One of my dearest colleagues, now deceased, used to terrify entering law students with a speech entitled "Law School is Different." The main point was that life as an undergraduate was a piece of cake compared to the hard work, difficult subject matter, and low grades that awaited those who were about to begin their legal studies. To a degree, he was quite correct, and yet I must admit that my transition to law school was marked by a different perspective. Based on my undergraduate experience, I anticipated that law school would be a more complicated, but nevertheless, a similar learning experience. I really enjoyed college because it provided such a rich variety of subjects. Each field had a different epistemology, a distinctive vocabulary, and a progression of topics leading from the basics to more complex areas of the discipline. By way of contrast, as I saw it, law was law. For convenience and ease of study, it could be subdivided into discrete courses, such as torts, civil procedure, contracts, and property. But when you came down to it, the subject was still law.

Is constitutional law, and thus constitutional history, different? Maybe so. At South Carolina we try to teach constitutional law to our first year students. Over and over again, in informal polls and on student evaluations of teaching, we learn that constitutional law is the most hated subject in the first year. The most strident complaint is that constitutional law is distinct from the other so-called "common law" subjects they study. They claim that it is harder to grasp; the rules are less certain. Considerations of policy are more significant in constitutional litigation than in other categories of law. Stare decisis is seen as virtually absent in modern Supreme Court decisions, and concepts like standing to sue take on different meanings when you move into the constitutional law area.

Is my cherished assumption-- that law is law--incorrect? Is the law of the Constitution distinct? Is it oil that floats on top of common law water, polluting the academic environment and killing the burgeoning enthusiasm of first year law students? More specifically for our purposes, will we disorient our undergraduates by subjecting them to common law method, and private law litigation, even as we discuss the Constitution of the United States?

The first task of a classroom teacher is to explain and simplify, and then to move students into more complicated materials as their competence develops. An additional requirement for those who would teach history, is the necessity of projecting a student's perspective back into the past. When my students visit my office they are intrigued to find a manual typewriter still in use, even though most of my work is done on a Windows 98 computer. Over my thirty-five years of teaching I have witnessed a steady decline in my students' perception of the past, and indeed, they seem to find it more and more difficult to conceptualize a world different from their own. I find that private law cases, because of their usual dependence upon the concrete facts of everyday life, provide a very valuable antidote to a student's tendency to fall into anachronism. In my view they also provide a very helpful pedagogical tool for drawing students into a discussion of how societal forces--especially technological development, economic diversification, and intellectual innovation--play a role in legal development.

Two and a half decades ago Professor Robert Gordon suggested that legal history can be written with close attention to professional concerns and considerations, or it can be studied more broadly by looking at the way in which law is shaped by, or shapes, society. He characterized the first as working "within the box," and the latter as looking beyond the box to discover the dynamic relationship between law and social forces.⁽¹⁾ Both are perfectly valid approaches to legal history, and in the hope of generating heated argument, may I suggest they are also applicable to studying the United States Constitution? My suspicion is that our undergraduates would like us to stress the relationships between law and society, and that we ourselves would prefer to be "outside the box." However, I believe that by working more analytically within that box--by mixing constitutional study with attention to private law developments--we may raise some basic questions about the dynamics of our constitutional system. As I move through a few examples, you may wonder whether working within the box may not ultimately lead to considerations that really are "outside" the box, and whether we do not come "full circle" in our efforts to teach American constitutional history.

Judicial Review

Let me begin with judicial review. In this I follow my college teachers, and certainly most law school teachers. There is something dogmatic, or credal, about doing so, but most of us start a course in constitutional studies with Marbury v. Madison. Now mind you, I am not ungrateful that editing John Marshall's papers supported me comfortably for ten years. Despite that, it is a fact that Chief Justice Marshall did not invent judicial review. Federalist 78, along with a good number of State cases and U. S. Circuit Court decisions, suggest that he had a lot of help along the way.

My preference is to teach judicial review as a product of American colonial law, growing in part from the doctrine of repugnancy in the British imperial law. From the first days of English settlement, the imperial constitution required that colonial law (both statutory enactments and common law decisions) not be repugnant to the law of England. The Privy Council in reviewing colonial legislation, and in deciding appeals from colonial court decisions,

