IN MEMORIAM: JOHN PHILLIP REID (1930-2022)
John Phillip Reid, the Russell D. Niles Professor Emeritus of Law at New York University School of Law and one of the most path-breaking, productive, and iconoclastic historians working on American legal and constitutional history, died on 26 April 2022 in Durham, New Hampshire. He was 91.
Born on 17 May, 1930 in Weehawken, New Jersey, Reid was a member of one of New Hampshire’s most established families; he grew up in Maine and New Hampshire. He attended Georgetown University, from which he was graduated in 1952 with a B.S.S. in history; he then attended the Harvard Law School, from which he received his LL.B. degree in 1955, and the University of New Hampshire, where he received his M.A. in history in 1957. He earned his LL.M. (1960) and J.S.D. (1962) degrees at New York University School of Law. In 1960, he joined the faculty at NYU School of Law, where he taught for the rest of his career. In 1996, he was named the Russell D. Niles Professor of Law, which was named after the man who was dean of the Law School when he joined the faculty there.
For nearly five decades, John Phillip Reid taught American legal history at NYU School of Law. Generations of students welcomed his contrarian approach to the subject and his iconoclastic methods of teaching. Just as noteworthy as his approach to teaching was his extraordinary outpouring of scholarship, a seemingly unending profusion of books, articles, and book reviews that combined a richness and profundity of research, analytical rigor and depth, and writing that was lucid, often graceful, and nearly always combative. Reid regularly set himself against the prevailing currents of scholarship in the fields of American legal and constitutional history.
Reid maintained that law is a central component of Anglo-American culture – indeed, of every culture. On this insight, he based two revolutionary concepts: law-mindedness and legal behaviorism. Law-mindedness means the habit of paying attention to the legal dimension of a given situation or context and the tendency to guide one’s actions by reference to legal principles and norms. Legal behaviorism is the outward manifestation, by the historical actor’s actions, of the values inherent in the concept of law-mindedness. Taken together, law-mindedness and legal behaviorism form a human cultural constant. Although specific aspects of this constant may vary from nation to nation, from legal system to legal system, and from culture to culture, both law-mindedness and its expression by legal behaviorism are are nonetheless ever-present in human history. It is this central theme to which Reid devoted his attention and his life’s work as a historian.
Reid’s prolific, seemingly disparate publications thus fit together in a larger, coherent enterprise defined by two goals. First, he sought, in a wide variety of settings, to identify examples of law-mindedness and legal behaviorism and to explore their consequences for American history and culture. Second, in his investigations of law-mindedness and legal behaviorism, Reid probed beyond the conventional boundaries of American legal history. In his view, law-mindedness and legal behaviorism existed outside the domain of American positive law – that is, law as the sovereign’s command (whether by legislation or by pronouncement by appellate courts) – and thus are not dependent on the authority of positive law. Therefore, he insisted, historians must extend the analytical investigation of law beyond the chronicling of positivist law-making or law-interpreting institutions.
Reid’s scholarship practiced what he preached. His first two books, for example, were exemplars of judicial biography that examined judges who served on state supreme courts outside the oft-studied currents of legal development – Charles Doe of New Hampshire (CHIEF JUSTICE: THE JUDICIAL WORLD OF CHARLES DOE ) and Marmaduke Dent of West Virginia (AN AMERICAN JUDGE: THE LIFE OF MARMADUKE DENT ). Then he shifted his attention to the legal world of the Cherokee prople (A LAW OF BLOOD: THE PRIMITIVE LAW OF THE CHEROKEE NATION  and A BETTER KIND OF HATCHET: LAW, TRADE, AND DIPLOMACY IN THE CHEROKEE NATION DURING THE EARLY YEARS OF EUROPEAN CONTACT ).
In the 1970s, he shifted gears again, focusing on first the legal history and then the constitutional history of the American Revolution. The culmination of this effort was his magisterial four-volume study CONSTITUTIONAL HISTORY OF THE AMERICAN REVOLUTION (1986, 1987, 1991, 1993; abridged edition, 1995). He also published two related monographs – THE CONCEPT OF LIBERTY IN THE AGE OF THE AMERICAN REVOLUTION (1988) and THE CONCEPT OF REPRESENTATION IN THE AGE OF THE AMERICAN REVOLUTION (1989).
Even as he was writing his CONSTITUTIONAL HISTORY, he published two other books dealing with the legal history of the Overland Trail emigrants from 1840 to 1860: LAW FOR THE ELEPHANT: PROPERTY AND SOCIAL BEHAVIOR ON THE OVERLAND TRAIL (1980) and POLICING THE ELEPHANT: CRIME, TRIAL, AND PUNISHMENT ON THE OVERLAND TRAIL (1997). These last may be his most original and creative monographs, for in them he addressed how to study law-mindedness and legal behaviorism in a territory lacking any institutions of law-making, law enforcement, and legal adjudication. Did the Overland Trail emigrants recognize and abide by legal understandings of property ownership or of crime, trial, and punishment? Reid’s answer, delivered with extensive citations and quotations from an astonishing array of primary sources, was that they did. He replicated his achievement in the ELEPHANT books in his studies of miners, trappers, and fur traders in the transboundary western regions of North America.
In all his work, Reid skillfully mined sources not usually regarded as the “stuff” of law or of legal history. He extracted from these widely scattered and diverse sources convincing evidence of the legal assumptions and casts of thought that inspired or drove the thoughts and actions of his subjects. Throughout, he treated them and the rich and plentiful evidence of their law-mindedness, leading to their legal behaviorism, with integrity and respect.
Many constitutional and legal historians came to know, respect, and befriend John Phillip Reid. All of us will feel the loss represented by the passing of a brilliant, mischievous, and deeply generous colleague and friend. At the same time, we – and those who knew him only through reading his work – will be forever enriched by legal history’s pathfinder.
R. B. Bernstein
City College of New York