STUDYING THE CAREERS OF KNOWLEDGE CLAIMS 237for seventy years, raised fundamental questions about Court legitimacy. Crosskey and the recent
scholarly movement legal realism had stirred up insecurities about the nature of legal reasoning
that Fairman’s history assuaged. Fairman’s history also affirmed the tradition of state authority
over personal rights, a tradition that was coming under threat from a New Deal Court that was
expanding federal control over rights.
In his 1949 article, then, Fairman was able to “act at a distance,” a phrase used by Woolgar
(1988, 78–79) to capture the dynamic whereby researchers can successfully claim that their rep-
resentations of their data have not been affected by the relocation of that data from their point of
origin (i.e., in this case, that their representations are not anachronistic). If a researcher can claim
successfully that he has not distorted the character of his data from what existed prior to his
research crafting, that researcher can be said to have “acted at a distance.” Fairman’s ability to act
at a distance was linked to his ability to mobilize fears and beliefs that were deeply institutional-
ized. He became the trusted teller of the tale, perceived as standing apart from the character of the
documentary evidence.
What is the significance of Fairman’s victory? For one thing, it meant that credible Fourteenth
Amendment history became linked to political distributions that disadvantaged blacks. Fairman’s
victory did not prevent the emergence of the Warren Court majority, whose antisubordination
decisions alleviated the second-class citizenship of blacks. However, Fairman’s victory enabled
critics of the Warren Court to gain credibility for their charge that the Court’s decisions were the
product of “politics, not law” (Bork 1990). Fairman’s victory gave critics of the Warren Court a
weapon that they would wield once the Court membership had turned over.^26
Crosskey’s history, although superior to Fairman’s in its faithfulness to the historical evi-
dence, must still be understood as an institutional product. Crosskey accepted the structure of
originalist inquiry, which limited his ways of seeing. More specifically, Crosskey accepted the
normative position that departing from original intent was improper. He therefore maligned the
Court for its nonincorporation position in the Slaughter-House Cases (1873; see note 3, this
chapter). In doing this, Crosskey obscured alternative normative evaluations of the Court’s
nonincorporation thesis.
A full investigation of the competition between Fairman and Crosskey requires that this alter-
native evaluation be laid out, for it highlights the boundaries of interpretation established by
Crosskey’s frame. This alternative view considers whether it would have been foolish for the
Court to be “true” to the Republican intent to incorporate the Bill of Rights. In 1873, economi-
cally conservative justices were gaining strength and searching for a way to defeat state regula-
tions of business. If the Court acknowledged incorporation and broadly expanded national power,
this might have given the conservatives the weapon they sought. This would have been a perverse
result. The dichotomous categories of originalism (fidelity: good/betrayal: bad) cannot capture
this predicament. In fact, the normative structure of originalist inquiry obscures it. By laying out
a picture of these rapidly changing politics, an alternative view of the Court comes into focus.
Although Crosskey’s originalist framework led him to represent the Court as embracing conser-
vatism, laying out a picture of these politics leads us to see the Court as thwarting conservatism.^27
The key point, then, is that although Crosskey escaped certain anachronisms, his account re-
mained structured by a legal problematic (originalism) that limited his ways of seeing. This prob-
lematic led him away from considerations of the rapidly changing politics of the early 1870s,
which blinded him to a more sympathetic appraisal of the Court. Thus, Crosskey’s account, too,
can be understood as institutionally constituted.
In sum, the initial success of Fairman’s nonincorporation history can be explained by his
institutional positioning. In the world of academic law at the time, Harvard ties carried enormous