The Historical Argument in American Legal Culture 185 ment the most familiar of these critical modes is the argument fromobsolescence: that the original reasons or purposes of a rule have ceased to exist, or that the rule sprang frommotives or a context that are no longer acceptable to moder^^^s, are rooted in ugly, barbaric, primitive conceptions or practices. American Practice - AVery Short History In historical practice, American lawyers have generally combined static and dynamic modes (with a minor sotto voce theme of critical ones). Here is a short and simple version of the story: The Revolutionary lawyers of 1776 argued their cause for Independence from Britain in a dominantly static mode: that they were asserting the common law rights of free-born Englishmen under the ancient “Gothic” Constitution of Anglo-Saxon England, which had subsequently been corrupted by the tyrannical practices of church and state applying the “canon and the feudal law”.- At the same time, the Revolutionaries shared with other Englishman a dynamic viewof English political history, according to which those ancient liberties had been gradually recovered over centuries of struggle and finally confirmed in the constitutional settlement of 1689. But Americans believed that the English Crown and Parliament had been plotting to reverse the course of history and once again conspiring against traditional liberty in their treatment of the colonies.-' The colonists’ basic argument, therefore, called for resuming progress towards the recovery of the past. After winning independence, 19th century American lawyers changed the mode of argument. The basic “Anglo-Saxon” liberties were now protected by written Constitutions and bills of rights - removing (for the most part) the need to consult, or celebrate, the history of more ancient times. The issue was nowthe status and legitimacy of English common law: how could we be governed by the law of our colonial rulers, which we had rejected as feudal and corrupt? The solution was to define the task of American law as that of preserving the common law’s timeless principles and graduallyadapting slowgrowing good customs; but also of accelerating its dynamic aspects to purge it of its “feudal” remnants. The Whitr story of recovery of the immemorial O ^ j Gothic Constitution cir ancient rights of Englishmen was grafted on to a gen- - John Ad.ims, “Adissertation on the Canon and the Feudal Law,” in Robert J. Taylor, Marv'- Jo Kline, and Gre^ L. Lint (eds.). Papers of John Adams (Cambridge, Mass.: Harvard Univ. Press, 1977), I: 127. ' See generally Bernard Bailyn, Ideological Origins of the American Revolution (Cambridge, Mass.: Harvard Univ. Press, rev. ed. 1992); John Phillip Reid, “TheJurisprudenee of Liberty: The Aneient Constitution in the Legal Historiographv of the Seventeenth and Eighteenth Centuries,” in Ellis Sandoz (ed.). The Roots of Liberty (Columbia, Mo.: Univ. of Missouri Press, 1993), 147.
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