Law Commons^™

We The Exceptional American People, James E. Fleming

Faculty Scholarship

I. INTRODUCTION: "AMERICAN EXCEPTIONALISM" There is an academic movement afoot-one with a long historical pedigree-to attribute the vitality of the American constitutional order to "American exceptionalism." The most prominent representative of this school of thought is Bruce Ackerman, whose We the People opens with a jeremiad against the "Europeanization" of American constitutional theory and urges us as Americans to "look inward" to rediscover our distinctive patterns, practices, and ideals.2 He maps the terrain of theory as being divided into monists ("Anglophiles"), rights foundationalists ("Germanophiles"), and dualists (red-blooded Americans).3 Only dualists have the "strength" to declare our American independence from British …

Taking The Fifth: Reconsidering The Origins Of The Constitutional Privilege Against Self-Incrimination, Eben Moglen

Faculty Scholarship

The purpose of this essay is to cast doubt on two basic elements of the received historical wisdom concerning the privilege as it applies to British North America and the early United States. First, early American criminal procedure reflected less tenderness toward the silence of the criminal accused than the received wisdom has claimed. The system could more reasonably be said to have depended on self-incrimination than to have eschewed it, and this dependence increased rather than decreased during the provincial period for reasons intimately connected with the economic and social context of the criminal trial in colonial America.

Second, …