Law's revolutions: coercion and constitutional change in the American founding
Knapp, Aaron Tristan
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This study in constitutional history argues that the American framers created the Constitution of 1787 to address the problem of coercion in American society. It demonstrates that the framers’ antecedent commitment to a conception of the law that made coercion its sine qua non best explains why they sought fundamental reconstitution rather than amendment in 1787, and why they made certain choices and not others in establishing and administering the first federal government in the decade after ratification. The research revolves around two central questions. First, why did coercion concern the framers? Certainly a number of concrete policy-related failures coming to a head in 1787 starkly illuminated both the Continental Congress’s want of enforcement powers and the foundering magistracies in the states. Part I, however, situates the coercion problem in a deeper historico-intellectual context. The American Revolution produced a constitutional discourse that made the consent of the governed its essential ingredient and government by coercion ipso facto illegitimate and unrepublican. At the same time, the Revolution unleashed egalitarian social thinking predicated on the belief in an absolute equality of mind, ability, and opportunity among individuals. Part I shows that the principles of popular consent and individual equality had real legal consequences in the decade after Independence that scholars have overlooked. Specifically, the principle of consent produced a revolution against independent judicial power and the principle of equality produced a revolution against professional lawyers and the common law. Both insurgencies posed special threats to legal professionalism as such and both advanced upon a single shared legal ideal: law without force. Fearing anarchy and seeking to secure their own place within the constitutional order, American lawyers calling themselves Federalists waged a counterrevolution against this conception of law in 1787. But how? Those few historians who have acknowledged the Federalists’ stated commitment to the principle of coercion in 1787 have downplayed its practical significance in the early republic. They have suggested that Federalist legislators and administrators ultimately bowed to the strong anti-statist currents in American society and avoided coercive enforcement measures in the 1790s. Part II shows otherwise. The analysis recovers an originally understood constitutional structure of coercion that included military, magisterial, and judicial sanctions, to operate in accordance with a priority scheme that partially accommodated the inherited republican aversion to the deployment of military force in domestic affairs. It further demonstrates that in the decade after ratification the Federalists brought the constitutional structure of coercion to bear on individuals and states within the union in every area that concerned the framers and nothing in either the Jeffersonian ascendancy or the Revolution of 1800 immediately compromised the Federalists’ achievements in this regard. The constitutional structure of coercion’s effective implementation in the 1790s best explains why the first federal government succeeded where the Continental Congress had failed.