Studying the American constitution

At a moment when the turmoil around the election of a new president of the United States of America is still living history, thoughts naturally turn to the key elements in the administration and government. The nomination of a new judge to the Supreme Court did not immediately lead to more stability. Political division in the Congress seems to harden. It is no wonder people look at the American constitution as a beacon of light and direction. In this post I will look at some of the online resources for studying the American constitution, in particular ConSource, just before it will become fully integrated with The Quill Project (Pembroke College, Oxford). At some points I will look also at other useful resources.

Digital resources for and around the US constitution

The Quill Project of Pembroke College, University of Oxford, the new home for ConSource created by the Center for Constitutional Studies, Utah Valley University, has certainly the US constitution as its core, but it is also home to other projects concerning legislation and constitutional history. I confess my surprise about the presence of these projects. The American constitution has so many aspects that even a dedicated website can touch only a number of them. A look at the original ConSource website can help to keep a clear focus.

At ConSource you can choose items in the menu bar at the top of the screen or go to the four sections indicated at the start page. The Library is the central element where you can use a research browser or enter eight different collections, for example for the constitution, the Bill of Rights and the amendments, constitutional debates, the Federalist Papers and reactions to them, and state constitutions and charters. The Index is an index in three sections, for the constitution, the Bill of Rights and the first ten amendments, and a section for the amendments 10 to 27. The section on education contains videos, lessons plans and information on some other projects concerning education about civil society.

The Federalist Paper No. 1, 17, 1787 – images source: ConSource

The other approach at ConSource goes through four sections, starting with Documents which turns out to be the Library, the Constitutional Index, the videos and the lesson plans. There are several ways to search and filter the documents collections. It is good to see here also a collection concerning Magna Charta. Interestingly, both the original edition of the Federalist Papers and transcriptions of these pamphlets are given. Resources with original documents are indicated with a scroll icon. There are 21 videos for a wide range of topics, among them one concerning the role of legal history for interpreting the constitution. The lesson plans contain not only units concerning the constitution, but also for the Declaration of Independence, the Articles of Confederation, the Constitutional Convention and the history of the constitution in the early republic.

Finding the constitution in a new context

How do these rich resource figure at The Quill Project after conversion? Even without looking deeply into the new online presence it is good to see immediately a user guide. One of the main differences with ConSource is the navigation. In my view it is wise to start with the items in the top menu bar, unless your item of choice is visible in the selection at the start page. Here the Library has two main sections, one for resource collections and one for commentary collections. However, the layout below the links to these section starts with a section labelled Negotiations. You can find here five collections concerning the constitutions and related central documents, and also two section on Utah legislative history. For some unclear reason there is no alphabetical or chronological order, nor have the Utah items be marked with a different symbol or color, things that can be easily mended. With such riches at your finger tips you will want to benefit also from the Reader’s Tools. At this web page you will find things in a very clear and sober layout. The Compare Tool is surely one of the things you will like to use.

When you see some minor problems with the layout in the paragraph here above it is not entirely by chance the overview of resource collections contains some elements which had better been set apart quickly, such as Quill Project News and Forthcoming Events. There is no clear order for the 33 collections, but you will smile when seeing the weather reports collection during the constitutional convention! It is great to have access here to letters edited for the Electronic Enlightenment project. There are eight commentary collections, a number with less chances for confusion or unclear layout, yet I cannot honestly detect a clear order here, too. The inclusion of materials about the creation of the electoral college for the election of the US president is most welcome. If you think I jotted down only some quibbles you might try to find a specific resource using the Reader’s Tools. I tried to locate the Federalist Papers, but alas I could not find them, maybe because some search index does not work correctly, but more probably they have not or not yet been transferred to the new platform.

Negotiations are the central theme at The Quill Project. Being somewhat an outsider to American legal history I can only applaud the attention to the fact the major documents of Early American legal history are the fruits not just of Founding Fathers defending principles with their best qualities, but of debates which did not happen in a laboratory. Decisions were made, postponed or cancelled under live conditions of debate, shrewd or honest use of rhetorical powers, and even under changing weather conditions, and in some years facing clear and present dangers. In my view The Quill Project does help with its resources in open access to break current debates about the American constitution and some of the amendments out of a straightjacket focusing too narrow on a restricted number of resources. The label originalism should indeed be reserved for that kind of framework. This portal helps you to see how origins are elements among many other things. It shows the constitution as an historical document coming into existence after many years of political and legal experience and debates.

