William P. Kreml - The constitutional divide: the private and public sectors in American law
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The constitutional divide: the private and public sectors in American law
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The Constitutional Divide : The Private and Public Sectors in American Law
author
:
Kreml, William P.
publisher
:
University of South Carolina Press
isbn10 | asin
:
1570031118
print isbn13
:
9781570031113
ebook isbn13
:
9780585349299
language
:
English
subject
Constitutional history--United States, United States--Politics and government, Civil law--United States--History, Public law--United States--History, Civil law--Great Britain, Public law--Great Britain.
publication date
:
1997
lcc
:
KF4541.K66 1997eb
ddc
:
342.73/029
subject
:
Constitutional history--United States, United States--Politics and government, Civil law--United States--History, Public law--United States--History, Civil law--Great Britain, Public law--Great Britain.
Page iii
The Constitutional Divide
The Private and Public Sectors in American Law
William P. Kreml
Page iv
1997 University of South Carolina
Published in Columbia, South Carolina, by the University of South Carolina Press
Manufactured in the United States of America
01 00 99 98 97 5 4 3 2 1
Library of Congress Cataloging-in-Publication Data
Kreml, William P. The constitutional divide :the private and public sectors in American law / William P. Kreml. p. cm. Includes bibliographical references and index. ISBN 1-57003-111-8 (cloth) 1. United StatesConstitutional history. 2. United StatesPolitics and government. 3. Civil lawUnited StatesHistory. 4. Public lawUnited StatesHistory. 5. Civil lawGreat Britain. 6. Public lawGreat Britain. I. Title. KF4541.K66 1997 342.73'029dc20 [347.30229] 96-10077
Page v
In memory of M. Glenn Abernathy
Page vii
Contents
Acknowledgments
ix
Introduction
xi
1 A Framework for Analysis
1
2 The English Contribution
10
3 Revolution and Counterrevolution
22
4 The American Experience
31
5 The Federalists and the Anti-Federalists
43
6 The Interpretive Period
55
7 The Taney Revision
63
8 Dissolution
81
9 The Reformers
91
10 The Third Activist Period
107
11 The Pre-Warren Court
115
12 The Warren Court
121
13 Civil Rights and the Rights of the Accused
130
14 Apportionment and Women's Rights
143
15 Warren Critiqued
156
16 The Post-Warren Court
166
17 Burger Critiqued
182
Epilogue
197
Notes
199
Bibliography
213
Index
217
Page ix
Acknowledgments
My deepest thanks to Zhenghuan Zhou and Arthur Vanden Houten, for their research assistance throughout this work. My thanks as well to George C. Rogers Jr. and Lacy K. Ford of the History Department, University of South Carolina, for their advice and counsel. Finally, my thanks to Nancy M. Kreml, for her proofreading of the manuscript. The responsibility for error is exclusively my own.
Page xi
Introduction
Political science and jurisprudential scholarship on the American Constitution typically focuses on governmental institutions and the jurisdictional battles that go on between and among them.1 Such a focus is understandable. Political scientists and jurisprudential scholars study public structures, and the U.S. Constitution lays out the fundamental structures of our government. The extreme decentralization of the U.S. Constitutional arrangement makes knowledge of each of these structures' prerogatives all the more necessary. But I suggest that even the most profound analyses of the United States' Constitutional arrangement are flawed in one important way. That flaw results from the relative inattention that is given to the balance between the private and public sectors. At best, structure is half the American governmental story. America's political structures are profoundly affected by laws, customs, usages, and traditions that are in turn the product of an evolution that went on within the private domain as much as it went on in the public domain for hundreds of years.
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