Monday, March 30, 2009

Dale on Popular Sovereignty in the Antebellum Era

Popular Sovereignty: A Case Study from the Antebellum Era is a new paper by Elizabeth Dale, University of Florida Levin College of Law. Here's the abstract:
In this article I unpack a murder trial from Pennsylvania in 1843, using it to explore how people in the first half of the nineteenth century could and did lay claim to the right to be sovereign by asserting the right to take the law into their own hands. The possibility that the people asserted sovereign power in the first half of the nineteenth century runs counter to the standard constitutional history of the United States. According to that narrative, the people, having delegated their sovereign power to their governments with the ratification of the Constitution, became observers, not participants in the constitutional order. They would not return to active participation in that order until the rights talk revolution of the late nineteenth and early twentieth centuries gave them a means of challenging and limiting the power of the state. And even then, their sovereignty only gave them a check, a right of reaction that fell short of taking actual control of the law. But this study follows a handful of recent works that have begun to reclaim the peoples constitutional role in that earlier period. To do so this article looks at both social practices and ideas, and considers the specific problem of how people exercised their constitutional power over the common law.