The British American Colonies and Comparative Subnational Constitutionalism

—Scott Douglas Gerber, Professor of Law, Ohio Northern University

My most recent academic book is A Distinct Judicial Power:  The Origins of an Independent Judiciary, 1606-1787 (Oxford University Press, 2011).[1]  That book is the first comprehensive analysis of the origins of judicial independence in the United States.  Part I examines the political theory of an independent judiciary.  Part II chronicles how each of the original thirteen states and their colonial antecedents treated their respective judiciaries.  Part III, the concluding segment, explores the influence the colonial and early state experiences had on the federal model that followed and on the nature of the regime itself.  The book is an exegesis in comparative subnational constitutionalism.  I dedicated a decade of my professional life to researching and writing it.

A number of celebrated scholars long have appreciated the importance of studying the early state constitutions as a window into the U.S. Constitution that followed.  For example, the late Willi Paul Adams wrote that “The state constitutions’ profound influence on the drafting of the federal Constitution and the ratification debates was taken for granted by contemporaries.  It took various shapes and forms, ranging from explicit institutional precedent and reasoning by structural analogy to negative examples of what to avoid.”[2]  More recently, Gordon S. Wood remarked during a debate about the Supreme Court and the uses of history that the “state constitutions … are far more important than the Federal Constitution because they created all of the basic elements that form the later Federal Constitution.”[3]  And in a quotation I invoke in the Preface to my Oxford book that nicely captures what I was trying to accomplish in that book, John Phillip Reid noted that “American histories of judicial independence invariably begin with origins in the federal courts and pay slight or no heed to what was happening in the states.  That is a mistake.”[4]

Regrettably, scholars have tended to neglect the British American colonial period in their work on comparative subnational constitutionalism.

Fortunately, however, the materials necessary for incorporating that period into disquisitions about the American constitutional experience are much more accessible today than ever before.[5]  No longer are scholars of early American law forced to dismiss the colonial period as useless antiquarianism, as Roscoe Pound did a century ago.[6]

My current book project about the animating principles of American colonial law endeavors to take advantage of this explosion of data by exploring the connection between why each of the individual British American colonies was founded and the early laws they enacted.  Montesquieu famously concluded in The Spirit of the Laws that each form of government has an animating principle—a  set of “human passions that set it in motion”—and that each form can be corrupted if its animating principle is undermined.[7]  For Rhode Island, for example, which is the first colony I have completed for the new project, the animating principle was religious freedom, an individual’s right to believe and worship according to his conscience without restraint.[8]

Frankly, I doubt it will be difficult to identify the animating principle of a particular colony (and there certainly will not be thirteen different ones).  What will be challenging is to discern whether the early laws were consistent with the particular animating principle and when, if ever, the law began to deviant from the animating principle.  To mention Rhode Island again, I was pleased to learn that one of the anonymous peer reviewers for an article-length treatment of that piece of the larger project appreciated this fact.  S/he wrote:

Throughout the article, the author makes a convincing case that the relationship between law and religious freedom in colonial Rhode Island was more complicated than scholarship to date has suggested—neither completely harmonious nor completely discordant.  By reading a variety of texts together—organic laws, legislation and statutes subsequent to these laws, judgments, and public debates—the author presents a nuanced picture of religious freedom in the colony.  In particular, the author’s point that “the animating principle of religious freedom” in Rhode Island remained in effect—despite its occasional “relaxation”—is well taken.  Indeed, focusing on the painstaking distinction that Roger Williams, among others, drew between religious practice and religious theology—with the former equated with “civility,” and thus (unlike theology) open to regulation—opens up a new avenue for thinking about the foundations of modern secularism.  If Williams was so easily able to separate the belief that must be free of interference from the non-belief that can fall into the realm of the “civil,” there are definite implications for theories of secularism broadly defined.  The article thus makes a contribution both to the micro-history of Rhode Island law and to ongoing conversations about religion, citizenship, and civil society.

I hope the rest of the book is equally well received.  Of course I have no idea what I will discover about the other British American colonies in terms of the relationship between their particular laws and animating principles—the same was true when I began my Oxford book about the origins of judicial independence in America—but I fully intend to enjoy the journey.