The Judiciary

James Madison’s Notes on the 1787 Constitutional Convention have acquired nearly unquestioned authority as the description of the U.S. Constitution’s creation. No document provides a more complete record of the deliberations in Philadelphia or depicts the Convention’s charismatic figures, crushing disappointments, and miraculous triumphs with such narrative force. But how reliable is this account?

In an unprecedented investigation that draws on digital technologies and traditional textual analysis to trace Madison’s composition, Mary Sarah Bilder reveals that Madison revised the Notes to a far greater extent than previously recognized. The Notes began as a diary of the Convention’s proceedings. Madison abandoned the project at a critical juncture, however, and left the Notes incomplete. He did not return to finish them until several years later, largely for Thomas Jefferson. By then, Madison’s views were influenced by the new government’s challenges and Jefferson’s political ideas. Madison’s evolving vision of republican government, his Virginia allegiances, his openness to constitutional protection for slavery, his fascination with the finer points of political jockeying, and his depictions of Alexander Hamilton and Charles Pinckney shifted during the writing and rewriting of his account. When the Notes were finally published in 1840, the layers of revision were invisible.

Madison’s version of events quickly assumed an aura of objectivity, and the Notes molded the narrative of the Constitution. Madison’s Hand offers readers a biography of a document that, over two centuries, developed a life and character all its own.

In the fourth of the Federalist Papers, published in 1787, John Jay warned of absolute monarchs who “will often make war when their nations are to get nothing by it.” More than two centuries later, are single executives making unilateral decisions any more trustworthy? And have the checks on executive power, so critical in the Founders’ drafting of the Constitution, held? These are the questions Louis Fisher pursues in this book. By examining the executive actions of American presidents, particularly after World War II, Fisher reveals how the Supreme Court, through errors and abdications, has expanded presidential power in external affairs beyond constitutional boundaries—and damaged the nation’s system of checks and balances.

Supreme Court Expansion of Presidential Power reviews the judicial record from 1789 to the present day to show how the balance of power has shifted over time. For nearly a century and a half, the Supreme Court did not indicate a preference for which of the two elected branches should dominate in the field of external affairs. But from the mid-thirties a pattern clearly emerges, with the Court regularly supporting independent presidential power in times of “emergency,” or issues linked to national security. The damage this has done to democracy and constitutional government is profound, Fisher argues. His evidence extends beyond external affairs to issues of domestic policy, such as impoundment of funds, legislative vetoes, item-veto authority, presidential immunity in the Paula Jones case, recess appointments, and the Obama administration’s immigration initiatives.

In his near quarter century on the Court, Justice Clarence Thomas has written extensively on significant issues such as equal protection, religion, and federalism. But in the Court’s spring 2015 term, Thomas for the first time wrote substantively on the constitutional separation of powers. For Thomas, the Constitution understood government to possess three distinct types of power—legislative, executive, and judicial—and then constructed the three branches to each exercise its vested power type. I consider how Thomas defined the three powers, as well as how he saw the Constitution creating each branch with the qualities needed to exercise the power given it. All along, I show how Thomas connected separation of powers to the Constitution’s larger goal: protecting individual liberty. I then conclude with limitations to Thomas’s view and how it, while not achieving total victory, may aid in increasing the Court’s fidelity to constitutional norms.

The persistence of the debate between living constitutionalists and originalists in the United States is often attributed to motives of political expediency on one or both sides. Without denying the influence of such motives, this article maintains that the debate persists also because of an inevitable fraying of the connection between the written Constitution and the popular consent that is meant to underpin it. In order to clarify the problem, I turn to Thomas Jefferson’s “earth belongs to the living” letter, which is less idiosyncratic and perhaps also less idealistic than generally believed, and which shows how written constitutionalism might have been better combined with the consent of the people over the long term. In sum, this article offers a revised view of a controversial aspect of Jefferson’s thought and, with it, a revised view of a central debate in contemporary American politics.

