Professor Simon (LAW 02) The US Constitution: Interpreting America’s Founding Document ~ comment #1

February 5, 2018

Our 52nd Wedding Aniversary w/ our 3 kids ~ 2011

I’m enjoying your course tremendously and benefited from many of the concepts and citations.

I particularly like the book — refreshingly clear writing style for a wonky legal book, concisely provided information and excellent choice of font — all of which makes it a pleasure to read.

However, I find the tiny text box inadequate for my questions and comments, hence the web link instead. My email is

I found the vocabulary used in the


“foreign nationals (instead of illegal aliens), federal level responsibility to interface with other sovereign countries and that “Speak with One Voice” (emphasis added)

Wm Conquerer 1066 – One of the first acts of the new king was to order a census of the population of England. This information was recorded in the Doomsday Book. The information collected not only counted the number of people living in each geographical area but also counted those who ‘counted’ in the sense of being influence based on social standing, nobility and/or ownership of a significant amount of property.

Using this information, King William invited influential property owners to meet him and offered them a ‘deal’. If they would sware an oath of allegiance to him, he would use his royal powers, including the King’s troops, to keep the peace. The barons took the king’s offer in what was called the “Salisbury Oath”.

This was unique in that it used a communication technique that the discipline of linguistics calls a “conversation for agreement”, which is a voluntary interaction between relative equals to negotiate an arrangement of mutual benefit that is based on the consent of the parties. While such interactions are a normal part of “ordinary” life — daily concersations btw equals in order to make arrangements between family members (ex. deciding who, how and when they will do farm chores) and commercial transactions (negotiating a purchase price) in which the individuals interact with each other as social equals.

However this was an extraordinarily rare form of communication between a monarch/dictator and his ‘subjects’. Classically such communication is hierarchical, in which the king tells people what to do and they must obey him or risk imprisonment or death.


Cyc-Am-Pol-Thght –> Ch 2

Before there was an America in the European mind, the seeds of the American experience were sown by what Thomas Paine would later call “the principal ruffian of some restless gang.”

William the Conqueror is the focal point for the genesis of the British state; 450 years later, descendants of that state traveled to the New World. Much had changed in England over those years, and these changes came in the baggage the colonists brought with them to America.

It has been said that “As the twig is bent, so grows the tree.” It is significant that the British colonized America. The “tree of liberty,” with its conception of rights, law, and legitimate governance, was planted in England and transplanted, with all the growth it had experienced, in America. From this plant grew a uniquely American field of political thought, thought with roots in the British historical experience. To understand where we ended up, we must understand where we started, and to understand where we started, we must look back.


  1. America did not fall from the heavens fully formed.
    1. The first European settlers to the “virgin” continent were English. They brought with them pre-formed conceptions of society and government.2. These conceptions framed their approach to life in the New World.
      3. To understand American thought, we need to unpack the baggage its first settlers brought with them.
    2. The next lecture will look at the theoretical baggage they carried; in this lecture, we look at the historical.
  2. Any thumbnail sketch of historical development will be incomplete, but here, we look at signal events in the development of the British constitution.
  1. signal importance in defining the British norms of governance that the colonists carried to America:
    1. The institution of the English state in 1066.
    2. The Salisbury Oath taken by the barons in 1086.The Oath of Salisbury is an event in August 1086 when William I of England summoned his tenants-in-chief and “landowning men of any account to William I, ‘The Conqueror'” to Old Sarum where they swore allegiance to him and to be faithful against all other men.
    3. Development of the Curia Regis during the reign of Henry II (1154–1189) A royal curcit court system in which the King’s ministers /justices adjudicated disputes at the local level but soon began to record the cases and the rulings, and to create a body of jurisprudence known as “Common Law” — ie. how specific situations were commonly decied.
      Curia regis is a Latin term meaning “royal council” or “king’s court.” It was the name given to councils of advisors and administrators who served early French kings as well as to those serving Norman and later kings of England.

      Curia regis – Wikipedia

      The acceptance of the Magna Charta byThe name “court” comes from the fact that most kings held court and made judgments. They would hear certain complaints and issues, especially issues between the most powerful barons and lords.King John in 1215.

      1. The decision in Bonham’s Case (1610) by Chief Justice Edward Coke — the first ‘judicial review‘ in a case involving a doctor who was arrested and jailed at the request of the Royal College of Physicians for practicing medicine without being a member of the College
      3. The Petition of Right (1628) presented to Charles I.
      4. The English Civil War (1642–1651), the Interregnum (1649–1660), and the Restoration (1660).
      5. The Habeas Corpus Act (1679).
      6. The Glorious Revolution (1688–1689).
      7. The English Bill of Rights (1689).
      8. The Act of Settlement (1701).

English King Henry II –



Bill of Attainder – Forfeiture of land and civil rights suffered as a consequence of a sentence of death for treason or felony

Federalism is the mixed or compound mode of government, combining a general government (the central or ‘federal’ government) with regional governments (provincial, state, cantonal, territorial or other sub-unit governments) in a single political system.

The terms ‘federalism’ and ‘confederalism’ both have a root in the Latin word foedus, meaning “treaty, pact or covenant.” Their common meaning until the late eighteenth century was a simple league or inter-governmental relationship among sovereign states based upon a treaty. They were therefore initially synonyms. It was in this sense that James Madison in Federalist 39 had referred to the new United States as ‘neither a national nor a federal Constitution, but a composition of both’ (i.e. neither a single large unitary state nor a league/confederation among several small states, but a hybrid of the two).[7