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

American Legal History – Professor Richard Ross – University of Illinois -Spring 2015

How is history of law studied?

· Internalist

· Externalist

Uses of Law?

o Symbolic, ideological

§ Creates identities

· Example: Husband/Wife, Boss/Worker (law helps create understandings of these identities)

§ Creates values

· Law is symbolic not always functional show what a society is about(Ex: Early Puritan society enforcing God’s will)

§ Provides grammar for political thought

· Think of law as a mode of translation for political thought

· Helps supply the political categories by which people view the world around them

o Functional, instrumental – Jobs that law did, practical work

§ Regulates violence and compulsion

· Helps insure that the state has a monopolization of legitimate violence

· How private individuals and corporations exercise violence

§ Allocates scarce resources

· Distributes rights like distributing land (EX: eminent domain)

· Distribute scarce economic resources

§ Arena for defining notions of “rightness”

· Ideologies play out in specific disputes in legislatures

§ Defines notions of privilege and subordination

· Law was intrinsic in upholding segregation, slavery and later in removing these

§ Law helps create constitutionalism

· More than just the formal structures of government

· It is an ideal, all forms of organized power must be held accountable by standards set by the boarder society, not just by the power holder

· Taken the form of judicial review, detailed rules for the operations of institutions

· Ex: Activities of markets, corporations, universities

Colonial Constitutionalism (Three Levels) – how power was established, bring power into being, authorize power, set boundaries

· British (domestic)

o Constitution in Great Britain

o Not written in one documents

· Imperial/transatlantic

o Series of arrangements Britain had with the colonies

o Not written in one document

· Colonial

o Each colony had its own Constitution

o Haphazard quality profound differences between the colonies

o Commonalities

§ People think about constitutions as unwritten and customary

§ Many documents forming what eventually led up to the creation of colonial Constitution both written and customary

§ The unwritten customary elements were transformed into prescriptive rights over time

§ Colonial constitution was highly malleable and uncertain

So were did power come from?

· Today Constitutions bring power into being

· In Colonial times Constitutions were thought of as a way of limiting power

· It was already pre-existing

· Timeline: Early Modern (1500-1750) or Renaissance/ Reformation

Sources/ Theories of Government

o God ( Limits: wanted rulers to have power but did not specify what kind of government)

§ Romans 13:1-5 supposed to obey magistrates not just for wrath’s sake but for one’s own conscience’s sake

§ Divine right of kings (latter 16th century) Protestant response to Pope’s claim to unseat rulers

§ From the king power radiates downward

o Patriarchal Descent

§ Adam was the ruler of his family, was the supreme patriarch in terms of economy and government. It descended to the latter patriarchs, line of fathers that went back to Adam

§ King is a surrogate father, so you should honor your father in the state

o Social Compact (Limits: produced either initially or organically)

§ At some point in the distant past people/ families came together to form a compact/ a state

§ Create a people, and the people create a ruler, and the ruler will govern

§ Sometimes delegation of power is absolute, other versions in which there are limitations built into the social compact

Limits on Power

· Laws

· Consent – Parliament or legislative bodies/ assemblies

o Populations in colonies is dispersed

o Colonies move towards emphasizing consent since top down enforcement is not really effective

o Assemblies manage to govern a dispersed population

o Participatory character of colonial politics/ governance, usually lay people and volunteers

Mixed and Balanced Government

· Not balance of institutions like today, it was mixed government in which you balance social orders

· Balance social orders to make sure no one social order would come to dominate, or the government would degenerate into tyranny or anarchy

· 3 Social orders in the British Constitution:

o King, Aristocracy, Common people = Crown, House of Lords, House of Commons

§ All three must agree to pass law, all must cooperate, no separation of powers

· Popular sovereignty allowed them to change the form of government (akin to a coup’de etat )

· Used the idea of the people to legitimatize themselves say the federalists, anti-federalists said only the continental congress can authorize ratifying convention

· Popular sovereignty became a very nifty political maneuver

Imperium in imperio – a power within a power, state will collapse

· Federal and state government, national v state government

· Was created resulted in the Civil War

· Federalist answer is popular sovereignty, one supreme uncontrollable power, it is the people

o Depends on seeing the people as a unified political unit, (this is not obvious, and it is not obvious what the mechanism for the people is)

Troubling implications

· Does not solve practical issue between collisions between branches of government, it misleads people with the idea of “the people”

· Does not give a useful way of assigning power between the feds, and states

· (annoyed framers) Potentially radical side – the people might try to govern (mob rule)

o Legitimate uses of mobs (constitutional)

§ In times of famine- not relieving people of feminine

§ If authorities were ineffective at suppressing crime mob could step in to charge criminals

· People would be sovereign on a theoretical level but never directly – electoral college – many levels away from popular way (filtering popular will)

· Framers are trying to come up with an institutional structure that resembles the rational of the people but not the passion of the people

· It makes it very hard to think about the bill of rights

o oversight of federal convention everyone wanted to go home

o fiction of popular sovereignty too seriously, federalists argued against it because it represented an old model of concession from the rulers to the ruled , the people are the rulers, they are sovereign