"Reason and Will in the Origins of American Constitutionalism," 98 Yale Law Journal, Winter 1989.
Tocqueville was the first to notice that political controversy in America tends to become legal controversy. This is true not just of particular controversies but also of the largest issues of the character and sources of political authority in America. Debate over the foundations of American political order is largely a debate over the nature of constitutional law.
While the longevity of the American Constitution has recently been much praised, the Constitution has, in fact, had many lives. The document is a vessel into which we pour our national debate over the nature of legitimate political authority. That debate has reached different answers at different times. The survival of the formal text should not blind us to the reality of radical change in the meaning of the Constitution.
This article explores the change in constitutional world views in the first sixty or seventy years of constitutional development. This period began with the constitutional founding and ended with the Supreme Court's disastrously unsuccessful effort to quiet divisive political conflict over slavery through an appeal to constitutional authority in Dred Scott v. Sandford.
Date of Authorship for this Version
Kahn, Paul W., "Reason and Will in the Origins of American Constitutionalism" (1989). Faculty Scholarship Series. Paper 337.