E. THE DECLARATION OF INDEPENDENCE (1776) -THOMAS

JEFFERSON.

a) Only after getting unanimous approval from the

delegates from every assembly, after many local and

town assemblies, on 2th July, the Second Continental

Congress approved the decisive resolutions, previously

framed and presented by Richard Henry Lee, with a speech

written by John Adams:

That these colonies are, and of right ought to be,

free and independent States, that they are absolved

from all allegiance from the British Crown, and that

all political connection between them and the State of

Great Britain is, and ought to be, totally dissolved.

That it is expedient forthwith to take the most

effectual measures for forming foreign alliances.

That a plan of confederation be prepared and

transmitted to the respective Colonies for their

consideration and approbation.

b) Finally, on 4th July, an anniversary now

celebrated all over America (but some logically argue

that it should actually be 2nd July), the Second

Continental Congress voted the approval of Mr.

Jefferson’s document, hence, announcing the Birth of a

Nation, as it declared the formal independence of the

13 colonies now become “13 United States of America”.

• The Declaration of Independence as a landmark

It asserts the right of the new nation to abolish a

government that failed to secure the people’s

‘inalienable rights’ among which were “life, liberty

and the pursuit of happiness”. These ideals were

borrowed from text and notions of the 17th and 18th

centuries, in particular the theory of natural law. 56

members of the Continental Congress signed the

Declaration (including Jefferson, Adams and Franklin),

and it became a symbolic text throughout the world.

The Declaration of Independence claims that:

“We hold these truths to be self-evident, that all men

are created equal, that they are endowed by their

creator with certain inalienable Rights, that among

these are Life, Liberty and the Pursuit of Happiness.

That to secure these rights, Governments are instituted

among men, deriving their just powers from the consent

of the governed, That whenever any Form of Government

becomes destructive of these ends, it is the Right of

the People to alter or abolish it, and to institute new

Government, laying its foundation on such principles

and organizing its powers in such form, as to them shall

seem most likely to effect their Safety and Happiness…”

• The philosophical foundations:

John Locke (1632-1704), in his Treatise entitled Second

Treatise of Government (1689), contented that there

existed a social contract between members of the society

and the government, and that the main ends of a government

was to protect inalienable rights, life, liberty and

property. Locke believed in property as a fundamental

human right, a notion to which Jefferson substituted the

more general and philosophical notion of “the pursuit of

Happiness”.

The preamble clearly denies, in the name of the people,

that the strong may legitimately oppress the weak “that

all men and women, whatever their age, condition or

origins, shall not be cheated of their birthright into

misery; that this theme, of human freedom and dignity,

is what politics is about” (Brogan, 182).

• Structure of the document

The document is divided into 5 sections —

introduction, preamble, indictment, denunciation, and

conclusion, each of these terms being used in any legal

context for Acts passed in common law countries.

The introduction announces the intention to break

from Great Britain; the preamble offers the

philosophical basis for the right of revolution, and is

directly inspired by John Locke’s last chapter of the

Second Treatise of government entitled “on the

dissolution of government”, that deals obviously with

the right to overthrow any tyrannical government “when,

in the course of… it has become self-evident…”. The

indictment is meant to list the grievances or charges

against the king: this includes the violation of

constitutional rights perpetrated by Parliament and

which George III failed to veto or redress, the

denunciation condemns the British people for failing to

aid the Americans, and the conclusion finally declares

the 13 colonies as being “free and independent states”

that have effectively joined other nations.

A new nation was born. In the meanwhile, even if

the Declaration was drafted, the various states,

between 1776 and 1780, were busy drafting and ratifying

their constitutions. These texts were meant to make the

colonies preserve their rights and liberties, which

they thought they were entitled to detain as Englishmen,

but which the English had failed to uphold.

The next step would be for the new nation to form a new

regime, but the constitutional crisis could only be

solved by military force, because there was then no

supreme institution to deal with the constitutionality

of matters then: the war was to make the Revolution an

effective success.

III. The Independence War It lasted 6 years, but from the moment that war broke

out, “British Rule in the thirteen colonies was at an

end”.

