The current issue of the UC Davis Law Review has two articles from the 2013 Annual Meeting of the American Society for Legal History's session “Law and Counterrevolution: Charles Beard and the Origins of American Constitutionalism”:
(1) Aaron Knapp (Boston University), The Legal Counterrevolution: The Jurisprudence of Constitutional Reform in 1787 (47 UC Davis L. Rev. 1859 (2014)). From the introduction:
Did the Federalists wage a counterrevolution in 1787? Although its popularity in the legal academy has waned in recent decades, the idea that the movement for constitutional reform in 1787 had counterrevolutionary dimensions dates straight back to the Antifederalists, who often accused their counterparts of betraying the spirit of ’76’s republican promise. In the constitutional historiography, scholars trace the idea to Charles Beard’s An Economic Interpretation of the Constitution of the United States, wherein Beard depicted the nation’s constitutional founding as an economic counterrevolution waged by and on behalf of protocapitalist creditors and public securities holders. Beard’s critics over the years have challenged him either by purporting to show that the Federalists in fact sought to secure the Revolution’s gains, or by discrediting An Economic Interpretation’s evidentiary basis. The former approach too often confuses rhetoric for reality, while the latter sidesteps the question of whether some kind of alternative, non-economic revolt against the revolutionary heritage occurred in 1787. Those historians who take the position that a counterrevolution did take place in 1787 have either cleaved to Beard’s materialism and thereby committed the same reductionist sins; or, to the other extreme, so far enlarged the concept of a counterrevolution as to place within its historical ambit virtually every post-Revolutionary American who at one time or another preferred order to liberty, or who opposed equal rights for women or blacks.
(2) Gerald Leonard (Boston University School of Law), Fletcher v. Peck and Constitutional Development in the Early United States (47 UC Davis L. Rev. 1843 (2014)). From the introduction:
One hundred years after Charles Beard’s An Economic Interpretation of the Constitution of the United States, few scholars attend actively to that book or its specific claims. Yet it has become conventional wisdom that the movement for a new Constitution in 1787 was no democratic movement but a conservative effort to rein in the allegedly reckless policy impulses of the state governments. Power would be transferred substantially to the center, where an elite might better control the direction of policy. This conservative movement had important, Beardian economic dimensions, particularly its determination to secure the rights of the propertied against the supposed desires of the unpropertied to redistribute wealth. But closely allied to this economic conservatism was necessarily a legal conservatism, perhaps even a legal counterrevolution, as Aaron Knapp’s essay for this Symposium argues. The Contracts Clause of the new Constitution was only the most explicit protection in the document for traditional rights of property and contract as against the state governments’ demonstrated readiness to interfere with contract performance and debt collection. The triumph of the Framers of 1787, then, appears to some an abiding victory for a fundamentally conservative structure of American law and a major defeat for serious advocates of equality and democracy.
Also, at Liberty Law Blog, Herman Belz (Univ. of Maryland — History) surveys two recent symposia on Beard's An Economic Interpretation of the Constitution of the United States — one held at the University of Virginia School of Law (published in the Summer 2014 issue of Constitutional Commentary and one in the Fall 2013 issue of American Political Thought.
Posted at 6:52 AM