2011 May 11 Weds
Political dissent and the jurisprudence of original intent
HST 494
1. Administrative:Week 7 Readings: Cornell, pp. 221-294; Hall, pp. 110-155, ; CDIC (Lower Canada: “A History of Lower
Canada Before 1837 Rebellions”);; CITM ( “1791-1837[2]”: “A Movement to Reunite the Canadas” and “The Search for solutions”,
including documents entitled Observations of Chief Justice Sewell (1810); Papineau to Wilmot (1822); Murray to Colborne (1828),
Report of the Committee of the House (1828)
2. Last meeting: Transformation of the doctrine of original intent in the nationalist era
A. Structural comparison of Constitutions of 1791 and overt/covert checks and balances in each system
1. paradoxical flexibility in the hierarchical, strong-executive, Canadian model
2. paradoxical inflexibility in the more decentralized U.S. model
B. Industrial development and implications for constitutional theory and practice (1793-1817; 1817-1865)
1. Evolution of corporate law and redefining the concept of "public good"
2. Problems of inter-state relations and corporations (like citizens) as creatures of state authority
3. Inviolate nature of corporate status vs capital punishment for human beings
C. Failure of the U.S. amendment process in the U.S., 1791—1865: Triviality of Amends. XI (1799—excludes federal
judiciary from inter-state lawsuits) & XII (1804—VP elections)—“housekeeping” mentality to constitution
D. U.S. Constitutional Crisis of 1790s-1800s:
1. Reasons the Constitution failed to address the constitutionality of laws (republicanism?)
2. Why didn’t the Whiskey Rebellion spread to Kentucky?
i.
Judge Harry Innis & local judicial authority
ii.
Jury nullification vs judicial activism
E. Federalists hijack Anti-federalist writings to construct “original intent” argument in the Nationalist era
1. Jay’s treaty as an example of contradictory stances of both Dem/Republicans & Federalists:
a. Federalists cite Anti-Federalist arguments to support "strict constructionist" interpretation of House (non)
involvement in treaty process
b. Democratic-Republicans cite pre-ratification Federalist arguments to support "loos constructionist
interpretation empowering House role in treaties
2. Sedition Act in 1798 and implications for a “loyal opposition”:
a. Hamiltonian emphasis on compulsion (forced loyalty) vs “popular will” (winning hearts & minds)
b. Callender and Cooper as examples of abuse of governing power
c. Why was the Act drafted to expire on March 3, 1801? (one day before inauguration of new president)
D. How did Anti-federalist writings affect Federalist interpretation of “original intent” in the Nationalist era?
1. adopted Anti-federalist claims that the Constitution usurped state authority (original text of opponents!)
2. divorced constitutionalism from context: text, not context becomes important (a-historical analysis)
3. “Loose Constructionist” appeal to Anti-Federalist texts to certify claims for extensive leeway
4. Madison’s “rule” during ratification: “what was the “general sense” of the public? (republicanism ideal)
5. Federalist William Smith’s claim for examining the body of “original texts” to confirm the “general sense”
6. former Anti-Federalists (Gallatin and Brent) argued for “original context”
3. Today: States’ Rights, Executive Authority, and Public Sphere
A. What governmental body had the authority to review the constitutionality of laws as of 1798? (states vs judiciary)
B. How did Madison’s Report on the Resolutions differ from his argument in The Virginia Resolutions?
1. resort to the “new theory” of libertarian freedoms vs states rights argument of the resolutions
2. emphasis on legislative and executive “restraint” vs judicial authority (but at the state level)—Hall text
3. Madison: “public sphere” as a check on federal power/excess (judicial review and public opinion) –Corn 243
4. How did Jefferson’s opposition differ from Madison’s? (stronger emphasis on state’s rights vs nationalism)
C. How did the concept of State’s Rights compare to the concept of Union in Canada during the early 1800s?
1. Compare U.S. and Canadian federal governments respond to regional efforts to assert provincial (or state)
authority and executive vs legislative authority?
2. Compare Jackson's philosophy of Executive vs legislative or judicial authority in the nullification crisis and the
Cherokee removal cases?
D. How did the War of 1812 affect governing priorities and constitutional theory in Canada and the US?
1. Discredits the "loyal opposition" in the United States & initiates one-party rule (1817-1830s)
2. Escalates pressure for internal improvements and new taxation/revenue needs (militarized economies)
3. Destablizes pre-war "balance of power" in both constitutional systems
a. Canadian Perspective: (Post-Napoleonic War focus on public works)
i.
Imperial pressures for internal improvements on Canadian Governors (Military reserve)
ii.
Governor's dependence on legislative assemblies for fiscal support of internal improvements
iii.
legislative assemblies pressure governors for more "executive" powers ("responsible" govt)
iv.
How does a wise governor deal with minority and majority factions in legislature?
v.
de facto strengthening local, representational branch of government ("Reform" Parties)
U.S. perspective: (Post War of 1812 mentality of fortress America)
i.
Congressional pressures for internal improvements in U.S. ("loose construction" rationale)
ii.
Rise of nationalist leaders among Jeffersonian Republicans (Adams, Calhoun, Clay, Jackson)
iii.
de facto erosion of state authority and strengthening of executive and judicial authority
b.
