1 The quoted phrase in this title is a historiographical term of art drawn from a modern classic, first published in 1957, that has recently been reissued in a volume including a substantial supplementary essay by the author: J. G. A. Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century–A Reissue wirh a Retrospect (Cambridge: Cambridge University Press, 1987) (“Pocock, Ancient Constitution and Feudal Law”).Google Scholar

2 The prize-winning historian was Charles Howard McIlwain; and the prize-winning book is The American Revolution: A Costitutional Interpretation (New York: Macmillan Company, 1923). As Dean Black has pointed out, reinforcement came from the likes of no less than Andrew C. McLaughlin and Randolph G. Adams. The resistance came from forces then equally redoubtable, e.g., Robert Livingston Schuyler and Julius Goebel. See Black, Barbara A., The Constitution of Empire: The Case for the Colonists, 124 U. Pa. L. Rev. 1157, 1158ff. (1976). But see Reid, Constitutional History of the American Revolution: Vol. 2, The Authority to Tax 7 (Madison: University of Wisconsin Press, 1987) (“Reid, Tax”): “Although Charles Howard McIlwain has written an invaluable preliminary study, the truth is that we have only begun to investigate [the “constitutional and legal ideology” of the American Revolution]…. [T]he book by Robert Livingston Schuyler was based on a constitutional theory that would have been nonsuited in any court of law.” For a recent comprehensive–and judicious–reconsideration of McIlwain's enduring contribution to understanding the origins and development of American constitutionalism, see Stanley N. Katz, The American Constitution: A Revolutionary Interpretation, in Richard Beeman et al., eds., Beyond Confederation: Origins of the Constitution and American National Identity 23-37 (Chapel Hill: University of North Carolina Press, 1987) (“Katz, The American Constitution”). Unfortunately, the two books under review here were not published in time for Professor Katz to take account of them in his discussion.CrossRefGoogle Scholar

3 The term “whig” pieties may–indeed, should–raise questions about the meaning intended. The word whig alone (not to mention the variants neo-whig, Whig, Whiggish, etc.) admits of a variety of meanings that even the most searching explication does not pretend to exhaust, viz., that by Professor Pocock: The Varieties of Whiggism from Exclusion to Reform: A History of Ideology and Discourse, in J. G. A. Pocock, Virtue, Commerce, and History: Essays on Political Thought and History, Chiefly in the Eighteenth Century 215-310 (Cambridge: Cambridge University Press, 1985). Nevertheless, the meaning of the term 'whig' pieties that is intended here is captured well, because so evocatively, by Richard S. Dunn in his Foreword to Gary B. Nash, Race, Class, and Politics: Essays on American Colonial and Revolutionary Society ix (Urbana: University of Illinois Press, 1986): The history of colonial and revolutionary America is peculiarly susceptible to mythic, chauvinistic, and patriotic interpretation: for the past two hundred years we have become habituated to a ritualistic scenario populated by Pilgrims escaping from Old World persecution, by pioneers forging into the trackless wilderness, and by revolutionary heroes creating a new republic. Most historians of early America, including the present writer, accept a good part of this pious vision of the past, however hard we may struggle to escape it. We remain Whigs at heart, and all things considered, we believe that our colonial and revolutionary ancestors should he chiefly remembered for their religious idealism, economic enterprise, social mobility, and participatory politics.Google Scholar

4 The reference here to constitutional law may–and, Professor Reid tells us, should–strike thoroughly modern American lawyers as somewhat puzzling, if only because this so-called law did not cohere, as our constitutional law does today, in a jurisprudence generated through the determining mechanism of judicial review and based on a determinate written document. Elusive though this earlier concept of constitutional law may now be, it was nonetheless a concept ostensibly so coherent and compelling to 18-century American Whig lawyers that they had trouble containing their frustrated irritation when it was called into question. Consider, for example, a remark that James Wilson, one of the most lawyer-like of revolutionary American Whigs, initially thought to include in his attempt at a legalistic apology for Independence, his February 1776 Address to the Inhabitants of the Colonies: “They know little of the English Constitution who are ignorant [of]the Lawfulness of Resistance on the part of the governed against illegal Exertions of Power on the Part of those who govern.” Quoted, from a MS draft, by Jerrilyn Greene Marston, in King and Congress: The Transfer of Political Legitimacy, 1774-1776, at 19 & 329-30 n.24 (Princeton, N.J.: Princeton University Press, 1987); cf. Randolph G. Adams, ed., Selected Political Essays of James Wilson 103-21 & 345-46 (New York: Alfred A. Knopf, 1930).Google Scholar

