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The Constitution in the Glass Case and Constitutions in Action

Published online by Cambridge University Press:  28 October 2011

Daniel J. Hulsebosch
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Extract

Bruce Mann's irreverent schoolmate would have made a good historian. Unlike the hapless docent, the student (whatever his intent) grasped that a word's various meanings, now divided, might once have been united. The word constitution, for example, was born in obfuscation—and this ambiguity enabled it to become a powerful analytical tool in the early modern period. In fact, the political meaning of constitution derived from the word's physiological connotation, which is why the latter appears first in Professor Mann's dictionary.

Type
Forum: Response
Information
Law and History Review , Volume 16 , Issue 2 , Summer 1998 , pp. 397 - 401
Copyright
Copyright © the American Society for Legal History, Inc. 1998

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References

1. Stourzh, Gerald, “Constitution: Changing Meanings of the Term from the Early Seventeenth Century to the Late Eighteenth Century,” in Conceptual Change and the Constitution, ed. Ball, Terence and Pocock, J. G. A. (Lawrence, Kansas, 1988), 43–44Google Scholar; McIlwain, Charles H., “Some Illustrations of the Influence of Unchanged Names for Changing Institutions,” in Interpretations of Modern Legal Philosophies: Essays in Honor of Roscoe Pound, ed. Sayre, P. (New York, 1947). 489–90.Google Scholar A more abstract genealogy of the term, tracing it to Aristotle's Politics, appears in McIlwain, Charles H., Constitutionalism: Ancient and Modern, rev. ed. (Ithaca, 1947), 25–40Google Scholar; Maddox, Graham, “Constitution,” in Political Innovation and Conceptual Change, ed. Ball, Terence, Farr, James, and Hanson, Russell L. (New York, 1989), 50–67.Google Scholar But this argument depends on modern translations that presume the answer to the question of whether Aristotle had constitutions in mind when he described the three forms of government. Stourzh, “Constitution,” 35-38. Some rhetoricians (as opposed to jurists) in ancient Rome used constitutio in a political sense, but this also seems not to have been the source of the early broad English usage.

2. Forset, Edward, A Comparative Discourse of the Bodies Natural and Politique (London, 1606), 78.Google Scholar The figure of the body politic originated in ancient Greece and became a medieval commonplace. See Vinogradoff, Paul, Outlines of Historical Jurisprudence (New York, 1922), 2:12Google Scholar; Kantorowicz, Ernst H., The King's Two Bodies: A Study in Mediaeval Political Theology (Princeton, 1957)Google Scholar. Gerald Stourzh argues similarly (“Constitution,” 38-43).

3. [William Smith Jr.,] “A Brief Consideration of NEW-YORK, with Respect to Its Natural Advantages…”; [William Livingston,] “A Discant on the Origin, Nature, Use and Abuse of Civil Government,” in The Independent Reflector, ed. Klein, Milton (Cambridge, Mass., 1964), 107, 285, 288Google Scholar; Cooke, Jacob E., ed., The Federalist Papers (Middletown, Conn., 1961), 243.Google Scholar Madison studied the Reflector essays at the College of New Jersey. James Madison to Theodore Sedgwick Jr., 12 Feb. 1831, in Letters and Other Writings of James Madison (Philadelphia, 1865), 4:163.Google Scholar These themes are developed in the first chapter of my dissertation, “Constituting Empire: Constitutional Ideas and Practices in New York, 1664–1825” (Ph.D. diss., Harvard University, forthcoming).

4. Colley, Linda, Britons: Forging the Nation, 1707–1837 (New Haven, 1992).Google Scholar

5. Among early modern English speakers, political community could only exist in law. See, e.g., Reid, John P., The Constitutional History of the American Revolution, 4 vols. (Madison, 1986–1993).Google Scholar

6. Desan, , “Remaking Constitutional Tradition at the Margin of the Empire,” Law and History Review 16 (1998): 259CrossRefGoogle Scholar, n. 3.

7. Cf. Llewellyn, Karl, “The Constitution as an Institution,” Columbia Law Review 34 (1934): 1–40CrossRefGoogle Scholar; Hartog, Hendrik, “The Constitution of Aspiration and ‘The Rights That Belong to Us All,’” in The Constitution and American Life, ed. Thelen, David (Ithaca, 1988), 353–74Google Scholar; Gordon, Robert W., “Critical Legal Histories,” Stanford Law Review 36 (1984): 57–125.CrossRefGoogle Scholar

8. See, e.g., Schechter, Frank I., “Popular Law and Common Law in Medieval England,” Columbia Law Review 28 (1928): 269–99CrossRefGoogle Scholar; Mcllwain, Constitutionalism: Ancient and Modem, 60-61.

9. Hulsebosch, “The Federalist Prism: Creating Constitutional Law in New York,” unpublished conference paper, American Society for Legal History, Minneapolis, October 1997.

10. Hulsebosch, , “Imperia in Imperio,” Law and History Review 16 (1998): 365–66.CrossRefGoogle Scholar

11. Thomas Jefferson, “Draft Instructions to the Virginia Delegates in the Continental Congress (MS Text of A Summary View, &c.),” [July 1774,] and Virginia Convention, “Instructions by the Virginia Convention to Their Delegates in Congress,” August 1774, The Papers of Thomas Jefferson, ed. Boyd, Julian P. (Princeton, 1950), 1: 121-37, 141–44.Google Scholar The right of emigration was part of some continental natural law theories but not the common law. Reid, John P., The Constitutional History of the American Revolution: The Authority of Rights (Madison, 1986), 82-86, 119–20.Google Scholar

12. Bakhtin, M. M., The Dialogic Imagination: Four Essays, trans. Emerson, Caryl and Holquist, Michael (Austin, Texas, 1981).Google Scholar

13. Bruce H. Mann, review of Women and the Law of Property in Early America, by Salmon, Marylynn, Law and History Review 5 (1987): 297.Google Scholar