paid close attention to the degree to which colonial law conformed to English standards.If a statute was found repugnant to English law, it was disallowed and rendered null and void. Unquestionably, the law of England was the supreme law against which colonial enactments and court decisions were construed. On the other hand, colonial conditions might justify some departures from English law, and the Privy Council was quite flexible in its application of the concept of repugnancy. American colonial lawyers were adept at using repugnancy to argue their cases; federalism was well known, and supremacy understood, not by the genius of the so-called Founding Fathers at Philadelphia, but rather from the actual experience of law practice within the British Empire.⁽²⁾ I like to use a South Carolina colonial case to illustrate the dynamics of this type of judicial review. Rex v. Mellichamp⁽³⁾ involved a legislative attempt to deny benefit of clergy to individuals convicted of counterfeiting English or South Carolina currency. Counterfeiting was a serious law enforcement problem in British North America.⁽⁴⁾ Indeed, it was a profitable, albeit an illegal, business throughout British North America. Counterfeit colonial currency was of the highest artistic quality since many of London's most gifted engravers were employed by the counterfeit rings. Furthermore, English criminal law made benefit of clergy available to those convicted of counterfeiting; coupled with transportation to the colonies, this meant that England provided the colonies with a steady flow of experienced counterfeiters. In self defense South Carolina enacted a harsher penalty. A counterfeiter convicted in South Carolina's colonial courts would not live to offend a second time. On the other hand, could a colony impose a punishment that exceeded the sanction available in England? In Mellichamp the two colonial judges present on the bench disagreed concerning the repugnancy of the South Carolina counterfeiting statute. There was no question that English law permitted a convicted counterfeiter to claim benefit of clergy; the South Carolina statute gave him no alternative to being hung on the gallows. However, the issue was whether the South Carolina statute was void because of repugnancy. Chief Justice Robert Wright was of the opinion that it was null and void. He reasoned that the South Carolina Commons House of Assembly was authorized by the Governor's commission, and thus was a creature of the royal prerogative. As such its enactments grew out of the prerogative, and were subject to the constitutional principle that the Crown could not undo by its prerogative that which had been enacted by the King in Parliament. Therefore, the statute passed by the South Carolina Commons House of Assembly was null and void.

By way of contrast, Associate Justice Thomas Lamboll held the South Carolina law both valid and applicable, and therefore, Mellichamp should be denied his clergy. Lamboll took a strikingly different view of the constitutional authority of the South Carolina Assembly. While admitting that the Governor's Commission conferred legislative authority upon the colonial legislature to make such laws as were necessary, he believed that the Assembly's power, and hence the constitutional validity of its enactments was legitimated by the consent of South Carolina voters represented by the Assembly. Since the provincial government was charged with keeping the peace, and thus required to establish adequate deterrents to counterfeiting, there was no question that it was authorized to establish penalties appropriate to, and tailored to fit, local conditions.

Of course, the final decision in Mellichamp is unknown. If another judge subsequently appeared to break the tie--and perhaps the accused's neck--we shall never know. The local newspapers carried no further information concerning the case.

Mellichamp deals with much broader issues than repugnancy and judicial review. Suffice it to say that I suggest to students that these views of colonial legislative independence on one hand, and the royal prerogative on the other, were among the many constitutional causes

of the American Revolution that broke out some four decades later. To generate discussion, it is useful to ask them to consider the colonial impact of the Glorious Revolution of 1689, and which of the two judges represented a pro-British interpretation of the imperial constitution. The case also teaches us a lesson about federalism. When criminal sanctions in one colony are increased, would-be offenders may be induced to move their activities elsewhere, but at the same time, a rigid, uniform and "federal" penalty may eliminate the need for a colony to resort to this type of self-help. And given the empire-wide scope of the counterfeiting rings, a central and federal solution may well have been the only effective criminal sanction.

Of course Mellichamp is only part of the background of judicial review, predicated as it is upon a superior federal law, and the need for uniformity of law throughout a federal empire or nation. Marbury represents a slightly different form--the use of a superior Constitutional standard to invalidate an inconsistent statute. I use Dr. Bonham's Case as an example of an appeal to a higher law, perhaps to negative even an act of Parliament.⁽⁵⁾ Bonham's case supplements Somersett v. Stewart, an 1772 English decision that uses natural law arguments to prevent the forcible return of a former slave to servitude in Jamaica.⁽⁶⁾ These cases provide a good opportunity to ask about the moral aspects of positive law, and the degree to which property interests should be protected against assertions of individual liberty and the dignity of every human being. Finally, I believe these cases show the sophistication of eighteenth-century legal arguments over the nature of the British empire and the meaning of its constitution. Americans might have been mere colonials, but provincial they were not.  

The Constitution and Property Rights

The historical importance of property rights is something that escapes most students today, and for that reason it is useful to expend some time on the central position of private property to eighteenth and nineteenth century American law. For some time I have approached this task by using what I have called the "women and wine" portion of the course. As you might suspect, the first topic is the status of married women's property at common law, and how that is altered by the married women's property acts passed by several states in the nineteenth century.

