Expansion, Transformation, and the Release of Energy

The newly independent empire of the United States in its explosive, expansionist phase was organized by law built around what Willard Hurst called "the release of energy principle." In this section of the course we consider that regime and its effects.

Readings

Access materials on the [Course Readings] page.

Assigned

From the Notebooks of Judge Thomas Rodney of the Mississippi Territory

Suggested

Law and the Conditions of Freedom in the Nineteenth-Century United States (Wisconsin Press 1956)

Morton J. Horwitz, The Transformation of American Law, 1780-1860 (Harvard 1977):

• Chapter 1
• Chapter 2
• Chapter 3

Notes and Materials

Projects

It's interesting to observe how certain historical phenomena come and go as waves in time. In particular, Morton J. Horwitz's book's first chapters caught my attention when, talking about the role of the judges, stated that contrary to 18th century, in the 19th century, after American war of independence, judges begun to see themselves as instruments of relevant social policies and that their decisions cannot be made or understood in a individual case basis, but instead always having in mind their outcome and it impact in economic, politic and social structures of the time. In this way, 19th century's judges departured even from the blind following of precedent, once the new legal theory then in formation understood common law not as timeless principles of reason and justice, but as embodying a prudential policy method. That said, in recent times we had the partisans of originalism, such as late Justice Scalia, stating that in the decision -making process the judge should not consider the outcome, and that policy issues must be discussed and solved by the legislative branch. If we think that in the period of the post-american indepence war the new country was beginning to build up its economic and political systems with several 'penumbra' spots not well established yet in almost every area of government, its not hard to imagine why judges thought of themselves as "architets of the legal system"(p. 24). Perhaps every period makes the legal method and the judges it needs. -Patricia Hartmann

-- PatriciaHartmann - 15 Oct 2016

It was mentioned en passant in one of last week's classes that article II of the Constitution and its natural born clause made it impossible for Alexander Hamilton to run for president of the United States, since he was born in the West Indies. Nevertheless, that specific section of the Constitution also contained a temporary clause, allowing elegibity to presidency to those who are "Citizen to the United States, at the time of the Adoption of this Constitution". In this way, Hamilton was eligible for presidency, says professor Akhil Amar in his book 'The Constitution Today" (p. 36).

-- PatriciaHartmann - 19 Oct 2016