STUDYING THE CAREERS OF KNOWLEDGE CLAIMS 229❖❖❖What is it in competing knowledge claims that renders them more or less
institutionally “credible” at any particular historical juncture? By drawing
from science studies, we can map trajectories of credibility that attach to
knowledge claims in the world of academic law. We can see how institutional
pressures and forces work to privilege certain knowledge claims over others.
—Pamela Brandwein (2000, 11)It is comforting to think that the success or failure of a knowledge claim in the academic world is
a result of its intrinsic merit or lack thereof. Contestable, if not dubious, knowledge claims, how-
ever, have gained institutional victories and maintained their dominance for extended periods.
Consider, for example, a famous scholarly dispute between two law professors, Charles Fairman
(1949) and William Crosskey (1954). Fairman and Crosskey debated the history of the Fourteenth
Amendment, specifically whether its privileges or immunities clause^1 originally applied the Bill
of Rights to the states. Law professors often refer to this debate as the incorporation debate, as in:
Did the Fourteenth Amendment (1868) originally incorporate the Bill of Rights, that is, apply it to
the states? The Bill of Rights was part of the original Constitution, and the Supreme Court had
said in 1833 that it applied only to the federal government.^2
Fairman argued that the Fourteenth Amendment did not originally apply the Bill of Rights to
the states, and his nonincorporation thesis buttressed the view of the Supreme Court, which had
taken a nonincorporation position in the 1870s.^3 Crosskey argued against Fairman, asserting that
the Amendment did in fact incorporate the Bill of Rights. At the time, Fairman won this debate
easily and his account enjoyed wide success. His article became an instant source of authority on
the Fourteenth Amendment for those who followed, including legal scholar Alexander Bickel.
Bickel was clerk and protégé to Justice Felix Frankfurter, who himself had asserted a nonincorpor-
ation position in Adamson v. California (1947). In a well-known article, Bickel (1955, 5) cited
Fairman’s article and gave this simple comment: “Fairman demonstrated that the argument [for
incorporation] was based on a misreading.” For Bickel, this was enough. The matter was closed
(for now).
Fairman’s institutional “win” was not a product of the intrinsic merit of his account. The
documentary evidence did not demand Fairman’s victory. In fact, there was a closer fit between
Crosskey’s history and the historical evidence. Fairman’s account contained significant anachro-
nisms, which Crosskey had escaped. Only recently, though, has Crosskey’s history begun to gain
acceptance (Amar 1992; Aynes 1993; Curtis 1986).
How can we explain the initial success of Fairman’s account? What explains the recent up-
swing in the trajectory of credibility that attaches to Crosskey’s account? In short, how can we
investigate the “careers” of these competing knowledge claims?
This chapter outlines a set of techniques for investigating the careers of competing knowledge
claims—that is, the processes by which some knowledge claims come to “win” institutionally,
while others fail to do so. The problem of meaning is central here, for we are dealing with dueling
interpretations of word-based data, for example, the Reconstruction debates,^4 political speeches,^5
judicial correspondence,^6 and Supreme Court decisions themselves.^7 Since there is no neutral
standpoint for determining the meanings of these historical texts, they become contested ground.
Scholarly constructions of meaning and the careers of these meanings become open to sociohistorical
analysis. It is one of the more difficult tasks of social science to connect the study of meaning