2011 May 18 Weds
Constitutional adaptations & the re-interpretation of original intent HST 494
1. Administrative: AP #4 due Monday; Final Exam Monday 6 June at 10 a.m.
Week #8 Readings (Read for AP#4):
Hall, pp. 157-190; CDIC (Upper Canada: “The 1837 Rebellions” & “The Durham Report and
the Act of Union” ; Lower Canada: “The Patriote Insurrection”); CITM (click on 1791-37[1]], read section entitled “New Constitution,
New Problems” and then click on “1837-1839” and “1839-1850”, read the sections “Growing Hostility”, and “Call for Responsible
Government”, then examine documents entitled The Ninety-two Resolutions (1834), Baldwin to Glelelg (1836), Joseph Howe to Lord
Russell (1839) Instructions to Lord Durham (1838), Durham to Gleneleg 1838), Report on Affairs of British N. America (Durham,
1839), & The Act of Union (1840)
Discussion/review themes:
1. How did the U.S. and Canadian constitutions of 1791 affect later efforts to adapt governing authority to changing circumstances
and priorities? How do the respective responses to these concerns compare?
2. How did the British Response to the Uprisings of 1837-38 compare with Andrew Jackson’s response to the Nullification Crisis and
Cherokee Removal Crisis of the same period?
3. How did the Act of Union in 1840 compare with American efforts to resolve regional and ethnic differences in the Antebellum era?
4. How did the structural and socio/political barriers to gradual adaptation affect how the U.S. and Canadian governments responded
to the regional and ethnic crises of the late 1820s-1840s?
2. Last Week: Locality, Executive Authority, and Legislative Review in the era of Capitalist Transformation
A. Implications of 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. Imperial pressures for internal improvements on Canadian Governors (Military reserve)
i.
Governor's dependence on legislative assemblies for fiscal support of internal improvements
ii.
legislative assemblies pressure governors for more "executive" powers ("responsible" govt)
iii.
de facto strengthening local, representational branch of government ("Reform" Parties)
b. Congressional pressures for internal improvements in U.S. ("loose construction" rationale)
i.
Rise of nationalist leaders among Jeffersonian Republicans (Adams, Calhoun, Clay, Jackson)
ii.
de facto erosion of state authority and strengthening of executive and judicial authority
4. Why did Canadian Conservatives identify themselves as Constitutionalists in 1830s? (original intent?)
5. Why were the Constitutionalists unable to control the Reformers in parliaments of 1820s-30s? (p. 75-80)
B. arguments over internal improvements as causal factors contributing to constitutional crises in US and Canada
C. Why did Papineau issue the 92 Resolutions in 1834? What were the leading concerns?
1. #5: Assembly seeks executive role (ministerial model)--responsible executive model
2. #9: Constitutional Act of 1791 gave executive too much power
3. #12: Elective legislative council (upper house)
4. #25: Note reference to members of Leg. Council who were U.S. citizens! (e.g. Horatio Gates!--p. 274)
5. #37: Note reference to global phenomenon of "two great parties" (e.g. serviles, royalists, tories, and
conservatives; vs liberals constitutionals, republicans, whigs, reformers, radicals, etc.)--note the
emphasis that "on this continent [the former party is] without any wieght or influence except what
it derives from its European supporters…while the second party overspreads all America." (p. 278)
6. #43 &44: Break from British model of government, and references to the "American States" in whichh
"virtuous and enlightened men have modified such colonial institutions when it could be done with
the assent of the parties interested." (pp. 278-279)
7. #53: Note reference to British-origin settlers in LC, where the inhabitants, as practitioners of
Catholicism, enjoyed "an established form of constitution and system of laws," then attempted to
overturn those laws to the detriment of previous inhabitants and in violation of received body of
common law (dating back to articles of capitulation).--p. 282
8. #57: Note reference to the Act to Extinguish seigneurial grants--interpreted as the equivilent of an
exclosure act that would force censitaires (habitants) off the lands that they had inhabited by
inherited right & on whichh they had made improvements, etc… (p. 282-3)
9. #64-#68: Executive efforts to monopolize control over revenues are unconstitutional (under 1791
frame)--note connection with governor's attempts to liquidate public lands ("waste lands") as a
source of revenue--compare with federal land office in U.S. and independent revenues of the
federal government! (pp. 284-285)
10. #77-78: Note distrust of judiciary due to ethnic bias in appointments and connections with the chateau
clique!!! (pp. 285-286)
