Lecture Notes From Summer Institutes

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Dr. Jack Rakove—Stanford University

Ph.D. Harvard

Session I

Beyond Founders Chic (How to think about the American Revolution)
A publishing bonanza since the late ‘90s.

Probably about the market, a commercial issue

Could also be a result of the Sept. 11

Other good reasons to revisit the Founders and Revolution

Symbols of the Revolution are more readily ascribed to by a bigger cross-section of current America

Strange backlash to return to DWMs: a disconcerting phenom

Beyond Founders’ chic: the real reasons to study the Revolution

Major Questions:

1. Why did the Revolution happen?

How do you get from1765-1776?

2. How do we account for the remarkable group of political leaders?

3. How do the political experiments of 1776 result in the Constitution?

4. How do we think about the Revolution in general? What did it mean to ordinary Americans at the time?

Rackove’s graph

There were just as many reasons for the Revolution not to happen as made it happen.

Much bungling by the British

Stamp Act Crisis and historiography:

- Old historiography to 1950: Americans were becoming more self-confident and they shirked the British for commercial reasons, rationalized by philosophy

  • Edmund Morgan’s book on Stamp Act Crisis rerouted historians to take the philosophy of the Revolution more seriously – concerns about representation became a debate about sovereignty – Representation debate resounds in Britain too and yet Parliament still struggled to validate colonial claims – Rotten borough (a place that sends someone to Parliament even without many people represented – current-day Wyoming! – more sheep than people and yet same number of senators) argument of virtual representation was defensive if creative

  • Burke was a Rockingham Whig associated with retraction of Stamp Act and had to suffer loss of power and Declaratory Act as price of repeal

  • Townshend Duties: Franklin’s distinction between internal and external, so Townshend gets his duties through when Pitt is laid up with gout in Bath

  • Boston Massacre goes nowhere (200 years and 1 month before Kent St.)

  • Why did Massachusetts become so volatile?

    • Leaders were strong

    • Culture deeply conscious of its history

    • Town meeting in terms of infrastructure allowed for quick political action

    • Wrong guy in wrong place in wrong time: Thomas Hutchinson

      • MA is one place where politics can spin out of control and

      • What is role of individual in US history?

      • Without Hutchinson, there might not have been a Tea Act or a Tea Party or Coercive Acts

      • Committees of Correspondence done well in Richard Brown

      • Hutchinson gives speech inspires many responses, including Franklin’s moderate idea that Hutchinson is a bad fit and then Franklin got a hold of the letters

      • Eventually the tea duty is left in tact because Lord North was intractable and Hutchinson would follow a rigid course

    • Colonies rallied to aid and support of Massachusetts

    • Think of coercive acts as a new program of governance

    • Problem of thinking of allegiance is one of problem over time:

      • David Hackett Fischer writes of the New Jersey militia’s eventual rising, which helped Washington survive, but the militia came and went, they were

Session II

The Dilemma of Declaring Rights

Political history: Revolution took place because a debate of political issues spun out of control, especially in Massachusetts – a top-down story of political elites on representation and sovereignty – it still begs the question of how ordinary citizens got involved

The Revolution was not from the bottom up. Ordinary people got involved in the tow of an extraordinary group. How did they emerge from provincial, humble me to become world-famous revolutionaries?

1. being a peripheral member of a larger society like Scotland in the 18th century taking advantage of Britain’s larger culture resulted in great flowering of Scottish intellectual development – emancipation of Jews in 1789 helped to spur a great Jewish intellectual time

The great creative moment in getting from 1776-1783 in creating the Constitution – not just a replacement of the Articles of Confederation
Background of declaring rights

  • Various colonies write new constitutions in 1776

  • Great American innovation out of the Revolution was the written Constitution adopted by certain procedures that distinguish it from everything else at a particular moment in time and then represents the supreme source of law

- Diversion from British Constitution with Magna Carta and other pieces, which agrees to supremacy of Parliament and consent of King

What is legal trumps what is Constitutional and Parliament determines what is legal.

  • Rhode Island and Connecticut had no British input so did not lose legal government, but every other colony did (slight differences in proprietary colonies of PA, DE, MD where legal assemblies were not representative)

  • Read Burke in 1775

  • In 18th century most politics was provincial

  • Various colonies write new constitutions in 1776

    • Most colonies elect fresh delegates to state assembly to take up the new constitutional issues

    • Legalistic argument: simultaneous legislative responsibility in conducting war and reflecting on new constitution

      1. Constitutional work was legally based in statutes

        • Quod leges posteriores priores contrarias abrogant

        • Earlier laws defer to more recent laws

        • In the construction of new law, the citizens reflected on English common law –

        • If the law can be altered by a legislature, then it is not a constitution – later laws that replace earlier laws made the whole process more statutory that constitutional

        • Both an elitist and populist dilemma

        • Four letters on interesting topics – constitution

        • Procedures were not uniform and returns were a mess

        • Massachusetts came up with innovations 1775-1780

          • Set up assembly

          • Assembly only for the purpose of con.

