The Resurgent Role of Legal History

in Modern Judicial Decisionmaking

Unit 2

Required Reading

Optional Reading

Class Objectives


1 W. Blackstone Commentaries on the Laws of England, “On the Nature of Laws in General,” 2 (1765-69)

“In the fourteen centuries since Justinian’s Institutes, Blackstone’s Commentaries are the most important attempt in western civilization to reduce to short and rational form the complete legal institutions of an entire society. . . .  In the first century of American independence, the Commentaries were not merely an approach to the study of law; for most lawyers they constituted all there was of the law.  The influence of Blackstone’s ideas on the framers of the Federal Constitution are well known . . . [I]t is not surprising that Blackstone’s convenient work became the bible of American lawyers.  From the very beginning of the organized study of law in this county, the Commentaries held a central place.”  Daniel J. Boorstin, The Mysterious Science of the Law 3-4 (Harv. Univ. Press 1941)


Albert W. Alschuler, Rediscovering Blackstone, 145 U. Pa.  L. Rev. 1 (1996)

Martin Luther King, Letter from the Birmingham Jail (1963)

U.S. Declaration of Independence

Allen C. Guelzo, et al., Abraham Lincoln 21 (SIU Press 2009)

Jefferson’s Notes on Virginia, Query 18, at 178 (1781) (“I tremble for my country”)

George Mason’s “Infernal Traffic” Speech at Constitutional Convention (1787)

3 Max Farrand, The Records of the Federal Convention of 1787 (1911) (Letter of James Madison to Henry Lee (June 25, 1824))

2 Annals of Congress (Joseph Gales Sr. ed., 1798–1824) (James Madison’s Constitutional Method of Interpretation - National Bank)

Thomas Jefferson Letter to Justice William Johnson (June 12, 1823)

Justice Breyer’s Emphasis on “Last Two Factors,” 9 J. of App. Prac. & Process 91, 99 (2006)

The Laws of Physics & The Physics of Laws, 62 Virginia Lawyer 9, at 30 (2014) (abridged version)

Phillip E. Johnson, Nihilism & The End of Law, First Things (March 1993)


Introduce Blackstonian synthesis of common law and its influence on American law (particularly the natural law underpinnings of the abolitionist and civil rights movements)

Examine Blackstone and Founders’ Interpretative Rules

1 Blackstone 2 (with class notes)

Blackstone Influence on Jefferson’s Declaration

Class PowerPoint Slides

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