11. #84: Specific abuses of the executive
D. How did the rebellions influence British priorities for constitutional reform in the Canadas?
1. How did Lord Durham respond to the rebellions in Canada?
2. What remedies did Durham propose?
3. How did the Act of Union differ from Durham’s proposals and why?
4. How did the Act of Union alter the structure of constitutional authority in Canada?
a. To what extent did the Act of Union address the grievances of the rebels?
b. What happened to Papineau? McKenzie? What happened to their followers?
E. How did the Act of Union (1840) compare with the recommendations of the Durham Report?
1. How did the instructions to Lord Durham compare with the demands of the English-Canadian
leaders (Baldwin) and recommendations of British governors?
2. How did the instructions to Lord Durham compare with the recommendations of Durham's later Report?
3. What were similarities and differences between Durham's recommendations and Papineau's
demands in the 92 Resolutions of 1834?
4. How did the Act of Union compare with the instructions to Lord Durham?
F. How did militant nationalism in the US influence British priorities for constitutional reform in the Canadas?
1. Why did the United States and Canada endure simultaneous crises in 1830-37?
2. How did British response to Papineau’s secessionism compare with Jackson’s response to nullification?
3. how did Jackson and Van Buren respond to the Texas revolt?
4. how did Jackson and Van Buren respond to the Canadian rebellions?
5. How did British response to Papineau’s secessionism compare with Jackson’s response to nullification?
6. Why were Americans surprised by Lord Durham’s 1837 visit to the United States?
3. Today: States’ Rights, Executive Authority, and Public Sphere
A.
How did the British Response to the Uprisings of 1837-38 compare with Andrew Jackson’s response to the Nullification
Crisis and Cherokee Removal Crisis of the same period?
1.
2.
How did Calhoun's argument for Nullification (1828) compare with Papineau's 92 Resolutions?
How did Calhoun's version of Nullification in 1828 compare with Jefferson's and Madison's
versions during the 1798 crisis over the sedition act (Kentucky and Virginia Resolutions)?
3. How did Jackson's advocacy for Indian Removal (1829) compare with English-Canadian
(Baldwin's) and British arguments (Lord Durham Report and Howe to Lord Russell) for
constitutional reform to terminate French Civil Law and Language?
4. How did British restore order in Lower Canada in 1837-8 and how did that differ from Jackson's
actions in the Cherokee and South Carolina crises of the early 1830s?
B. How did Marshall’s decision in the Worchester vs Georgia decision compare with his earlier decisions in
McCulloch v. Maryland? How did it compare with Taney’s decision in the Charles River Bridge case (decided by
Marshall’s successor in 1837)
C. How did Jackson’s response to the Worcester decision differ from his response to South Carolina’s Nullification
legislation in the same year?
1. How did Jackson’s theory on the use of force against South Carolina to enforce the federal tariff compare
with his theory on the use of force against Georgia to enforce Cherokee treaty rights?
2. In what ways do the assertions of Cherokee Treaty rights vs the State of Georgia differ from South
Carolina’s assertion of State’s Rights (Nullification) vs federal legislation
i. where in the Constitution does Calhoun claim to find the authority of an individual state
to nullify an act of Congress? (how does this differ from Jefferson and Madison's claim
for state legislatures as a check on federal power)?
ii. where in the Constitution does Marshall claim to find the authority for a treaty to overrule a state legislative act?
iii. where in the Constitution does Jackson claim to find executive authority for ignoring the
Marshall Court's ruling in the Worcester decision?
iv. Why doesn't Jackson actually use force against South Carolina? against Georgia?
v. How does Jackson's constitutional theory differ in his approach to the states of Georgia
and South Carolina in 1832 on the issue of "state's rights"? Why?
vi.
