Opening: On the Union and the Founders Abraham Lincoln, Message to Congress, July 4, 1861 Harry Jaffa, What Were the 'Original Intentions' of the Framers of the

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Political Science 37

The American Founding

Spring 2009

Professor Arkes

Opening: On the Union and the Founders
Abraham Lincoln, Message to Congress, July 4, 1861

Harry Jaffa, "What Were the 'Original Intentions' of the Framers of the

Constitution?," in Jaffa, Original Intent and the Framers, pp. 13-54


-Aristotle, The Politics, Bk. I, A (l252a l253a); Bk. III, C, ch. 9 (ca. l280a l28la) [Principles of Oligarchy and Democracy, and the Nature of Distributive Justice]

-Arkes, First Things, Chs. I-II, pp. 3-30 (On Reserve)]

The Structure of Politics at the Revolution—and the Argument over Natural Rights
Bernard Donoughue, British Politics and the American Revolution,

pp. 1-20

John Galvin, Three Men of Boston, pp. 1-3, 89-128. [On the Stamp Act and

the reaction; the British opposition forcing a change in the laws, and the critical shifts in the American argument, moving to a rejection of the authority of Parliament]

[Recommended, Galvin, pp. 260-80 (“Tea” and “The Port Bill”)

Electronic Reserve]

Samuel Johnson, “Taxation No Tyranny,” in Dr. Johnson’s Works

(Oxford, 1825 ed.), pp. 224-63

Alexander Hamilton, “The Farmer Refuted” (1975) in The Papers of

Alexander Hamilton, Vol. 1, pp. 81-131, 159-165

[The packet contains the entire pamphlet, but I make these

recommendations in editing this reading—H.A.]

[Note also that Hamilton is making this argument before the

Declaration of Independence; and of course the case for natural rights

precedes the framing of a Constitution]

-Jerrilyn Greene Marston, “The King’s Authority, ” in King and Congres: The Transfer of Political Legitimacy, 1774-1776, pp. 13-34 [Electronic Reserve]

The Movement to the Declaration of Independence

Jerrilyn Greene Marston, “The Abdication of George III,” in King and Congres,

pp. 35-63

Winston Solberg (ed.), The Federal Convention and the Formation of the Union,

[purchase] pp. 5-32, including the “Declaration of the

Causes and Necessity of Taking Up Arms,” (July 1775), and other resolves)

The Anthropology --and Epistemology-- of a Republican Regime
--Daniel Robinson, Lectures on the American Founding

--Moral Science at the Founding: Ruling Passions

(Lecture at Amherst, October 31, 2003)

--“Theories of Human Nature at the Founding” (Amherst, November 11,


--“On the Evident and the Self-Evident,” Lecture at the Madison Center,

Princeton (October 2001)
--James Wilson, "Of Man as an Individual," in The Works of James Wilson

(ed. McCloskey, 1967), Vol. I, pp. 197-226; and in the same volume:

-- "Of Man, As a Member of Society," pp. 227-46

--"The Philosophy of Evidence," pp. 370-98

--How Important was John Locke?

-- John Locke, Second Treatise on Civil Government, chs. I IV (paragraphs l 5l)

[Recommended: Steven Dworetz, “Locke, Liberalism and the

American Revolution,” in Paul Sigmund (ed.), The Selected

Political Writings of John Locke, pp. 388-98]
Aftermath of the Declaration: A People and Army Acting in a New Character

--Jerrilyn Marston, King and Congress, pp. 131-69 [“Congress and Protection”--

And the character of a republican army]

--David Hackett Fischer, Washington’s Crossing, pp. 324-379

--Thomas West, “Slavery,” in Vindicating the Founders, pp. 1-36

The Movement to a New Constitution

Articles of Confederation and the Annapolis Convention

Winston Solberg (ed.), The Federal Convention and the Formation of the Union, pp. 41-64 [purchase]

Jerrilyn Marston, King and Congress, pp. 298-309 (“A National Executive or a

National Legislature”) [Recommended: “Congress Grants Authority

for Government,” 251-96 (Electronic Reserve)]

Albert Beveridge, The Life of John Marshall, Vol. I, Ch. VIII, (“Antagonism to Government”), pp. 288-318

The Constitutional Convention: From Madison’s Notes

[Readings drawn from Solberg]
a. The Virginia Plan v. the New Jersey and the Hamilton Plans – pp. 71-155

b. Settling on the reach of the new government, 155-277

c. Navigation Acts and Slavery, 278-86

d. The Presidency and the Completion of the Constitution , pp. 287-34

e. The final text of the Constitution, pp. 347-60
Prudence and Statecraft in the Founding: The Teaching of Madison
Gary Rosen, American Compact: James Madison and the

Problem of Founding, pp. 89-125 [Electronic Reserve]
[Recommended: Keith Whittington, “The Authority of Originalism and

