Discussion and debate over the nature of federalism is one of the staples of American public discourse. Among historians and lawyers, politicians and judges this constant has remained. It is only the context of the discourse which has changed over time. Given the unusual framework of union provided by the Constitution it is hardly surprising that debate over its nature should continue for concepts of constitutionalism, federalism and law in American culture have melded into an alloy from which it is often impossible to determine which is the baser metal. Continuing inquiry over the proper balance between state and national authority and over the proper reach of federal jurisdiction has prompted as many scholarly endeavors as ever the quest for the Holy Grail led brave knights to their adventures. The endless searches among scholars, lawyers and jurists for ‘the original understanding’ of ‘the Framers’ has been an active industry for generations, seldom more so than in our own time. This is itself a striking cultural fact, and like the quest for the Grail, the center around which a huge corpus of legend, romance, learned scholarship and wishful thinking revolves.

Exhortations to maintain a reasonable balance between crimes and punishments, condemnations of excessive penal severity and pleas for a reduction in the number of crimes for which death was the penalty do not originate in the eighteenth century. Reform of the criminal law had been an unattained goal of both Puritans and Levellers during the Commonwealth period. Reform efforts ironically paralleled the immense increase of new statutory felonies in eighteenth century England and throughout the western world a simultaneity of attention was paid to reformulating the nature and purpose of punishment. A vigorous reformist sentiment can be observed among enlightened men in Europe and America regarding the necessity of an amelioration in the criminal codes of their nations and central to much of this was the principle of proportionality, that every penalty be proportioned to the offense. In the American colonies, the initiation of rebellion presented an unparalleled opportunity for change.