B. How does the Act to Extinguish Seigneurial titles in Lower Canada compare with U.S. arguments over slavery?
1. How do Canadian efforts to revise the constitutional principle of French Civil law and other legacies of the
capitulations of 1759 and 1760 compare with U.S. efforts to reconcile capitalism and slavery?
2. Why was constitutional reform not an option in the U.S. during the 1840s, while it was in Canada?
C. How did the slavery issue distort the national debate on the meaning of constitutional authority? (1810-1830s?)
1. What caused the nullification crisis in Jackson’s first term? (note primary context in tariff laws, not slavery!!)
2. Why did Calhoun press the nullification theory in the Jacksonian administration (Jackson’s assault on judicial
review (Worcester case) laid the foundation for a renewed effort to assert legislative review – vs Jackson’s
executive review theory in response to Worcester decision)
3. How did nullification differ from secession?
4. How did Jackson’s actions during the crisis affect interpretations of constitutional authority?
5. How did the nullification crisis affect the status of slave-holders and slaves under American law?
D. How did the constitutional authority of the presidency change during the Jackson administration and why?
1. Why did Jackson favor the elimination of the electoral college? (note context of 1824 election!)
2. What is the role of the presidency in constitutional crises? (executor vs activism?)
3. How does executive authority compare with judicial or legislative authority under the constitution?
4. What was the outcome of Jackson’s “war” on the B.U.S.?
5. Why did Jackson’s war on the BUS lead to conflict with Congress? (favored renewing the charter)
6. How did Jackson’s vetos differ from those of his predecessors (expediency test vs unconstitutionality)
7. On what grounds did Jackson claim executive authority was more democratic than legislative or judicial?
8. How did Jackson resolve the nullification crisis of the 1830s?
D. How did the capitalist transformation of the early 1800s affect the judiciary?
1. McCulloch v. Maryland (1818) and the question of state vs federal control of capital and commerce
a. Second Bank of the U.S. chartered by Congress in Aftermath of War of 1812 to organize economy
b. B.U.S. opened branches within states under federal charter and competed with state banks
c. States attempted to regulate BUS by imposing taxes
d. James McCulloch, cashier of Baltimore Branch of the 2 nd Bank of the U.S., refused to pay
e. BUS appealed to federal courts when State courts upheld state right to tax BUS
f. Marshall court upheld BUS and struck down State authority to tax federally chartered corp:
g. Strict-constructionist argument (on meaning of clause limiting implied power of federal government) used
to uphold loose-constructionist interpretation that the Constitution was an “adaptable” instrument
h. Marshall argues the end justifies all means: “Let the end be legitimate, let it be within the scope of the
constitution, and all means which are appropriate, which are plainly adapted to that end, which are not
[strictly] prohibited … are constitutional.”
2.
Charles River Bridge case (ca. 1785-1837) and the question of corporations in constitutional law:
a. Status of contract law in relation to “liberal” concept of individual rights
b. Chief Justice Taney asserts the “rule” of narrow construction to undermine “public interest” claim of
Charles River Bridge Corporation (rejects their claim of contract guaranteeing monopoly rights)
c. Taney asserts “rule” of loose construction in support of individual right to compete as “public interest”
(establishes “convenience” test authorizing state to charter Warren Bridge company to advance commerce)
d. Compact theory of “public interest” replaced by competitive theory of public interest (progressive bias)
E. How did industrial development affect 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
a. Can a corporation be "executed"? can it be regulated? by whom?
b. Dartmouth College v. Woodward (1819) & Daniel Webster's argument for immortality
i. Corporate charter by King in 1769
ii. 1816 election and rise to power of NH Democratic Republicans
iii. NH legislature acts to change Dartmouth to a state University (changing corporate charter)
iv. Old trustees file suit against William H. Woodward (sec-treasurer of Dartmouth) & new trustees
v. NH courts upheld Woodward & old trustees (Dartmouth College) appealed to US Supreme Court
vi. Supreme Court reverses state courts, rules "contract" inviolate (cannot alter terms of the charter):
holds that the charter was an "implied contract"
vii. Rules against the state and in favor of the corporation (Dartmouth College)--contrast with CRB
case, below?
