,
challenged the Virginian's claims to be the nation's premier advocate
of liberty of speech and press. Levy's careful exploration of
Jefferson's views and actions on freedoms of speech and press and
intellectual freedom exposed a significant gap between the Virginian's
eloquent defenses of speech and press freedoms and his willingness to
work with state officials to use the powers of government to silence
critics of his administration; Levy also illuminated Jefferson's
sweeping claims and uses of presidential powers to enforce the
ill-considered Embargo of 1807-1809. As to this work, Levy remained
unrepentant. In paperback reprints of this and other of his books, he
often added vehement new forewords or prefaces disputing his critics
and reaffirming his positions.

In 1968, Levy published his _Origins of the Fifth Amendment_ (Oxford
University Press, 1968), a sweeping study of ideas and legal doctrines
governing the principle that a person should not be compelled to
testify against himself, which in Anglo-American common law took the
form of the privilege against self-incrimination. _Origins_ won the
1969 Pulitzer Prize for History and cemented Levy's reputation as one
of the nation's leading constitutional historians. In recent years,
such scholars as John Langbein and Eben Moglen challenged Levy's
account, and Levy responded with his customary vehement eloquence.

Levy also wrote two books on the law of blasphemy, several studies of
relations between church and state in America in the colonial,
revolutionary, and early national periods (in which he acknowledged
Jefferson's primacy as a defender of religious liberties and the
separation of church and state), and formidable philippics against
federal forfeiture law under the RICO statute and the Nixon Court's
treatment of issues of criminal justice. Of these studies, the
weightiest and most persuasive was his 1988 monograph _Original Intent
and the Founders' Constitution_ (Harper & Row, 1988).

Throughout the 1980s, Levy presided over the assembling of one of the
finest and most widely consulted reference works in the field of
American legal and constitutional history, _The Encyclopedia of the
American Constitution_ (Macmillan, 1987, and later revisions). This
grand collaborative reference work, which he coedited with Kenneth L.
Karst of UCLA Law School, distilled three generations of the best
historical scholarship on the precedents, origins, development,
meaning, and interpretation of the Constitution of the United States.
Its contributors constituted a "Who's Who" of the field, including such
eminent scholars as Archibald Cox and Henry Steele Commager.

By the end of his life, Levy had become the dean of American
constitutional historians; during his time on the faculty of the
Claremont Graduate School, he trained dozens of constitutional
historians who have carried on his legacy. His last book, _Ranters Run
Amok: And Other Adventures in the History of the Law_ (Ivan R. Dee,
2000), collected several shorter essays on historical subjects and an
array of autobiographical and quasi-autobiographical pieces sometimes
hilarious and sometimes deeply painful. It suggested Levy's ambivalence
about his contributions to the field of American constitutional history
and about the historian's enterprise.

Levy's last years were plagued by ill-health, including a recent
stroke. He is survived by his wife, Elyse, by their two children, Wendy
and Leslie, also of Ashland, Oregon, and by seven grandchildren.

A personal note: I was one of the legion of contributors to _The
Encyclopedia of the American Constitution_, and I can testify both to
Levy's welcoming view of younger scholars and his occasional crustiness
and impatience. He both preached and embodied the teaching of our
shared mentor, Henry Steele Commager, that historians should write for
wider audiences than our peers and that, no matter how technical or
abstract our scholarship, it should be written in an accessible and
lucid style. He truly was the dean of American constitutional
historians, and his influence and example will have power long after
his death.

Respectfully submitted,

R. B. Bernstein

R. B. Bernstein
* Adjunct Professor of Law, New York Law School, 57 Worth Street, New
York, NY 10013-2960
* Author, Thomas Jefferson (Oxford Univ. Press, 2003; pbk, 2005)
* Member, Board of Directors, American Society for Legal History
* Member, Editorial Board, H-LAW http://www.h-net.msu.edu/~law/
* Director of Online Operations, Heights Books, Inc., 109 Montague
Street, Brooklyn, NY 11201
* rbernstein@nyls.edu / rbbernstein@gmail.com / heightsbooks@aol.com


[NOTE: This is a crosspost of an obituary notice sent to H-LAW on 1
September 2006. -- RBB]

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More Comments:


Common Sense - 9/4/2006

He was a very solid scholar with no agenda beyond finding the truth as he understood it. His work on the dark side of TJ took TJ down a peg when he was greatly overrated. Think of the work of Dumas Malone and the famous JFK quip at the time. TJ is now underrated, I think, and his work on the Jeffersonian Republicans helps remind us how important that party was to the history of liberty, despite such missteps as the Embargo and the War of 1812.


David T. Beito - 9/3/2006

I remember that I didn't care for for his work on Jefferson....probably because it challenged my positive pre-conceptions of the man. Now, having read more about Jefferson's failings (especially on slavery), his thesis makes much more sense.

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