Thursday, September 25, 2008
Bilder on Colonial Constitutionalism and Constitutional Law
Posted by Mary L. Dudziak
Colonial Constitutionalism and Constitutional Law is a new essay by Mary Sarah Bilder, Boston College Law School. It will appear in THE TRANSFORMATION IN AMERICAN LEGAL HISTORY: ESSAYS IN HONOR OF MORTON J. HORWITZ, Alfred L. Brophy, Daniel W. Hamilton, eds., Harvard University Press, 2008. Papers in this collection are being discussed at A Conference in Honor of Professor Morton Horwitz over the next two days, September 26 and 27, at Harvard Law School. Here's Bilder's abstract: This essay reconsiders the transformation of colonial constitutionalism to Constitutional Law. The transformation of constitutional law does not map neatly onto the 1776 - 90 period. This essay argues that the transformation was less the result of the admittedly important invention of a written constitution than of three less apparent transformations. A first essential transformation in constitutionalism occurred long before 1776 when seventeenth-century colonists created a new conception of the written and published charter as the location of authority and liberties. A second essential transformation occurred only after 1790 when appeals in judicial cases began to be publicly reported in print, thereby creating a stable and analyzable body of law. A third essential transformation occurred in 1787 - but with implications not immediately appreciated. Privy Council review of colonial legislation ended and no similar review took its place, thus leaving the judiciary the sole arbiter of constitutional law. These three transformations created modern American constitutionalism - a law two centuries in the making.