The law dealing with the property of femes covert provides a stark contrast to contemporary social and legal norms. It highlights the first steps in the immense changes that have occurred in domestic relations law and in the ancient social institution of the family. At the outset these changes in economic rights were slowed by judicial concern for a husband's property rights. A look at private law cases permits me to discuss the complexity of classifying specific types of property. I can force the students to look at the balances that the courts struck between applying remedial legislation on one hand, and protecting what were considered vested private property rights on the other. And just as students they are about to condemn the stodgy old judges as being obstructers of social change, there are cases for the period that illustrate how the courts applied traditional equitable protections for women. Those remedies were used far before the Married Women's Property Acts were contemplated, and were effective shields against unfair and inequitable decisions otherwise mandated by common law.⁽⁷⁾  

Property rights are also involved in mid-nineteenth century efforts to prohibit the sale, and hence the consumption, of alcoholic beverages. It is useful to focus upon New York state's abortive attempt to implement state-wide prohibition in the 1850s. Wynehamer v. People (1856) provides a fascinating spread of judicial opinions concerning the property rights of saloon keepers in liquor that was in their possession on the effective date of prohibition. Despite arguments that liquor was a menace to the public and not entitled to judicial protection, a majority of the New York Court of Appeals favored either compensation to the saloon owners or relaxation of the law to permit the sale of alcoholic beverages until the existing stock was exhausted. Again, how far was a legislature permitted to go in eliminating a serious social problem, and is it within the authority of judges to nullify actions taken by the representatives of the people?

Since Wynehamer precedes the Dred Scott case by just one year, a comparison of the two cases facilitates discussion of one of the critical political problems of antebellum America--how could the Union be preserved when the moral issue of slavery was driving it apart? That problem carried with it significant constitutional questions, and it set the stage for the greatest alteration in the framework of American federalism--the ratification of the Thirteen, Fourteenth, and Fifteenth Amendments. Despite the severe and painful moral issues it presents, I introduce Dred Scott as a property rights case, for that is the way most of the justices chose to view the matter.⁽⁸⁾ That links it to Wynehamer, which involved both property issues and the considered judgment of a large portion of society that intoxication was a sinful practice that sapped the moral fiber of Americans even as it undermined the economic welfare of victimized wives and children. In addition Dred Scott is a jurisdictional case that depends upon diversity of citizenship. As such it is critical to teaching the broad implications of the Fourteenth Amendment in terms of a new theory of citizenship. Within the context of that new federal citizenship, one can begin what will be an extensive elaboration of civil rights and civil liberties. Without the insights gained from a careful study of Dred Scott, it is almost impossible to understand the modern concept of federal citizenship, and our current understanding of due process and equal protection.

The Northwest Ordinance, Slavery, and Sovereignty in Early America

Mentioning Dred Scott reminds me of an aspect of the case that has puzzled me for years. As we all know Dred Scott involved the Missouri Compromise, and the Supreme Court's nullification of that compromise was a severe, if not a fatal, restriction upon Congressional ability to defuse the nation's explosive potential for civil war. However, Dred Scott resided not only in the Louisiana Purchase territories, but also in the old Northwest Territory. The Northwest Territory was free territory under the 1787 Northwest Ordinance as well as under the Illinois state constitution of 1818. Yet this state of the law and the unquestioned fact that Dred Scott was subject to the terms of the Ordinance, seems to have passed unnoticed in the majority opinions. Why?

In revising my teaching materials I have recently come across an interest gloss on both property rights and the nature of the federal union prior to 1789. It involves the status of Black Americans held in slavery in Illinois in the early nineteenth century.⁽⁹⁾ These were persons descended from slaves held by French settlers in Illinois during the eighteenth century. By treaty between the British and French governments in 1763 the property rights in these slaves were to be protected, and it was therefore argued in Illinois courts that they remained slaves even after the passage of the Northwest Ordinance and the admission of Illinois as a state in the federal union. The Supreme Court of Illinois in Jarrot v. Jarrot rejected that view of the matter. Instead it held that the Northwest Ordinance eliminated all vestiges of slavery in Abraham Lincoln's home state, and that all slaves resident in the territory in 1787 were free, as were any children born to slaves after 1787. The federal implications of the decision are most interesting.

As I read the Illinois Supreme Court's 1845 opinion in Jarrot v. Jarrot, the central government of the United States of America under the Articles of Confederation held plenary power over the Northwest Territory-in the words of the Court, Congress was sovereign and as such, it had the power to abolish slavery. Congress was not limited, either by treaties entered into by Britain or France as prior sovereign powers, not did any constitutional mandate in favor of private property restrict its discretion. Viewed in this light the Confederation Congress possessed legislative supremacy which, at least in theory, was equal to that of the British Parliament. For our purposes, it suggests that limits upon federal legislative power are not a product of the existence of a federal system, but rather arise from the ratification of the Federal Constitution and the Bill of Rights. In constitutional theory, if not in political fact, the Confederation Congress was a stronger federal government than is our current system.

