scholarly journals The Case of the Dishonest Scrivener: Gouverneur Morris and the Creation of the Federalist Constitution

2021 ◽  
pp. 1
Author(s):  
William Treanor
Keyword(s):  
Judicial Review ◽  
Early Republic ◽  
Private Property ◽  
Committee Member ◽  
Federal Courts ◽  
Executive Power ◽  
Alexander Hamilton ◽  
The Federalist ◽  
Textual Basis ◽  
The Creation

At the end of the Constitutional Convention, the delegates appointed the Committee of Style and Arrangement to bring together the textual provisions that the Convention had previously agreed to and to prepare a final constitution. Pennsylvania delegate Gouverneur Morris drafted the document for the Committee, and, with few revisions and little debate, the Convention adopted Morris’s draft. For more than two hundred years, questions have been raised as to whether Morris covertly altered the text in order to advance his constitutional vision, but modern legal scholars and historians studying the Convention have either ignored the issue or concluded that Morris was an honest scrivener. No prior article has systematically compared the Committee’s draft to the previously adopted resolutions or discussed the implications of those changes for constitutional law. This Article undertakes that comparison. It shows that Morris made fifteen significant changes to the Constitution and that many of the Constitution’s central elements were wholly or in critical part Morris’s work. Morris’s changes strengthened the national executive and judiciary, provided the textual basis for judicial review, increased presidential accountability through an expansive conception of impeachment, protected private property, mandated that the census report reflect “actual enumeration,” removed the constitutional text suggesting that slavery was just, and fought slavery’s spread. This Article also shows that Morris created the basis for the Federalist reading of the Constitution. Federalists—notably including fellow Committee member Alexander Hamilton—repeatedly drew on language crafted by Morris as they fought for their vision of the Constitution. Because the changes Morris made to the Convention’s agreed language were subtle, both Republicans and Federalists were able to appeal to text in the great constitutional battles of the early republic. Modern originalists claim that the Republican reading reflects the original understanding of the Constitution, but this Article argues that the largely dismissed Federalist reading explains words, phrases, and punctuation that the Republican reading ignores or renders unintelligible. By contrast, the Federalist reading of the Preamble (which they saw as a grant of substantive power), the Article I and Article II Vesting Clauses (which were contrasted to argue for expansive executive power), the Article III Vesting Clause (which they read to mandate the creation of lower federal courts), the Contracts Clause (which they read to cover public as well as private contracts), the Impeachment Clause (which they read to cover both nonofficial and official acts), and the “law of the land” provision (which they construed as a basis for judicial review) gives effect to Morris’s—and the Constitution’s—words.

Alexander Hamilton and the Early Republic in Edwardian Imperial Thought

2019 ◽  
Vol 12 (1) ◽  
pp. 28-50 ◽  
Author(s):  
Patrick M. Kirkwood
Keyword(s):  
United States ◽  
South Africa ◽  
Early Republic ◽  
The United States ◽  
Alexander Hamilton ◽  
George Washington ◽  
American Federation ◽  
Treaty Of Versailles ◽  
The Federalist ◽  
The Federalist Papers

In the first decade of the twentieth century, a rising generation of British colonial administrators profoundly altered British usage of American history in imperial debates. In the process, they influenced both South African history and wider British imperial thought. Prior usage of the Revolution and Early Republic in such debates focused on the United States as a cautionary tale, warning against future ‘lost colonies’. Aided by the publication of F. S. Oliver's Alexander Hamilton (1906), administrators in South Africa used the figures of Hamilton and George Washington, the Federalist Papers, and the drafting of the Constitution as an Anglo-exceptionalist model of (modern) self-government. In doing so they applied the lessons of the Early Republic to South Africa, thereby contributing to the formation of the Union of 1910. They then brought their reconception of the United States, and their belief in the need for ‘imperial federation’, back to the metropole. There they fostered growing diplomatic ties with the US while recasting British political history in-light-of the example of American federation. This process of inter-imperial exchange culminated shortly after the signing of the Treaty of Versailles when the Boer Generals Botha and Smuts were publicly presented as Washington and Hamilton reborn.

scholarly journals Judicial Supremacy and National Judicial Review

2011 ◽  
Author(s):  
Ken I. Kersch
Keyword(s):  
Judicial Review ◽  
Federal Courts ◽  
Theory And Practice ◽  
Academic Disciplines ◽  
Alexander Hamilton ◽  
The People ◽  
Judicial Supremacy ◽  
The Us ◽  
Us Constitution ◽  
We The People

