Comparative Constitutional History

Fall 2003



Professor        Elizabeth Dale


392-0271 ex 226 (history department)


Class time:     General class: Monday 4PM-6PM, Room 297 Holland Hall (Law School)

Extra history sessions: Wednesday, 6:30-8:00 PM, 013 Keene Flint Hall

Office hours:  Monday 2:30-3:45 at Holland Hall, Room 310

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):

            Benton, Law and Colonial Cultures

            Adelman, The Republic of Capital

            Beer, From Imperial Myth to Democracy

            Hanley, The Lit de Justice

            Bailyn, Ideological Origins

            Ertman, Birth of Leviathan

Caldwell, Popular Sovereignty and the Crisis of German Constitution Law


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:

Ancient Israel:

Medieval European sources:

            American legal sources:

                (for Ancient Mexican sources)

            Constitutions (historical and modern, in English and other languages):


            Laws from around the 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 United States.


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


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:       

Magna Carta

                        Golden Bull

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, Liberty and the Constraint of Kings," Journal of British Studies 38 (1999): 161-186

Christine Carpenter, "Law, Justice and Landowners in Late Medieval England," Law and History Review 1 (1983): 205-237

 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 Scotland and England: A Comparative Approach to the Glorious Revolution," Journal of British Studies 38 (1999): 28-58

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

Sermon on the Arbella

Little Speech on Liberty

Child's Remonstrance

Laws and Liberties

                        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, Massachusetts Bay, 1629-1649 (Burlington: Ashgate, 2001)

Daniel Hulsebosch, "Imperia in Imperio: The Multiple Constitutions of Empire in New York," Law and History Review 16 (1998): 319-379

F. Thornton Mill, Juries and Judges versus the Law: Virginia's Provincial Legal Perspective (Charlottesville: University of Virginia Press, 1994).

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 South Carolina by Sir Egerton Leigh and Arthur Lee. (Columbus, University of South Carolina Press, 1970)


Week four: Sept 15: Early "constitutions," part III

Common readings:       

Declaration of Independence

Willi Paul Adams, “German Translations of the American Declaration of Independence,” Journal of American History 85 (1999): 1325-1349.

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 British Empire and the United States, 1607-1788 (Athens: University of Georgia Press, 1986)

Pauline Maier, American Scripture: Making the Declaration of Independence (New York: Knopf, 1997)



Week five: Sept 22: Models of constitutionalism

Common readings:

Dorsen, 99-207



Week six: Sept 29:  Late eighteenth century constitutions, outside the United States

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 United States

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 France," Journal of Modern History 73 (2001): 32-53

Dale Clifford, "Can the Uniform Make the Citizen? Paris, 1789-1791," Eighteenth-Century Studies 34 (2001): 363-382

Keith Gannon, "'Mr Jefferson's Plan of Destruction:' New England Federalists and the Idea of a Northern Confederacy, 1803-1804," Journal of the Early Republic 21 (Fall 2001): 413-443

Sarah Hanley, “Social Sites of Political Practice in France: Law Suits, Civil Rights, and the Separation of Power in Domestic and State Government,” American Historical Review 102 (1997): 27-52


Week seven: October 6: Some nineteenth century constitutions, outside the US

Common readings:


Hilda Sabato, "On Political Citizenship in 19th Century Latin America," American Historical Review 106 (Oct 2001): 1290-1315

History students:

Adelman, Republic of Capital


Extra readings:

Vincent C. Peloso, "Liberals, Electoral Reform, and the Popular Vote in Mid-Nineteenth-Century Peru," in Peloso and Barbara A. Tenenbaum, eds., Liberals, Politics, and Power: State Formation in Nineteenth-Century Latin America (Athens, Ga., 1996).

Hilda Sabato, "Citizenship, Political Participation and the Formation of the Public Sphere in Buenos Aires, 1850s–1880s," Past and Present 136 (1992)

Bernd Hartman, "How American Ideas Traveled: Comparative Constitutional Law at Germany's National Assembly in 1848-1849," 17 Tulane European and Civil Law Forum 23 (2002).


Week eight: October 13: Transition from Nineteenth to Twentieth Century,

Common readings:       

The Meiji Constitution of 1889

Tadashi Aruga, “The Declaration of Independence in Japan: Translation and Transplantation, 1854-1997,” Journal of American History 85 (1999): 1409-1431

History students:

Beer, From Imperial Myth to Democracy



Week nine: October 20:

Common readings:       

The Weimar Constitution

David Dyzenhaus, “Legal Theory in the Collapse of Weimar,” American Political Science Review 91 (1997): 121-134

If you have time, you might also skim Dorsen, 213-17, 252-261

History students:

Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law


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

If you have time, you might also skim Dorsen, 975-1014. If you want background on the constitutional systems discussed in the book, see Israel Basic Laws; Daniel J. Elazar, The Constitution of the State of Israel; Constitution of India


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 China (R. Randle Edwards, et al, editors, 1987); James Brady, Justice and Politics in People’s China (1982); Ronald Keith, China’s Struggle for the Rule of Law (1994).

                        Constitution of the Soviet Union

Robert Conquest, Justice and the Legal System in the USSR (1968).


Week thirteen: November 17: Late Twentieth Century Constitutionalism

Common readings:

South African Constitution, 1996

Dorsen, pages 617-643, 644-672, 724-744

History students:

Benton, Law and Colonial Cultures


Extra readings:

Constitution of Russian Federation

Constitution of Slovenia

Constitution of the Czech Republic

Constitution of Poland

Maastricht Treaty


Week fourteen: November 24: Late Twentieth and Twenty-first Century Constitutionalism

Common readings:       

Dorsen, pages 1191-1265