5 For a notable earlier example of Greene's perception of a trajectory of development in this respect, see his article Paine, America, and the “Modernization” of Political Consciousness”, 93 Pol. Sci. Q. 73–92 (1978). Cf. Greene, Peripheries and Center at 163.CrossRefGoogle Scholar

6 Cf. Gerald Stourzh, The American Revolution, Modern Constitutionalism, and the Protection of Human Rights, in Kenneth Thompson & Robert J. Meyers, eds., Truth and Tragedy: A Tribute to Hans J. Morganthau 162-76 (New Brunswick, N.J.: Transaction Books, 1984). It is my reading of the work of Stourzh and others (e.g., J. G. A. Pocock, Stanley N. Katz, and Nicholas Canny and Anthony Pagden, as cited elsewhere in this review) that is largely responsible for my inclination to take a second look at the conclusion offered in an important review of one of Professor Reid's many earlier books that prefigure his volume under review here, viz., the conclusion in Hendrik Hartog's 1978 review, 54 Ind. L.J. 65, of Reid's In a Defiant Stance: The Conditions of Law in Massachusetts Bay, the Irish Comparison, and the Coming of the American Revolution (1977). See, e.g., Hartog at 80-81: “Whatever our political values and commitments, we can no longer be eighteenth century Whigs, much as we might wish to the contrary…. We have little more in common with the men and women who made 'our' revolution than we have with resistant traditional groups in the new states of the Third World.” Hartog's review is reprinted in a volume he edited, Law in the American Revolution and the Revolution in the Law: A Collection of Review Essays on American Legal History (New York: New York University Press, 1981). Cf. in the same volume at 229 his essay Distancing Oneself from the Eighteenth Century: A Commentary on Changing Pictures of American Legal History; and at 46 Reid's essay The Irrelevance of the Declaration. For intimations of Hartog's own current inclination to reexamine his earlier views on the necessity and the benefits of our “distancing” ourselves quite so far from the 18th century, see Hartog, Hendrik, Imposing Constitutional Traditions, 29 Wm. & Mary L. Rev. 75 (1987), esp. at 75 (“I am… reluctantly coming to believe that it may make sense to think historically in terms of long-term political traditions”); but see also 82 (“I am [convinced] that the emotional energy that lies behind the original republican impulse is largely unknown to us”). Hartog, Cf., The Constitution of Aspiration and “the Rights that Belong to Us All,” 74 J. Am. Hist. 1013 (1987).Google Scholar

7 Reid, Tax, dustjacket (cited in note 2).Google Scholar

8 Id. at iv.Google Scholar

9 Reid, Rights at 110; cf. Reid, Tax at e.g., 273-74 & 280-84.Google Scholar

10 Cf. Reid. In Defiance of the Law: The Standing-Army Controversy, the Two Constitutions, and the Coming of the American Revolution 167 (Chapel Hill: University of North Carolina Press, 1981).Google Scholar

11 For kindly confirming to me that this is the contemplated title, I thank Mr. Gordon Lester-Massman, of the University of Wisconsin Press, the contracted publisher. Cf. e.g., Reid, Tax at 350 n.12 & 379 n.42. Also see generally a related but independent recent book by Reid, The Concept of Liberty in the Age of the American Revolution (Chicago: University of Chicago Press, 1988).Google Scholar

12 For notice that Professor Reid may not suffer lightly the “foolishness” of one he considers an “incompetent” reviewer, see Reid, Tax at 343 n.3 & 344 n.7. Cf. Paul Fussell, Being Reviewed: The A.B.M. and Its Theory, in Fussell's collection The Boy Scout Handbook and Other Observations 101 (New York: Oxford University Press, 1982).Google Scholar

13 E.g., see Reid, Rights at 66 (“It was a matter of rhetoric as well as legal theory”); at 72 (“the alternatives… were all constitutional”). Contrast 111 (the “immutability” of rights) with 185 (“the duty was not just to transmit, but if possible to improve… the heritage [of rights]”).Google Scholar

