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Assignment 2: Magna Carta (Great Charter), 1215 & Bracton’s Laws, 1220s – England

In this second assignment, you will move from the post-Roman world of the Mediterranean, specifically the Visigothic Kingdom of Spain, way up north into England. You will not only move geographically, but also chronologically and in significant ways legally. Although you will read another set of constitutional principles, they are based upon a different set of ideas and on the basis of quite other histories. The Visigothic Code is built off traditions of the late Roman world and its law, specifically as it encountered Christianity and Rabbinical Judaism (in the forms of the so-called Collation of the Laws of Moses and the Romans [4th century], the Mishnah [3rd century]) and the Talmud [5th century-]). The laws of medieval England that you will read are from a world 500 years later, one that is fully removed from that Mediterranean, Roman and Jewish context, and yet also very religious (Christian). It is a legal world in which trials by ordeal, juries of one’s peers, disputation by combat – the origins of which all can be seen in their seeds in versions of the Visigothic Code – are part of the general “feudal” existence of people in medieval England.

The establishment in particular of the Magna Carta in 1215 and then shortly thereafter, in the 1220s- 1230s, the constitutional principles laid out by Bracton, or likely his followers, were products of an England eight-centuries removed from Roman authority, and even almost two centuries after the conquest of Anglo-Saxon England by the Norman (French) William the Conqueror. As with the formation of the Visigothic Code, and as you will see with the U.S. Constitution, this constitutional jurisprudence was a product of a world experiencing significant changes, including major historical wars. The formation of constitutional law emerged as a way to combat rebellions and to find ways to share power between its sites of origin. In this module, you will examine the constitutional response to the specific English situation and draw some comparisons with the Visigothic one.

Readings: Magna Carta: https://sourcebooks.fordham.edu/source/mcarta.asp

Bracton, On the Laws and Customs of England, Introduction (pages 19-28) : http://amesfoundation.law.harvard.edu/Bracton/Unfr…

Frederic W. Maitland, The Constitutional History of England (Oxford, 1908), 1-23. Frederick Pollock and Frederic Maitland, The History of English Law before the time of

Edward I, Vol. 1 (Cambridge: Cambridge University Press, 2010), 70-85 and 218- 223.

Questions:
1. What are the founding principles of English constitutionality as expressed in the Magna

Carta and Braction’s laws and customs of England?

2. In comparison, how do the Visigothic Code, on the one hand, and Magna Carta and the English laws, on the other, relate to divine authority for legitimacy and guidance? In what ways do they differ or replicate an imagined relationship with God?

Assignment 3: Declaration of the Rights of Man and Citizen, 1789 & 1793 – France

In the first two assignments you explored the developments of constitutionality in the Middle Ages, first in Spain and then in England. You looked at how law was transformed first at the end of the Roman world and then from a recreated Roman legal sphere in medieval England. You read also about the Anglo-Saxon and Norman (French) origins of English laws and customs, and you will see in this module and the next one how intricately tied the French, English and American history of constitutionality and jurisprudence is.

For the final two modules, you will move forwarrd from the Middle Ages on to the eve of the Modern Western world, first with the French Declaration of the Rights of Man and of Citizen in 1789 and the emergent rights of Jews in the law, and then, from the same year, the United States Constitution. After reading these, you will examine how they are built off of medieval constitutional thinking and practice, and analyze the significant changes you see, particularly involving divine authority and religion. From this, a picture will emerge for you of the foundations of Modern constitutionality and the progress that developed on certain issues, such as the equality Jews within the constitutional framework of Western law and civil rights.

Ultimately, this knowledge of medieval and early modern law will lay the basis for you to be able to think beyond this course on whether and in what ways the West is continuing this constitutional tradition or now moving away from it. Are we, for instance, returning to more medieval forms of consitutionality?

Readings:

Declaration of the Rights of Man and Citizen, 1789 Vindication of the Jews, 1789 (in Hunt): https://en.wikisource.org/wiki/Translation:Declara…
Declaration of the Rights of Man and Citizen, 1793
On Voting Rights for Actors and Jews, 1791 (in Zizek): http://www.columbia.edu/~iw6/docs/dec1793.html

Lynn Hunt, The French Revolution and Human Rights: A Brief Documentary History (Boston: Bedford / St. Martins, 1996), Chapters 1 and 2.

Slavoj Zizek, Virtue and Terror: Maximilien Robespierre (New York: Verso, 2007), Introduction and Chapter 9.

Questions:

  1. What are the core legal and civic principles laid out in the Declaration of the Rights of Manand Citizen?
  2. In what ways is the 1791 confirmation of the equality of Jews as equal citizens an expression of the Declaration? How has the place of Jews in constitutional thinking evolved since the Visigothic Code?
  3. To what extent does the French Declaration call on or engage with the God or religious principles and rights in relation to religion? How does this compare with the medieval codes? And, what do you think is the significance of the differences?

Assignment 4: The United States Constitution, 1789 – United States

Throughout the modules for this course you have been learning about the history of constititonal principles, from the start of the early middle ages (7th century) through the high middle ages (12th century) and into modernity on the eve of the 19th century. For this final module, you will elicit that broad knowledge of constititonal values, ideas and plans in Western law and examine how they now are applied, adjusted or entirely reinvented in the New World of the Americas, specifically in the former British colonies of America after the victorious American Revolutionary War (1775-1783). Upon conclusion of that war between American patriots and the British Empire, which had begun formally by proclamation of the American Declaration of Independence on July 4, 1776, a national government was operating under the Articles of Confederation (1777) that had been agreed to by the Second Continental Congress. Although there was a boom of prosperity across the American landscape immediately following the war, already by the mid-1780s the new nation faced significant debt and even internal rebellions. Faced with this pending crisis, a constitutional convention to create a permanent national framework was called by the Continental Congress. Within two years, the U.S. Constitution was created and ratified by most states.

You are provided below with both the U.S. constitution and the earlier one of the Commonwealth of Massachusetts (which witnessed one of the most significant revolts after the war) as well as selections of The Federalist Papers which make the argument for constitutional authority.

Readings:
Constitution of the Commonwealth of Massachusetts, 1780 United States Constitution, 1789: https://en.wikisource.org/wiki/Constitution_of_the…

https://en.wikipedia.org/wiki/Constitution_of_Mass…

Alexander Hamilton, James Madison and John Jay, The Federalist Papers, No. 10 and 14.: https://www.congress.gov/resources/display/content…

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Questions:

  1. What are the founding principles of the U.S. Constitution? How does it establish theframework of the United States and what is that framework?
  2. How do the Constitution of Massachusetts and the U.S. Constitution compare with one another and in relation to the French Declaration of the Rights of Man and Citizen?
  1. In the U.S. Constitution, where does the power of society lay and what are the foundations for state legal authority? What is the role of God or religion in the U.S. Constitution, if there is any? How does this compare and contrast with the Spanish, English and French medieval and modern laws that you’ve read?
  2. The U.S. Constitution is signed entirely by men, a pattern you’ve seen throughout the laws and constitutions you have examined. What do you think is the significance of the fact that all of these calls for equality, rights and justice entirely exclude women in their creation and proclamation? How seriously can we take their universal claims?

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