History: American -- Constitutional Law Textbook

Gary North

There is no history of American Constitutional law written from a conservative perspective. There is also none written from a Christian perspective.

WHAT IS THE PROBLEM?

Philosophical From the pre-Socratic philosophers, Parmenides and Heraclitus, a fundamental theme of all applied philosophy is the resolution of law and history. What stays the same (Parmenides) and what changes (Heraclitus)? Does the change undermine the past or extend it? Does it break the law or extend it?

This philosophical issue -- continuity and change -- is more obvious in the history of law and legal systems than in any other field. Is a legal change consistent with fundamental law or a violation of it? Is there a fundamental law which judges change? Or is change itself the fundamental law which judges all prior claims of fundamental law?

Ideological College-level courses in Constitutional law are written by political liberals who are supporters of political centralization. They are also opponents of the doctrine of original intent: the meaning of words held by the authors of the Constitution or by the general public at the time, which could be different from what the authors intended. The authors are defenders of the evolution of law. They are also defenders of Darwinian evolution.

Constitutional law is taught as though judges' interpretations beget interpretations as butterflies beget butterflies. Students are presented with a narrative that does not consider intellectual trends in society, including religious trends. There is rarely any discussion of political alliances. There is no discussion of theories of law taught by practitioners who apprenticed would-be lawyers or by law school faculties. There is no reference to the classic observation by Finley Peter Dunne, in the words of his character, Mr. Dooley. "No matter whether the Constitution follows the flag or not, the Supreme Court follows the election returns."

Historical Another problem is that textbooks begin with the the Constitution of 1788. They ignore constitutional law prior to the ratification of the U.S. Constitution. They also ignore the Confederate Constitution of 1861-65.

They are not told that the Constitution allows Congress to remove anything from the jurisdiction of the Supreme Court that is not specified in the Constitution.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. (Article III, Section 2)

The Supreme Court is therefore not Constitutionally supreme. It is supreme in any case only by Congressional default. (This was upheld by the Court in Ex Parte McCardle [1868].)

There is also no discussion of the evolution of the jury as the #1 civil institution of liberty. They are not told about the the jury system as a veto of every court. They are not told about jury nullification.

POSSIBLE SOLUTIONS

Treat civil law as a manifestation of the fundamental religious beliefs of a society -- it's confession. "The source of the law is the god of a society." (T. Robert Ingram) People are expected by others and by the police to obey. Self-government is where all legitimate government begins. Why will they obey unless the law is consistent with what they believe is fundamental moral law?

What is fundamental moral law in a society? What do most people believe is its origin? Why do they believe that politicians and judges reliably speak on behalf of this fundamental law? Who enforces it if judges and the police don't? God? Man? The People? With what sanctions?

WHERE TO BEGIN

A standard textbook for a generation was written by Kelly and Harbison. Begin here to see what not to write.

Edwin S. Corwin's short book, The "Higher Law" Background of American Constitutional Law (1955), is widely accepted in academia. It begins to deal with the issue of the underpinnings of constitutional theory.

Andrew C. McLaughlin's Foundations of American Constitutionalism (1931) is good on the New England background of the Constitution.

The collection of primary source documents in Sources of Our Liberties (1959), edited by Perry and Cooper, is indispensable. The five-volume set, The Founders' Constitution (1987), provides extracts from original sources that provided background for the Framers consulted for each section of the Constitution.

The Congressional Research Service of the Library of Congress produces The United States Constitution: Analysis and Interpretation, a large, highly detailed history of Supreme Court interpretations. It is on-line.

Read Carroll Kilgore's Judicial Tyranny (1977). Then read Raoul Berger's Government by Judiciary: The Transformation of the Fourteenth Amendment (1975).

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