Studies in Constitutional Democracy – serie

The Federalist Frontier traces the development of Federalist policies and the Federalist Party in the first three states of the Northwest Territory—Ohio, Indiana, and Illinois—from the nation’s first years until the rise of the Second Party System in the 1820s and 1830s. Relying on government records, private correspondence, and newspapers, Kristopher Maulden argues that Federalists originated many of the policies and institutions that helped the young United States government take a leading role in the American people’s expansion and settlement westward across the Appalachians. It was primarily they who placed the U.S. Army at the fore of the white westward movement, created and executed the institutions to survey and sell public lands, and advocated for transportation projects to aid commerce and further migration into the region. Ultimately, the relationship between government and settlers evolved as citizens raised their expectations of what the federal government should provide, and the region embraced transportation infrastructure and innovation in public education.  Historians of early American politics will have a chance to read about Federalists in the Northwest, and they will see the early American state in action in fighting Indians, shaping settler understandings of space and social advancement, and influencing political ideals among the citizens. For historians of the early American West, Maulden’s work demonstrates that the origins of state-led expansion reach much further back in time than generally understood.

The rise of the administrative state is the most significant political development in American politics over the past century. While our Constitution separates powers into three branches, and requires that the laws are made by elected representatives in the Congress, today most policies are made by unelected officials in agencies where legislative, executive, and judicial powers are combined. This threatens constitutionalism and the rule of law. This book examines the history of administrative power in America and argues that modern administrative law has failed to protect the principles of American constitutionalism as effectively as earlier approaches to regulation and administration.

The Supreme Court has usually operated in majoritarian fashion but not always, and when it hasn’t done so, the consequences of its decisions have had an extremely important impact on the Court, political parties, party formation, and politics in general.In writing Pushback, an interdisciplinary book in an interdisciplinary series, Dave Bridge crosses methodological boundaries. Sometimes, the inquiry allows for procedural data collection with measurable observations (e.g., polls, number of congressional proposals, roll call tallies, breakdown of factional affiliations). At other times, he relies on historical narrative to describe complex stories that can only be told by attending to sequence, actors, institutions, and norms. The end result offers readers an innovative and highly accessible ways to think about the ways in which our constitutional democracy can push back against rare counter-majoritarian Supreme Court decisions.

Honorable Mention, 2017 Scribes Book Award, The American Society of Legal WritersAt the dawn of the twentieth century, the United States was reeling from the effects of rapid urbanization and industrialization. Time-honored verities proved obsolete, and intellectuals in all fields sought ways to make sense of an increasingly unfamiliar reality. The legal system in particular began to buckle under the weight of its anachronism. In the midst of this crisis, John Henry Wigmore, dean of the Northwestern University School of Law, single-handedly modernized the jury trial with his 1904-5 Treatise onevidence, an encyclopedic work that dominated the conduct of trials. In so doing, he inspired generations of progressive jurists—among them Oliver Wendell Holmes, Jr., Benjamin Cardozo, and Felix Frankfurter—to reshape American law to meet the demands of a new era. Yet Wigmore’s role as a prophet of modernity has slipped into obscurity. This book provides a radical reappraisal of his place in the birth of modern legal thought.

Justin Pope’s ground-breaking work tells the story of an era of slave unrest that swept through the Atlantic World in the first half of the eighteenth century. Provinces along the eastern coast of North America and around the Caribbean Sea experienced more insurrections and conspiracy trials in the 1730s and 1740s than in any period before the Age of Revolution. The governor of Jamaica warned his king that slaves were spreading a “dangerous Spirit of Liberty” throughout the West Indies, concerns echoed by European colonists on the northern mainland. African-born slaves rose in rebellion and captured the Danish island of Saint John, and Maroons waged a successful war in Jamaica, events that became news in the wider Atlantic World. By the early 1740s, word of emancipation and widespread rebellion had taken hold in slave communities from the coast of South America to the harbors of New York City. Colonial authorities responded to rumors of slave plotting with brutal conspiracy trials, exhorting false confessions and executing hundreds of men and women in travesties of justice in need of retelling. Scholars have long noted this period of intensified slave unrest, not unlike the era of the Haitian Revolution, but no one has conducted a full-length study of this early tumult across empires. This book explains the causes behind this rash of insurrections, both real and imagined, and explores the consequences for the peoples of the eighteenth-century Atlantic World.Dangerous Spirit of Liberty's distinguishing feature is its focus on the role of communication in the development of a rebellious early eighteenth-century Atlantic. Most historians of slavery have presupposed that slave unrest was confined to small locales in the first half of the eighteenth century. In fact, slaves found ways to share news across provinces to great effect. Benefiting from research in the archives of Great Britain, Spain, Barbados, Bermuda, Jamaica, Antigua, the U.S. Virgin Islands, and the mainland United States, the book reveals new evidence of slave communication networks and shows how people of African ancestry shared rumors of emancipation and rebellion in this period. Slaves laboring in colonial commerce and working aboard ships helped foster an increasingly restive Black community. Banished slaves, convicted conspirators accused of plotting insurrection, carried their experiences with them in exile to neighboring colonies. By reconstructing the path of news, the book reveals rumors and reports that particularly resonated among slaves in the early eighteenth century.

