an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Creation of the American Republic, Forty Years On
This year was the fortieth anniversary of the publication of Gordon Wood’s The Creation of the American Republic. I didn’t want the year to give out without saying something about the importance for legal scholars of this extraordinary work. Wood’s book was of course seminal for historians of the early republic, but it had particular significance for legal scholars. It provided a panoramic perspective on the evolution of political ideas in America from the 1776 Revolution to the Philadelphia Convention. Wood showed the sheer density of American political thought and was able to transmit an uncommon sense of intellectual and ideological compression as he demonstrated how fundamental ideas were worked and re-worked within a short span of time.
To read the book was to be plunged into a world and, for most legal scholars at least, not a very familiar one. The role of liberalism in the formation of the American political order was eclipsed by republicanism. By now, the outlines of republicanism are familiar. But despite earlier works by Bernard Bailyn and others that showed the importance of republican ideas to the Revolution, legal scholars did not have what they really needed – an account that bridged the distance between the Revolution and early efforts at state constitutions and the troubled politics of the Confederation period. Pre-Wood, legal scholars thought about revolutionary America in terms of Lockean liberalism, the Declaration of Independence and the social contract. Post-Wood they realized that these ideas, however powerful, could not account for the range of political and institutional problems and choices the founding generation was confronted with in the making and remaking of their political order in the 1780s.
At the same time, it helped that Wood focused much of his attention on ideas about law and the making of constitutions. Many of the works available to legal scholars forty years ago discussed political ideas in terms of Enlightenment abstractions. Wood showed how abstract ideas were concretely applied and remade. He demonstrated how ideas like popular sovereignty were implemented through the practical remaking of the idea of a “convention” of the people. He noticed the relevance of the “people out of doors” (a point picked up by Larry Kramer in his book on judicial review).
There were several specific aspects of Wood’s discussion that were enormously important for later legal scholarship. Indeed, their importance had not fully played out in the law reviews even twenty years after the book was published. First, Wood provided an account, stunning in its implications, of how Americans had become frustrated and distrustful of state legislatures, the bodies of government which should have represented them most effectively. This created the further problem, which Wood traced in detail, of how legislatures should be supplemented in a government that embodied a meaningful separation of powers. The founding generation had to find its way to reconceiving executive and judicial power. To legal scholars, continually searching for a sound justification for judicial review, the latter project was of special importance. Further, the book provided new insights into the nature of federalism and the rationale behind the 1787 Convention. Wood highlighted how some of the founders were frustrated not only with the powers of the central government under the Articles of Confederation, but with the chaotic legislative process in the states. This was a revelation for legal scholars and suggested a powerful rationale for a more effective national government. Finally, in the area of rights, Wood provided critical evidence of the persistence of ideas of natural law and natural right, even as constitutions gave rights an existence in positive law. Arguably, Wood’s nuanced discussion of the ambiguities of creating fundamental rights was somewhat ignored in later legal scholarship, which tended to choose either the side of natural rights or positive law in tracing how the Bill of Rights should be implemented by the judiciary.
Here is one of my favorite passages from the book. Wood is speaking of Antifederalist criticism of the new Constitution: “The Constitution presented no simple choice between accepting or rejecting the principles of 1776. During the intervening years, in newspapers, pamphlets, town meetings, and legislative debates, the political assumptions of 1776 had been extended, molded, and perverted in ways that no one had clearly anticipated. Under the severest kinds of political and polemical pressures old words had assumed new meanings, and old institutions had taken on new significance.” It is to Wood’s enormous credit that this was no mere conclusion, but rather what his entire book demonstrated in concrete terms. I look forward to reading Wood’s latest contribution to scholarship in the Oxford History of the United States series.