Judicial review is the power of a court to assess the constitutionality of legislation, and to hold null and void any legislation it finds to contravene the Constitution. Although not mentioned anywhere in the US Constitution, the power was exercised by both state and federal courts from the nation’s inception, most prominently by the US Supreme Court in Marbury v. Madison (1803). In Marbury, borrowing from arguments advanced earlier by Alexander Hamilton in Federalist #78, and more general common law and colonial understandings, Chief Justice John Marshall set out a theoretical justification for the practice anchored in a court’s duty to decide cases according to law. In so doing, where a court finds a conflict between the fundamental law of the Constitution (adopted by “We the People,” acting in their sovereign capacity), and ordinary law (passed by legislatures), the court is obliged to give precedence to the former over the latter. Although this has been widely accepted as a legitimate practice arising out of a judge’s broader duty to decide cases according to law, there were always those who objected to judicial review as implicitly instituting “judicial supremacy,” where, by virtue of the exercise of the judicial review power, a judge’s interpretation of the Constitution was held to take precedence over that of any other. But why should the judge’s interpretation be understood as supreme, when elected members of Congress and the president—like judges—also takes oaths to uphold the Constitution and may have their own, perhaps more sensible, interpretation? Debates over these matters recur throughout American history, particularly in periods when, on matters of unusual political salience, the court’s interpretation of the Constitution is consistently at odds with that of other elected officials, or of the people (what, in recent years, has come to be called “extra-judicial constitutional interpretation”). For over a century now—beginning with the contestation in the late 19th and early 20th centuries between traditionalist judges wielding their judicial review powers versus the progressive innovations of the newly emerging American regulatory and social welfare state—the nature, theory, and practice of judicial review have been at the center of academic and popular discussion of US constitutional law. The subject has thus been approached from many angles, by scholars from different academic disciplines, with a diversity of questions in mind. Those researching judicial review will usually have in mind a particular angle rather than the whole subject.

scholarly journals A majoritarian basis for judicial countermajoritarianism

2020 ◽  
Vol 32 (3) ◽  
pp. 435-459
Author(s):  
James R. Rogers ◽  
Joseph Daniel Ura
Keyword(s):  
Power Systems ◽  
Judicial Review ◽  
Judicial Power ◽  
Alexander Hamilton ◽  
The Federalist ◽  
Judicial Protection

Judicial protection of disfavored minorities against oppressive legislation in majoritarian separation-of-power systems raises a puzzle: Why don’t legislative majorities enacting discriminatory legislation curb judicial power when judges use their power to protect minorities and stymie the legislation? We answer this question by showing that judicial protection of disfavored minorities can emerge as an unintended by-product of majoritarian politics. We develop a model that includes the two aspects of judicial review Alexander Hamilton discusses in The Federalist No. 78: Judicial protection of disfavored minorities against hostile popular majorities, and judicial protection of majority interests against legislative depredation. It is the institutional linkage between these functions that induces popular majorities, within limits, to side with judges against legislatures even when those judges protect minorities that popular majorities want to oppress.

TRENDS: Creating Parties in Congress: The Emergence of a Social Network

2020 ◽  
Vol 73 (4) ◽  
pp. 759-773
Author(s):  
Keith L. Dougherty
Keyword(s):  
Political Parties ◽  
Republican Party ◽  
The United States ◽  
Dyadic Relationships ◽  
Alexander Hamilton ◽  
James Madison ◽  
John Adams ◽  
Party Leaders ◽  
The Federalist ◽  
The Creation

This article examines the creation of political parties in Congress with a focus on ties between emerging party leaders and members, 1789–1802. Using an egocentric selection model, we examine who John Adams, Alexander Hamilton, Thomas Jefferson, and James Madison tied with as a function of the characteristics of the emerging leader, a member of Congress, and dyadic relationships between the two. We also examine whether ties affected the party chosen by members of Congress. Everything else equal, we find leaders were more likely to form ties with ideologically similar members, but find no evidence of them tieing with more pivotal voters. In response, members were more likely to join the Federalist party if they received a Federalist tie, but they were not more likely to join the Republican party if they received a Republican tie. Understanding such relationships is an important step for understanding the creation of parties in the United States.

scholarly journals The New Unitary Executive and Democratic Theory: The Problem of Alexander Hamilton

2008 ◽  
Vol 102 (4) ◽  
pp. 453-465 ◽  
Author(s):  
JEREMY D. BAILEY
Keyword(s):  
Political Thought ◽  
Democratic Theory ◽  
Executive Power ◽  
The Political ◽  
Alexander Hamilton ◽  
Recent Argument ◽  
The Federalist ◽  
History Of

Central to the recent argument from the “unitary executive” is the claim that the unitary executive is consistent with the text and history of the Constitution. But because this veracity and importance of this claim is contested, unitarians also argue that the unitary executive is consistent with democratic theory. This article examines that argument by addressing a question in the political thought of Alexander Hamilton. Although Hamilton was an important defender of an energetic executive, and is associated with an expansive interpretation of executive power, he wrote inThe Federalistthat the president and Senate would share the removal power. In contrast with existing scholarship, which either overlooks Hamilton's statement on removals or dismisses it as a careless error, this article argues that Hamilton's statement limiting presidential removals illuminates his larger argument about executive energy. By showing how “duration” would check “unity,” this article clarifies Hamilton's political thought and offers an important critique of the modern argument from the unitary executive.

