Brian L. Frye (Hofstra University – School of Law) has posted Justice John Marshall Harlan: Lectures on Constitutional Law, 1897-98 on SSRN. Here is the abstract:
A transcription of Justice John Marshall Harlan’s lectures on constitutional law, delivered at Columbian University Law School in 1897 and 1898.
I had a quick look at the lectures, which are over 250 pages long. They look quite interesting and differ significantly from the way a constitutional law class would be taught today — not just because there is a different caselaw today, but because he is very focused on the framing and history.
Here is the first paragraph of the lectures:
One thing I wish to say to you before beginning with the examination and explanation of the Constitution, is that I must assume that each of you has some time or other in your life read the history of England and the history of the United States. If you have done neither, the sooner you do so the better. This I must assume in order to complete in the short time ofspace allotted to me, that you have at least a general knowledge of your country, as well as of the country from which our institutions and laws have been derived.
And another brief excerpt here:
You will find gentlemen across the waters, especially in France, who will speak contemptuously of our form of government. They say it is a mode which cannot last.
We are free. There is security of life, liberty, and property here. It is the only government on the face of the Earth where man and man are equal before the law, and with all that large liberty we are stable and strong. There will be government after government overturned and overturned in England and in France, perhaps, and in Germany and elsewhere, by the passions and combinations of the people, while this government is strong and steadfast, because in our fundamental law we have placed checks upon ourselves. We recognize the fact that we need to be restrained.
As this brief excerpt suggests, the way that a leading Supreme Court justice would have understood the Constitution is quite different than those of today. (Compare Justice Ginsberg recommending to other countries not to copy our document.) Although these notes are lengthy, I may just be too tempted and have to read them to get a better picture than Supreme Court opinions of the time indicate (the notes are more discursive and perhaps are franker) of how the Constitution was understood at the end of the 19th Century.