FAN 71 (First Amendment News) Just Released: 2nd ed. of Cogan’s “The Complete Bill of Rights” — 30 New Pages on History of Press & Assembly Clauses
This book is an invaluable resource for constitutional scholars, teachers, litigators, and judges alike. It collects and collates the basic texts necessary for informed interpretation of the Bill of Rights and gives them to researchers in a compact, comprehensive, and reliable form that is wonderfully organized for both quick scanning and sustained critical analysis. It makes previously difficult research tasks easy and opens new lines of thinking at a glance.– Anthony G. Amsterdam (2015)
The second edition of Professor Neil Cogan’s monumental The Complete Bill of Rights: The Drafts, Debates, Sources, & Origins (Oxford University Press) has just been released. Get out your wallet, for this book is well worth the $185.00 list price. Really!
Here is what Floyd Abrams said of the first edition: “For anyone interested in our Constitution, our history, or our political theory, this book is an intellectual treasure chest. It is more than legislative history. It is constitution-drafting in the raw — all the proposals and all the give-and-take (some of it disturbing) that resulted in the adoption of the Bill of Rights.” The historian Stanley Katz referred to it as “a major occasion in American publishing. . . . This is a triumph of careful and thoughtful scholarship. It is now one of the essential components of the the library of constitutionalism.” Though it is hard to imagine, Cogan’s second edition is even better and more triumphant!
The second edition (1362 pp.) almost doubles the first edition (705 pp.) in length by adding, among other things, lengthy excerpts from the treatises and dictionaries familiar to judges and lawyers in the 1780s. (Note: the pages in the new edition are also longer and its margins are narrower.)
In the First Amendment section — other than in the religion clauses segments which total 146 pages — new materials were added to the Press Clause segment and to the Assembly Clause segment. The majority of the newly added materials in those areas appears in the Press Clause segment (five new entries: Bacon, Burn, Cunningham, Jacob, and Viner) and one new entry for the Assembly Clause segment (Burn). The new sources materials for those segments of second edition of The Complete Bill of Rights are listed below:
- Matthew Bacon, A New Abridgment of the Law (London (Savoy): E. & R. Nutt & R. Gosling, 1736) [NB: hyperlink is to a later edition]
- Richard Burn, Justice of the Peace & Parish Officer (London: Ho. Woodfall & W. Strahan, 10th ed., 1776) [NB: hyperlink is to a later edition]
- T. Cunningham, A New And Complete Law-Dictionary (London: Law Printers to the King, 1764, 1765) (Adams Library)
- Giles Jacob, The New-Law Dictionary (London (Savoy): Henry Lintot, 1743) (Adams Library) [NB: hyperlink is to an earlier edition]
- Charles Viner, A General Abridgment of Law and Equity (London, 1742) (Adams Library)
In the Press Clause segment, the 27 pages of new materials (pp. 182-208) consist of definitions and discussions of defamation:
- What is it?
- What amounts to a libel?
- How much certainty is required?
- Can statements made in court amount to defamation?
- Who qualifies as a libeler?
- What constitutes publishing?
- What matters are for a judge or jury to decide?, and
- What punishment (civil and/or criminal), if any, is appropriate?
Beyond this, there is also an entry from Richard Burn’s treatise concerning religious and civil laws regulating swearing (pp. 206-208)
The new entry concerning the Assembly Clause (pp. 254-61) segment consists of seven pages (also from Richard Burn’s treatise). Those pages largely concern definitional and related questions, which are divided into the following six subcategories:
I. “What is a riot, rout, or unlawful assembly”?
II. “How the same may be restrained by a private person.” [re common law powers to suppress a riot]
III. “How by a constable, or by other peace officer.” [re common law powers to suppress a riot]
IV. “How by one justice.” [re statutory powers of a justice of the peace to restrain, arrest, chastise or punish.]
V. “How by two justices.” [re statutory powers of two or three justices of the peace to use “the power of the country” or that of the sheriff to enforce an order re a riot or unlawful assembly]
VI. “How by a process out of chancery.” [re statutory powers of chancery court to inquire into the truth of any complaint brought by an aggrieved party].
Whatever one thinks of textualism and/or historicism, Professor Cogan has performed a great public service in bringing into sharper focus the historical backdrop of the Bill of Rights. In a 1993 letter to Cogan, the late Gerald Gunther tagged the first edition as a “very valuable book” and a “marvelous collection” of historical documents. (Cynthia Cotts, “A Dean’s Book on Bill of Rights Scores with Supremes, Scholar,” National Law Journal, Nov. 24, 1997). For those who knew Gerry Gunther, he was not one to offer exaggerated or unmerited praise. That said, he was too modest in his assessment of The Complete Bill of Rights. Then again, perhaps he knew better than most that superlatives may sometimes devalue the true worth of a great work. In that spirit, nothing much need be added other than this: The second edition of The Complete Bill of Rights is even more “valuable” than the first.
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