14 The definitive study of the origins of this “ancient” constitutionalism remains Pocock, Ancient Constitution and Feudal Law (cited in note 1). Cf. Howard Nenner, By Colour of Law: Legal Culture and Constitutional Politics in England, 1660-1689 (Chicago: University of Chicago Press, 1977). Although Pocock discusses the more familiar Coke extensively, he takes the less familiar Davies as his “ideal type of “the common-law mind.'”Id. at 263. Davies was a 17th-century attorney general of Ireland; his principal legacy to the common-law tradition was his Irish Reports (1614; London ed., 1674). Cf. Greene, Peripheries and Center at 38 & passim; Reid, Rights at 30 & passim. In fairness to both Reid and Pocock, it is important to add here that the allusion in the text to “the doctrine of the ancient constitution,” casually identifying that term with the conceptions of “the common law” held by Coke and Davies and their progeny in the “tradition,” disregards important explicit and implicit distinctions in both Reid's and Pocock's painstaking historical analysis. See, e.g., Pocock, Ancient Constitution and Feudal Law at 302; cf. at 297. Moreover, Reid's analysis in The Authority of Rights at no point depends on “the doctrine of the ancient constitution” as distinguished from revolutionary Americans' “inherited” conceptions of “the common law.” Nevertheless, as important as such distinctions can be in specific historical context, for the purposes of the present review it is convenient, if oversimple, not to pursue them.Google Scholar

15 Greene, From the Perspective of Law: Context and Legitimacy in the Origins of the American Revolution, 85 S. Atl. Q. 56, 56 (1986). Cf. Greene's review of The Authority of Rights: “The Ostensible Cause Was… the True One”: The Salience of Rights in the Origins of the American Revolution, 16 Revs. Am. Hist. 198 (June 1988). I regret that this review by Greene appeared too late for me to take it fully into account before the present review reached the final stages of editing. Although I see in this most recent statement by Greene a position on Reid's work quite consistent with Greene's earlier statements, nevertheless, for the reasons I try to convey in my text, I take every comment by Greene on Reid's work to be of special interest.Google Scholar

16 See Greene, From the Perspective of Law, e.g., at 60 n.1 (Reid's reference to local law in Massachusetts as “Whig law” overemphasizes its partisan character); at 66 n.2 (Reid is anachronistic is referring to the colonial charters collectively as an “American constitution”); at 69 (Reid exaggerates in saying that “by the 1760s the 'case had been won against the royal prerogative' in America”); at 74 (Grey's misperception that “during the colonial period Americans had not been much given to debate over issues of constitutional theory”); at 74 (Reid is “misleading” when he says that “the colonists were merely 'the heirs, not the progenitors of their constitutional world'”); 75 (Reid is wrong to characterize as '“peculiar'” the American view “‘of how authority was distributed throughout the empire,’” given that the same view “was shared by the dominant populations of Ireland and the West Indian and other island colonies”).Google Scholar

17 Cf. Shils, Centre and Periphery, in The Logic of Personal Knowledge: Essays in Honour of Michael Polanyi 117 (Glencoe, Ill.: Free Press, 1961), esp. at 120 (“dynamic potentialities” of “order”…. “every central value system contains within itself an ideological potentiality”). The essay is reprinted as the title essay in Shils, Center and Periphery: Essays in Macrosociology (Chicago: University of Chicago Press, 1975) (“Shils, Centre and Periphery”). To anyone inclined to doubt that Shils himself is a neo-Whig, I would commend Shils's essay Ideology and Civility: On the Politics of the Intellectual, 66 Sewanee Rev. 450–80 (1958).Google Scholar

18 Cf. Pocock, Ancient Constitution and Feudal Law at 255-80 (cited in note 1) (“The 'Common-law Mind,' Considered as Mentalité”).Google Scholar

19 Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, Mass.: Harvard University Press, Belknap Press, 1967).Google Scholar

20 Id. at 31. Cf. Katz, The American Constitution at 27-30 (cited in note 2).Google Scholar

21 Occasionally Reid does come close to such a challenge, although only in passing, e.g., in Rights at 188: “Certainly not everyone in Great Britain, but many people, including some in high office, understood that it was 'law' the Americans acted on.”Google Scholar