At the end of this post you might be waiting for my usual service of a variety of other relevant links. However, in this case it would be foolish to make your own selection of links. A number of libraries at American law schools provide you with sure guidance to materials for constitutional history, a number of them in open access, others licensed and often only accessible at universities and research libraries. I mentioned a number of resources for legal history in open access in my post about the resources portal for the history of slavery in the United States. The Law Library of Congress is the obvious starting point for any research touching upon the US constitution. Its logo deserves a place at the very start page of the Library of Congress!

For those more interested in actual political action around the constitution in the early American republic and the way one of the Founding Fathers worked I would like to point to the digital collection Jefferson’s Three Volumes created by Princeton University. It offers apart from the history of three volumes of papers purposedly and explicitly put together by Jefferson himself and disastrously torn apart by the action of archivists a kind of time capsule. These documents in “3. volumes bound in Marbled paper” stem from his period as Secretary of State between 1790 and 1793. They show graphically the kind of information he daily received, his drafts and sometimes neat copies of his reactions and own actions. For me these documents make him more human. They do not diminish the fact he was indeed a Founding Father. In view of the fact resources can be part of licensed online collections you might want to consult my generous selections of resources for American history in open access in the form of digital libraries and digital archives at my legal history portal Rechtshistorie.

A new resource on the legal history of violence in the United States

At least on a few occasions even historians who try to remain detached from contemporary matters cannot escape from them. A blog dealing with law and history inevitably will touch major themes such as injustice, inequality, violence and slavery, things that are still present in our world, and are definitively not only history. The four themes mentioned here set a challenge to anyone thinking and writing. The subject of violence I have chosen for this post does not come completely unexpected. This month I read a notice about a new scholarly resource on the history of legislation about arms in the United States. Joseph Blocher and Darrell Miller (Duke University School of Law) have created a repository of historical gun laws. I will discuss here its contents and functions. By looking briefly at some contemporary resources on violence I will not shut out the present here entirely.

Finding laws

Blocher and Miller explain the way they compiled the information for their repository quite clearly. The first thing to notice is that the database does not contain the latest laws, statutes and other regulations. You will find English laws starting in the Middle Ages up to 1776, American legislation for the colonial period from 1607 to 1791, the year the American constitution was ratified, laws around the Fourteenth Amendment, and legislation up to the National Firearms Act of 1934. Colonial legislation has been limited to legislation in later American states. The legislation entered into the repository has been taken from regular resources such as well-known licensed databases on legislation by the Congress and state statutes, the Making of Modern Law, Yale Law School’s Avalon project and more general sources. A search for items mentioning the word gun was performed for the Session Laws. In the Making of Modern Law Blocher and Miller searched for the words gun(s), rifle(s) and pistol(s). The editors decided not to include every local regulation for every period. Sometimes a statute merely repeats earlier legal enactments. The spelling of older texts has been adjusted. On the blog of Duke Law School Blocher and Miller told on April 4, 2018 more about their project which contains currently some 1,500 items. They propose to add continuously newly discovered statutes, to expand the information for the colonial period, and of course they will correct factual errors.

Instead of creating at the outset a database with complete coverage of all possible legislation the two scholars at Duke did very sensible aim to deliver a set of materials which cover a most substantial period with due attention to colonial history. In the repository you can search at will using the free text field, and set filters for seventeen particular themes, for example militia regulations, hunting, manufacturing, sensitive places and times, race and slavery, and involvement of minors. It is possible to limit your search to specific years, and you can search for English law and for legislation from one or more states. The repository gives the texts of provisions, labelled with the usual current legal reference. A link to the sources used is also given. Thus you will find an act about the storage of weapons enacted on March 24, 1629 by the state Virginia with the reference 1629 Va. Acts 151, Acts of March 24, 1629, Act 5, and in this case a link to a digitized version in the Internet Archive of The statutes at large, being a collection of all the law of Virginia (…) (New York,1823). This statute at page 151 of the edition dealt with potash and nitre (saltpeter), vital ingredients for gunpowder.