What might the members of the first Virginia assembly think if they could visit today’s Virginia House of Delegates? The air-conditioning and diversity of the current membership surely would surprise them, but would the legislative process itself strike them as odd? In his latest work, Peverill Squire demonstrates that the way the modern legislature goes about its work would seem familiar to visitors from the past. Squire traces a nearly uninterrupted path from that first assembly in Virginia in 1619 to the contemporary Virginia General Assembly, and to the U.S. Congress and the other forty-nine state legislatures. Each chapter examines discrete topics rather than historical eras, distinguishing the book from other studies of American legislatures. Topics covered include the fundamentals of legislative structure and operation, how qualification standards for legislative service became more inclusive, and how legislative professionalization unfolded at both congressional and state levels. Though covering more than 400 years, Squire manages to present a comprehensive and accessible history of American legislatures that both scholars and students will find valuable.

On May 10, 1776, the Second Continental Congress sitting in Philadelphia adopted a Resolution which set in motion a round of constitution making in the colonies, several of which soon declared themselves sovereign states and severed all remaining ties to the British Crown. In forming these written constitutions, the delegates to the state conventions were forced to address the issue of church-state relations. Each colony had unique and differingtraditions of church-state relations rooted in the colony’s peoples, their country of origin, and religion.This definitive volume, comprising twenty-one original essays by eminent historians and political scientists, is a comprehensive state-by-state account of disestablishment in the original thirteen states, as well as a look at similar events in the soon-to-be-admitted states of Vermont, Tennessee, and Kentucky. Also considered are disestablishment in Ohio (the first state admitted from the Northwest Territory), Louisiana and Missouri (the first states admitted from the Louisiana Purchase), and Florida (wrestled from Spain under U.S. pressure). The volume makes a unique scholarly contribution by recounting in detail the process of disestablishment in each of the colonies, as well as religion’s constitutional and legal place in the new states of the federal republic.

On December 4, 1865, members of the 39th United States Congress walked into the Capitol Building to begin their first session after the end of the Civil War. They understood their responsibility to put the nation back on the path established by the American Founding Fathers. The moment when the Republicans in the Reconstruction Congress remade the nation and renewed the law is in a class of rare events. The Civil War should be seen in this light.In From Oligarchy to Republicanism: The Great Task of Reconstruction, Forrest A. Nabors shows that the ultimate goal of the Republican Party, the war, and Reconstruction was the same. This goal was to preserve and advance republicanism as the American founders understood it, against its natural, existential enemy: oligarchy. The principle of natural equality justified American republicanism and required abolition and equal citizenship. Likewise, slavery and discrimination on the basis of color stand on the competing moral foundation of oligarchy, the principle of natural inequality, which requires ranks.The effect of slavery and the division of the nation into two “opposite systems of civilization” are causally linked. Charles Devens, a lawyer who served as a general in the Union Army, and his contemporaries understood that slavery’s existence transformed the character of political society.One of those dramatic effects was the increased power of slaveowners over those who did not have slaves. When the slave state constitutions enumerated slaves in apportioning representation using the federal three-fifths ratio or by other formulae, intra-state sections where slaves were concentrated would receive a substantial grant of political power for slave ownership. In contrast, low slave-owning sections of the state would lose political representation and political influence over the state. This contributed to the non-slaveholders’ loss of political liberty in the slave states and provided a direct means by which the slaveholders acquired and maintained their rule over non-slaveholders.This book presents a shared analysis of the slave South, synthesized from the writings and speeches of the Republicans who served in the Thirty-Eighth, Thirty-Ninth or Fortieth Congress from 1863-1869. The account draws from their writings and speeches dated before, during, and after their service in Congress. Nabors shows how the Republican majority, charged with the responsibility of reconstructing the South, understood the South.Republicans in Congress were generally united around the fundamental problem and goal of Reconstruction. They regarded their work in the same way as they regarded the work of the American founders. Both they and the founders were engaged in regime change, from monarchy in the one case, and from oligarchy in the other, to republicanism. The insurrectionary states’ governments had to be reconstructed at their foundations, from oligarchic to republican. The sharp differences within Congress pertained to how to achieve that higher goal.