22 Greene cites as an example the classic article by Stampp, Kenneth M., The Concept of a Perpetual Union, 65 J. Am. Hist. 5 (1978). Bestor, Cf. Arthur, The American Civil War as a Constitutional Crisis, 69 Am. Hist. Rev. 327 (1964).CrossRefGoogle Scholar

23 Cf. Reid, Rights at 227-37, esp. 229 (the American Revolution represented a “constitutional dilemma”).Google Scholar

24 Miller, Cf. Joshua, The Ghostly Body Politic: The Federalist Papers and Popular Sovereignty, 16 Pol. Theory 99 (1988).CrossRefGoogle Scholar

25 Pocock, Ancient Constitution and Feudal Law at 17 & passim (cited in note 1).Google Scholar

26 Reid, Rights at 179: To the American revolutionaries “perceptions were more important than actualities. Cf. at 181: “It was as much the image as the reality that caused alarm.”Google Scholar

27 Greene, Peripheries and Center, e.g., at 95-96 & passim. But see also, e.g., 39: “From very early on, however, colonists defended their rights to assemblies on the basis not just of English but of their own custom.”Google Scholar

28 Reid, Rights, e.g., at 223; Greene, Periphenes and Center at 144-50. Cf. a recent example of legal historians' continuing interest in this topic, Martin Stephen Flaherty, Note, The Empire Strikes Back: Annesley v. Sherlock and the Triumph of Imperial Parliamentary Supremacy, 87 Colum. L. Rev. 593 (1987).CrossRefGoogle Scholar

29 For an account of how, in the aftermath of the Stamp Act crisis of 1764-66, Americans began to make frequent use of the then still rather unusual term “unconstitutional,” see Gerald Stourzh, Vom Widerstandsrecht zur Verfassungsgerichtsbarkeit: Zum Problem der Verfassungswidrigkeit im 18. Jahrhundert (Graz: Universitäts-Buchdruckerei Styria, 1974).Google Scholar

30 Reid, Rights at 40, quoting Fritz Kern, Kingship and Law in the Middle Ages 186, trans. S. B. Chrimes (New York: Harper Torchbooks, 1970). It is interesting to observe that Shils, in explaining what he means by his general concept of “the centre,” refers to its “intimate connection with what the society holds to be sacred.” See Shils, Centre and Periphery at 118 (cited in note 17).Google Scholar

31 Reid, Rights at 97; cf. at 103.Google Scholar

32 Reid, Rights at 98-113. Cf. Greene, Peripheries and Center at, e.g., 84; Pocock, Ancient Constitution and Feudal Law at, e.g., 302 & 320–21.Google Scholar

33 Reid, Rights at 75.Google Scholar

34 Id. at 103. When Professor Carol M. Rose encountered this phrase, as quoted from Reid's book, it prompted from her a well-taken response to this effect: that while by the 18th century there was, no doubt, an Anglo-American/European tradition of political and constitutional theory that derived from property rights against government, there was also a tradition, at least as important, that derived from property rights of governance. This paraphrase cannot pretend to do justice to her point; cf. her own elaboration in Rose. “Private Property, Old and New,” 79 Nw. U.L. Rev. 216 (1984) (reviewing Hendrik Hartog, Public Property and Private Power: The Corporation of the City of New York in American Life, 1730-1870 (Chapel Hill: University of North Carolina Press, 1983)). Much the same point serves, of course, as a unifying theme of Pocock's Ancient Constitution and Feudal Law (cited in note 1): e.g., at viii, n.3 (“I endeavour in the retrospective essay to make it clear that 'the ancient constitution' and 'the Norman yoke' are antithetically related”), & at 353 (“In so far as the Exclusion crisis raised, especially after 1681, serious dangers of rebellion and civil war, it made sense for the party of order to revive, in patriarchal and possibly in feudal terms, the argument that property entailed obedience and carried no rights that could justify resistance”).Google Scholar

35 Radin, Margaret Jane, Property and Personhood, 34 Stan. L. Rev. 957, 989 n.111(1982).CrossRefGoogle Scholar

36 Cf. Hartog, The Constitution of Aspiration, 74 J. Am. Hist. at 1022 (cited in note 6): “[T]he metaphor of property appears inconsistent with post-revolutionary notions of the sovereignty of the people. If the goal of constitutional struggle is membership in 'We, the People,' then it hardly seems appropriate to found one's constitutional identity on a metaphorical image of rights as possessions that isolate the holder from the larger political community” (citing Reich et al.).Google Scholar