The Nature of the Written Constitution,” Constitutional Interpretation,

pp. 47-76]
The Arguments over Ratification
Solberg, 360-74
The Federalist and the Antifederalists
-The Common Defense and a Nation of States

-The Federalist Papers, #1-10 [Purchase]

-Herbert Storing, What the Antifederalists Were For, pp. 3-14
Martin Diamond, “The Federalists’ View of Federalism,” in Essays in

Federalism, ed. George C.S. Benson (Claremont, 1961), pp. 21-64
On the Judiciary

-The Federalist #78-83

-“The Essays of Brutus” [New York, October 1787-April 1788]. XI-

XVI, in Storing (ed.), The Complete Antifederalist (University of Chicago Press),

Vol. 2, pp. 417-46

Meditation on the Founding

Harry V. Jaffa, A New Birth of Freedom, pp. 1-236, 357-402 [purchase]

Original Argument over the Bill of Rights: Natural Rights and Positive Rights

Arkes, “On the Dangers of a Bill of Rights: Restating the Federalist

Argument,” in Beyond the Constitution, ch. 4

James Wilson, “On the Natural Rights of Individuals,” Vol. II, pp. 585-610

[Electronic Reserve] `


Which Designs Protect More Freedom?: The Founders and Modern Liberalism

Thomas West,”Free Speech in the American Founding and in

Modern Liberalism,” Social Philosophy and Policy (Summer 2004),

pp. 310-84 [Electronic Reserve]

The Founders and the Family

West, “Women and the Right to Vote,” and “Women and the Family,”

in Vindicating the Founders, pp. 71-109

[Recommended: David Hackett Fischer, Albion’s Seed, on the “ways” of family,

marriage, gender, sex, pp. 68-93 (Puritans in Massachusetts), 274-306 (Virginia)

The Right to Bear Arms

-Stephen Halbrook, "The Original Understanding of the Second Amendment," in Eugene Hickock (ed.), The Bill of Rights, pp. 117-29

-District of Columbia v. Heller (2008) On the Second Amendment, especially

Justice Scalia’s opinion for the majority [Was Scalia drawing his conclusion

from the text of the Constitution, or from a source outside the text?]

(Electronic Reserve)


-Nelson Lund, “Taking the Second Amendment Seriously,” in The

Weekly Standard (July 24, 2000), pp. 21-26

-Joyce Malcolm, The Right to Bear Arms]

The Mind of James Wilson: A Law that Begins with “Man”

-Wilson’s opinion in Chisholm v. Georgia, 2 Dallas 419 (1793),

pp. 453-69

-Wilson, Lectures on Law, Introductory Lecture, in The Works of

James Wilson, pp. 3-40

-“The Law of Nature,” 126-47


-Jean-Jacques Burlamaqui, The Principles of Natural Law [5th ed., 1807; originally

published in 1740's] Vol. I, pp. 1-23, 37-47]

Religion and the Founding

--Michael Novak, On the Hebrew Metaphysic of the American

Founding, and A Religious Theory of Rights, On Two Wings, pp. 5-24, 27-47, 77-95 [Recommended: 99-124] [purchase]

--John Noonan,“JM’s Original Insight,” [On James Madison] in

The Lustre of Our Country, pp. 59-91

--"The Foremost of our Political Institutions," pp. 95-115

–Madison, “Memorial and Remonstrance against Religious

Assessments” (1785), in Philip Kurland and Ralph Lerner, The

Founders’ Constitution, Vol. 5, pp. 82-84
-Mark DeWolfe Howe, The Garden and the Wilderness, pp. 1-60
-On the Establishment of Religion: Provisions in the Constitutions of the States, and other essays

-Philip Kurland and Ralph Lerner (eds.), The Founders’ Constitution, Vol. 5, pp.


-Philip Hamburger, Separation of Church and State, pp. 1-17

On Electronic Reserve: 65-189 [Recommended: 21-64—and the rest of

the book]


--Michael McConnell, “The Origins and Historical Understanding of Free

Exercise of Religion,” Harvard Law Review (May 1990), pp. 1410-151

--George Washington, Speeches and Messages to Churches and Congregations,

in Allen (ed.), pp. 531-35, 545-49]

The Mind of Alexander Hamilton

Federalist #1, 6

On the axioms of government:

-#31-33, 80, 81

-#78, 84

Hamilton’s memo to Washington on the National Bank (Feb. 1791) in

Kurland and Lerner. Vol. 3, pp. 247-50

Hamilton and Madison in the Pacificus and Helvedius Papers

Hamilton, The Pacificus Papers, Nos. I-VII, Papers of

Alexander Hamilton, Vol. XV, pp. 33-43, 55-63, 65-69, 82-86,

90-95, 100-106, 130-35

Hamilton, Memorandum to Washington on confronting the British and

the Spanish (September 15, 1790), in Papers of Alexander

Hamilton, Vol. VII, 36-57 [For a discussion of this morandum

as part of Hamilton’s “realism” –and yet a realism that was not

Machiavellian, see Arkes, “Machiavelli in America,” in Angelo

Codevilla, trans. and ed., The Prince (Yale, 1997), pp. 124-51


-Hamilton on the Jay Treaty

“Remarks” prepared by Hamilton for George Washington, on the Jay Treaty, Papers of Alexander Hamilton, Vol. XVIII, pp. 404-54; Vol. XX, pp 13-34 [“Camillus”] (Electronic Reserve)
-Karl-Friedrich Walling, Alexander Hamilton on War and Free Government.

