The Purcell Backlist

Edward A. Purcell, Jr. (credit)

Not too long ago, Edward A. Purcell, Jr., New York Law School, posted a number of items from his backlist.  If you missed some of these articles and book reviews by this masterful historian of federal courts and legal ideas, now is a good time to catch up.

Barry Friedman’s The Will of the People: Probing the Dynamics and Uncertainties of American Constitutionalism, Michigan State Law Review 2010: 663-95.

This essays examines Barry Friedman’s book, The Will of the People, and its thesis that, with lags and hesitations, the Supreme Court’s constitutional jurisprudence has increasingly adapted to the changing social and political attitudes of the American people. Noting the book’s close affinity with the work of recent scholars who argue that popular attitudes should and do have substantial influence in shaping constitutional law, the essay explores the lessons Friedman draws from his constitutional history and, in particular, the significance of four “critical periods”: the Federalist Era with its opposition to what seemed an overtly partisan Court, the first half of the nineteenth century with its widespread defiance of the federal judicial power, the long period from the Civil War to the New Deal when Americans sought to limit and control the judicial power, and the modern period that brought general acceptance of federal judicial power once it had learned to accommodate itself more closely to popular demands. The essay highlights the qualifications Friedman makes to his thesis, and it examines three particular historical issues -- the origins of the Judiciary Act of 1875, the Court’s alleged “formalism” in the late nineteenth century, and the relationship between the Court’s jurisprudence addressing racial and economic issues at the beginning of the twentieth century -- to extend and deepen Friedman’s analysis. The essay concludes by emphasizing the importance of history in enabling Americans to understand their constitutional system more realistically and thus, one hopes, to honor and maintain it more effectively.

Evolving Understandings of American Federalism: Some Shifting Parameters, New York Law School Law Review 50 (2006): 635-98:

This article examines the enduring question of the nature of the American federalism and its supposed role as a constitutional norm. It argues that federalism has not, and cannot, provide specific normative directions for resolving contested constitutional issues. The article stresses the fact that American understandings of the nation’s constitutional federalism were from the beginning sharply contested, and it explores the ways in which those understandings have remained sharply contested over the centuries. In particular, it traces changes that have occurred in ideas about the role of the Supreme Court, the “values” of federalism, the nature of federalism as a structure of government, and the very nature and meaning of the Constitution itself. The article concludes that “originalist” ideas misunderstand the nature of the federal system and that no “originalist” theory can either capture the reality of American constitutional federalism or provide specific normative direction to resolve the contemporary problems it confronts. Rather, American constitutional federalism must be understood as an evolving national enterprise guided generally by certain basic, if contested, values and principles and that those values and principles endure and give the system its true meaning.

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