37 Laurence H. Tribe, American Constitutional Law 1374 (2d ed. Mineola, N.Y.: Foundation Press, 1988). Cf. the first edition (1978) at 949.Google Scholar

38 Cf. Hartog, The Constitution of Aspiration, 74 J. Am. Hist. at 1014ff. (cited in note 6). and more generally Part II of the symposium for which Hartog's article serves as a concluding overview: Hartog et al. (special advisory board), The Constitution and American Life: A Special Issue, 74 J. Am. Hist., No. 3 (Dec. 1987).Google Scholar

39 Emphasis added. Quoted in Reid, Rights at 170 (from a Mar. 22, 1775 speech of Burke in the Commons Debates, as reprinted in Elliott Robert Barkan, ed., Edmund Burke on the American Revolution: Selected Speeches and Letters 70, 86 (New York: Harper Torchbooks, 1966)). Cf. Reid, Tax at 42.Google Scholar

40 Greenr, Peripheries and Center at 147, quoting Reid, The Irrelevance of the Declaration at 72 (cited in note 6).Google Scholar

41 Anthony Pagden & Nicholas Canny, Afterword: From Identity to Independence, in Nicholas Canny & Anthony Pagden, eds., Colonial Identity in the Atlantic World, 1550-1800, at 276 (Princeton, N.J.: Princeton University Press, 1987). Pagden and Canny do, however, endorse Bailyn on the wide “range of authorities used by the revolutionaries.”Id. at n.9. And at 275 they also agree with Bailyn on the importance to the American revolutionaries of what he terms “a continuing belief in original sin and the need for grace.”Google Scholar

42 Cf. Reid, Rights at 216.Google Scholar

43 Id. at 134-37 & Passim. Cf. Greene, Peripheries and Center at 85.Google Scholar

44 Reid, Rights at 141.Google Scholar

45 Id. at 158.Google Scholar

46 Id., e.g., at 142-45. Cf. Greene, Peripheries and Center at 115.Google Scholar

47 Pocock, Ancient Constitution and Feudal Lawat, e.g., 236ff. (cited in note 1).Google Scholar

48 John Locke, Second Treatise of Government in Two Treatises of Government, ed. Peter Laslett, at 380 (par. 103) (rev. ed. New York: New American Library, 1963).Google Scholar

49 Greene, Peripheries and Center at 96.Google Scholar

50 Id. at 145; Reid, Rights at 80.Google Scholar

51 Greene, Peripheries and Center at 119; but see Reid, Rights at, e.g., 50.Google Scholar

52 Quoted in Greene, Peripheries and Center at 38.Google Scholar

53 Id. at 39. Cf. 1 William Blackstone, Commentaries on the Laws of England: A Facsimile of the First Edition of 1765-1769, with an Introduction by Stanley Katz 74 (Chicago: University of Chicago Press, 1979). Cf. Stourzh, Gerald, Blackstone, William: Teacher of Revolution, 15 Jahrbuch für Amerikastudien 184 (1970). 1 Robert Green McCloskey, ed., The Works of James Wilson102 (Cambridge, Mass.: Harvard University Press, Belknap Press, 1967); and see at 183 for an example of Wilson's near-rapturous encomiums to the common law. Conrad, Cf. Stephen A., Wilson's, James Assimilation of the Common-law Mind,” 83 Nw. U.L. Rev. (1988) (forthcoming).Google Scholar

54 Pocock, Burke and the Ancient Constitution: A Problem in the History of Ideas, 3 Hist. J. 125 (1960); Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition at 15, 24, 404–5, & esp. 547-48 (“prescriptive” conservatism) (Princeton, N.J.: Princeton University Press, 1975); Pocock, Ancient Constitution and Feudal Law 382 6.passim (cited in note 1).CrossRefGoogle Scholar

55 See generally Kronman, Anthony T., Alexander Bickel's Philosophy of Prudence, 94 Yale L.J. 1567 (1985).CrossRefGoogle Scholar

56 New Haven, Conn.: Yale University Press, 1975.Google Scholar

57 Cf. Kronman, 94 Yale L.J. at 1609 n.187, quoting Alasdair MacIntyre.Google Scholar

58 Greene, Peripheries and Center at 65.Google Scholar