This chapter discusses the early modern transformation of the law. By the end of the eighteenth century, the law of ownership was firmly centered on land and the conception of the state was becoming firmly territorial, while the nineteenth century witnessed the abolition of the lawful private ownership of human beings. The chapter traces the rise of an early modern conception of property, which held that acquisition was primarily acquisition of land, and that it was established through cultivation rather than mere occupation. It shows how the venerable law of use rights found a home under a new doctrinal rubric, eminent domain, and discusses the transformation of the ancient law of enslavement through war. The chapter draws on the work of historians of the state who study the rise of a territorial understanding of sovereignty. It emphasizes the long legal history behind the disappearance of lawful private enslavement.

This chapter discusses the early modern transformation of the law. By the end of the eighteenth century, the law of ownership was firmly centered on land and the conception of the state was becoming firmly territorial, while the nineteenth century witnessed the abolition of the lawful private ownership of human beings. The chapter traces the rise of an early modern conception of property, which held that acquisition was primarily acquisition of land, and that it was established through cultivation rather than mere occupation. It shows how the venerable law of use rights found a home under a new doctrinal rubric, eminent domain, and discusses the transformation of the ancient law of enslavement through war. The chapter draws on the work of historians of the state who study the rise of a territorial understanding of sovereignty. It emphasizes the long legal history behind the disappearance of lawful private enslavement.

This chapter ties together all the threads of the book to construct a general Acceptance Test for fictions. I begin by discussing the nature of the desired Acceptance Test in terms of the width of the discretion it should contain, and of the fundamental policy it should reflect. I then discuss the motives for fictions, concluding that the Acceptance Test should not take motive into account. There follows an analysis of previous findings as to specific fictions, in light of the Effect and Nature Classifications. The Classifications are used to separate desirable from undesirable fictions. The roles of justice and conservatism are considered. I argue that existing fictions should be treated more leniently than new fictions. This distinction finds expression in two sub-tests of the Acceptance Test: the Retention Test and Creation Test. Finally, the Acceptance Test is presented as the combination of the Retention Test and Creation Test in one flowchart.

Please consult the relevant document. I had problems inputting the abstracts to the sheet.

Chapter 2 introduces selections from Aristotle, Polybius, William Blackstone, and Edmund Burke, and lays out the basic tenets of classical republicanism. By focusing on the “res-publica”, the common good, republicanism embraces a corporatist and organic vision of both the people and the state. The political community is envisioned as a human body, suggesting that the body politic grows naturally; each organ or member contributes a different task and the health of the whole depends on the well-being of each member. Moreover, republican theorists suggest the need to adapt political institutions to the character and changing circumstances of the people. Selections from Aristotle focus on the organic origin of the political community and on the mixed regime. Polybius introduces the idea of checks-and-balances and the importance of religious beliefs for the stability of the political order. Blackstone and Burke tried to accommodate some of the new liberal ideas in their theoretical framework, attempting to reconcile theoretically opposed visions—an approach that would prove particularly popular during the American founding.

The jurisprudential tradition that created the original methods that were in effect at the time of the Constitution provides the foundation for an interpretive approach for applying the Constitution’s fixed text to changing circumstances. Across the centuries, even commentators with strong preferences for following the lawmaker’s original meaning have recognized that there are legitimate times for judges to adapt an old law to fit new circumstances. In light of that history, this chapter describes a principled approach to adapting laws to changing circumstances that has its foundation in Edward Coke and William Blackstone, and was developed over the centuries in the UK courts.

To determine the “will of the legislator,” William Blackstone pointed to “signs” of those intentions, the first of which is the words understood in their usual sense. This chapter will show the degree to which the words, even in context, have the potential to leave many important constitutional issues unresolved, hence the need for other evidence of the will of the lawmaker. In particular, this chapter will show that the “summing problem,” which has most often been associated with the difficulty of determining a single intention of the Framers, is matched by its semantic equivalent: the fact that the evidence of objective public meaning can lead to multiple potential meanings. To describe the problem, the chapter analyzes two clauses that have generated a great deal of litigation and interpretive controversy – the tax clauses and the Establishment Clause. In each case, there are multiple equally strong candidates for the objective public meanings of the words.

Chapter 4 explores the legal position of women through William Blackstone’s pronouncements on the law of coverture. The chapter considers the dissemination of ideas about women’s legal disabilities in marriage through popular literature, educational material and handbooks for magistrates. It concludes that, by the end of the eighteenth century, coverture was far more important for poor women (and men), interpellated by the laws of settlement and removal, than it was for elite women.

Unlike modern originalists, Justice Joseph Story (1779–1845) endorsed the maxim that “Christianity is a part of the common law,” and he seems thus to have considered Christianity deeply entangled with the Constitution. A Harvard graduate and Massachusetts Unitarian, he did not consider the Constitution bound to any specific Christian orthodoxy. Rather, by the Revolution, American Christianity itself had become tolerant of differences in doctrine and worship, while sharing an understanding of moral duty, embodied in the common law. Thus he could at once subscribe to the proposition that Christianity is a part of the common law and decide religion cases so as to uphold the separation of church and state, protecting church property from state interference, and protecting a municipally-run school from clerical influence. On the issue of slavery, his commitments to a living faith and to a settled Constitution collided, calling into question the Christian constitutionalism to which he devoted his professional life.