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American Legal History
Rutgers University, Newark School of Law
Dennis, Donna I.

American Legal History

Major themes:

Women- Republican motherhood

Mythical/Aspirational Constitution


Class 1: Introduction

Reading: John Philip Reid, “In a Defensive Rage: The Uses of the Mob, the Justification in Law, and the Coming of the American Revolution” (1974).

“After the passage of the Sugar Act (1764), local law and imperial law began to comete, and with each crisis the gulf grew wider.”
The mob as a lawful, legitimate actor, with not only the ability, but the duty to police and change unjust laws (see e.g. the Stamp Act).

Hijacking Andrew Oliver’s house to apply pressure to coerce his resignation
Destroying Huntchinson’s house- but his role was neutral/innocent.

Role of the lawyers was to translate/channel the anarchic chaos into Constitutional/legal arguments.
For Whigs- Mob as a legal institution.

The people had to consent to laws before they had any power.
By refusing to enforce parliamentary acts, they nullify them (cf. New Departure Strategy).
Local juries also had power to nullify- the law is whatever local juries said they were
Unjust laws pose a much larger threat than citizen uprising- any threat to colonial “privileges and immunities” was “criminal.”
Tarring and feathering a favorite employ of the Whigs.

For Tories- Public order much more important than preventing arbitrary power.

After the Revolution, a formal legal scheme dictated the order of the US.
“We are all latent tories.” P1076

Class lecture: Points of Entry

The “problem” of American Federalism/Pluralism of Law making/legal interpretation/multiple sources of legal authority of American history

Historically state and local law ruled- stronger separation of Fed and State.
Was a more heterogeneous community back then- now parts of the country are worlds apart in ideologies- true?

Role of Legal Doctrine

What has been the significance of legal doctrine in American history and society? As articulated in studying the law and law making.
What has been the significance of formal law in everyday life?

Significance of popular, unofficial understandings of law/pluralism of legal meaning

E.g. interracial marriages- people thought they were going to be forced to marry other races.
Aspirational Constitution- Populist organization in response to unpopular laws; or that diverge from dominant understandings of the law.

Exclusions from law

What significance, if any, has the law had for groups that are excluded from the making of the law (“the polity”). E.g. what does the law do for slaves, wives, children.
Aren’t you always excluding certain groups, especially the ones that the law impacts? Think criminal law, but also think agency capture.

What has been the significance of the idea of revolution in American law, culture and society?
What has been the role of personal commitment in social and legal change?

E.g. overthrow Jim Crow laws and disenfranchisement of women

What has been the role of the mob in American culture, society, and politics?
The persistent inability of formal law to resolve, in any permanent way, any cultural, political, or social conflict.
Role of the legal profession

Mediation, interest of clients, policy makers, gatekeepers, independent counselors, defenders of the rule of law, spokespeople for the public interest, etc.
E.g. Plessy’s argument about possession of whiteness.

What are the boundaries of “law?”

Or what is not law?
The “private sphere.” See Lawrence; Loving.

Methodological Strategy

Maintain historical perspective- resist “presentous bias.”
Look for subordinated populations not present in the textbooks.
Contrarian perspectives

Class 2: Revolution


The Declaration of Independence
MLK, Letter from a Birmingham Jail (1963)- see looseleaf notes
Lincoln’s Lyceum Speech (1938)- not assigned

Official rule of law; no value in the mob- disregard for law, savagery of the mob.
We need order of law; democratic institutions
Unjust laws exist- should be repealed quickly, but still obey while in place.

Procedural, not substantive consent/acquiescence to the law.
Total obedience/passivity before the law.

hole Independence thing.

Need to keep women’s rights in check.

Republican Motherhood

Strategy developed by elite women to help elevate women everywhere- a tool to combat notions of a lascivious and parasitical gender.
Motherhood became political.
Better footing w/in the household.

“We the people” egalitarian and inclusive spirit

This is the “mythic” constitutional space that helped launch movements throughout ALH.
Aspirational Consitituion of others.
NJ’s 1776 Constitution was the only state that said “all inhabitants” but was changed in 1807 to white men only.

Class 4: Reception of the Common Law


Seeley v. Peters (1848)

Escaped Livestock

Lecture: Engine of Change in US law

Revolution effects lasted through the Antebellum period

The “golden age” of American law.
Real action took place in state/local courts b/c Federal Courts had limited jurisdiction.

Change in young America’s common law- England had very extensive/specific property law at the time to result in clear and predictable answers. Didn’t make sense to follow many of them in the US.

Conspiratorial transformation of judicial approach to encourage development in America.

E.g. water rights in Wisconsin.*** Federalist papers about Factions***
Pro-capitalist, less static, able to be manipulated
Altered the CL to promote growth and capitalist agenda in subterfuge or defiance of democratic process who were trying to help their constituency/who did not have capital to participate in the growth.

Hurst- Release the “Creative Energy” in the US through active growth.
Paradoxical starting point