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The Story of John and Abigail Adams in Europe

though the current reach of the Constitution would probably be unrecognizable to the Founders, For example, the prospects of constitutional review of legislation and the striking down of Acts of Congress, although it occurs on a regular basis today, were not inherent features of the 1789 Constitution. These aspects were decided in Marbury v . Madison , 5 U.S. 137, 138 (1803). and even though specific sections of the constitution seem antiquated, the American public continues to engage in a form of constitutional worship that is difficult to find anywhere else. Brian

) settlers from their homes. This is so even when the courts recognize that the initial transaction was illegal, as can be seen with the example of the Oneida. The case of the Oneida also shows that courts will often not even return jurisdiction over land even when non-Indians do not occupy the land. Before the U.S. Constitution came into force in 1789, the Oneida had given up all six million acres of their land, save for 300,000 acres reserved for their use and occupancy. The 1789 Constitution gave the federal government the exclusive ability to make treaties with Indians

) federalism to come about. Those were, in the case of the US, external security ("to provide for the common defence", as expressed in the preamble to the 1789 Constitution) and economic benefits inherent in interstate commerce and a common market. Moreover, at least in the view of the federalists, the creation of a large and heterogeneous republic was to counter factions and abuses and to stimulate political discussion and participation. Also in the case of Germany, integrative federalism served the same purposes albeit at a much earlier stage, that is to ensure

—next to jury rights (“Freedom of the press and trial by jury to remain inviolate forever”149). The 1791 Bill of Rights also provided protection for the free press,150 complementing congressional authority under the 1789 Constitution to “establish Post Offices and Post Roads.”151 Pursuant to its constitutional mandates, Congress enacted the Post Office Act of 1792,152 which expanded the network of communications (mostly via stage coaches) by giving newspapers “unusually favorable terms, facilitated the rapid growth of the press,” and prohibited government

for by law. Article 61: No suit at law, which relates to rights alleged to have been infringed by the illegal measures of the administrative authorities, and which shall come within the competency of the Court of Administrative Litigation specially established by law, shall be taken cognizance of by Court of Law.1 1. Available at http://uiarchive.uiuc.edu/mirrors/ftp/ibiblio.unc.edu/pub/docs/books/gutenberg/ etext96/cjold10.txt (July 23, 2001). appendix a 175 United States: The 1789 Constitution Article I Section 2: The House of Representatives shall choose their

KINGDOM 1865 Colonial Laws Validity (28 & 29 Vict., c. 63) 1931 Statute of Westminster (22 & 23 Geo. 5, c. 4) 1959 Obscene Publications (7 & 8 Eliz. 2, c. 66) 1965 Murder (Abolition of Death Penalty) (13 & 14 Eliz. 2, c. 71) 1965 Race Relations (13 & 14 Eliz. 2, c. 73) sec. 6 1968 Race Relations (16 & 17 Eliz. 2, c. 71) generally sec. 1 sec. 2 sec. 3 sec. 4 1976 Race Relations (24 & 25 Eliz. 2, c. 74) generally sec. 70 UNITED STATES 1789 Constitution art. 9 1791 Bill of Rights art. 1 art. 4 28 28, 30 196 124 177 105 56, 58 57 57 57

dispute was based on an interpretation of the provision in the 1789 Constitution that established the Electoral College.12 Article II, section 1, clause 2, provides, in part: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” I shall refer to this as the Electoral College provision. The remarkable reading of this provision by the conservative justices holds that when a state legislature directs that the people

whites, such as Virginia had experienced a few years earlier, during Bacon’s Rebellion— the most serious anti- establishment uprising prior to the eighteenth century’s war for independence.17 In add- ing racial stratification to economic and political inequalities, the legislature created new wealth defenses: by dividing poor whites from poor blacks and, over time, recruiting poor whites to help subordinate people of color, they secured the landed elite’s con- trol of the colony and their concentrated wealth. Winters’s discussion of wealth defenses in the 1789

2006): 683– 738. 10. Theodore Eisenberg, John Goerdt, Brian Ostrom, David Rottman, and Martin Wells, “The Predictability of Punitive Damages,” Journal of Legal Studies 26 (1997): 634. Chapter One 1. The literature chronicling the debates and compromises surrounding the 1789 Constitution and the amendments constituting the Bill of Rights in 1791 is Notes 120 notes to pages 9–19 overwhelming (since we seem to recast that history every few decades). A stan- dard documentary collection is Bernard Bailyn, ed., The Debate on the Constitu- tion: Federalist and