The Politics of Judicial Space

  • Shannon C. Stimson


From Alexander Hamilton’s perspective, no mechanical structure ‘checking and balancing’ orders of men, such as Adams proposed, could alone save a ‘factious’ people from destroying itself. Nor could men rely, as Jefferson seemed to suggest, on the improvement of human nature through technological progress and education. Although their individual visions differed, both Adams and Jefferson held out hope that a new ‘science’ of politics (or man) would vest final judgment about public law with a community or an order of homogeneous and likeminded men.1


Judicial Review Judicial Independence Legislative Power American Revolution Judicial Power 
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  1. 1.
    Although Hamilton is sometimes contrasted with other Founders as being an ‘empire’ theorist, it seems clear that Jefferson’s reliance on locale or community as the source of law did not preclude his own commitment to building an American empire. Rather, as Gerald Stourzh and Joyce Appleby have shown, such an reliance simply shaped an agarian and commercial farming ‘empire’ in contrast to Hamilton’s commercial manufacturing vision. See Gerald Stourzh, Alexander Hamilton and the Idea of Republican Government (Stanford, 1970); Joyce Appleby, ‘Commercial Farming and the “Agrarian Myth” in the Early Republic’, Journal of American History, vol. 68, 1982, pp. 833–49.Google Scholar
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    David Hackett Fischer, The Revolution of American Conservatism (New York, 1965), p. 197. On Fischer’s assessment, ‘the new realities of American public life — enlarged popular participation, and the emergence of parties — altered the structure of government as well as the structure of politics’ in post-revolutionary America. Hamilton’s political and jurisprudential thought is rooted in the recognition of these altered circumstances.Google Scholar
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    Hamilton, Madison, Jay, The Federalist Papers, ed. Clinton Rossiter (New York, 1961), no. 83, p. 499.Google Scholar
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    Consonant with their conception of expanding the area of jural competence, and the identification of the legal judgments of jurors with the substance of political government, Jefferson’s more ‘radical republican’ supporters argued for the power of juries to cross-examine witnesses and lawyers. More important, they challenged in some cases the modern concept of jural neutrality, and argued that ‘the jury, being of the neighborhood, may, and oftentimes do know something of their own knowledge, as to the matter itself, the credit of the evidence etc which may justly sway them in delivering their verdict.’ ‘Decius’, Independent Chronicle (Boston, 24 Nov. 1806), cited in Richard Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic (New York, 1971), p. 202. The term ‘radical repubHcan’ is taken from Ellis.Google Scholar
  6. 6.
    Hamilton’s notes for arguments in People v. Croswell (N.Y. Sup. Ct., 1803–04), reprinted in Julius Goebel, Jr and J. H. Smith (eds), The Law Practice of Alexander Hamilton (New York, 1964–81), vol. I. pp. 810–11.Google Scholar
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    ‘The Virginia Bill of Rights’, 12 June 1776, reprinted in H. S. Commager, ed., Documents of American History (Englewood Cliffs, 1973), vol. I, p. 104.Google Scholar
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    The Debates and Proceedings of the Congress of the United States (Washington, 1834), vol. I, pp. 745, 775.Google Scholar
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    Hamilton, ‘Speech to the Constitutional Convention’, 18 June 1787. Several versions of this speech have been reported. The version used here is the one approved by Hamilton and reprinted in Saul Padover, The Mind of Alexander Hamilton (New York, 1958), p. 114; John Locke, Essays on the Law of Nature, ed. W. von Leyden (Oxford, 1958), p. 161.Google Scholar
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    For a discussion of the British judiciary’s own understanding of judicial independence, past and present, see John Dawson, Oracles of the Law (Cambridge, 1958), pp. 1–99. See also Martin Shapiro, Courts (Chicago, 1981), pp. 32–5; Sir Ivor Jennings, The Law and the Constitution (London, 1959), pp. 239–54. It comes as no surprise that Walter Bagehot’s nineteenth-century discussion of the ‘efficient secret’ of the British Constitution does not even discuss the British judiciary. Bagehot, The British Constitution (London, 1949).Google Scholar
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    Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Philadelphia, 1907), vol. IV, p. 258.Google Scholar
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    ‘The Brutus Letters’, no. XI, in Cecilia Kenyon, The Anti-Federalists (Indianapolis, 1966), pp. 334–8.Google Scholar
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    Robert C. McCloskey, ed., The Works of James Wilson (Cambridge, Mass., 1967), p. 770. McCloskey was the first to argue for the consistency of Wilson’s democratic vision. Gordon Wood, however, has suggested the extent to which Wilson’s attachments to strong national government led him to support Federalist arguments that the ‘best’ men in the community should be encouraged to participate in government. See Wood, Creation of the American Republic, pp. 492–3. However, to characterize such support as unqualified ‘elitism’, and consequently to label Wilson as antidemocratic in spirit, if not in practice, is to impose too stringent criteria for ‘democratic’ thought in the eighteenth century (or perhaps any other), and certainly requires us to set aside the greater number of Wilson’s statements explicitly supporting popular sovereignty, proportional representation, the direct election of members, of both Houses of Congress and of the President. See Max Farrand, Records of the Federal Convention of 1787, vol. I, pp. 52, 69, 132–3, 179, 405–6, 483; II, p. 56. In particular, the conclusion of Hannah Arendt that Wilson was antidemocratic stems from a highly selective and acontextual reading of one quotation taken second-hand from William J. Carpenter’s The Development of American Political Thought (Princeton, 1939), pp. 93–4. See Arendt, On Revolution, p. 236.Google Scholar
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    Works of James Wilson, pp. 770, 771. See also Jennifer Nedelsky, Property and the Framers of the U.S. Constitution: A Study of the Political Thought of James Madison, Gouverneur Morris, and James Wilson’, Ph.D dis., University of Chicago, 1977.Google Scholar
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Copyright information

© Shannon C. Stimson 1990

Authors and Affiliations

  • Shannon C. Stimson
    • 1
  1. 1.Harvard UniversityUSA

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