Comparative Constitutional
History
Fall 2003
Professor
Elizabeth Dale
392-0271 ex 226 (history department)
Class
time: General class: Monday
Extra history sessions: Wednesday,
Office
hours: Monday
Thursday 8-11:30 at Keene-Flint Hall, Room 025B
and by appointment
Brief
description of the course: In this course, we will compare constitutions
across time and space. We will thus look at constitutional orders that preceded
our own, some that were developed after ours was,
including some contemporary constitutional orders. Along the way, we will look
at different sorts of constitutional models (for example, written and
unwritten), and at how different societies have constituted themselves, looking
in particular at issues of citizenship, rights, and the relation between
government and governed. We will consider what a constitution or constitutional
order is, and whether those two terms can be used as synonyms, as well as the
question of whether comparative constitutional history has a value, to lawyers,
legal scholars or historians.
The class will include law students and history
graduate students. No particular background in either constitutional law or
history is expected, though all students should have a general familiarity with
the provisions in the US Constitution.
Required
texts (all students):
Dorsen,
Rosenfeld, Sajo, and Baer, Comparative
Constitutionalism
Thompson and Ludowikowski,
Constitutionalism and Human Rights
Jacobson, The
Wheel of Law
Also online materials linked to this
syllabus
Required
texts (graduate students):
Adelman, The
Beer, From Imperial Myth to Democracy
Hanley, The
Lit de Justice
Bailyn, Ideological Origins
Ertman, Birth of Leviathan
Extra
texts:
The books and articles listed under "extra
texts" are not part of the weekly assignment. Rather, they are
additional readings that you might wish to use if you are writing a paper
dealing with some of the issues that week.
Other
online sources for research:
Ancient law: http://www.law.pitt.edu/hibbitts/connect.htm#Ancient
Ancient
Medieval European sources: http://www.fordham.edu/halsall/sbook-law.html
American legal sources: http://www.yale.edu/lawweb/avalon/avalon.htm
http://www.law.utexas.edu/rare/aztec/
(for
Ancient Mexican sources)
Constitutions (historical and
modern, in English and other languages):
http://oncampus.richmond.edu/~jjones//confinder/const.htm
Laws from around the world: http://www.law.cornell.edu/world/
Structure
of class and assignments: The two-hour session of this class that meets at the law school on Monday
will be a combination of lecture/discussion. The extra session for history
students will be in a traditional seminar format, emphasizing discussion.
Grading for the class will be as follows:
Law
students: Will write a 15-20 page term paper focusing either on one of the
subjects we dealt with in this class, or a problem suggested by one of the
sections of Comparative Constitutionalism that we do not cover. Term
papers should either be comparative, or focus on the constitutional history of
a country other than the
Graduate
students: Will write a 20-25 page seminar paper, either in the form of a
research paper based on primary sources, or as a historiographic
essay. Seminar papers may either be comparative, or focus on a particular country.
Students must get their
topic approved by me before November 1, 2003.
Week
one: Monday August 25: How does one do comparative constitutional history? Why
do it?
Common
reading:
Dorsen, Comparative
Constitutionalism 1-66;
Tschentscher, “Comparing
Constitutions and International Constitutional Law: A Primer” at http://www.oefre.unibe.ch/law/icl/compcons.html
Extra
readings:
Marc Bloch, "Toward a
Comparative History of European Societies," in Lane and Riemersma, ed. Enterprise
and Secular Change (1953): 494-521 (alternatively, students may read this
essay in the original: Marc Bloch, "Pour une
histoire compar'ee des soci'et'es
europ'eenes," Revue de synth'ese historique
46 (1925): 15-50);
William Sewell, "Marc
Bloch and the Logic of Comparative History," History and Theory 6 (1967): 208-218;
William McNeill, "The
Changing Shape of World History," History
and Theory 34 (1995): 8-26;
Michael Adas,
"Bringing Ideas and Agency Back in: Representation and the Comparative
Approach to World History," in World
History: Ideologies, Structures, and Identities, Pomper,
Elphick, and Vann, eds. (1998).