The repository has six statutes on storage between 1607 and 1776, and eight from 1776 to 1791, and you will find 54 statutes on this subject from 1791 to 1861. Storage is the subject of 191 statutes in this database. I would not have labelled a statute of king Alfred from 890, the oldest law in the repository, about the way one has to carry a spear under storage, but under carrying weapons. The source used for this law is not given. In the edition of F. Liebermann, Die Gesetze der Angelsachsen (3 vol., Halle, 1903-1916) it is probably the statute no. 33 (I, 68-71). Of course this is only a detail, and one that can be quickly adjusted. The possibility of classifying statutes under two labels is certainly a matter needing attention. However, the important thing is that this repository enables you to pose questions about a particular genre of gun laws with a more than reasonable chance to find sufficient coverage. Thanks to the project Early English Laws I could quickly search for this medieval law.

At this point it becomes interesting, too, how we encounter laws with a relation to racial matters in the Duke repository. I will not spoil here your own curiosity by giving here a number of results for all subjects. For race and slavery you will find an overall total of 38 results. Here I cannot help thinking about Hein’s massive digital collection Slavery in America and the World where you can certainly find more or at least make valuable comparisons of the coverage. In 2016 I have discussed here at length some of its flaws and omissions, but it is a very valuable collection. Some quick searches among slavery statutes brought me already dozens of statutes which seem relevant for comparisons. Minors and other persons deemed irresponsible occur in 67 results in the Duke repository. Apart from statutes and regulations you will see also references to state constitutions and codes of law.

From the past to the present

It is not a regular thing to encounter a database with matters from the ninth to the early twentieth century. One of the compliments you must make to Blocher and Miller is that the quality of the repository makes one thirst for a sequel into the present. I suppose the editors reckon with the ability to find relevant legislation quickly, using either the licensed databases accessible at American law schools and elsewhere in research libraries, or the marvellous sets of digitized legal materials put online by the Law Library of the Library of Congress, together with links to other resources in open access. If you want to find online more about American legal history you can benefit from Legal History on the Web, the portal site of the Triangle Legal History Seminar at Duke University, for Blocher and Miller perhaps too obvious to mention!

It is impossible to ignore the current turmoil and debate about violence and gun laws in the United States. It would mean ignoring an elephant in the room. I was surprised the ever vigilant team of the Legal History Blog had not yet written something about the Duke repository. Maybe other recent news from Duke University was considered more pressing. The urgency of the situation around the use, abuse and possession of arms is clear to me, but here I can and will not offer my thoughts about possible remedies. For further information you can consult online websites such as the Gun Violence Archive, the Mass Shooting Tracker based on crowdsourcing, and Mass Shootings in America of the Stanford Geospatial Center. Projects such as Every Town for Gun Safety and The Trace bring news and background information concerning shootings, gun related violence, gun possession and gun laws in a larger context. At Mother Jones you can find a dataset concerning mass shootings in the United States between 1982 and 2018. SafeHome has an online dossier Gun Laws vs. Gun Deaths with maps showing the differences between American states.

Judicial statistics can generally be found at the website of the Bureau of Justice Statistics. Its page on weapon use will be at the focus of your attention. Those with access at a subscribing institutions can use the online edition of the Historical Statistics of the United States, where you can buy also two-day access to individual parts of it, or you can use the open access version of Historical Statistics of United States, Colonial Times to 1970 provided by the United States Census Bureau which brings you also to statistics for individual states. For statistical comparisons between countries one might start at the Swedish portal for historical statistics with as its core data for 21 countries.

If I had decided to follow here the path of historical statistics I would have added a second post. I am well aware more can be said, and that there are probably other online entrances to this kind of data, but I had rather not hide the main line of this contribution. The shooting at the Stoneman Douglas High School in Parkland, Florida on February 14, 2018 led to massive protests. In my view the database created by Blocher and Miller is one of the things helping to reflect on the development of law and justice concerning weapons in the history of the United States. They perform a service to the public. Hopefully others, and in particular law schools, lawyers and other legal scholars are willing, too, to consider what difference they themselves can make by studying the impact of visible and hidden violence, and how laws, statutes and other regulations work and worked to achieve justice for the victims and anyone hurt by violence. Its role in American history and in legal history needs study in all its aspects.

Canada´s confederation at 150 years

With the summer approaching you can be busy enough to almost miss events such as centenary celebrations. Thus the celebration of 150 years Canadian confederation, a major step to Canada´s independence almost escaped my attention. Centenary celebrations should not stand in the way of other subjects, but I think this one is interesting enough for a post here. At the heart of this contributions are the main constitutional documents in Canadian history, both before and after 1867. It will be instructive to make a tour of the major online portals with historic and current constitutions.

