Colonial Constitutionalism and Constitutional Law

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

38 Pages Posted: 24 Sep 2008 Last revised: 3 May 2009

Mary Sarah Bilder

Boston College - Law School

Date Written: September 23, 2008

Abstract

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.

Keywords: constitutionalism, early american legal history, colonial constitutional law

Suggested Citation

Bilder, Mary Sarah, Colonial Constitutionalism and Constitutional Law (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. Available at SSRN: https://ssrn.com/abstract=1272038

Mary Sarah Bilder (Contact Author)

Boston College - Law School ( email )

885 Centre Street
Newton, MA 02459-1163
United States
617-552-0648 (Phone)
617-552-2615 (Fax)

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