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A Constitutional History of the United States
by McLaughlin, Andrew C.





All rights reserved. This book, or parts thereof, must not be reproduced in any form without permission of the publisher


"For who are a free people? Not those, over whom government is reasonably and equitably exercised, but those, who live under a government so constitutionally checked and controuled, that proper provision is made against its being otherwise exercised." — John Dickinson, Letters From a Farmer in Pennsylvania (1768).


The purpose of this volume is to present briefly and clearly the constitutional history of the United States during nearly two centuries. I have no special ambition to write a long and learned work — so long as to deter a prospective reader from the task of scanning its pages, and so technical that only the learned expert, to whom I can give no valuable information, will occasionally turn its pages. I have attempted, therefore, to include essentials and those alone, to discuss those matters which in my own judgment the American citizen, not highly trained in the law, should know familiarly.

But the writing of a short history of a long and complex period furnishes its special difficulties. The author is under continuous obligation to practice self-restraint. He must exercise unremitting care in selecting the materials that he wishes to include in his story. This process of choice makes unrelenting demand and requires the use of discriminating judgment; the results may not satisfy the wisely critical reader. Conclusions, though they may be based on extensive exploration, must often be summed up in a sentence or two, without cautious modification or elaborate exposition. But one can only do his best, and choose the things he believes to be the most significant and useful.

This volume does not pretend to be in the main a history of constitutional law as announced by the courts. I have sought above all to make it concrete and not abstract, to associate constitutional principles with actual political and social conditions and with actual controversies reaching far beyond the court-room. But in many cases this association had to be presented briefly or to be plainly indicated only by inference. The great controversies, however, needed to be treated with sufficient detail. After all, the most important question, during the first three-fourths of a century under the Constitution, was the question whether the nation would survive, continue to live as an undivided whole. The most significant and conclusive constitutional decision was not rendered by a court of law but delivered at the famous meeting of General Grant and General Lee at Appomattox. This is only an illustration of the fact that, not judicial pronouncements, but great controversies, discussed and rediscussed by statesmen and the common people, are, or may be, the crucial matters.

It may seem that I have given disproportionally brief attention to the first third of the present century. If that be a just criticism, it may, nevertheless, be pointed out that, when we view the occurrences within our own memories, we are in danger of forcing unduly our own prejudices upon the reader. Only the greatest historians have ever succeeded in writing objectively of their own times. Furthermore, in discussing recent events it is difficult or impossible to get perspective; and perspective is for the historian his one necessity. And yet the apparent brevity of treatment of the later years is partly not real. Constitutional decisions, rendered in the early decades of this century, are often cited or briefly discussed in connection with problems arising in the more distant past. Frequently — and I hope with due caution — problems of early years are appraised by the principles laid down at a later time. Among the 342 cases referred to in the course of the book, 112 were decided in the twentieth century. Perhaps I ought to add that I have not attempted to trace constitutional developments after 1932.

I wish to acknowledge the suggestions furnished by some of my colleagues and others: Professor Arthur H. Kent; Professor Edward W. Hinton; Professor Avery O. Craven; Professor Quincy Wright; Professor Rodney L. Mott; Professor Edward S. Corwin; Professor James G. Randall; Dr. Howard K. Beale. I wish also to give full recognition to the patient and intelligent labors of my assistant, Miss Marjorie L. Daniel.

Chicago, Illinois.

Chapter I - Introduction
Chapter II - The Old Empire
Chapter III - The Problem of Imperial Organization. The Albany Plan
Chapter IV - The Writs of Assistance and the Revenue Act
Chapter V - The Stamp Act
Chapter VI - After the Stamp Act
Chapter VII - An Obdurate Parliament and Obstinate Colonies, 1769-1773.
Chapter VIII - The Intolerable Acts. The Arguments in Denial of Parliamentary Authority
Chapter IX - The Congresses of 1774-1775
Chapter X - The Philosophy of the Revolution and the Declaration of Independence
Chapter XI - Early State Constitutions
Chapter XII - The Articles of Confederation
Chapter XIII - The Tribulations of the Confederate Period. The Chief Problem of the Time
Chapter XIV - The Federal Convention I: Determination to Found a National Government
Chapter XV - The Adoption of the Constitution
Chapter XVI - Organization of the Government.
Chapter XVII - The Establishment of the Executive Departments and the Development of the Cabinet
Chapter XVIII - The Establishment of the Authority of the Executive in Foreign Affairs
Chapter XIX - The Alien and Sedition Acts
Chapter XX - The Virginia and Kentucky Resolutions
Chapter XXI - The Election of 1800. The Repeal of the Judiciary Act of 1801
Chapter XXII - The Annexation of Louisiana
Chapter XXIII - John Marshall, Chief Justice. The Early History of the Supreme Court. Marbury v. Madison
Chapter XXIV - The Impeachment of Pickering and Chase. The Burr Conspiracy.
Chapter XXV - Federal and State Differences. Federalist Opposition. The Embargo. The Olmstead Case.
Chapter XXVI - The War of 1812
Chapter XXVII - Conditions After 1815. The Rise of the New West. Internal Improvements
Chapter XXVIII - The Development of State Constitutions
Chapter XXIX - The Missouri Compromise
Chapter XXX - Constitutional Law Under Chief Justice Marshall
Chapter XXXI - The Party System and Party Machinery. The Death of King Caucus
Chapter XXXII - Jackson and the Bank. The Emergence of the Modern Presidency.
Chapter XXXIII - Georgia and States' Rights. South Carolina Resorts to Nullification. The Theories of John C. Calhoun.
Chapter XXXIV - Chief Justice Taney and the Supreme Court
Chapter XXXV - Early Controversies Over the Slavery Problem (1833-1842)
Chapter XXXVI - The Annexation of Texas
Chapter XXXVII - War with Mexico. The Wilmot Proviso. Slavery in the Territories
Chapter XXXVIII - The Compromise of 1850
Chapter XXXIX - The Election of 1852 and the Repeal of the Missouri Compromise
Chapter XL - The Dred Scott Case
Chapter XLI - The Struggle for Kansas
Chapter XLII - The Lincoln-Douglas Debates
Chapter XLIII - The Eve of the Civil War
Chapter XLIV - Constitutional Problems of the Civil War
Chapter XLV - Reconstruction I: Early Problems; Radical Victory
Chapter XLVI - Reconstruction II: Congress Has its Way; Impeachment
Chapter XLVII - Reconstruction III: The Union Restored; Carpetbaggers and Federal Troops
Chapter XLVIII - The Election of 1876
Chapter XLIX - The Fourteenth Amendment
Chapter L - The Later Years of the Nineteenth Century;
Chapter LI - Interstate Commerce; Railroads; Trusts: Amendments; The Presidency; Conclusion

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