In the preamble to the US Declaration of Independence, Thomas Jefferson wrote that people have an “unalienable” right “to alter” their government. A total of 37 US states would eventually include in their state constitutions a similar provision promising the people the right at all times to alter or reform their government. Jefferson would later also argue that people should have a right to alter their constitution at periodic intervals. Eventually, 14 states, including New York, would adopt a constitutional provision implementing such a right. The distinctive democratic function of that right—except in states with the constitutional initiative—is that it allows the people to bypass the legislature’s gatekeeping power over constitutional reform. This article explains the long-term structural forces leading to increased opposition to calling a state constitutional convention. Some of these forces signal democratic dysfunction and should be cause for alarm.

Alexander Hamilton is commonly seen as the standard-bearer of an ideology-turned-political party, the Federalists, engaged in a struggle for the soul of the young United States against the Anti-Federalists, and later, the Jeffersonian Republicans. Alexander Hamilton and the Development of American Law counters such conventional wisdom with a new, more nuanced view of Hamilton as a true federalist, rather than a one-dimensional nationalist, whose most important influence on the American founding is his legal legacy.

In this analytical biography, Kate Elizabeth Brown recasts our understanding of Hamilton’s political career, his policy achievements, and his significant role in the American founding by considering him first and foremost as a preeminent lawyer who applied law and legal arguments to accomplish his statecraft. In particular, Brown shows how Hamilton used inherited English legal principles to accomplish his policy goals, and how state and federal jurists adapted these Hamiltonian principles into a distinct, republican jurisprudence throughout the nineteenth century. When writing his authoritative commentary on the nature of federal constitutional power in The Federalist, Hamilton juxtaposed the British constitution with the new American one he helped to create; when proposing commercial, monetary, banking, administrative, or foreign policy in Washington’s cabinet, he used legal arguments to justify his desired course of action. In short, lawyering, legal innovation, and common law permeated Alexander Hamilton’s professional career.

The early Supreme Court justices wrestled with how much press and speech is protected by freedoms of press and speech, before and under the First Amendment, and with whether the Sedition Act of 1798 violated those freedoms. This book discusses the twelve Supreme Court justices before John Marshall, their views of liberties of press and speech, and the Sedition Act prosecutions over which some of them presided.
The book begins with the views of the pre-Marshall justices about freedoms of press and speech, before the struggle over the Sedition Act. It finds that their understanding was strikingly more expansive than the narrow definition of Sir William Blackstone, which is usually assumed to have dominated the period. Not one justice of the Supreme Court adopted that narrow definition before 1798, and all expressed strong commitments to those freedoms.

The book then discusses the views of the early Supreme Court justices about freedoms of press and speech during the national controversy over the Sedition Act of 1798 and its constitutionality. It finds that, though several of the justices presided over Sedition Act trials, the early justices divided almost evenly over that issue with an unrecognized half opposing its constitutionality, rather than unanimously supporting the Act as is generally assumed. The book similarly reassesses the Federalist party itself, and finds that an unrecognized minority also challenged the constitutionality of the Sedition Act and the narrow Blackstone approach during 1798-1801, and that an unrecognized minority of the other states did as well in considering the Virginia and Kentucky Resolutions.

For more than fifty years, Robert G. McCloskey’s classic work on the Supreme Court’s role in constructing the US Constitution has introduced generations of students to the workings of our nation’s highest court.

As in prior editions, McCloskey’s original text remains unchanged. In his historical interpretation, he argues that the strength of the Court has always been its sensitivity to the changing political scene, as well as its reluctance to stray too far from the main currents of public sentiment. In this new edition, Sanford Levinson extends McCloskey’s magisterial treatment to address developments since the 2010 election, including the Supreme Court’s decisions regarding the Defense of Marriage Act, the Affordable Care Act, and gay marriage.

The best and most concise account of the Supreme Court and its place in American politics, McCloskey’s wonderfully readable book is an essential guide to the past, present, and future prospects of this institution.

The modern shift toward abstract review and discretionary jurisdiction has heightened perennial controversy over the role of the Supreme Court in constitutional politics. Through close analysis of the framers’ deliberations in the Federal Convention, this article seeks to shed light on that controversy. The institutional logic at work in the debate tasked the Court with settling conflict arising from the federal system and enforcing constitutional limits on the state and federal governments alike. Given that “all interference between the general and local Governments should be obviated as much as possible,” the framers opted to confine that interference to the judicial process. In this legalization of federal conflict, settling constitutional questions was not merely incidental to the process of deciding particular cases, but became an essential function of the Court. In this way, the framers laid the groundwork of

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