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American Legal History
University of Illinois School of Law
Ross, Richard J.



FALL 2011

Introduction: Perspectives on American Legal History

Colonial Constitutionalism and the Creation of the Federal Constitution

EXAM May focus on one issue on course or ask you to synthesize from across a large spectrum

1. Not an issue spotter

2. Looking for a thesis with points that support it

a. Be mechanical: USE LOTS OF SIGNPOSTS

i. Say what you plan to argue

ii. How you plan to argue it

iii. Proceed on to next argument

iv. Reader should know exactly where you are and why arguments are being made

b. Add value to the material don’t just give back what was in class materials


Antebellum Period:

Era in the history of the United States after the American Revolution and the establishment of the U.S. as a sovereign nation, yet before the U.S. Civil War

§ In practice the Federal government resisted availing itself of the implied powers

§ State governments had the principal responsibility for ordering society

§ Regulation under the common law – most disputes settled this way in state courts

“Reconstruction” (1865-1877):

After the Civil War ends, the Southern rebel states were considered territories not part of the Union. The Northern states tried to figure out the conditions under which they would allow the Southern States to rejoin the Union during this period known as the “Reconstruction”

Revolutionary Views Of British Empire

1. In the colonists’ imagination, the British Empire was a Federalist empire in which each colony had some sort of authority

a. Colonists had mostly governed themselves

b. From time to time British Parliament would interfere with internal matters of Colony economy etc

c. Colonists agreed that there are a list of things that only parliament can do, BUT

d. There are other powers which were only for Colonists and that were illegal for the Empire to use

2. Eventually Empire tries to tax Colonists – this is the last straw

a. Colonists say no: charter, when combined with prescription doesn’t allow it

i. No taxation without representation

b. Accustomed Colonists to the idea of Federalism as it came about in America


I. Declaration of Independence

i. New Chapter in American History – English were now “Americans”

ii. Wanted to discard aspects of English heritage that were detrimental to their liberty

1. Get rid of nobles, get rid of monarchy, get rid of areas lack of representation

2. Create a wall separating Church & State

3. Solution: Writing Constitutions

a. Ideas of the Enlightenment

b. Americans’ experience with partial self-governance in the Colonial period

II. Congress Governs

a. People from different parts of the country were completely different – religious, economic, social, and land considerations – External crisis of Revolution brought people together


1. Served as the central government of the United States

2. Not legitimized by any constitution

a. Drew instead on the theory of inherent power to rule

b. Declared independence, appointed officers to a national army, negotiated treaties

c. However, the real power lay with the States

3. Put together the Articles of Confederation

III. Articles of Confederation (1775 – year before declaring independence)

i. Benjamin Franklin’s plan for independence from GB

ii. Had to unite constitutionally in order to secure and preserve independence from GB

1. Congress was to write the document and submit it to the States for ratification

2. Little agreement as to what form the new union should take

a. FIRST Draft (Dickenson Draft) – went too far in creating a powerful central government

i. Most states feared a strong central government at this point (reminded them of GB)

ii. Concerns over how States’ votes were apportioned, tax on slaves, and limits on expansion of Western states

iii. Despite their problems, the Articles marked a major step in forging a permanent union of 13 States

1. In ratifying the Articles, the states indicated their willingness to join the nation-making process, despite fears of powerful government

a. Necessity of centralized authority

b. Powers exceeding those of Second Continental Congress

c. Actual written constitution


The founders were so concerned with ensuring that the new government was unlike the monarchy that they gave the national government very few powers under the Articles of Confederation (most of the powers were left to the individual states. HOWEVER – the government was too weak to do anything substantive, and the amendment process of the Articles made it impossible to modify them to make them work.

A. Articles of Confederation (“AOC”) served as fundamental law of the new republic EXCEPT for the fact tat revisions were next to impossible because they required unanimous consent of all the States

B. And despite significant accomplishments (such as successfully waging war with GB) Articles were significantly flawed

a. Led to demands for a new constitution that would give more power to a central government


i. 13th, 14th, & 15th Amendments and the Bill of Rights were critical in developing & protecting personal liberty

ii. However, created a government that was unable to deal with slavery

1. Led to civil war, and almost led to a destruction of the nation

iii. Could not see the full potential of the Constitution until the relationship between states and national government was restructured


a. “CRITICAL PERIOD” – 1781 & 1787

b. Structural defects would have prevented effective government

i. Congress could ask for money from the states but could not levy taxes

ii. Could negotiate treaties but could not compel the states to abide by them

iii. Could borrow money but could not provide for repayment

c. Committee that had drafted the Articles anticipated that they would need to be changed, but they had doomed the Articles by requiring changes to be unanimously approved but all the States

i. Effectively made changes impossible

ii. Even the passage of simple legislation was cumbersome

1. Each state had one vote, but no state could vote unless at least 2 delegates were present (not always doable – hard to travel)

a. Equality of votes undermined national unity and strengthened localism

b. Requirement of unanimity allowed minorities to frustrate the will of the majority

i. Need for unanimity to amend document made it so the document satisfied fewer, not more people

2. Some important issues required unanimous votes

iii. Government was essentially incapable of making decisions

iv. Creators of the Articles were so focused on preventing tyranny that they created a government that was incapable of action


§ Lacked minimal structure and powers required to govern

§ Articles were so cautiously created that they were virtually un-amendable

§ Failed to create a national court system, and thus disputes between States, or citizens of different states could

e and a federal supreme court

c. Issue of representation threatened to tear the convention apart

d. Connecticut Compromise (a.k.a. “Great Compromise”)

i. House of Representatives apportioned according to population

ii. Senate – each state has two votes

Slavery and Representation

Issue of slavery threatened to tear the convention apart

a. Southerners wanted slaves counted equally with free people for the purpose of representation

i. Said that slaves produced great wealth that had to be represented in Congress

ii. HOWEVER – the people filling the seats in congress were voting against the interests of the slaves

b. Northerners objected on both political and moral grounds

i. Since slaves were not considered persons, but were property, they ought not be counted for the purposes of representation

ii. Said that counting slaves encouraged the slave trade


i. Five slaves would count for 3 people for purposes of representation

ii. Was not a compromise about race because free blacks counted for as much as any other free person

Powers of The Executive Branch

1. Four year terms with no term limit

2. Presidential Veto that could be overturned by a 2/3 Senate majority

3. Electoral College chooses the president

a. Each state gets a number of presidential electors equal to the number of seats it has in the H.O.R. plus its two senators

b. Undemocratic – people removed from the election of the president

i. If the people directly elected the president, the states with the most people would have the most influence over the election

ii. 3/5 of the slaves would help determine the outcome of presidential elections

1. Thus, the fundamentally undemocratic electoral college was intended to protect the interests of slavery

4. INITIALLY – president and vice president were not on the same ballot

a. Not designated who would fill which role

i. Presidency went to the man with the most votes

ii. Vice presidency went to the man with the second highest number of votes

b. Created hostility and distrust – the man who was vice president wanted to be president, and wouldn’t necessarily act in the best interest of the man who beat him

c. CHANGED – 1800 election (Jefferson v. Burr)

Powers of The Judicial Branch

1. Appointment – presidential appointment with Senate confirmation

2. Did not expressly discuss judicial review – however the language of the Constitution & the debate over the powers of the court suggests that founders expected national courts to enforce the Constitution

a. Article III: “the judicial power of the US shall be vested in one Sup. Court & in such inferior Cts as the Congress may from time to time ordain & establish”

b. “Judicial power extends to all cases” which may arise “under this Constitution, the laws of the US, & treaties made under their authority”

c. Article VI: Supremacy Clause