FEUDALISM AND THE CONSTITUTION

When the Framers referred to feudalism in the federalist, that abstraction served as a model of decentralized rule. Otherwise, they would have agreed with john adams, who in 1765 had authored a short dissertation on the topic: feudalism, merged perniciously with Romish religion, was what the Puritans left behind them in England; released from ignorance, dependence, and extreme poverty, their descendants were free to follow "the true map of man." This view was later endorsed by leading interpreters of "American exceptionalism." More recent research has shown it to be incomplete. Among the common law hierarchies that ordered the relations of persons throughout medieval society, those in religious and commercial affairs were removed by the time Adams wrote and were now governed by Parliament. Other hierarchies remained; william blackstone enshrined them as "private relations"—husband and wife, parent and child, master and servant, guardian and ward—still under the aegis of the courts. These survived the american revolution.

The English development was transplanted into the United States as every state and territory except Louisiana received English common law and statutes into its own legal system. Ancient privileges still intact became vested rights, protected by the separation of powers against legislative tampering. Following old rules of statutory interpretation, and newer constitutional limitations, nineteenth-century judges read women's inheritance acts to preserve their husbands' interests against express language to the contrary, nullified maximum-hours statutes as invasions of freedom of contract between masters and servants, and struck down state liberty laws for violating slaveholders' common-law right of recaption.

The stubbornness of inherited hierarchy in the face of ideological and social democratization characterizes important constitutional struggles of the twentieth century. Among the most tumultuous was the conflict between employers and employees over the establishment of trade unions. Before the new deal, most judges held union activity to violate the master's ancient and constitutionally endorsed rights in the workplace. These rights were at issue in the court-packing "crisis" of 1936, finally resolved in NLRB v. Jones & Laughlin Steel Co., in which the Supreme Court upheld an act of Congress giving an employee a right to a reinstatement proceeding under the wagner act, a right "unknown to the common law."

Feudal privileges remained prominently on display in the setting of the family. Not until 1943 was a husband's common law right over the possession of his wife's earnings finally terminated. Justices on the rehnquist court have relied on Blackstone's codification of "private relations" between parents and children to support opinions on subjects ranging from abortion to school drug searches and seizures. In general, however, sufficiently pointed legislation in this realm will prevail.

These hierarchies by no means exhaust the feudal content of the Constitution. The writs of certiorari, mandamus, and habeas corpus, by which constitutional rights might be vindicated, are of medieval vintage. Habeas corpus, "the Great Writ," for instance, was put to its oldest purpose, of securing a party's custody rather than his or her release, in the case of slaves, and after the civil war, of apprentices, children, and wives. The three branches of state, as well as the arrangements of federalism, redact, in their basic design, the intricate network of jurisdictions that was English government under Henry VII and his forebears.

Karen Orren
(2000)

Bibliography

Adams, John 1765 An Essay on Canon and Feudal Law. In John Holroyd, Earl of Sheffield, ed., Observations on the Commerce of the American States with Europe and the West Indies. New York: Research Reprints (1783/1970).

Brown, Elizabeth Gaspar 1964 British Statutes in American Law, 1776–1836. Ann Arbor: University of Michigan Press.

Hartz, Louis 1955 The Liberal Tradition in America. New York: Harcourt, Brace.

Hurd, Rollin C. 1876 Treatise on the Right of Personal Liberty. Albany, N.Y.: W. C. Little.

Sedgwick, Theodore 1857 A Treatise on the Rules Which Govern the Interpretation and Application of Statutory and Constitutional Law. New York: J. S. Voorhies.