On the questions of war and national security, see chs. 3, 7, 9 and 10, pp. 42-70, 154-72,


The Mind and Jurisprudence of John Marshall

-Marshall on the Alien and Sedition Acts, in Morton Frisch and

Richard Stevens (eds.) The Political Thought of American

Statesmen, pp. 99-116
-On Natural Rights, the Reach of the National Government, and the Reach of the

Marbury v. Madison, 1 Cranch 137 (1803)

Fletcher v. Peck, 6 Cranch 87, 127-48 (1810)

Dartmouth College v. Woodward, 4 Wheaton 518 (1819),

519-51 [background of the case], 624-54 [Marshall’s argument for the Court]

--Daniel Webster’s argument for Dartmouth College, 551-


--Ogden v. Saunders, 12 Wheaton 213 (1827), 213-14, 254-71

(Bushrod Washington’s argument), 271-92 (Johnson), 332-58

(Marshall), 359-69 (setting forth the judgment),

and Webster’s argument before the Court, which anticipated

Marshall’s argument on the foundation of “contract” in natural


Osborn v. U.S. Bank, 9 Wheaton 738 (1824), 738-44, 816-71 [The

finessing of the Eleventh Amendment?] (Electronic Reserve)

[Recommended: Arkes, “The Laws of Reason and the Surprise of the Natural Law,” Journal of Social and Political Philosophy]

Cherokee Nation v. Georgia, 5 Peters 1 (1831), 15-20

Worcester v. Georgia, 6 Peters 515 (1832), 536-96

Martin v. Hunter’s Lessee, 1 Wheaton 304 (1816)

[On the Judiciary Act of 1789, See Annals of Congress, 1: 796-830; Kurland and Lerner, 4: 145-61]

Barron v. Baltimore, 7 Peters 243 (1833), 243-51

McCulloch v. Maryland, 4 Wheaton 316 (1819), 401-37

Gibbons v. Ogden, 9 Wheaton 1 (1824), 1-3, 186-222

Cohens v. Virginia, 6 Wheaton 264 (1821), 375-447
[Recommended: Arkes, The Return of George Sutherland, Ch. 5 (“The Puzzle of the Commerce Clause”)]
The Antelope, 10 Wheaton 66 (1825), 114-33
Justice Story carries on:
La Jeune Eugenie, 2 Mason 409 (1822), 833-51

Prigg v. Pennsylvania, 16 Peters 539 (1842), 608-26

(Story’s opinion for the Court), 626-36 (Taney’s concurring opinion)

The Political Economy of the Constitution
-From Madison’s notes on the Convention, in Kurland and Lerner,

Vol. 3:393

-Charles Pinckney, Remarks at the Ratifying Convention in South

Carolina, in Kurland and Lerner, Vol. 3: 395-96

-Alexander Hamilton, Report on Public Credit (1790), in The Papers of

Alexander Hamilton, Vol. VI, pp. 65-78

-Joseph Story, Constitutional Commentaries, Vol. III (1833), pp. 4-15

-Debate on aid to the City of Savannah, 1796, in Annals, Vol. 6:

1712, 1717-26; and in Kurland and Lerner, Vol. 2: 447-52

[Recommended: Compare U.S. v. Butler, 297 U.S. 1 (1936)

-Oliver Ellsworth in the Connecticut Ratifying Convention, in Kurland

and Lerner (eds), The Founders’ Constitution, Vol. 2, pp. 429-31

-From the Ratifying Convention in Virginia: Madison, Randolph, Henry,

and others, in Kurland and Lerner, Vol. 2, pp. 433-40

-Pollock v. Farmers Loan & Trust, 157 U.S. 429 (1895), 430-42

(Statement of the case), 532-53 (Joseph Choate’s argument for the

appellants–i.e., against the federal income tax) 553-86 (Chief Justice

Fuller’s opinion for the Court) 586-608 (Stephen Field’s concurring

opinion) [Recommended: dissenting opinions by White and Harlan,


-Thomas West, Vindicating the Founders, pp. 37-70, 111-30 (“Property Rights,” “The

Property Requirement for Voting”)

[Recommended: West, “Poverty and Welfare,” pp. 131-45]

Final Meditation: The Crisis over the Refounding–and the Continuing Crisis
Jaffa, A New Birth of Freedom, pp. 237-471

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