Tom Paine's Constitution

50 Pages Posted: 12 Jan 2011

See all articles by Robin L. West

Robin L. West

Georgetown University Law Center

Date Written: January 11, 2011


In Common Sense, our brief for the American Revolution, the pamphleteer Tom Paine famously declared that "in America the law is king." What, precisely, is the "law" that Paine declared to have dethroned the king? Does the phrase, penned by the advocate not only of our revolution but also of the rights of man everywhere, presage our modern practice of rights-based constitutionalism? This reading – in America, constitutional law is king – might also make Paine an early friend of judicial review, as he was unquestionably also a friend of United States constitutionalism, both federal and state. Paine’s manifesto can thus be read as having foreseen the unfolding of our modern court-centered constitutional consciousness. This Article argues that this is an attractive but untenable reading of Paine’s philosophy and offers evidence that Paine’s conception of the Constitution and law itself diverge crucially from dominant understandings. The Article then asks how modern constitutional practices might be different if Justice Marshall had enforced Paine’s conception of the Constitution in Marbury and McCulloch, and concludes with some thoughts on what we have lost by turning away from Paine’s constitutional vision.

Keywords: Paine, Thomas, 1737-1809, political science, constitutional law

JEL Classification: K''08 K1''8 K19

Suggested Citation

West, Robin L., Tom Paine's Constitution (January 11, 2011). Virginia Law Review, Vol. 89, 2003, Georgetown Public Law Research Paper No. 11-07, Available at SSRN:

Robin L. West (Contact Author)

Georgetown University Law Center ( email )

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Washington, DC 20001
United States

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