Required Texts

1
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 MakingConstitutional History
   (located on the website at the following
   location) http//www.canadiana.org/citm/themes/c
   onstitution/constitution4_e.html
5. Mary Lynn Rampolla, A Pocket Guide to Writing in
   History, 4th Edition (Boston, MA St Martin's
   Press, 2004)

2
Discussion Themes for Week OneConstitutionalism
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, 1606-1763?
• What was the relation between conquest and
  constitutional authority in British North America?

3
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 AP1)
• Hall, 71-119
• Krum, 1-60
• CITM (click on the sections labelled1759-1774
  and 1774-1791), 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. Carletons 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.)

4
Constitutionalism and traditions of authority in
the colonial era

• Historical Methods and Constitutional History
• Arbitrary segmentation of history into manageable
  bites
• Nations and Colonies as political constructs
• Colonization as a political process with
  socio-economic components
• Colonization as a periodization of events
  (chronology?)
• Problem of Nationalistic blinders in dealing with
  constitutional history
• the trap of inevitability
• the cult of "the" constitution in the United
  States (only one constitutional convention?)
• politically-inspired "presentism" and the trap of
  "original intent"
• the Canadian tradition of many constitutional
  conventions

5
Constitutionalism and traditions of authority in
the colonial era

• Historical Methods and Constitutional History
• Method of comparative history in constitutional
  history
• constitutions as changing documents of uncertain
  tenure
• emphasis on regional variation and variability of
  intent
• What kinds of questions/themes are comparable
  across cultural and regional boundaries?
• Personal freedoms?
• Structures of authority?
• Mechanisms for correcting misapplied authority?
• Sources of legitimacy?
• Limits of legitimacy?
• Avenues of expression/influence?
• Breaking away from the nation-state model
• Comparing constitutions of the states and
  provinces
• considering public-sphere expression as
  assertions of constitutional theory (whether
  upheld in courts or not)

6
Constitutionalism and traditions of authority in
the colonial era

• North American Constitutional History A
  Laboratory for Comparison
• How did colonial experience of authority compare
  within British North America?
• English traditions of constitutional authority
• Differences of authority among English colonies
• Evolving differences of expectations in colonies
  vs England
• How did colonial experiences of authority in New
  France differ from experiences of authority in
  New England?
• How did French traditions of citizenship,
  property, and political representation compare
  with English traditions of constitutional
  authority?
• How did people in New France and other colonies
  experience the transition of authority to British
  (after Conquest of 1759-63)?
• How did British efforts to assert authority in
  New France alter traditions of authority
  elsewhere in North America?
• Other British colonies
• Native Americans and treaty rights

7
Constitutionalism and traditions of authority in
the colonial era

• Discussion from Hall, pp. 1-22 What are the
  origins of Constitutional Authority in North
  America?
• 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?
• 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?

8

• Discussion from readings on CITM
• Charter of the Company of New France (granted
  1629) The 100 Associates (formalization of
  Cardinal Richelieu's model of 1627)
• The King's exclusive grant of governing monopoly
  and authority to administer civil authority
• 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)."
• requires recruitment and settlement (with 4000
  colonists) of the country
• requires assistance to settlers (for 3 years)
• requires improvements in the country
• requires Catholic missions to Native peoples
• seigniors--land-owners (mostly nobles)/feudal
  lords
• habitants (censitaires)--tenants linked to
  seigniorial estates subject to corvee labor and
  militia

9

• Discussion from readings on CITM
• Act of 1663 Authorizing Imperial takeover of the
  Charter of 1629
• Louis XIV Assumes Royal Authority over New France
  (1663)
• Asserts royal authority over colonial subjects
• Established the Sovereign Council of Quebec
• Established framework for four areas of
  authority
• Governor (appointed by King from nobility) with
  powers in New France akin to King of France
• Intendent (appointed by King)--represents
  interests of the King, financial affairs, police,
  justice
• Sovereign Council (appointed by
  Governor)--judicial, legal, administrative roles
• Cure (appointed by Cardinal)--priestly authority
  (see articles of capitulation)
• Established local governing authorities in
  Louisianna, Acadia, Quebec, Trois-Rivieres, and
  Montreal (including local governor and local
  sub-delegate of the intendant)

10

• Discussion from readings on CITM
• Implications of New France for British
  Constitutional History
• Lords of Trade to Governor Lawrence(1756)
• British authorities instruct Governor of Nova
  Scotia to establish representative government
• Rejection of Lawrences earlier argument against
  allowing representative government (citing
  vicinity of New France)
• Lords of Trade cite presence of New France as a
  reason for, not against, representative
  government. (WHY?)

11

• Discussion from readings on CITM
• The Conquest and the transfer of Authority to
  British Control
• Articles of Capitulation of Quebec ((1759--de
  Ramsey to Townshend) and Articles of Capitulation
  of Montreal ((1760--Jeffery Amherst)
• what is the status of property in the articles?
  (Q-art 2, M-art. 34, 37, 47 slaves
• what is the status of religious expression in the
  articles? (Q-art.6, 9 M-art. 27, 28, 30, 31)
• what is the status of the people of New France
  under the articles? (Q-art 5,
• what is the status of Native American Indians
  under the articles? (M-art 9, 38, 39, 40, 51
  protection from)
• the "conquest" and "decapitation theory (Q art
  11 M-art 12, 21, 25, 34, 49 reparations
• overlay of Civil Law of Rome administered under
  Common Law of England (M-art 41, 42, 50
  irrevocable terms

12

• Discussion from readings on CITM
• The Conquest and the transfer of Authority to
  British Control
• Perpetual Acts of Nova Scotia.

13

• Discussion from readings in Hall, pp. 25-42
• English context of colonial authority Who had
  rights and authority in English colonies?
• Magna Carta (1215)--(p. 25)
• Virginia Charter (1606)--(p. 28)
• Virginia Articles, Law, and Orders, Divine,
  Politic, and Martial (1610-11)--p. 30
• Virginia "Ordinance Constitution for a
  Council of State and General Assembly" (1621)--p.
  34
• Mayflower Compact (1620)--p. 35
• Fundamental Orders of Connecticut (1636)--p. 36
• Pennsylvania Frame of Government (Penn, 1682)--p.
  38
• Pennsylvania Charter of Liberties (Penn,
  1701)--p. 40

14

• Discussion from readings in Hall, pp. 63-66
• English context of colonial authority Lockean
  Theory
• John Locke's Two Treatises on Civil Government
  (1690)--pp. 63-6
• attempt to rationalize the Glorious Revolution
• emphasis on individuality, private rights,
  government by consent, right of revolution
• men being by nature all free, equal, and
  independent..."
• self-authority surrendered only by consent
  (majority rule)
• "preservation of property" being the "great and
  chief end... of men's...putting themselves under
  government."
• rejects concept of unabridged standards of right
  and wrong
• rejects possibility of disinterested authority
• acknowledges the prevalence of abusive force
  (might is not with the "right")
• threat of might forces people to band together in
  revolutionary movements
• this voluntary surrender of individual to the
  community is an expediency, not ideal
• emphasizes limits to common authority as an
  ideal (government is a necessary evil)

15

• Discussion from readings in Hall, pp. 43-61
• English context of colonial authority Lockean
  Theory
• Gary B. Nash, Expedience and Early
  Constitutionalism (p. 43)
• Donald S. Lutz, The Idealism of Early
  Constitutionalism (p. 54)

16
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 AP1)
• Hall, 71-119
• Krum, 1-60
• CITM (click on the sections labelled1759-1774
  and 1774-1791), 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. Carletons 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.)