The Importance of Exploring the Colonial Origins of the United States Constitution

Scott Douglas Gerber*

I typically approach the seminar I teach in American Legal History as a prequel to the courses I teach in American Constitutional Law.  I tell my students that we can’t truly understand the Constitution until we grapple with the colonial period that preceded it.  Roscoe Pound, the legendary dean of Harvard Law School during the early twentieth century, almost certainly would disagree with my pedagogy.  After all, he famously dismissed American colonial law as useless antiquarianism.

 Pound was not alone in this view.  For example, J. Willard Hurst, whom the New York Times referred to as the “dean of American legal historians” in a 1997 obituary, had argued strongly against studying the colonial period, while Perry Miller, the leading intellectual historian of the colonial period, began with the American Revolution when he turned his attention to law in the early 1960s, just prior to his premature death.

All of these legendary scholars—there were others as well—were incorrect.  And I suspect they knew it.  Indeed, their aversion to studying the colonial period likely flowed from the difficulty scholars had in the past accessing colonial records.  To mention but the most famous illustration of this fact, when Richard B. Morris published his survey of American colonial law, Studies in the History of American Law:  With Special Reference to the Seventeenth and Eighteenth Centuries, in 1930 he was condemned for doing so because the materials necessary to write such a book were not available.  As Theodore F. T. Plucknett put it in a review of Morris’s book for the New England Quarterly:  “Not until we have a series of state histories by authors solidly grounded in English legal history and in their own state archives, and treating the history of every state with minute accuracy and exhaustiveness, can any attempt be fruitfully made to write American history as a whole.”

The materials necessary to write American colonial legal history are now available.  Law librarians Michael Chiorazzi and Marguerite Most edited, in 2005, a two-volume set of bibliographic essays on the pre-statehood legal materials of all fifty states, including, of course, the original thirteen.  It is difficult to overstate the value of Chiorazzi and Most’s reference collection—a collection that details the much-improved accessibility of primary source materials (some of which are now available via the internet), in addition to leading secondary works.

Legal historians at various stages of their careers are currently taking advantage of this explosion of data:  Mary Sarah Bilder, Philip Hamburger, Daniel J. Hulsebosch, and William E. Nelson, among others.  With respect to my own work, suffice it to say that it would have been impossible for me to write my Oxford University Press book about the origins of judicial independence in America until fairly recently.  And to end where I started, I detail in that book that we can’t truly understand the Constitution—in my case, Article III—without exploring the colonial practices that preceded it.  Much work remains to be done in terms of appreciating the colonial origins of the nation’s fundamental law.  I, for one, look forward to what scholars have to teach us about it.

*Scott Douglas Gerber is a law professor at Ohio Northern University.  His eight books include, most recently, A Distinct Judicial Power:  The Origins of an Independent Judiciary, 1606-1787 (Oxford University Press, 2011).

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