American Legal History
-- JoseMiranda - 15 Oct 2017


Contemporary legal education primarily teaches students how to "think like a lawyer" and present balanced and formulaic arguments as to why a judge or court "got it right" or not. The conventional law school curriculum is devoid of historical and cultural context. It reproduces deeply entrenched hierarchies of the corporate welfare state and depoliticizes thousands of thinkers every year.(1) It is no surprise, therefore, that major achievements in legal, political, and philosophical thought embodied by the American Revolution are lost on most lawyers. [2]. There are certainly many, and in this essay I intend to expound on those related to moral culpability. Ultimately, I hope to do precisely what lawyers of the Revolution did for Americans in the eighteenth century -- challenge the human imagination. The Revolution, after all,

"was not merely a protest against British taxation. It was not merely the movement for independence that followed that protest...It was much was a revolution because it challenged the human imagination and because Americans responded to [it] as they have never responded to any subsequent challenge in our history." [3].


The Revolution challenged the human imagination in part because it called into question deeply held notions about moral responsibility. The colonies were founded in the seventeenth century, when Puritanism dominated English thought. Since most Puritans in America were Calvinists, John Calvin's ideas about predestination greatly influenced their conception of personal responsibility. [4]. Calvin was a French theologian, a lawyer trained in the humanist tradition, and a zealous religious reformer set on liberating God's people from a Christian Church, which he felt had lost its way.[5]. Enabled by the invention of the printing press and armed with charismatic oratory, Calvin widely disseminated the doctrine of predestination. "All are not created on equal terms," he wrote, "but some are preordained to eternal life, others to eternal damnation; and, accordingly...we say that he has been predestin[ed] to life or to death." [6].

As Max Weber points out in The Protestant Ethic and the Spirit of Capitalism, the psychological effect of predestination was extraordinarily powerful. Calvinists experienced deep anxiety about the most important outcome in life -- eternal salvation. God had predestined some for salvation, and others for damnation, but there was no means of knowing who was destined for what. Calvin rejected the idea that one could learn whether they are chosen or damned from the conduct of others, and he asserted that the individual should be content with not knowing God's secret. Naturally, this attitude was "impossible for the broad mass of ordinary men" to maintain. As a result, "wherever the doctrine of predestination was held, the question [of what criteria brought about salvation] could not be suppressed." But the question of salvation caused more than just anxiety, it also fueled systematic self-control and introspection, for every Calvinist carried with them the hope of being saved; every moment presented an opportunity to be "chose or damned." This hope gave Calvinists a forceful energy to participate in important aspects of society ranging from business to politics. [7].

In retrospect, rather than bring followers closer to God, Calvin and the Protestant Reform actually marked the beginning of the downfall of the Christian faith. The Calvinist doctrine of predestination eventually gave way to more liberal forms of Protestantism, "which recast God as a loving father who had endowed his creatures with the capacity for self-determination." As a result, the public consciousness on individual agency began to slowly shift away from God and towards the human. This transition was both liberating and turbulent, because it challenged existing social hierarchies. [8]. Meanwhile, more broadly, politics had replaced religion as the most challenging arena of human thought and, "the best minds of the period addressed themselves to the rescue, not of souls, but of governments, from the perils of corruption." [9]. Amidst this turmoil and against the backdrop of The Enlightenment, the Common Sense philosophy of Thomas Reid emerged as a prudent point of departure.

Reid was a trained Scottish philosopher and a university professor, who played an integral role in the Scottish Enlightenment. [10]. He believed that philosophy should be and was, in fact, accessible to the public via three distinct faculties of the mind (in order of most to least importance): (1) the "rational" powers of intellect, will, and moral sense, (2) the "animal" desires, appetites, and affections, and (3) the "mechanical" habits and instincts. [11]. To Reed, these faculties were to be maintained by parents and teachers in early childhood through proper cultivation as well as through strict self-discipline. Individuals, Reed argued, were "moral and accountable beings" and the extent to which they were accountable, depended upon their "power over determinations of [their] will," though Reed offered little insight about how to measure one's power. [12]. Reed's Common Sense philosophy would go on to be adopted by key leaders, many of whom were lawyers, of The Revolution. It shaped their thinking about responsible agency and human potential. Common Sense enabled them to imagine a world where humans were fully capable and wholly justified in governing themselves. The transition from Calvinism to Common Sense signified an intellectual movement from "all [men] are not created on equal terms" to "all men are created equal." Common Sense set the stage for freedom.


