CREATING A LAWFUL SOCIETY, 1787-1815

I. Introduction: A Government of Laws: How Hall opens his chapter on the subject with the statement that all Americans could agree on the principle that "that which is not regulated by law must depend on the arbitrary will of the rulers, which would put an end to civil society." Stop and think now: What really is meant by the aphorism, a society based on law not men; a state whose rulers are not above the law--How does one go about creating such a society and state?

1. Domestic Crises: Tax rebellions (Shays) and the breakdown of local law and order. A tax-debt-public finance crisis in almost every state.

2. Foreign Perils: The real world and its dangerous borders--an age of mercantilism, economic competition, and war.

3. Failures of the Confederation: State supremacy and the inability to defend borders and trade.

1. Problems Faced by the Philadelphia Constitutional Convention: Create a more powerful, effective central or national government without completely subordinating the separate states (remember the origins and dynamics of the revolutionary crisis); regulate public order, discipline the masses without recreating monarchy or aristocracy (the Hobbes-Blackstone dilemma)--The solutions proposed and accepted.

2. Federalism and Enumerated National Powers: An upper house (Senate) in which states have equal representation and whose members not directly subject to popular passion--Where the police power (what that means in the 18th century) is located.

3. Separation of Powers and Judicial Review: Why is the judiciary the least dangerous branch (A. Hamilton)?

4. The Base Compromise, Slavery: the 3/5 rule; fugitive slave apprehension; legitimation of slave trade until 1808.

5. The Struggle for Ratification: the anti-Federalists, "people of little faith"? Fear of an alien power distant from the people and local control--Madison's response in Federalist No 10: the distinction between a democracy and a republic--why a republic is more conducive to liberty and a well-ordered society--the Bill of Rights concept and the emerging myth of popular sovereignty (what the historian Edmund Morgan calls "inventing a people")--making the Constitution a higher law that binds federal legislators and executives.

IV. Creating a Lawful National State: a note about original intent and disagreements among the Founders--over presidential authority at home as well as abroad; over the reach and power of the new national government; but not over the independence of the judiciary, the abstract concept of a state based on law; or the emerging doctrine of judicial review.

1. The Judiciary Act of 1789: Creating district courts, circuit courts with one Supreme Court justice, and the highest court in the land with its numbers of source of jurisdiction determined by congressional action.

2. The Alien and Sedition Acts: English common and statutory law in the U.S. context, a matter of whose ox was being gored--truth as a defense--the struggle over the judiciary and the Kentucky and Virginia resolutions--higher law principles and who judges (determines) constitutional validity--Why Jefferson and Madison turn to principle of state rights rather than that of judicial review.

3. The Election of 1800 and the Judiciary Act of 1801--a needed reform especially in freeing Supreme Court justices from circuit riding.

4. The Jeffersonian Attack on the Judiciary and Judicial Independence Triumphant

a) The exoneration of Samuel Chase.

b) John Marshall and Marbury v. Madison (1803): finding that an act of congress violates the Constitution.

c) John Marshall and Fletcher V. Peck (1810): finding that a state law violates the federal constitutional interdiction against violating contractual rights.

d) How do you explain the triumph of judicial review? Are judges simply finding law and applying or interpreting it? Or are they, instead, making law? Related to whose controversy hinted at in Hall over common law at the state level and movement toward its codification.

V. Conclusion: Legitimation by Consensus