Daniel Defoe and the Written Constitution

Bernadette A. Meyler, Cornell University School of Law, has published "Daniel Defoe and the Written Constitution." Here is the abstract.

Today, as constitutionalism spreads around the globe, it is embodied de rigueur in written documents. Even places that sustained polities for centuries without a written constitution have begun to succumb to the lure of writtenness. America, we think, spawned this worldwide force, inaugurating a radically new form of political organization when it adopted the U.S. Constitution as its foundational text. Yet the notion of the written constitution had, in fact, received an earlier imprimatur from the pen of Daniel Defoe, English novelist, political pamphleteer, and secret agent. Plying his trades in the early eighteenth century, Defoe, now known largely as the author of Robinson Crusoe, in a number of disparate literary and political guises advocated the development of written documents setting forth the basic principles of a governmental order and restraining the power of legislative majorities. Just as the individualist ethos of Robinson Crusoe grabbed the American imaginary from the mid-eighteenth-century onwards, a conception of written constitutionalism similar to the one promulgated by Crusoe's author took root on American soil.

My article elaborates the contours of written constitutionalism that Defoe outlined and demonstrates the close alignment of some of Defoe's arguments with the scholarship of today, an alignment that suggests the persistence of a number of the mythic ideals of written constitutionalism that Defoe elaborated in the early eighteenth century. Methodologically, the article illuminates the importance of looking to the emerging genre of the novel as well as other widely read forms -- rather than focusing exclusively on more traditional historical sources -- to discern the construction of a popular imaginary at the time of the Founding. At the same time, however, the article argues that the differences between the account of written constitutionalism that emerges out of Defoe's works and the claims made for written constitutionalism by Chief Justice Marshall in Marbury v. Madison and legal academics today illuminate the contingency of what writing may mean for constitutionalism and demonstrate the ways in which the mythic entailment's of writing are sometimes precisely that -- myths.

Download the paper from SSRN here.

Wilkie Collins and His Law Books

Bernadette Meyler, Cornell Law School, has published "Transparency and Textuality: Wilkie Collins' Law Books," in IN THE SECRETS OF LAW, Austin Sarat, ed., Stanford University Press, 2007. Here is the abstract.

This article takes as its starting point the priority that Anglo-American legal thought has, in recent centuries, placed upon transparency, a priority that has relied, in large part, on the notion that the law should increasingly be recorded and publicly accessible. Through his representation of trial narratives - an extremely popular quasi-literary form during the nineteenth century - as well as the work of William Blackstone in his supposedly comprehensive Commentaries on the Laws of England, nineteenth-century novelist Wilkie Collins calls into question the idea that simply disseminating textual versions of the law or the records of legal processes will be able to furnish transparent access to the law for the lay reader. One of the difficulties he identifies is that of translating the law from the printed page into action; an exchange between two of the protagonists in Armadale who flip through Blackstone to determine whether any impediments would block their marriage demonstrates some of the challenges inherent in imagining the law in action in the absence of knowledge of the legal institutions that implement it. The other obstacle to transparency that Collins represents concerns the unreliability of the accounts of the proceedings of these same legal institutions. In The Law and the Lady, Collins focuses on the trial report, a form that first took on a literary dimension with the causes celebres of pre-Revolutionary France and acquired a similar cultural place in nineteenth-century England and America, and upon which Collins himself relied in constructing the plots of his novels. Through incorporating a fictional trial report into The Law and the Lady, Collins elucidates some of the ways in which trial narratives themselves partook of a literary construction, emphasizing aspects of coherence and continuity over factual accuracy. In both cases, Collins appears to suggest a model of legal reading that does not simply treat the written law as self-executing or the report of a trial as an entirely accurate account but instead adopts a critical and active stance.

Download the entire essay here from SSRN.