E. How did Democratic-Republican theories of Jurisprudence differ from Marshall’s (Federalist) approach?
1. Madison's suspicion of localism and ideal of jurists as mediators of pluralist difference (p. 249-50
2. William Manning's theory of Juror supremacy (Cornell, pp. 250-51)
3. Tunis Wortman's "middling democracy" approach: Theory of the Public Sphere (NY Lawyer)--p. 253
a. A Treatise concerning Political Enquiry and the Liberty of the Press
b. Emphasis on 10th amendment (national power restricted--strict constructionist theory)
c. Emphasis on educating the populace through print media
4. St. George Tucker's "Blackstone's Commentaries" (published 1803)--Cornell, pp. 263-273
d. Dominant legal theory until James Kent's "Commentaries" (1826 Federalist re-interpretation)
e. limited federal government was the goal of interpretation, not the question to be decided
f. favored state ratification conventions as adequate voice for people's will (vs public sphere debate)
g. cited Publius (Federalist Papers) as primary-source evidence of limited government as original intent
h. attempted to synthesize Madisonian Federalism and Anti-Federalist theory
i. see proposed Bill of (additional) Rights (p. 270)--STRICT CONSTRUCTIONIST
F.
How Does Marshall construct the argument for Judicial Review?
1. "faithful reading" of a "great document" (textualism and textual implication)--vs original intent?
2. Narrow or immediate context of textual phrase (e.g. "necessary and proper" clause)
3. Constitutional context of a textual element (whole document context)
4. Examples of Marbury v. Madison and McCulloch v. Maryland
5. What is the strongest case for judicial review? (supremacy clause)
6. What is the difference between Judicial review and Judicial supremacy?
G. How does the Nullification Crisis of 1832 compare with the concept of Nullification of 1798? (Hall)
1. What are the constitutional issues at stake in this crisis? (context of the Tariff of Abominations)
2. Why does South Carolina issue the Nullification Ordinance of 1832? Calhoun's role?
3. How does the Marshall Court's decision on Worcester address the Issue of state rights?
4. How does Jackson's response (Proclamation of 1832) to Nullification compare with his response to
Worcester v. Georgia (1832)? (state's rights? federal authority? executive authority?
constitutionalism?)
5. What is the role of the Executive Branch in constitutional review? (Jackson vs Marshall?)
6. How does Jackson's theory of the union differ from John Taylor's? (rejects compact theory of union)
7. How did Democratic Republican leadership respond to Jackson's threat of force? (p. 398)
8. What happened to the tariff? to the Force Act? to South Carolina?
9. How did the crisis affect subsequent status of "unionists" in South Carolina? (p. 399)
10. What defused the crisis? (Ellis argues Tariff revision, not Force Act, and that Jackson backed down!)
H. How did the exchange between Secretary George Murray and Colborne (1828) and the Report of the Committee of
House of Commons (1828) compare with the Nullification crisis?
1. Forced nationalism proposal of the Governors (forced union)--see Jackson's proposed "Force Act"
2. Reluctance (refusal) of the legislative body (Parliament) to authorize forced union
3. Public sphere defeat of the Governors and of Jackson
4. Empowerment of/radicalization of separatist sentiments in both Lower Canada and South Carolina
5. Purging of unionists from radicalized state and province
6. Canadian/British move toward revision of Constitutional framework (1828--1840)
7. American "freeze" and failure to address crisis, 1832-1848--geographic expansion as substitute for
constitutional reform
4. Terms:
People vs [Harry] Croswell (NY Sup. Court, 1802)
James Kent (NY Supreme Court, 1802--Federalist)
Tunis Wortman (NY Lawyer, Dem-Rep. Society Sec'y)
the Press (Wortman,
Sir George Tucker (Blackstone's Commentaries, 1803)
Compact theory of Union (John Taylor)
Juror nullification
"gag rules" (1836-1845)
Commentaries on American Law (Kent, 1826)
A Treatise concerning Political Enquiry and the Liberty of
Blackstone's Commentaries (Tucker, 1803--Dem-Rep)
Judicial Review
legislative nullification
James Henry Craig (Gov-in-Chief, UC&LC, 1807-11)
John Black (MLA, LC, Quebec County, 1796-1800)
Observations of Chief Justice Sewell (1810)
The Ninety Two Resolutions (Papineau, 1834)
Peregrine Maitland (Lt. Gov., UC, 1818-28)
Robert Baldwin (Reform Party, UC)
Robert Shore Milnes (Lt. Gov, LC 1799-1808)
Louis Joseph Papineau (Parti Canadien Speaker of LA, LC)
Report of the Committee of the House
Parti Canadien (LC)
Reform Parties (ca 1824-37)
"Responsible Government"
nullification (1832-33)
John C. Calhoun (vice president, 1829-33)
Tariff of Abominations (1828, renewed 1832)
Worcester v. Georgia (1832)
secession
Proclamation to the People of South Carolina (Dec 1832)
Martin Van Buren (vice president, 1833-37)
The Force Bill (1833)
McCulloch v. Maryland (1818)
Charles River Bridge Decision (1837)
Joseph Story
James McCulloch (Baltimore Branch, BUS)
"necessary and proper" clause (Art I, sec. 8)
Warren Bridge (chartered 1828)
Roger B. Taney (Charles Bridge decision, 1837)
Second Bank of the United States (est 1816)