Arts & Sciences

Newsletter
Spring 1995 Vol.16 No.2

Cornell's Public Law
Tradition in Political Science

During the confirmation proceedings for her appointment to the Supreme Court (in July of 1993), Ruth Bader Ginsburg '54 offered the Senate Judiciary Committee an account of her intellectual development. She gave special notice to Professor Robert E. Cushman: "a wonderful professor . . . a great teacher [who] forced me to think about the times in which we were living, when I really didn't want to."

Attorney General Janet Reno '60, in a speech she gave at Barton Hall in October of last year, attributed her decision to pursue legal training to the influence of Professor Walter Berns. Reno, who had been a chemistry major at Cornell, recalled "I took Professor Berns's constitutional law course, and before it was over I had to call my mother to say that I wasn't going to medical school, after all."

It may be coincidence that these two Cornell women reached such exceptionally prominent positions in the American legal system at almost the same time. But it is surely no coincidence that both emphasized the formative influence of professors they encountered, not in professional training as law students, but in undergraduate government courses.

When Robert Cushman arrived at Cornell in 1925, emphasis on legal norms and doctrines was the mainstream approach to the study of politics-or rather, to the description of governmental institutions, which was still the main focus of interest in the newly emerging field of political science. My colleague Ted Lowi calls that approach "the public law tradition" in political science. Cushman became one of its great figures.

By the time Cushman retired in 1958, most political science journals had shifted their attention to the study of interest groups, public opinion, and social psychology. These social "forces" were thought to be a better guide to what really determined political outcomes, and judging these outcomes by any fixed or higher standard was thought to be naively "unscientific."

But the Cornell Department of Government remained, in many ways, aloof from the new academic trends. Certainly Walter Berns, who arrived here in 1959 and soon took over the teaching of introductory American government courses, had little respect for the new approaches. In a 1961 essay on the new voting studies (based on then-novel survey methods), Berns snorted at research which "sacrifices political relevance on the altar of methodology." He noted that techniques for these voter surveys had been develo ped in marketing studies of consumer preference and shuddered at the thought of a future in which "Madison Avenue can sell votes as it sells cosmetics."

In truth, there was something inevitably high-minded about the "public law tradition." It looked at political institutions in terms of their official or publicly stated purposes, much as courts explain their decisions in terms of officially acceptable rationales. One of Cushman's best-known works, The Independent Regulatory Commissions, published in 1941, analyzed the commissions by examining the statutes which created them and the official congressional debates on these statutes. Cushman was n ot particularly interested in hidden motives or unintended consequences, let alone in statistical demonstrations. He was preoccupied with formal purposes and principles-with what the commissions were supposed to do.

This did not make men like Cushman or Berns into complacent celebrants of whatever happened to emerge from government. Cushman was a strong supporter of Franklin Roosevelt's New Deal policies and went to Washington in 1936 to serve with an advisory body on administrative reorganization (The President's Committee on Administrative Management). Cushman's contribution was a strong advocacy paper, famous (and quite controversial) in its day, which charged that independent commissions had become a "headless fourth branch of government" and urged that they be reorganized under closer presidential control. Characteristically, one of his main arguments was that this arrangement would be more in keeping with the logic of the constitutional plan bequeathed by the Framers. (The argument was revived by the Reagan Justice Department in the 1980s, with a similar mix of reformist ardor and constitutional piety.)

Walter Berns could similarly invoke the clear logic of earlier Supreme Court opinions to criticize the impulsive lurches or the trendy posturings of more recent decisions. Taking the Constitution Seriously-the title of a book he published in 1987-could well have been the subtitle for nearly all the courses he taught at Cornell.

To "take seriously" for Berns, as for Cushman, was to study the public justifications, to discern the relevant principles behind public measures. This made them very respectful of the legal, philosophic, and even the rhetorical traditions through which these principles were expressed. Cushman's textbook on American government, American National Government, first published in 1925, is filled with references to Blackstone and the Founders. But even the 5th edition of 1938 has no references to Mar x, Freud, or Weber or to any foreign countries other than England (and then only to the England of Magna Carta and the Glorious Revolution rather than of the Labour Party or the General Strike). On his retirement from teaching, Cushman served as the first editor-in-chief for the Documentary History of the Ratification of the Constitution-a project so ambitious and meticulous that it is still generating new volumes of documents thirty-five years (and three editors-in-chief) later.

No doubt, some important modern trends escaped the attention of these scholars. But they knew the public traditions of their own country in a depth that is rare today. They tried hard to impress students with the dignity and enduring force of these traditions.

The traditions of scholarship and teaching established by men like Cushman and Berns still find echoes in the Cornell Department of Government. The reminders of earlier traditions begin with our adherence to the old-fashioned name in preference to the now more common academic term, "political science." Leading Constitutional Decisions, the casebook for undergraduate instruction which Robert Cushman first published in 1925, continues to be used-in later editions, updated by Cushman's son-in Prof essor Lowi's introductory course in American government. Clinton Rossiter's edition of The Federalist continues to be assigned in many of our courses (with no apologies for its pre-scientific approach), though the Rossiter edition is now commonly replaced by a newer edition, edited by Cornell Professor Isaac Kramnick. Even in the study of international relations, the late Herbert Briggs emphasized (in over three decades of teaching in the department) the study of international law, and Cornell con tinues to be one of the few "political science" departments in the country to offer regular undergraduate instruction in the formal doctrines and leading cases in international law.

But Cushman and Berns were not just concerned to perpetuate older approaches in their teaching. They took their principles with utmost seriousness in all aspects of their professional careers. During World War II, when everyone was preoccupied with advancing the war effort, Robert Cushman repaired to the banner of civil liberty at home: he volunteered to serve on a government board responsible for determining which enemy aliens should rightfully be released from custody. In the spring of 1969, when the Cornell faculty voted to give in to the demands of gun-wielding students in Willard Straight Hall, Walter Berns immediately resigned from Cornell. (He taught at the University of Toronto for a decade thereafter and then at Georgetown University until his retirement last year.)

We have learned to be more flexible and accommodating of new perspectives. If we no longer take ourselves so seriously, we are not likely to be taken quite so seriously by todayÕs students. And we are most unlikely to leave such enduring impressions as those men did in those more serious times.

Jeremy Rabkin (government) is a Cornell graduate and the latest occupant of the Cushman-Berns line.