3. Inviolate nature of corporate status vs capital punishment for human beings
E. How did the Courts affect the functioning of the “public sphere” in the New Republic?
1. Why does Taney rule against the contractual rights of the Charles River Bridge Corporation?
e. Status of contract law in relation to “liberal” concept of individual rights
f. Chief Justice Taney asserts the “rule” of narrow construction to undermine “public interest” claim of
Charles River Bridge Corporation (rejects their claim of contract guaranteeing monopoly rights)
g. Taney asserts “rule” of loose construction in support of individual right to compete as “public interest”
(establishes “convenience” test authorizing state to charter Warren Bridge company to advance commerce)
h. Compact theory of “public interest” replaced by competitive theory of public interest (progressive bias)
i. Status of contract law in relation to “liberal” concept of individual rights
j. Compact theory of “public interest” replaced by competitive theory of public interest (progressive bias)
k. “pragmatic” vs “democratic” priorities of judicial activism
2. Note conflict *within* the judiciary over the interpretation of constitutional authorities in this case:
a. Chief Justice Taney's majority opinion (public interest balanced against legislative intent)
b. Justice Joseph Storey's dissenting defense of the Corporation's contract
i.
strict construction of charters as the lynchpin in the case--based on common law precedents
ii.
notes the CRB corporate charter did not expressly authorize a bridge, but only implied such
iii.
asserted consistency required a liberal ("loose" interpretation of that original charter)
iv.
polarized the conflict (Whiggish?) as lawful rights vs arbitrary caprice (of the courts)
c. Taney "helped free new forms of property from the impeding … claims of obsolescent
coroporations…." (Hall, p. 435)
d. Why do historians refer to Story as a "conservative" judge (Natural Law)?
e. What was Taney's interest? (pragmatism?)
F.
G. How did the Texas Revolution (of 1836) affect constitutional theory in U.S. and the Canadas?
4. Terms: (Week 8)
Northwest Company of Montreal (est 1787-1821)
Columbia District (HBC, est 1824)
James Henry Craig (Gov-in-Chief, UC&LC, 1807-11)
John Black (MLA, LC, Quebec County, 1796-1800)
The Ninety Two Resolutions (Papineau, 1834)
Peregrine Maitland (Lt. Gov., UC, 1818-28)
Parti Patriote (ca 1826-1840)
Robert Baldwin (Reform Party, UC)
HBC/NW Co merger (1821)
Rupert's Land (HBC, 1670-1867)
Robert Shore Milnes (Lt. Gov, LC 1799-1808)
Louis Joseph Papineau (Parti Canadien Speaker of LA, LC)
Parti Canadien (LC to 1826)
Reform Parties (ca 1824-37)
William Lyon McKenzie (Colonial Advocate, est 1824)
"Responsible Government"
Rebellions of 1837-38 (Upper and Lower Canada)
The Durham Report (Jan 1838-1839)
John George Lambton, 1st Earl of Durham (Lord Durham)
The Act of Union (1840)
James Kent (NY Supreme Court, 1802)
McCulloch v. Maryland (1818)
Charles River Bridge Decision (1837)
Joseph Story
James McCulloch (Baltimore Branch, BUS)
Commentaries on American Law (Kent)
"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)
"gag rules" (1836-1845)
John C. Calhoun (vice president, 1829-33)
Tariff of Abominations (1828, renewed 1832)
Worcester v. Georgia (1832)
The Specie Circular (1836)
Nicholas Biddle
nullification (1832-33)
Proclamation to the People of South Carolina (Dec 1832)
Martin Van Buren (vice president, 1833-37)
The Force Bill (1833)
The Panic of 1837 (Depression of 1837-43)
The Bank Veto
Compact theory of Union (John Taylor)
Juror nullification
Judicial Review
legislative nullification