Reading Blackstone in the Twenty-First Century and the Twenty-First Century through Blackstone

Abstract

Sir William Blackstone is enjoying a renaissance in U.S. Supreme Court opinions. The Court’s references to Blackstone have increased tenfold since the 1930s, so that the Commentaries is now cited in 1 in 13 cases. At the same time, practically nobody reads it. Indeed, part of Blackstone’s persuasive power today comes from his text’s simultaneous familiarity and mystery. The Court capitalizes on Blackstone’s status as a kind of mythical ancestor – the “oracle of the law in the mind of the American framers,” citing Blackstone for the original meaning of the Constitution. This mythic use of Blackstone allows the justices to have their cake and eat it too. The Court’s analysis gains the kind of rule-of-law certainty that comes from relying on the Commentaries as a canonical text. But presenting the Commentaries through the eyes of a supposedly uncritical ‘founding generation’ allows the Court to maintain a sophisticated modern distance. In this way the Court avoids the accusations of legal primitivism that would surely accompany their own direct avowals that Blackstone is the definitive source of all common law structures implicitly incorporated in the U.S. Constitution.If the Supreme Court mythologizes Blackstone, it is equally true that Blackstone himself was engaged in something of a mythmaking project. Far from a neutral reporter, Blackstone has some stories to tell, in particular the story of the hero law. The problems associated with using the Commentaries as a transparent window on eighteenth-century American legal norms, however, do not make Blackstone’s text irrelevant today. The chapter concludes with my brief reading of the Commentaries as a critical mirror of some twenty-first-century legal and social structures. That analysis draws on a long-term project, in which I am making my way through all four volumes of the Commentaries and posting short responsive essays online on the Blackstone Weekly.