Colonial Constitutionalism and Constitutional Law
Mary Sarah Bilder
Boston College - Law School
September 23, 2008
TRANSFORMATIONS IN AMERICAN LEGAL HISTORY: ESSAYS IN HONOR OF MORTON J. HORWITZ, Alfred L. Brophy and Daniel W. Hamilton, eds., Harvard University Press, 2009
Boston College Law School Legal Studies Research Paper No. 164
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.
Number of Pages in PDF File: 38
Keywords: constitutionalism, early american legal history, colonial constitutional lawAccepted Paper Series
Date posted: September 24, 2008 ; Last revised: May 3, 2009
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