The life of James Wilson (1742-1798) symbolizes the foundational shift in America from a God-centered to a human centered philosophy on individual responsibility and self-government. Wilson was born to a religious household in Ceres, Scotland. His father was a farmer and Presbyterian preacher who wanted his son to follow in his footsteps. Wilson did so at first, and attended divinity school, but in 1765 at age 23, he left Scotland to begin a legal apprenticeship in Philadelphia under one of America's leading lawyers at the time and future delegate to the Constitutional Convention, John Dickinson. Though he is somewhat of a forgotten Founder, Wilson was one of the most influential leaders in the American Revolution. He was one of six signers of the Declaration of Independence and the United States Constitution, and one of the most influential members of the federal Constitutional Convention in 1787. [13]. Wilson was deeply influenced by Reid's philosophy evidenced by his writings, "this philosophy will teach us that first principles are in themselves apparent...that discursive knowledge requires intuitive maxims as its basis...[that] all sound reasoning must rest ultimately on the principles of common sense." [14]. Wilson went on to apply Reidian philosophy in practice (surely as Reid would have wanted), and he even cited Reid as a justice on the first Supreme Court in the case of Chisholm v. State of Georgia -- "To the Constitution of the United States, the term SOVEREIGN, is totally unknown. There is but one place where it could have been used with propriety...But serenely conscious of the fact, [we] avoided the ostentatious declaration." [15]. By eighteenth century standards, Wilson's language was both stoutly egalitarian and evidently purposeful. He understood fully, as did the other Founders that he was creating the conditions for freedom; he applied Common Sense to free the common man by convincing him that he was fully responsible for all his actions, self-government included. [16]. Yet, in this pursuit of freedom, Wilson and others promulgated representations about the free-standing individual that has generated at least as many problems as it has solved for the legal system when it comes to the subject of moral responsibility.

Today, the idea that the individual is ultimately responsibility for their actions is buried deep in the foundations of our legal system. The result has been tragic and ironic. The language of freedom is now a tool of control, rather than one of liberation. It is used in particularly harsh ways within our criminal justice system to justify barbaric punishments. America, the "free-est" country, accounts for only 4.4 percent of the world's population, yet incarcerates 22 percent of its prisoners, making it the international leader in incarceration by a substantial margin. [17]. Without any real evidence, punishment is assumed to deter, and the idea that people deserve to suffer for their transgressions is deeply engrained in the American psyche. but what makes us different than the Calvinists who believed in predestination? If we lived under the same conditions with decades of the same conditioning, we too would believe that "all [men] are not created on equal terms." It's time to outright acknowledge that the foundation of our freedom was part of a carefully crafted movement born of a shift in consciousness; Freedom was created by people who challenged the human imagination and called into question assumptions upon which their society was founded. We must revisit the same ideas that they once did, not the least of which is moral culpability.


[2] This is a shame for many reasons, not the least of which is that lawyers played key leadership roles in the Revolution. They articulated the cause as one based upon the British Constitution, citing Edward Coke, late Chief Justice of England, and others as authority. They analyzed British law to anticipate British backlash, which helped to prepare the American people in their strategy. And, lawyers forged the American Union and created and organized state governments, which served to maintain a Rule of Law upon the collapse of British sovereignty. See Boden, Robert F., "The Colonial Bar in the American Revolution," 1976.

[3] See Wikipedia. John Calvin.

[4] See Morgan, Edmund S. "Reflections on the Bicentennial," The Challenge of the American Revolution. 1976.

[5] See Levy, Babette M. "Early Puritanism in the Southern and Island Colonies."

[6] See Calvin, John, Institutes of the Christian Religion, 1564. Translated by Henry Beveridge, 1989.

[7] See Blumenthal, Susan. Law and the Modern Mind: Consciousness and Responsibility in American Legal Thought. 2016.

[8] See id.

[9] See Morgan, Edmund S. "The Revolution Considered as an Intellectual Movement," The Challenge of the American Revolution. 1976.

[10] See Stanford Encyclopedia of Philosophy, Thomas Reid.

[11] See Reid, Thomas, Essays on the Intellectual Powers of Man.

[12] See Reid, Thomas, An Inquiry into the Human Mind on the Principles of Common Sense.

[13] See Smith, Page, James Wilson, Founding Father. 1956.

[14] See Wilson, Collected Works of James Wilson, Vol 2. Collected by Maynard Garrison. 2007.

[15] See Chisholm v. State of Georgia, 2 U.S. 419_. 1793.

[16] It should be noted that this was freedom for some, not for all, namely not for enslaved Black people or women.

[17] See Michelle Ye Hee Lee. Washington Post. “Does The United States Really Have 5 Percent Of The World’s Population And One Quarter Of The World’s Prisoners?” April 30, 2015.


An excellent draft.

We should discuss at office hours, at your convenience, how to continue its improvement. There are some evident avenues for further reading, but beyond that we will do better by discussion than by announcement on my part. This is very much your work, and we should not "direct" it as a history project if that means losing any part of that individuality.

One minor point on execution: it is easier to make footnotes than your resourceful but somewhat fragile markup. Not keeping callout and note together risks getting the references crossed when changes are made, so this wiki is equipped with the FootNotePlugin to make things as easy as enclosing the footnote in double curly braces right after the callout. I gave you one example above.


1 : See Duncan Kennedy, "Legal Education and the Reproduction of Hierarchy." 1982.


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r4 - 22 Oct 2017 - 19:04:33 - EbenMoglen
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