A. MAIN EVENTS

- 1776: General Washington captured a thousand

Hessians on Christmas night, but retreated and spent

the winter at Valley Forge.

- Benjamin Franklin went to France in 1776 to seek aid;

he was highly successful and warmly welcome there, for

instance by Voltaire. He was admired for his simplicity

and dress, nicknamed “le bon Quacker” (even if he was

nothing of the kind), and became fashionable.

- 17th Octobre 1777: disaster for the English at

Saratoga followed by dark years.

- In 1777, Lafayette, a nineteen-year-old officer,

sailed from France to help young America. He persuaded

the French government to send ships and supplies,

officers and soldiers.

End of the war: Yorktown surrendered in 1781.

1782 - The peace treaty signed in 1782, with King George

III, recognized the independence of the US.

- A new Peace Treaty, signed on 3 September 1783, gave

the US excellent terms: “Not only did the British

recognize American independence and make peace, and

grant valuable concessions to American fishermen in

Canadian waters, but they conceded most generous

boundaries to the new republic” (Brogan, 191),

gradually letting off the Great Lakes and the

Mississippi territories”.

Hence America “became the legally undisputed mistress

of an immense, rich, peopled territory”.

This was how the young republic came to be formed, and

then it was to be extended.

Other events:

-1803 Jefferson bought the territory of Louisiana from

the French.

-1812 President Madison declared war upon England in

1812 as he meant to acquire Canada. But this was a

failure.

- 1819 Florida was bought from Spain.

- 1823 President Monroe, proclaimed the famous

doctrine: “America for Americans”.

Now fate pointed westward, to the conquest of the West….

B. THE FIRST STEPS OF THE REPUBLIC

After the colonies had won the Revolution, there was the

need to create a government. Each state wanted to guard

its sovereignty while forming a union, some wanted a

strong union with a national, centralized government,

whereas others feared a new British-like tyranny.

This was the beginning of discussions, internal

dissensions and battles between Federalists and Anti-

Federalists. The Founding Fathers, mainly Federalists,

would want a strong federal government with a strong

executive and judiciary, to maintain order and

stability. Anti Federalists (some former patriots like

Henry Lee) on the contrary, believed in state

sovereignty, the liberties of the individuals, and

guarantees against tyranny. The first government was a

Confederation.

As soon as the Revolution had begun, the colonies had

indeed joined in a loose confederation, and after the

end of the war in 1781, the 13 colonies had become

States, with their own complete systems of public and

private law, experimented with a form of union under

the Articles of Confederation, an instrument drawn up

by Congress to act as an instrument of Government for

the new Union of States.

One of the main issues was to know how to structure

a new republican form of government

It was time for states to coin their constitutions

C. MAIN OBJECTIVES AND DECISIONS - STATES’

CONSTITUTIONS AND LEGISLATURES

• The alliance of the states in Congress was

confirmed as a government, and empowered to appoint

ministers to execute its policies.

• 8 of the new states proclaimed new constitutions

for themselves.

2 visions were opposed from the start, on the one hand

a) some of which were “extravagantly democratic,

with supreme States legislatures, the people they

represented were to be consulted as often as possible

and executive power and the judiciary kept deliberately

weak to provide for strong local legislatures.

Therefore, none of these constitutions had an

independently - elected governor. Each governor was

appointed by the legislature, and his/her power rather

weak, with no power of veto or to appoint judges.

• The legislatures were to be made accountable to

the electorate as there were to be frequent elections

(to be responsible for something, to somebody, general

term; to be accountable for something – to somebody; to

be liable – liability - very important legal term, which

means financial and legal responsibility, for instance

a debtor to his creditor);

The most radical constitution to this extent was

that of Pennsylvania adopted in 1776, as it replaced

the governor with an executive council with 12 members,

a unicameral legislature with one-year terms, and very

low requirements of voting. This shows the conception

of a republican government controlled by popular

majority.

• Provisions expressly outlawed class privileges

and hereditary public offices. Churches were stripped

of their privileges; bills of rights, securing the

liberties of citizens, were passed into law; these

bills of rights included provisions to “protect the

freedom of the press, religion, and assembly, as well

as guarantee the right to a jury trial” (Brunon et al,.

p. 27).