Grasping at Straws: Judicial Review of Legislation in Sri Lanka

ICL Journal ◽  
2020 ◽  
Vol 13 (3) ◽  
pp. 281-306
Author(s):  
Danushka S Medawatte
Keyword(s):  
Sri Lanka ◽  
Transitional Justice ◽  
Judicial Review ◽  
Descriptive Analysis ◽  
Executive Power ◽  
Sri Lankan ◽  
Legal Literature ◽  
Justice Process ◽  
Provincial Councils ◽  
The Impact

AbstractIn this paper, I attempt to examine the evolution of judicial review of legislation in Sri Lanka with a view to better understanding how it has impacted the democratic fabric and constitutional matrix of Sri Lanka. The impact that judicial review of legislation has had on rights jurisprudence, enhancement of democracy, prevention of persecution against selected groups are analysed in this paper in relation to the Ceylon Constitutional Order in Council of 1946 (‘Soulbury’ Constitution) and the two autochthonous constitutions of Sri Lanka of 1972 and 1978. The first part of the paper comprises of a descriptive analysis of judicial review of legislation under the three Constitutions. This is expected to perform a gap filling function in respect of the lacuna that exists in Sri Lankan legal literature in relation to the assessment of the trends pertaining to judicial review of legislation in Sri Lanka. In the second part of the paper, I have analysed decided cases of Sri Lanka to explore how the judiciary has responded to legislative and executive power, and has given up or maintained judicial independence. In this respect, I have also attempted to explore whether the judiciary has unduly engaged in restraint thereby impeding its own independence. The third part of the paper evaluates the differences in technique and stance the judiciary has adopted when reviewing draft enactments of the national legislature and when reviewing draft or enacted statutes of Provincial Councils. From a comparative constitutional perspective, this assessment is expected to provide the background that is essential in understanding the island nation’s current constitutional discourse, transitional justice process, and its approach to human rights.

«Razao e Liberdade. A Filosofia Politica de James Madison» Arguicao e Resposta

2011 ◽  
Vol 19 (37) ◽  
pp. 217-240
Author(s):  
Alessandra Silveira ◽  
José Gomes André ◽  
Keyword(s):  
Political Philosophy ◽  
Human Nature ◽  
Judicial Review ◽  
Point Of View ◽  
The Political ◽  
Alexander Hamilton ◽  
James Madison ◽  
The Relationship

This paper includes the exam of a Ph.D thesis about James Madison’s political philosophy, as well as the answers presented by the candidate to several criticai observations. Various themes are considered, though always surrounding Madison’s work: the peculiar characteristics of his federalism, the relationship between the idea of human nature and the elaboration of political models, the political and constitutional controversies that Madison entangled with several figures from its time (namely Alexander Hamilton), the problem of “judicial review” and the place of “constitutionality control” taken from a reflexive and institutional point of view, and other similar themes.

The Federalist Papers

2022 ◽  
Keyword(s):  
United States ◽  
New York ◽  
18Th Century ◽  
Separation Of Powers ◽  
Alexander Hamilton ◽  
James Madison ◽  
Political Debate ◽  
National Unity ◽  
The Federalist ◽  
The Federalist Papers

The Federalist is widely considered to be one of the most influential political writings in the early United States. Consisting of eighty-five essays in total, the first seventy-seven essays were originally published in New York newspapers between October 1787 and April 1788, and the final eight appeared in the first collected edition of The Federalist in 1788, although they were later republished in New York newspapers as well. The Federalist was written collectively by Alexander Hamilton, James Madison, and John Jay to promote the ratification of the newly drafted Constitution. In keeping with the conventions of 18th-century public political debate, The Federalist was published under the pseudonym “Publius” to present its arguments to the public in anonymous terms, focusing attention on the content of the essays rather than the personal views or personalities of the authors. Although Hamilton, Madison, and Jay would not be formally identified as the authors of The Federalist until the publication of a notice in The Port-Folio on 14 November 1807, their collective authorship was widely known by the 1790s, and their reputations as respected statesmen and innovative political thinkers brought considerable attention and credibility to their arguments. Through the voice of Publius, The Federalist explains and defends the core principles and structure of the new government outlined within the Constitution, while also identifying the flaws and weaknesses of the Articles of Confederation. In doing so, The Federalist provides substantive critical and philosophical discussions of federal governance and its relationship to the principles of plural sovereignty, national unity, republican representation, citizenship, national security, commercial interests, and the separation of powers, all of which had a profound influence, not just on the ratification debates, but also on subsequent interpretations of constitutional language and authority, from the founding period to the present. While scholars have endlessly debated the political, historical, philosophical, literary, and cultural impact of The Federalist, these essays continue to serve as foundational texts for studying the politics and culture of the early United States, as well as contemporary interpretations and revisions of constitutional principles in legal, legislative, and cultural spheres.

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