The Irrelevance of Blackstone: Rethinking the Eighteenth-Century Importance of the Commentaries

Abstract

This Note challenges William Blackstone's modern position as the "oracle of the law" in the eighteenth century. In a time when the status of legal doctrines at the Founding is of renewed significance in interpreting the Constitution, it is especially important to ensure that the sources of these doctrines comport with historical practices. This Note looks beyond the usual story of Blackstone's influence, as told by the significant circulation of his work. It turns instead to the work's practical significance for legal education in the decades preceding the Constitutional Convention. By using curricula and student notes-referred to as commonplace books-to discover what was actually considered influential in the legal profession of the period, a more comprehensive perspective of eighteenth-century legal thought is uncovered While Blackstone was apparently known to these late colonists, his work was far from "the most widely read law book in eighteenth-century America. " Instead, more traditional treatises and English reporters dominated legal learning until at least 1787. It is these admittedly more impenetrable works which should inform our understanding of the common law as it existed at the Founding.

Keywords: Blackstone, Founding, Originalism, Heller, Legal History