American Constitutionalism in Historical Perspective (packet)

American Constitutionalism in Historical Perspective (packet)

1640-1660: idea of written constitution to constrain democratic gov’t. derived from Leveler Movement (English Civil War). Ensure that state protects equal human rights, provides security in equality as equal moral agents. Moral ideology from Puritan theology-conception of political equality (will obey the state if extend terms that will respect us).
1688-1776: idea of written constitution adopted by Jefferson, Madison and Adams.
1776-1787: American Revolution about taxation without representation, call for written constitution. Adams and Jefferson begin writing.
1787-1791: Constitution Enacted in 1787, Bill of Rights in 1791

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  Madison chief designer, though not pleased b/c doesn’t fully protect human rights particularly against threats from the states and the institution of slavery. Believed the worst faction was race hatred.
  
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  Jefferson thought courts were the wrong way to enforce human rights, court skeptic.
  
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  Hamilton believed in centralized gov’t, necessary if all Americans are to have human rights. Need a judiciary to enforce these rights.
  
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  Alien and Sedition Act
  

1803-1861: Judicial Review accepted.

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  South becomes more pro-slavery, imposes gag rule on abolitionist discussion.
  
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  Lincoln agrees with Jefferson and Madison that slavery must be abolished, need natl power to end slavery.
  
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  Republican Party formed after Dred Scott decision (unconstitutional for fed govt to limit slavery in the territories) clear that no natl power to revoke slavery
  
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  Civil War begins.
  

1865-1870: Reconstruction Amendments constitutionalized achievements of the Civil War. Reintroduced idea that there must be power in the national government to protect human rights from States.

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  Guarantees of human rights applied to the states through Incorporation
  
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  Addresses cultural background of slavery
  
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  Equal Protection clause condemns irrational race hatred which is never a basis for law
  

1870-1945: before WWII

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  Promise of adequate enforcement against the states not satisfied. Free speech hampered by S. Ct. decisions. Plessy announces that apartheid is consistent with the constitution.
  
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  Ct. active in protecting economic interests against congressional attempts to regulate. Later overrule Lochner.
  

1945-Present: WWII helps to shape natl views against religious and racial persecution. Free speech and religious rights honored, addressing racism in the courts.


6 aspects of American Constitutional Law
1. People have human rights
2. Constitutional critique of law that d/n reflect human rights; founded on idea that politics is corrupt
3. Theory of factions and fear of oppression of majority
4. Comparative political experience
5. Political experience of founders—learn from mistakes
6. Constitution is the supreme law of the land