Required Texts
1) Marc W. Kruman, Between Authority and Liberty: State
Constitution Making in Revolutionary America (UNC
Press, 1997)
2) Saul Cornell, The Other Founders: Anti-Federalism and
the Dissenting Tradition in America, 1788-1828 (UNC
Press, 1999).
3) Kermit L. Hall, Major Problems in American
Constitutional History, Volume I: (D.C. Heath & Co.,
1992)
4) Canada in the Making—Constitutional History (located
on the website at the following location):
http://www.canadiana.org/citm/themes/constitution
/constitution4_e.html
5) Mary Lynn Rampolla, A Pocket Guide to Writing in
History, 4th Edition (Boston, MA: St Martin's Press, 2004)
Discussion Themes for Week One:
Constitutionalism and traditions of
authority in the colonial era
•
•
•
•
How did early patterns of conflict among colonizing
powers affect ideas about legitimate constitutional
authority in North America before 1700? How did the
era of imperial wars (1680s-1760s) affect those ideas?
How did traditions of constitutional authority in colonies
acquired from France differ from those in British
colonies before 1763?
How did traditions of constitutional authority differ
among British Colonies in British North America, 16061763?
What was the relation between conquest and
constitutional authority in British North America?
Before Next Meeting (Monday)
• Read for detailed understanding and expertise the discussion
assignment that you selected for week #2 (be prepared to introduce
and respond to questions)
• Read for general understanding and familiarity:
Week #2 Readings (Read for AP#1):
Hall, 71-119
Krum, 1-60;
CITM (click on the sections labelled“1759-1774” and “17741791”), read the overviews, and especially read Royal
Proclamation 1763, Treaty of Paris(1763);Instructions to
Governor Murray (1763); Petition of Quebec Traders (1764);
Lt. Gov. Carleton’s Reports of 1767-68; Petition of French
Subjects to the King (1773) Quebec Act (1774); Instructions to
Governor Carleton (1775)
• Be prepared to discuss/present your ideas for a term project (topic,
working argument/approach to the topic, ideas for sources, methods,
etc.)
Constitutionalism and traditions of authority in the colonial era
A.
Historical Methods and Constitutional History:
1. Arbitrary segmentation of history into manageable bites:
a. Nations and Colonies as political constructs
b. Colonization as a political process with socio-economic
components
c. Colonization as a periodization of events (chronology?)
2. Problem of Nationalistic blinders in dealing with
constitutional history
a. the trap of inevitability
b. the cult of "the" constitution in the United States (only one
constitutional convention?)
c. politically-inspired "presentism" and the trap of "original
intent"
d. the Canadian tradition of many constitutional conventions
Constitutionalism and traditions of authority in the colonial era
A.
Historical Methods and Constitutional History:
3. Method of comparative history in constitutional history:
a. constitutions as changing documents of uncertain tenure
b. emphasis on regional variation and variability of intent
c. What kinds of questions/themes are comparable across
cultural and regional boundaries?
1)
2)
3)
4)
5)
6)
Personal freedoms?
Structures of authority?
Mechanisms for correcting misapplied authority?
Sources of legitimacy?
Limits of legitimacy?
Avenues of expression/influence?
4. Breaking away from the nation-state model:
a. Comparing constitutions of the states and provinces
b. considering public-sphere expression as assertions of
constitutional theory (whether upheld in courts or not)
Constitutionalism and traditions of authority in the colonial era
B.
North American Constitutional History: A Laboratory for Comparison
1. How did colonial experience of authority compare within British North
America?
a. English traditions of constitutional authority
b. Differences of authority among English colonies
c. Evolving differences of expectations in colonies vs England
2. How did colonial experiences of authority in New France differ from
experiences of authority in New England?
a. How did French traditions of citizenship, property, and political
representation compare with English traditions of constitutional
authority?
b. How did people in New France and other colonies experience the
transition of authority to British (after Conquest of 1759-63)?
3. How did British efforts to assert authority in New France alter traditions of
authority elsewhere in North America?
a.
b.
Other British colonies
Native Americans and treaty rights
Constitutionalism and traditions of authority in the colonial era
C.
Discussion from Hall, pp. 1-22: What are the origins of Constitutional
Authority in North America?
1. What is the relationship between the body of law and constitutional
history?
a. does the body of law constitute "constitutional history"?
b. does constitutionalism permit political action/activism? ("rule of law"
interpretation of Belz)
c. Where does political activism fit into constitutional history?
2. What is the difference between "rights consciousness" (Hartog) and
"constitutionalism" (Belz)?
a. who is a citizen?
b. How does dependency relate to citizenship?
c. What is a “right”?
1. does a "right" trump all other rights?
2. does a "right" require government action to undo infringements?
3. does a government in violation of rights lose legitimacy?
d. constitutionalism seeks to control human behavior by devising rules and
procedures
e. is civil disobedience compatible with constitutionalism?
Discussion from readings on CITM:
1. Charter of the Company of New France (granted 1629): The 100
Associates (formalization of Cardinal Richelieu's model of 1627)
A. The King's exclusive grant of governing monopoly and authority
to administer civil authority
1. 15-year grant of monopoly trading privileges in the new
colony (note fisheries exception) " from Florida to the Arctic
Circle, and from Newfoundland to the "freshwater sea" (i.e.:
the Great Lakes)."
