Thursday, May 16, 2019
Gerard N. Magliocca, Indiana University, McKinney School of Law, has published A Special Relationship: Winston Churchill and the American Constitution. Here is the abstract.
This Article is the first detailed treatment of Winston Churchill's views on the United States Constitution.In his multi-volume A History of the English Speaking Peoples, Churchill discussed the drafting and ratification of the Constitution in detail. In a series of op-eds and magazine articles based in part on his trips to the United States, Churchill brought his acute political sense to bear on the operation of the Constitution during Jim Crow, Prohibition, and the New Deal. And in speeches to British and American audiences over many decades, Churchill frequently turned to the Constitution as both a model and a foil. From these rich sources, three relevant themes emerge for modern jurisprudence and constitutional design. First, Churchill emphasized the continuity between British tradition and the great eighteenth-century texts written here, most notably in his innovative claim that the Declaration of Independence was the supreme articulation of the common law. Second, he argued that judicial review was essential in the United States because of its diversity; an argument that challenges James Madison’s analysis of factions in Federalist #10 and suggests that the Supreme Court owes greater respect to stare decisis in an ever more diverse America. Third, Churchill thought that the failure of the Fifteenth and Eighteenth Amendments in his time resulted from a significant majority with good intentions enacting a substantial change that was too unequally spread throughout society. His hard-headed realism about how disparate impact in constitutional law can cripple its authority is a lesson that constitutional theory should heed and helps explain the Supreme Court’s decision in Shelby County v. Holder.
Download the article from SSRN at the link.