• Virginia, New Hampshire and New Jersey included

explicitly the right to revolution, “in the language of

Locke”; land (Loyalists’) was to be redistributed; the

trans-Alleghany West, superseding the 1763 British

proclamation, was opened to legal settlement (Brunon-

Ernst et al., 28). As the authors put it, “these

constitutions prefigured the constitutional thinking

that would dominate a decade later…, represented a

return to the constitutional principles of liberty

through balanced and limited government…” Such

principles that “had, precisely, “motivated the schism

with Britain in the first place”.

However, some prominent lawyers and constitutionalists,

among whom John Adams, were actually concerned about

the excessive power granted to state legislatures.

Adams, for the state of Massachusetts as well as the

state of New York had therefore established more

elitist constitutions:

• with independently elected governors (for terms

of 3 years for New York) with the power to appoint

judges and veto acts of the legislature.

• Imposed higher property requirements for voting;

senates with longer terms of voting”

On the whole, a common document was necessary to tackle

the question of the union so to speak, and the relations

between the sates, left open by the creation of all

these constitutions. The Declaration of Independence

had indeed provided for the creation of 13 independent

states, but had not considered the question of their

internal relations.

Would they unite to form a single nation? Which form

would this union take? At that stage, all states were

anxious to preserve their independence, and did not

particularly wish for a centralized strong state but

the main reason for union was common defense, against

any attempt from Britain for example.

This is first why the Continental Congress drafted the

Articles of Confederation, giving shape to the

structure of the first “United States of America”,

(Article I), in the form of a loose and weak

confederation of 13 independent, sovereign states. The

authority of the Confederation government rested

entirely on that of the government and legislatures of

the various states, and they delegated only limited

power to the union government.

IV. Articles of Confederation - 1787

Document - (Brunon et al., 29-30) The Articles of

Confederation

written 1777, ratified 1781

Articles of Confederation and perpetual Union between

the states of New Hampshire, Massachusetts, Rhode

Island, Connecticut, New York, New Jersey,

Pennsylvania, Delaware, Maryland, Virginia, North

Carolina, South Carolina, and Georgia.

I. The Stile of this Confederacy shall be “The United

States of America”.

II. Each state retains its sovereignty, freedom, and

independence, and every power, jurisdiction, and right,

which is not by this Confederation expressly delegated

to the United States, in Congress assembled.

III. The said States thereby severally enter into a firm

league of mutual friendship with each other…

[…] Second part of number IV: justice

“ If any person guilty of, or charged with treason,

felony, or other high misdemeanor in any state, shall

flee from justice, and be found in any of the United

States, he shall, upon demand of the Governor or

executive power of the State from which he fled, be

delivered up and removed to the State having

jurisdiction in his offense.

Full faith and credit shall be given in each of

these States to the records, acts, and judicial

proceedings of the courts and magistrates of every

other State.”

This means the right of access to

justice goes beyond the principle of the independence

of the state.

• Article XIII or ‘The standard of unanimity’:

“…, nor shall any alteration at any time hereafter be

made in any of them, unless such alteration be agreed

to in a Congress of the United States, and be afterwards

confirmed by the legislatures of every State.”

Explain why the standard of unanimity might be a

hindrance made it practically impossible to raise an

army or take a collective decision or give real power

to the national government.

By 1787, however it had become obvious that this

original concept did not work. Indeed, as of the early

days of the Confederation, there was so much growing

interstate bickering and quarrelling as regards trade

and taxation that made some fear that an interstate war

might break up soon.

According to the basic constitutional principles, only

the state governments had the power of taxation as the

people were represented in state legislatures only. The

Confederation could only request funds from the states.

There was therefore an acknowledged need for a more

powerful national government.

V. slavery.

• Slavery as a hindrance

In addition to this, slavery also became a real

political issue as early as 1773; slave-owners harshly

attacked by such people as Jefferson himself (a

paradox), or Reverend John Allen of Massachusetts who

pointed the contradiction of the so called Sons of

Liberty: “trifling patriots…continuing this lawless,

cruel, inhuman, and abominable practice of enslaving

your fellow creatures” (Brogan, 184).

