A professor at Valparaiso Law School, Robert Blomquist, has produced a fascinating list of the 100 most creative moments in American law. To compile the survey, he solicited submissions from over 400 teachers of American legal history. It is a fascinating effort, and one sure to provoke barroom arguments — or perhaps wine bar arguments — among those inclined to think about such matters.
Start with the basic question. Prof. Blomquist purports to be compiling the “most creative” moments in American law, NOT the most important ones. That’s a bit of a different spin on the enterprise and one that could provoke the most disagreement. For example, I (and perhaps others) would argue that a truly creative moment was the finding of the right to privacy in various penumbras and emanations from the Bill of Rights, as achieved by Justice Douglas in Griswold v. Connecticut, and elaborated in Roe v. Wade.

William O. Douglas, neglected in new list
Yet Roe checks in at Number 21, according the good professor, and Griswold is omitted entirely.
But before getting into the nitty and gritty, let’s look at the first five, which should be the subject of real consensus, right?
1. Drafting the Constitution: As the author of The Summer of 1787 about this event, it would be churlish of me to disagree. The creation of the national government has to be the most creative moment.
2. The Declaration of Independence: Hmmmm. Was this really a legal event at all, or a political one? As Professor Blomquist points out, various states, cities, and other bodies in the American colonies wrote about 90 such declarations in the ferment of the mid-1770s. The argument that it was legal comes largely from the uses that Abraham Lincoln made of the Declaration to argue that equality and freedom were essential parts of our national character and government. But doesn’t that make Lincoln’s actions the creative ones? I’m not sold on this this ranking.
3. The Bill of Rights: Sure. Tough to argue with. Maybe even #2!
4. The Articles of Confederation: Interesting. Maybe correct. It was a necessary first step towards an effective national government, and was adopted in the midst of a vicious and bloody war. It was terribly flawed, but you should see my first drafts. I think I’m sold on this one.
5. The Northwest Ordinance: I like this one. Adopted by a bunch of nonentities who were working in Congress in New York in the summer of 1787 while the stars were writing the Constitution, this law (i) banned slavery in the Northwest Territory (which became Ohio, Indiana, Illinois, Michigan, and Wisconsin), and (ii) recognized a right to education to all citizens therein, and (iii) also recognized a right to free worship. That was really big stuff, and I defy you to recognize more than a couple of names of the men who adopted it. I might ooch it up a couple of places in the rankings, but a nice choice.
More to come.