2. requires recruitment and settlement (with 4000 colonists) of
the country
3. requires assistance to settlers (for 3 years)
4. requires improvements in the country
5. requires Catholic missions to Native peoples
6. seigniors--land-owners (mostly nobles)/feudal lords
7. habitants (censitaires)--tenants linked to seigniorial estates
subject to corvee labor and militia
Discussion from readings on CITM:
2. Act of 1663 Authorizing Imperial takeover of the Charter of 1629
A. Louis XIV Assumes Royal Authority over New France (1663):
1. Asserts royal authority over colonial subjects
2. Established the Sovereign Council of Quebec
3. Established framework for four areas of authority:
a. Governor (appointed by King from nobility) with powers
in New France akin to King of France
b. Intendent (appointed by King)--represents interests of the
King, financial affairs, police, justice
c. Sovereign Council (appointed by Governor)--judicial,
legal, administrative roles
d. Cure (appointed by Cardinal)--priestly authority (see
articles of capitulation)
4. Established local governing authorities in Louisianna,
Acadia, Quebec, Trois-Rivieres, and Montreal (including
local governor and local sub-delegate of the intendant)
Discussion from readings on CITM:
3. Implications of New France for British Constitutional History
A. Lords of Trade to Governor Lawrence(1756):
1. British authorities instruct Governor of Nova Scotia to
establish representative government
2. Rejection of Lawrence’s earlier argument against allowing
representative government (citing vicinity of New France)
3. Lords of Trade cite presence of New France as a reason for,
not against, representative government. (WHY?)
Discussion from readings on CITM:
4. The Conquest and the transfer of Authority to British Control:
A. Articles of Capitulation of Quebec ((1759--de Ramsey to
Townshend) and Articles of Capitulation of Montreal ((1760-Jeffery Amherst)
1. what is the status of property in the articles? (Q-art 2, M-art.
34, 37, 47 [slaves]
2. what is the status of religious expression in the articles? (Qart.6, 9; M-art. 27, 28, 30, 31)
3. what is the status of the people of New France under the
articles? (Q-art 5,
4. what is the status of Native American Indians under the
articles? (M-art 9, 38, 39, 40, 51 [protection from])
B. the "conquest" and "decapitation theory (Q art 11; M-art 12, 21,
25, 34, 49 [reparations]
C. overlay of Civil Law of Rome administered under Common Law
of England (M-art 41, 42, 50 [irrevocable terms]
Discussion from readings on CITM:
4. The Conquest and the transfer of Authority to British Control:
B. Perpetual Acts of Nova Scotia….
Discussion from readings in Hall, pp. 25-42 :
1. English context of colonial authority: Who had rights and
authority in English colonies? :
A. Magna Carta (1215)--(p. 25)
B. Virginia Charter (1606)--(p. 28)
C. Virginia Articles, Law, and Orders, Divine, Politic, and Martial
(1610-11)--p. 30
D. Virginia "Ordinance & Constitution … for a Council of State and
General Assembly" (1621)--p. 34
E. Mayflower Compact (1620)--p. 35
F. Fundamental Orders of Connecticut (1636)--p. 36
G. Pennsylvania Frame of Government (Penn, 1682)--p. 38
H. Pennsylvania Charter of Liberties (Penn, 1701)--p. 40
Discussion from readings in Hall, pp. 63-66 :
2. English context of colonial authority: Lockean Theory:
A. John Locke's Two Treatises on Civil Government (1690)--pp. 63-6
1. attempt to rationalize the Glorious Revolution
2. emphasis on individuality, private rights, government by consent, right of
revolution
a. men being by nature all free, equal, and independent..."
b. self-authority surrendered only by consent (majority rule)
c. "preservation of property" being the "great and chief end... of
men's...putting themselves under government."
d. rejects concept of unabridged standards of right and wrong
e. rejects possibility of disinterested authority
f. acknowledges the prevalence of abusive force (might is not with the
"right")
g. threat of might forces people to band together in revolutionary
movements
h. this voluntary surrender of individual to the community is an
expediency, not ideal
i. emphasizes *limits* to common authority as an ideal (government is
a necessary evil)
Discussion from readings in Hall, pp. 43-61 :
3. English context of colonial authority: Lockean Theory:
A. Gary B. Nash, “Expedience and Early Constitutionalism” (p. 43)
B. Donald S. Lutz, “The Idealism of Early Constitutionalism” (p. 54)
Before Next Meeting (Monday)
• Read for detailed understanding and expertise the discussion
assignment that you selected for week #2 (be prepared to introduce
and respond to questions)
• Read for general understanding and familiarity:
Week #2 Readings (Read for AP#1):
Hall, 71-119
Krum, 1-60;
CITM (click on the sections labelled“1759-1774” and “17741791”), read the overviews, and especially read Royal
Proclamation 1763, Treaty of Paris(1763);Instructions to
Governor Murray (1763); Petition of Quebec Traders (1764);
Lt. Gov. Carleton’s Reports of 1767-68; Petition of French
Subjects to the King (1773) Quebec Act (1774); Instructions to
Governor Carleton (1775)
• Be prepared to discuss/present your ideas for a term project (topic,
working argument/approach to the topic, ideas for sources, methods,
etc.)