Aaron T. Knapp (Boston University – Department of History) has posted The Legal Counterrevolution: The Jurisprudence of Constitutional Reform in 1787 (UC Davis Law Review, Vol. 47, No. 5, 2014, Forthcoming) on SSRN. Here is the abstract:
Based on a paper given at the American Society for Legal History 2013 Annual Meeting, this article asks whether we can speak of a historically distinct constitutional “counterrevolution” taking place in 1787-88. It finds we can, but contends that neither economic interests, nor political ideology, nor general cultural trends in the decade after Independence, fundamentally impelled this counterrevolution’s leading figures. Rather, a counterrevolutionary jurisprudence did. At the heart of this jurisprudence lay a new set of attitudes about the relationship between law and coercion that, notwithstanding the enormous outpouring of scholarly commentary on the framing and ratification of the Constitution in the last century, has managed to escape the attention of legal scholars and constitutional historians alike. The attitudinal transformation among reformers proceeded in two nested intellectual shifts — the first discursive, the second positional — which together form the basis for what I shall call the legal counterrevolution of 1787. The article’s historical analysis of the American constitutional founding through the conceptual prism of what leading Federalists styled “the coercion of law,” exposes underappreciated original understandings of the Supremacy Clause, the scope of Article III jurisdiction, and judicial review under the Constitution.
Posted at 6:50 AM