ATTR Inaugural Summer School at the University of Oslo
Insights / Interviews:
- With participants at the summer School: "New Opportunity for PhD Students"
- With the International guest speaker H. Jefferson Powell from Duke Law: "The Idea that ATTR Embodies is Outstanding and even Essential."
Photo: Magnus Halsnes
The American boast that the US Constitution is the oldest national constitutional instrument is not entirely false, but it implies a great over-simplification of the process by which the Constitution came to be viewed (as it is today) as the ultimate, authoritative legal text within the US legal system. Indeed, one of the most basic constitutional questions facing the United States in the first decades of the Republic was the issue of what role the document labeled “the Constitution of the United States” would play in the Republic’s political and social life, and the understanding that was clearly in place by the death of Chief Justice John Marshall in 1835 was the product of a very long constitutional prehistory as well as intense post-adoption debate in the 1790s. We will look at the process by which the Constitution acquired its modern status through four stages, although our discussion will focus on the third.
(a) the emergence of a common law tradition of political-legal inquiry (William Bereford’s appointment to the Court of Common Pleas in 1292 serving as a convenient starting point);
(b) the period 1775-1789 during which Americans experimented with the formulation and implementation of written constitutional documents culminating in the federal Constitution;
(c) the time of intense partisan, ideological and political debate from 1791-1803 which saw, on the intellectual level, a struggle between the usually Federalist image of the Constitution as primarily an authorization for national decisionmaking about social welfare and the usually Republican understanding of the Constitution as a legal instrument limiting national power and to be construed like any other legal text;
(d) the era of consolidation in which the major institutions of American political life came to agree on an understanding of the Constitution as a document that is at one and the same time a symbol of national unity and a controlling text interpreted from a common law perspective. The death of moderate Federalist Chief Justice Marshall, who played a significant role in shaping this understanding, serves as a marker for the end of the period.