Before and after 1867

The websites which bring us online versions of constitutions worldwide often restrict themselves to current versions, but happily there are exceptions. Some portals give primarily historical versions. The Archivio delle Costituzione Storiche (Università di Torino) gives for Canada only documents from 1871 to 1943, and only in English. The Digithèque MJP (Université Perpignan) gives a very generous selection of constitutional documents concerning Canada, a number of them located at this portal and other elsewhere. The wealth of information from Perpignan, including an overview of major facts in Canadian history, is such that it is helpful to have a direct link to its version of the 1867 act. Canada is absent among the German translations at Verfassungen der Welt, but the English version is present at its Anglophone counterpart, International Constitutional Law (Universität Bern). I could not find quickly any Canadian document in the Avalon Project (Yale Law School).

William F. Maton created the webpage Canadian Constitutional Documents, with first of all a consolidated version of the British North America Act 1867, followed by later constitutional documents up to 2001. Alas the Spanish page gives no Spanish translations of the texts, only a translation of the introductions and explanatory notes. The Constitutional Society offers only the English version of the 1867 act. Among the facsimiles at The Rise of Modern Constitutionalism, 1776-1849 there are simply no documents relating to Canada, which helps to create the false impression no such documents came into being before the mid-nineteenth century. The Constitution Finder (University of Richmond School of Law) contains for Canada seven documents (1867, 1982, 2011). In the Constitute Project of the University of Texas at Austin you will find only the current version of the Canadian 1867 act. A Russian project for constitutions worldwide brings you Russian and French translations of the Canadian constitution (1867, 1982, 1989).

I made this tour of websites for the history of constitutions because it appeared that the URL for Canada in the Making at the digital portal Canadiana was broken, and also for checking the other web addresses of constitutional portals. The English version of Verfassungen der Welt had moved to a new URL, and I had to update the page for digital libraries at Rechtshistorie where you can find a section with these portal sites. The Internet Archive saved the pages of Canada in the Making, evidently an educational resource which got skipped at Canadiana without a trace. It seems there has developed a paradox between its absence and the abundance of sister portals for Canadiana, a general portal for online resources, the Héritage/Heritage portal for archival collections, and Early Canadiana Online, to mention only the most important offsprings. If you search for the word constitution at Early Canadiana Online you will get nearly 3,000 results.

Canada in the Making featured not only Canadian constitutional history, but also sections on aboriginal treaties and relations, and on pioneers and immigrants. The very words used for these two sections can cause frowns, and you might guess they explain at least a part of its disappearance. The section on constitutional history starts its story in the seventeenth century, and makes it sufficiently clear that the 1867 act is surely a milestone, but decidedly not the only one in Canadian history.

For a concise introduction to Canada’s constitutional history the page of the online Canadian Encyclopedia on this subject and separate pages about the 1867 constitution and other major acts are most rewarding. Dutch readers will recognize in particular the role of unwritten conventions in Canadian law which closely resemble Dutch constitutional law.

One of the gateways to educational resources for Canadian history is the bilingual portal Then/Hier. You might expect some attention to the current celebrations, but this portal shows no signs of them. Among the teaching resources is a section on constitutional history, and if this is not enough for your taste you might have a look at the generous selection of links at Then/Hier, both in Canada and elsewhere.

If you want to continue a search for digital resources you should have a look at the Canadian National Digital Heritage Index (CNDHI), a portal for searching digital collections. At its start the number of collections included was rather small, but now it seems the team behind CNDHI has put in a lot of effort to create a sensible covering of available digital collections. A simple search with the word constitution resulted in nearly 500 hits.

On my legal history portal I put on the digital archives page the CNDHI among the general resources concerning Canadian archives. The first section of this page leads you to general overviews and gateways to digital inventories and finding aids, the second section brings you to digital archival collections. The links for Canada should help you to pursue your own interests. In the final section you will find among specific tools, sites and societies of archivists also The Association of Canadian Archivists. Writing here about Canadian history has been for me a stimulus to continue to make my overviews of digital archives and libraries better tuned to the needs of legal historians. I can recommend visiting the Borealia blog for much more information about current research on early Canadian history.

A postscript

Some sessions at the upcoming conference Canada’s Legal Past: Future Directions in Canadain Legal History (Calgary, July 17-18, 2017) will deal with Canada’s constitutional history. The Law Society of Upper Canada will organize on September 27, 2017 at Toronto the symposium Lawyers and Canada at 150. The blog of the Osgoode Society for Canadian Legal History keeps you informed about scholarly events and publications.

