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38 Md. L. Rev. 673 (1978-1979)
David Hoffman and the Shaping of a Republican Legal Culture

handle is hein.journals/mllr38 and id is 685 raw text is: DAVID HOFFMAN AND THE SHAPING OF A REPUBLICAN LEGAL CULTURE* MAXWELL BLOOMFIELD** In recent years scholars have paid increasing attention to the concept of republicanism as a measure of cultural change in America during the late eighteenth and early nineteenth centuries. To the Revolutionary generation republicanism connoted most obviously a representative form of government, based upon popular sovereignty and limited in its powers by a written constitution. But republican ideology encompassed far more than the restructuring of political institutions. It called for a regenerated society as well, in which men should be encouraged to pursue their individual destinies with a minimum of interference from public authorities. Civic morality and self-determination were closely linked in republican thought, and the theme of a virtuous and productive citizenry permeated much of the literature and art of the new nation.' American law during the postrevolutionary decades also developed within a framework of republican principles. The idea of popular sovereignty, as legal historian Morton Horwitz has shown, led many judges to regard themselves less as custodians of a body of timeless precepts than as the creative manipulators of precedents whose legitimacy depended upon popular consent.2 In such areas of private law as contracts, torts, and property law, these judicial instrumentalists overthrew the precommercial and antidevelopmen- tal doctrines of an eighteenth-century squirearchy to promote the interests of enterprising merchants and bankers.3 A similar movement from status to contract - from corporatism to individual- ism - occurred in public law, although in that field judges continued to insist that they were merely the passive expounders of preexisting legal rules. For example, the Marshall Court's innovative use of the * ©National Archives & Records Div., Gen. Serv. Admin. Reprinted by permission. This article was presented at the National Archives 1978 Conference and is to be published in a volume of the proceedings, The Law and American Society: New Historical Perspectives and Resources. ** Professor of History and Chairman of Dep't of History, The Catholic University of America. B.A. 1952, Rice University; LL.B. 1957, Harvard University; Ph.D. 1962, Tulane University. 1. See generally N. HARRIS, THE ARTIST IN AMERICAN SOCIETY (1966); H. M. JONES, 0 STRANGE NEW WORLD; AMERICAN CULTURE: THE FORMATIVE YEARS (1964); G. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787 (1969); Shalhope, Toward a Republican Synthesis: The Emergence of an Understanding of Republican- ism in American Historiography, 29 WM. & MARY Q. 49 (1972). 2. M. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at 1-30 (1977). 3. Id. at 253-54. (673)

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