American Legal History Outline

AMERICAN LEGAL HISTORY

PROFESSOR RICHARD ROSS

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

BACKGROUND

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

THE REVOLUTIONARY ERA

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

b. Until 1791 – SECOND CONSTITUTIONAL CONGRESS

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 CRISIS OF CONFEDERATION

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

b. [Later] PROBLEMS WITH CONSTITUTION OF 1787

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

C. DEFECTS OF THE ARTICLES OF CONFEDERATION

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

GOVERNMENT WITHOUT ENERGY

§ 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