          • Submitted for popular approval

          • First to incorporate declaration of rights

          • Abigail’s letter to John’s in MHS has gap

            • She wanted to think about what she was saying and she may have had to break to do other work

  • Traditional view of bill of rights was that Madison accommodated the various anti-federalist calls for it

  • Rackove views it as a more complex event “the naseous process of amendments” that the Federalist argument deserves

    • 9th amendment: the rights articulated are not necessarily exclusive

    • three stages

      • before 1775

        • a way to rally the people to revolt when their rights are being trampled

        • How do we know what needs to be civil rights?

          • John Philip Reid’s four volumes articulates 10 traditions

            • Appeals to common law

            • Natural rights

            • Custom

            • Other various sources for creating law

            • Odd embarrassment of riches

      • 1776

        • declaration of rights in most states were free-standing documents, stating general principles, not legally enforceable (ought, not shall), general principles

        • writing bills of rights as quasi-legal

        • Americans were truly innovative

      • 1789

        • Madison transforms civil rights into laws

    • Drawbacks to encoding civil rights

      • Getting the list right may be difficult

      • Passing such laws by super majorities would be more difficult

      • Enumeration was a serious issue (9th was a critical issue)

    • How to convert the concept of a right to a law

    • Madison was uncertain whether the bill of rights was necessary

      • Enumeration problem – How many?

      • Textualization problem – How do you word it?

      • Madison’s letter to Jefferson of 1788 and 1787 on rights

        • 1788 letter said that his perspective would be different that TJ’s, who was being moved by popular unrest in France – old political model doesn’t work because the problem America might not be the government

        • new problem was not government but the majority

          • majorities form in states that work against civil rights of minorities

          • factious majorities in states would be still be dominating their minorities

Session III

Why do our political controversies still become Constitutional?

- Madison was the agenda shaper

  • Document:

    • “Want of sanction tot the laws, and of coercion in the government of the confederacy. A sanction is essential to the idea of law, as coercion is to that of Government. The federal system being destitute of both, wants the great vital principles of a Political Constitution. Under the form of such constitution, it is in fact nothing more than a treaty of amity of commerce and of alliance, between independent and Sovereign States. From what cause could so fatal an omission have happened in the Articles of Confederation? From a mistaken confidence that the justice, the good faith, the honor, the sound policy, of the several legislative assemblies would render superfluous any appeal to the ordinary motives by which the laws secure the obedience of individuals: a confidence which does honor to the enthusiastic virtue of the compilers, as much as the inexperience of the crisis apologizes for their errors. The time which has since elapsed has had the double effect, of increasing the light and tempering the warmth, with which the arduous work may be revised. It is no longer doubted that a unanimous and punctual obedience of 13 independent bodies, to the acts of the federal Government ought not to be calculated on. Even during the war, when external danger supplied in some degree the defect of legal and coercive sanctions, how imperfectly did the States fulfill their obligations to the Union? In time of peace, we see already what is to be expected. How indeed could it be otherwise? In the first place, Every general act of the Union must necessarily bear unequally hard on some particular member or members of it, secondly the partiality of the members to their own interests and rights, a partiality which will be fostered by the courtiers of popularity, will naturally exaggerate the inequality where it exists, and even suspect it where it has no existence, thirdly a distrust of the voluntary compliance of each other may prevent the compliance of any, although it should be the latent disposition of all. Here are causes & pretexts which will never fail to render federal measures abortive. If the laws of the States were merely recommendatory to their citizens, or if they were to be rejudged by County authorities, what security, what probability would exist, that they would be carried into execution? Is the security or probability greater in favor of the acts of Congress which depending for their execution on the will of the State legislatures, which are tho’ nominally authoritative, in fact recommendatory only?”

  • Where does the 1790s fit into the story?

    • Invention of interpretation

      • Experimental nature of the process of making the Con.

      • Who would interpret it and how would it work?

      • Dynamic process of interpretation was a novelty

    • Constitutionalizing politics

      • As problems get resolved through the use of the Constitution then precedent it constructed and

    • politicizing the Constitution

    • defining a constitution

    • Disputes over policies evolve over the Constitution

      • 1791 with debate over whether commerce clause could justify a bank

      • 1793 treaties

      • 1796 Jay Treaty

    • Madison to 1793 is first and foremost concerned with legislative misrule

      • Federalist 51

      • Wary of executive power being too weak

      • Concerned with legislative balance

        • Thought the senate was weaker branch

        • House was stronger

          • Connection to voters and source of power

          • Origination of finance (but still prone to veto)

          • “an infinitude of legislative expedience”

    • Madison after 1793 becomes preoccupied with the executive being too powerful (even trying to remain a constitutional president during the war)

    • Theoretically, ideally, purely, the constitution would be a set of rules on which everyone agrees

      • Ambiguities aplenty with separation of powers and checks and balances

        • Imagine America without the French Revolution

          • Constitution interpreted though the lens of French experience

      • None of us believes abstractly in states rights or national power

      • We’re not capable of reasoning calmly about the things which make feel emotional, we reason on basis of our preferences

    • Madison’s version of original understanding from 1796 supports the idea of popular sovereignty

    • Meaning is about the text itself, not about the process, it is about the actual way in which people read it

Marbury v. Madison has nothing to do with judicial review

  • rarely cited before 1958

  • chest beating

  • “supreme” after all


Original intent, understanding, meaning


July 26, 2005

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