Leonard Levy

> 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