Here we have ingrained the future arguments in the

future civil war between North and South.

Finally, Puritan New England Quaker Pennsylvania and

Delaware ended up outlawing slave-trade. But in April

1776, Congress directed that, as a war-measure, slaves

were to be imported into any of the 13 states.

• Next, the conquest of the West was beginning and there

was a need to achieve legal organization

The North-West Ordinance passed by Congress in 1787,

when settlement of the Ohio Valley was about to begin,

was meant to provide for the political organization of

the new lands. It was the pattern by which all future

territorial acquisitions were to be regulated. But the

diplomatic and military strength of the Confederation

Congress was nil, its financial affairs were hopeless.

Congress, under the Articles, had as little power to

tax American citizens as George III after the repeal of

the Stamp Act, but simply had to ask the state

governments for money (and it must be said it never got

all that it needed).

• There was indeed a debt problem after the costly war,

and the ensuing increasing taxation led to rebellion

within, hence, Farmer Daniel Shay’s in Massachusetts

(1786). Farmers resented taxation as they operated on

barter (explain). This was felt as a threat to order.

A strong national union was needed.

• This is when the group of Federalists formed and

gathered, including John Adams, James Madison,

Alexander Hamilton, John Jay, and George Washington,

(see below) convinced that the Union could only survive

with a much more powerful national government and met

to rethink the principles of the republican government.

They were learned in public law and constitutional

matters.

Adams asked to summon a Convention, first to

‘revise’ the Articles and correct their obvious

defects, among which, the absence of a real national

executive power, the all too limited power granted to

the Congress to enact laws, and the effects of the

unanimity rule that gave virtually no power to a

national government. Thus, would the “Virginia Men”

coin a plan for a national, federal government.

VI. TOWARDS THE BUILDING UP of a National Government

The Philadelphia Constitutional Convention, held in May

1787, gathered 55 delegates representing 12 states

(with the exception of Rhode Island which argued that

the meeting was illegal), and was presided over by George

Washington (1732-1799), Commander in Chief of the

continental Army, son of the landed gentry, who was then

to be unanimously voted the First President of the new

nation (which included 4 million inhabitants then). He

was President from 30/4/1789 to 4 March 1797.

THE FOUNDING FATHERS Who were they? / Who they were

•1789: General George Washington became the first

President of the US and Chief of the Army.

More other Federalists and other essential figures:

• Alexander Hamilton (1755-1804): A New York lawyer.

He played an essential role in the army and to get the

Constitution ratified

• John Jay (1745-1829) A wealthy New York lawyer who had

written the Constitution for his state and one of the

negotiators of the Peace Treaty of 1783 that gave the

country independence from Great Britain. Later Jay

became Chief Justice.

• John Adams (1735- 1826) 2nd President of the US from

4/3/1797- 4 /3/1801, also involved in the drafting of

the Constitution

• Thomas Jefferson Declaration of Independence - 3rd

President (1801-1809)

• James Madison (1751-1836) A Virginian lawyer and

learned in public law and constitutional theory, a

driving force of the Constitutional Convention of 1787,

often referred to as the “Father of the Constitution”.

He became 4th president of the US (1809- 1817).

• The 5th President was James Monroe (1817-1825).

• Towards a national Constitution

- So, originally, many states had only thought of

revising the Articles on the question of trade and

commerce. It was obvious that the new nation had to

prove it was fit for self-government. However,

interstate jealousies and demagogy resulted in a period

of chaos and anarchy, and soon the need for order led

to the idea that a Federal Constitution was to be

drafted.

- So, the ‘Virginian Men’ caucused and drafted the

Virginia plan, de facto the ancestor of the

Constitution: the problem set to the delegates was to

“devise a permanent framework for the government of the

American nation”. This had been in fact in the air ever

since the foundation of Jamestown. With time, the

Americans had grown confident that their future must

lie together, ‘as one confederated body politic’.

