The Constitutional Divide: The Private and Public Sectors in American Law

Annotation. William P. Kreml contends that the sectoral divide - the division between the public and private sectors and not the divisions among America's political institutions are traditionally understood - makes up the historically and ideologically most significant separation within American law. He offers an original reinterpretation of American Constitutional development, tracing the evolution of the private and public sectors through the Magna Carta, Edward I, Coke, Blackstone, and others and assessing the impact of the English sectoral divide on the U.S. Constitution. Kreml writes that the evolution of the ideological argument between English common law and English state law had a direct impact on the development of the private and public jurisdictions within the pre-Constitutional American states as well as on the Constitutional argument between the Federalists and the Anti-Federalists. The same sectoral differentiation, Kreml maintains, underpinned the highly distinctive ideological perspectives ofthe Constitution and the Bill of Rights. Kreml then traces the sectoral divide through U.S. legal history, arguing, for example, that Roe v. Wade was not a privacy case as is commonly believed and that the open housing case of Shelley v. Kraemer was not a public-sector-enhancing case but rather a victory for private common law principles. Kreml employs a sectoral analysis to what he believes to be the Burger Court's incorrect decision in the campaign finance case of Buckley v. Valeo, and he offers an original reinterpretation of the judicial activism of the Warren Court and the differentiation between early Constitutional and Warren-era forms of political majoritarianism.