1 - Criminal Law Out-of-Doors
Published online by Cambridge University Press: 05 June 2012
Summary
Constitutional scholars and social historians have uncovered two very different languages of law articulated by Revolutionary Americans. Constitutional scholars have engaged in an archeological task, recovering a literary discourse about constitutional issues dealing with patriot theories of rights, the relationship between England and the colonies, and the quest for a balanced government. This enterprise, of course, is related to their interest in the historical foundations of American Constitutionalism. On the other hand, historians have been concerned with a quite different legal language, one which seems hardly legal and, at times, hardly a language at all. In fact, historians have often portrayed the relationship of ordinary Americans in the Revolution as antinomian: launching extralegal attacks on British customs officials, engaging in riots and a broad array of civil disobedience meant to shunt aside official legal norms, not to engage with them.
These two approaches – one focused on a learned elite's articulated claims to higher constitutional authority, the other upon the common people's pragmatic extralegal actions – are portrayed as if, borrowing Disraeli's well-known metaphor, they were two trains traveling by parallel tracks that head in the same direction while never meeting. Such an understanding of these two legal languages, of course, is troubling. On one hand, the American Revolution is described as a sophisticated and somewhat rarified ideological transformation authored by bourgeois radicals, and awaiting its apotheosis nearly two decades later in the Constitutional Convention in Philadelphia.
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- Law's Imagined RepublicPopular Politics and Criminal Justice in Revolutionary America, pp. 14 - 55Publisher: Cambridge University PressPrint publication year: 2010