Explain this expression in your own terms

The purpose of this meeting was indeed to “take into

consideration the situation of the US, to devise such

further provisions as shall appear… necessary to render

the constitution of the Federal Government adequate to

the exigencies of the Union, and to report an act for

that purpose to the US in Congress assembled as, when

agreed to by them and afterwards conformed by the

Legislatures of every State, will effectually provide

for the same frame…”.

Benjamin Franklin and Alexander Hamilton and others

hence set to work to plan a political system according

to which no branch of the government could exercise

despotic authority.

The Constitution was said to reflect the art of

compromise.

THE CONSTITUTION, or the art of compromise

It was generally admitted that the states needed a

stronger government, but there were fears due to the

obvious inequalities between large and small states,

states with slaves and slaves without. So, a series of

compromises were required.

a) The formation of a national government

First, the delegates agreed very quickly on the

principle that the main defects of the Articles were

that the confederate Congress represented states only

and because of the unanimity rule there could be inner

contradictions and general lack of uniformity.

Thus, it was agreed that should be established a

“national government…. consisting of a supreme

Legislature, Judiciary and Executive” that could

operate directly on individuals and not just on states.

But it was hard to decide the respective powers at the

start.

It was also decided the legislative would be formed of

2 chambers.

Debates would last until end of August between

Federalists and Anti Federalists about the new form of

government and then for ratification of the model

proposed mainly by the Federalists.

b) First principles - Compromise about the structure

The first debates and resistance of many Anti-

Federalists, advocating the sovereignty and independence

of states before all, liberty of the individuals and

guarantees against centralized tyranny, concerned the

Convention: they said this Convention was

unconstitutional and made a counter-proposal known as

the “Connecticut Compromise”, with which a bicameral

legislature was proposed with a lower house and an upper

house. So, the principle of 2 chambers of different power

was admitted.

The Federalists had proposed the possibility of a

federal veto of state legislation but as the Anti-

Federalists argued that it was an infringement on the

sovereignty of states, so the Federalists had to accept

the compromise.

But the problem was the obvious discrepancies and

inequalities between small states and large states in

terms of representation. Finally, the larger states

accepted a compromise:

The lower house would be elected on a population basis,

with at least one representative per state, whereas the

upper house, the Senate, would have an equal vote there.

This was what has been referred to as the Great

Compromise, adopted on 16 July.

Then details were discussed:

- each state would have 2 representatives in the Senate

who would vote as individuals, not as a unitary state

delegation;

- the new constitution was to be the supreme law of the

land

- executive officers might be impeached for high crimes

and misdemeanors (= petty offences).

c) The second crisis, which occurred in August,

concerned the issues of slave trade and slavery, which

clearly presented key constitutional issues.

Indeed, if proportional representation was introduced,

the southern states, that had a much smaller proportion

of the free population than the north, feared they might

lose influence in the federal government. So, the south

insisted to count the slaves in the population, which

obviously the North found unacceptable.

• A compromise was then struck: each slave would indeed

be counted, but not as one person but as three-fifths

of a person. This became to be known as the “Three-

Fifths Compromise”.

Then a second compromise was needed on the issue of the

slave trade, which was clearly to be regulated by the

federal government even if “it was a matter for each

state to determine the legality of slavery itself”.

As slave owners were worried about the future of the

institution and feared the abolition of the slave trade

altogether, a clause was introduced (Article I, section

9) to prohibit its abolition for 20 years.

So, to sum up, after 4 months of debate, at the

end of the summer, a short document of about 8,000

words, radically different from the Articles, had

finally been produced. This was to be the new

Constitution, made up of 7 Articles, each defining the

powers at stake, executive, legislative, judiciary…

The durability of the Constitution, it has been said,

lies precisely in the fact that the text had been

thoroughly tested in argument by sincere and

trustworthy men.

d) Ratification

Then began the long battle for ratification which

lasted one full year, with speeches, petitions,

letters, pamphlets, articles, that opposed Federalists

and Anti Federalists (Robert Yates, Richard Henry Lee,

a loyal Independence patriot) and George Clinton….

