Friday, February 21, 2014

Knapp on the Legal Counterrevolution of 1787

Aaron T. Knapp, a JD who is ABD in Boston University’s Department of History, has posted The Legal Counterrevolution: The Jurisprudence of Constitutional Reform in 1787.  It is forthcoming in the UC Davis Law Review 47 (2014).  Here is the abstract:    
This article asks whether a historically distinct constitutional “counterrevolution” took place in 1787-88. It concludes one did, 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 constellation 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 gone unappreciated by legal scholars and constitutional historians alike. The attitudinal transformation vis-à-vis coercion 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 prism of what leading Federalists styled “the coercion of law” exposes overlooked original understandings of the Supremacy Clause, the scope of Article III jurisdiction, and judicial review under the Constitution.