Week
two: Sept 1: Labor Day, Monday class CANCELLED, made up Wed Sept 3 (same time and
place)
Early
"constitutions," part I
Common
readings:
History
students:
William Sewell, "Marc Bloch and the Logic of
Comparative History," History and
Theory 6 (1967): 208-218
Louise
Tilly, “Connections,” American Historical Review 99 (1994): 1-20
Extra
readings:
Joyce Lee Malcolm,
"Doing No Wrong: Law,
Christine Carpenter,
"Law, Justice and Landowners in Late Medieval
Paul Christianson, ""John Seldon, the Five Knights Case, and Discretionary Imprisonment
in Early Stuart England," Criminal Justice History 6 (1985): 65-87
Robert Collis, "The
Constitution of the English," History Workshop Journal 46 (1998):
97-127
Tim Harris, "The
People, the Law, and the Constitution in
J.G.A. Pocock,
The Ancient Constitution and Feudal Law
(New York: Cambridge University Press, 1957)
Week
three: Sept 8:
Early
"constitutions," part II
Common
readings:
Massachusetts Bay
Charter, 1629
If
you have time, you might also skim Dorsen, 99-133
History
students:
Ertman, Birth of Leviathan
Extra
readings:
Elizabeth Dale, Debating
--and Creating -- Authority: The Failure of a Constitutional Ideal,
Daniel Hulsebosch,
"Imperia in Imperio: The Multiple
Constitutions of Empire in
F. Thornton Mill, Juries
and Judges versus the Law:
Mary Beth Norton, Founding
Mothers and Fathers (New York: Knopf, 1996)
Jack P. Greene, compiler, The nature of colony constitutions; two pamphlets on the
Wilkes fund controversy in
Week
four: Sept 15: Early "constitutions," part III
Common
readings:
Willi Paul Adams, “German
Translations of the American Declaration of
See
generally Journal of American History vol. 85 (March 1999) (special issue on the
Declaration of Independence) (available on line, through UF library). If you have time, you might
read Dorsen, 489,-497
History
students:
Bailyn, Ideological Origins
Extra
readings:
Jack Greene, Peripheries and Center: constitutional
development in the extended politics of the
Pauline Maier, American Scripture: Making the Declaration
of
Week
five: Sept 22: Models of constitutionalism
Common readings:
Dorsen,
99-207
Week
six: Sept 29: Late eighteenth century
constitutions, outside the
Common
readings:
Constitution of Poland,
1791 (click on Constitution Text – En on the left of screen)
Declaration of the Rights of
Man (France)
Thompson and Ludowikowski, Constitutionalism and Human Rights
History
students:
Hanley, The
Lit de Justice
Extra
readings:
Articles of Confederation
Constitution of the
Horst Dippel,
"The Changing Idea of Popular Sovereignty in Early American
Constitutionalism: Breaking Away from European Patterns," Journal of
the Early Republic 16 (1996): 21-45
Marian McKenna, ed., The Canadian and American Constitutions in
Comparative Perspective (Alberta: University of Calgary Press, 1993).
Keith Michael Baker,
"Transformations of Classical Republicanism in Eighteenth-Century
Dale Clifford, "Can the
Uniform Make the Citizen?
Keith Gannon, "'Mr Jefferson's Plan of Destruction:'
Sarah Hanley, “Social Sites
of Political Practice in
Week seven: October 6: Some
nineteenth century constitutions, outside the
Common
readings:
Hilda Sabato,
"On Political Citizenship in 19th Century
History
students:
Adelman,
Extra
readings:
Vincent C. Peloso, "Liberals, Electoral Reform, and the Popular
Vote in Mid-Nineteenth-Century
Hilda Sabato,
"Citizenship, Political Participation and the Formation of the Public
Sphere in
Bernd Hartman, "How American Ideas Traveled:
Comparative Constitutional Law at
Week
eight: October 13: Transition from Nineteenth to Twentieth Century,
Common
readings:
The Meiji Constitution of
1889
Tadashi Aruga, “The
Declaration of
History
students:
Beer, From Imperial Myth to Democracy
Week
nine: October 20:
Common
readings:
David Dyzenhaus,
“Legal Theory in the Collapse of
If you have time, you might
also skim Dorsen, 213-17, 252-261
History
students:
Week
ten: October 27: After World War II, part I
Common
readings:
Constitution of Japan
(1947)
Charles Kades, “The American Role in Revising Japan’s Imperial
Constitution,” Political Science Quarterly
104 (1989): 215-248.
Extra readings:
Charter of the United
Nations (1945)
Week
eleven: November 3: After World War II, part II:
Common
readings:
Basic Law of the Federal
Republic of Germany (1949)
Carl
J. Friedrich, “Rebuilding the German Constitution, II,” American Political Science Review 43 (1949): 704-720
If you have time, you might
also skim Dorsen, 350-355, 364-368
Week
twelve: November 10: Twentieth Century Constitutionalism
Common
readings:
Jacobson, The
Wheel of Law
Extra readings:
Constitution of the
People’s Republic of China
Chin Kim, “The Modern
Chinese Legal System,” Tulane Law Review
vol. 61 p. 1413 (1987); Human Rights in
Contemporary
Constitution of the Soviet
Union
Robert
Conquest, Justice and the Legal System in
the
Week
thirteen: November 17: Late Twentieth Century Constitutionalism
Common
readings:
South
African Constitution, 1996
Dorsen, pages 617-643, 644-672,
724-744
History
students:
Extra readings:
Constitution of Russian
Federation
Constitution of
the Czech Republic
Week
fourteen: November 24: Late Twentieth and Twenty-first Century
Constitutionalism
Common readings:
Dorsen, pages 1191-1265