See for example The New York articles in the Federalist

Papers, often quoted, even today, in US Supreme Court

or by scholars, to interpret the Constitution. These

papers deal with constitutional issues, the

independence of the judiciary…

Reading Comprehension the Federalist n° 48 1

February 1788

This paper written by James Madison deals with the key

question of the Separation of powers - This is how he

argues in favor of this principle

Federalist n°48

“These Departments Should Not Be So Far Separated as to

Have No Constitutional Control Over Each Other” New

York Packet Friday, February 1, 1788 (James Madison)

To the People of the State of New York

“It was shown in the last paper that the political

apothegm [of the separation of powers] does not require

that the legislative, executive, and judiciary

departments should be wholly unconnected with each

other. I shall undertake, in the next place, to show

that unless these departments be so far connected and

blended as to give to each a constitutional control

over the others, the degree of separation which the

maxim requires, as essential to a free government in

practice be duly maintained.

It is agreed on all sides, that the powers properly

belonging to one of the departments ought not to be

directly and completely administered by either of the

other departments. It is equally evident, that none of

them ought to possess, directly or indirectly, an

overruling influence over the others, in the

administration of their respective powers. It will not

be denied, that power is of an encroaching nature, and

that it ought to be effectually restrained from passing

the limits assigned to it. After discriminating,

therefore, in theory, the several classes of power, as

they may in their nature be legislative, executive, or

for each, against the invasion of others. What this

security ought to be is the great problem to be solved.

Will it be sufficient to mark, with precision, the

boundaries of these departments, in the constitution of

the government, and to trust to these parchment

barriers against the encroaching spirit of power? […]

”

Here, are clearly ingrained the key principle of checks

and balances between the different branches that would

be an essential feature of the Constitution.

Progressively however, Anti-Federalists were losing

ground, and as it seemed obvious, they would lose the

battle of ratification, they put their energies into

securing a federal bill of rights, to check the power

of this new federal government.

- The Constitution was ratified in 1788-1789

The states ratified the Constitution one after the

other: Delaware first, on 7 December 1788, Pennsylvania

second on 12 December (by 46 votes to 23 in the state

conventions); next came New Jersey, Georgia, then New

York, drawn reluctantly in. Only 2 states actually held

out: North Carolina and Rhode Island. This was no

landslide victory, but a ‘touch and go’ one.

• New elections were held; the electoral college voting

for the first time after the dying Congress in February

1789, unanimously chose George Washington as the first

President of the US, and on 30 April, he took the oath

of office in New York.

Changes in other areas a) In private law, colonists adopted the general

features of the English legal system. The desire during

the Revolution, at this stage, was not so much to change

rules as to know who would apply them. However, we have

seen how law of property developed differently in the

US from the UK as a result of different circumstances

at the origin. Many states passed “reception statutes”

to mention which part of English law would be

enforceable. Legislation then was often complex and

difficult to construe. The substantive common law

needed to be adapted to circumstances, but some

revolutionaries like Thomas Paine advocated getting rid

of common law altogether as they thought UK common law

was an instrument of imperialism.

In matters of procedures, the jury, both in civil and

criminal matters, was enthroned by the Constitution. As

of the 19th century, the judges and lawyers thought more

in substantive term in ‘tort’, ‘contract’ rather than

refer to old procedural categories like ‘trespass’ or

‘assumpsit’. Common law pleading was generally

simplified.

b) Evolution in legal philosophy

The American Revolution, much less revolutionary than

the French one, had its main impact in a general

rethinking of the nature of law, with a view to

accepting changes and mutability. Common law was

considered in its social regulating role long with

legislation, and in the 19th century there was a general

movement towards codification See New York lawyer David

Dudley Field’s code of civil procedure adopted by 30

states and his penal code and code of penal procedure

adopted by 16 states (codes were then series of rules).

With the west conquest and the expansion of the

territory, were introduced new elements of civil law

sometimes borrowed from other countries, (Louisiana,

from French and Spanish (civil) law; Spanish/Mexican

law in Texas, New Mexico, Arizona, and California. Many

similarities were the result of parallel evolution in

parallel circumstances:“ American law became closer to

English law after the independence than in the colonial

period.” (Harvey et al., 76)

CONCLUSION: From the Constitution to a federal republic

– Bridging the Gap from the Past to Today-