Beyond the text

For me December 11, 2010 could have been a celebration day, the first anniversary of this blog. However, legal historians might remember there is another time measure in customary law, just a bit longer than one year. After a year and a day it is great to look back to the start of this blog. December 2009 saw a healthy start with a nice number of postings. I was not surprised that I could not maintain the stream of news I published in that month, but somehow I succeeded in posting at least a few items almost every month. This is far below the average number of blog items on other blogs, but this is also due to the start of www.rechtshistorie.nl.

Until now customary law has scarcely figured on this blog. For this posting I had in mind looking at the other end of the legal sphere. In the field of private law codifications tried to furnish among many other things more certainty than unwritten law and customs. Constitutions seem the very embodiment of guaranties for the rule of law in the public sphere. Searching for and editing old constitutions is a specific task for legal historians, but also lawyers searching for the present law have to be attentive to older versions of constitutions.

Many web guides for constitutional law point to websites presenting constitutions in force today. One of the best known sites with this aim is the Constitution Finder at the University of Richmond School of Law. This site has the advantage of not only containing links to (English versions of) constitutions, for some countries it even provides information about drafts or amendments. This website is maintained by law students. The list of National Constitutions of the Constitutional Society is of course impressive, and the gesture to create and indicate different formats is most welcome. I can sympathize with the makers of this site when I noticed that a rather large number of links does not function because of changed web addresses, a perennial concern for any webmaster. Relying on just one website is seldom possible and in fact not wise to do.

For Dutch history it is good to know that not only the constitution of 1848 is important, but also other versions to be found at the site for lawgiving in the Low Countries. The Institute for Dutch History in The Hague has digitized materials for the constitutions of 1815, and also the series of constitutions during the Batavian Republic (1796-1806) because one has also to be aware of the sources concerning the concept for the constitution of 1798. The Institute for Dutch History presents an online research guide for the Batavian-French period (1795-1813).

When comparing constitutions you have to cross national and linguistic frontiers. In my search for websites with constitutions it would not do to look only at texts in English. The German website Verfassungen der Welt is a portal to historical constitutions from Germany, Austria and Schweiz, and modern constitutions from Europe and worldwide in German translation. A project for international constitutional law at the University of Bern offers also overviews of the main event in constitutional history of the nations involved. The Archivio delle Costituzioni Storiche of the Dipertimento di Studi Giuridiche, Università di Torino, brings texts in English, French or Italian translation. The Université de Perpignan has a fine digithèque with many constitutions, often with their historical forerunners and useful weblinks, and also a nice list of major treaties. I have waited to mention The Rise of Modern Constitutionalism, 1776-1849,  a site with facsimiles of constitutions, because one can encounter more at this website only when you enter it from a subscribing library. This situation can help reminding you at least of the fact one cannot read and study constitutions in isolation. An example that has impressed me much is the creation and interpretation of the modern Japanese constitution which cannot be understood properly without bearing in mind the impact of the American constitution and American constitutional thought.

How can websites help you interpreting old constitutions, determining their ancestry and putting clauses and paragraphs into relief? The Liberty Library of Constitutional Classics is almost too famous. For Spanish history the site of the Biblioteca de Historia Constitucional Francisco Martínez Merina at the Universidad de Oviedo present a digital library with works on constitutional law, with also Spanish translations of foreign constitutions. I have to add here the Biblioteca Virtual Constitución 1812, a digital library which presents the Spanish constitution of 1812, and also the deliberations of the Córtes since 1810. Precious services are provided by the website for The Founders’ Constitution, a digitized and searchable version of the 1987 book by Philip B. Kurland and Ralph Lerner. The five volumes of their study contain a wealth of documents which are not only important for the history of the constitution of the United States of America. The site was created by the University of Chicago Press and the Liberty Fund which presents in its Online Library of Liberty also a substantial number of books concerning constitutional history.

Only comparing one constitution with another constitution is just the beginning. Its impact on legal institutions and legal life can be very different. Think only of the vast difference between a legal system in which laws can be reviewed in the light of a constitution, where a supreme court deals with law suits involving the constitution, and a legal system in countries with a constitution where this is not provided for in some way or another.  All this should not hold you from getting acquainted with or revisiting these online resources and make them useful for your research or your curiosity.