Chief Justice John Jay in Chisholm v. Georgia (1793) expressed the view that in 1776 sovereignty passed from the British Crown directly to the United States, and not to the various states which then comprised the Union⁽¹⁰⁾. It was something of a shocking statement at the time, but Jarrot confirms that this expansive view of federal power in the territories persisted well into the nineteenth century. In Jarrot it served the humane and useful purpose of freeing from slavery a number of long-time residents of Illinois. For me, the Supreme Court's failure to deal with the Northwest Ordinance in the Dred Scott case begins to make more sense when considered in the light of Jarrot.

In my heart I always knew that John Jay was right!

Conclusion 

All of these private law issues take time to discuss, and there is no question that a more traditional "Supreme Court decisions" approach would be more efficient. It would also be easier to understand, but do we teach constitutional history to provide an antiquarian adventure, or are we involved in examining historical events in the past that were never as simple as they appear to us in retrospect? Adding a private law dimension to an undergraduate constitutional history course requires harder work from student and instructor alike, but it makes the subject matter come alive and places constitutional decision within a proper disciplinary framework.

Understanding private law also places an additional burden upon students--they must learn the rudiments of case analysis. Obviously this is a slow process--slow even in law school classes! On the other hand, I find that undergraduates can be brought into this method by a little bit of judicious "spoon feeding." For several weeks at the beginning of the term I take about fifteen to twenty minutes of my class hour dealing with the materials to be read before the next class meeting. This starts the students into their reading with a clear idea of what they are to look for, and what they can expect to find in the cases, the statutes or the secondary materials. It requires a bit more work from me, and it eases their transition into reading legal materials. I don't expect them to be law students when they finish studying constitutional history. I do believe they are better equipped as historians who are interested in the Federal Constitution. My submission to you is that--in this regard at least--oil and water do mix rather well.
 
 
Notes 

1. Robert W. Gordon, "Introduction: J. Willard Hurst and the Common law Tradition in American Legal Historiography," Law and Society Review, X (1975) 9-55, at 9-12, 20-25.

2. Joseph H. Smith, Cases and Materials on the Development of Legal Institutions (St. Paul: West Publishing Co., 1965), 432-434, 448-449, contains a good summary of the law of repugnancy. A more extended discussion of judicial and legislative review is available in Smith's Appeals to the Privy Council from the American Plantations (New York: Columbia University Press, 1950), 523-653.

3. Herbert A. Johnson, American Constitutional and Legal History: Cases and Materials (San Francisco: Austin & Winfield, 1994), 51-54. The case is more completely analyzed in Robert Cook, "Judicial Review and Legislative Power," in South Carolina Legal History, Herbert A. Johnson, ed. (Columbia: Southern Studies Program, University of South Carolina, 1980), 83, at 86-89.

4. The literature on counterfeiting in colonial North America is extensive. A good beginning point is Kenneth Scott, Counterfeiting in Colonial America (New York: Oxford University Press, 1965). .

5. 8 Coke Reports 107a-121a, 77 English Reports, Full Reprint, 638-658 (Common Pleas, 1610), reprinted in Johnson American Legal and Constitutional History, 68-73.

6. Loffts' Reports 1-18, 98 English Reports, Full Reprint, 499-510 (King's Bench, 1772(, reprinted in Johnson, American Legal and Constitutional History, 41-51. The case is discussed in William M. Wiecek, The Sources of Antislavery Constitutionalism n America, 1760-1848 (Ithaca: Cornell University Press, 1977), at pp. 20-39.

7. See Johnson, American Legal and Constitutional History, 335-377. For a review of nineteenth-century family law see Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth Century America (Chapel Hill: University of North Carolina Press, 1985); the legislative history of the New York Married Women's Property Act is detailed in Norma Basch, In the Eyes of the Law: Marriage and Property in Nineteenth Century New York (Ithaca> Cornell University Press, 1982).

8. Ibid.,228-246, 394-410.

9. Jarrot v. Jarrot, 7 Illinois 1 (1845)

10. 2 Dallas 419, at 469; on May 4, 1786, Jay had written to John Adams that state legislatures should be "considered, with relation to the Confederacy, in the same light to which counties stand to the state of which they are parts, viz. merely as districts to facilitate the purposes of domestic order and good government." William Jay, The Life of John Jay, 2 vols. (New York: J. & J. Harper, 1833), I, 249-250.