Journal of American Constitutional History最新文献

{"title":"The Executive Branch and the Origins of Judicial Independence","authors":"Kevin Arlyck","doi":"10.59015/jach.pouw2990","DOIUrl":"https://doi.org/10.59015/jach.pouw2990","url":null,"abstract":"The early history of the federal judiciary as an independent branch of American government presents a puzzle. How did an institution that barely existed as a separate entity before the American Revolution be¬come coequal, and in some ways preeminent? Most accounts of the judiciary’s rise tell a story in which the courts consolidated their authority—especially the power of judicial review—by tacitly agreeing to withdraw from partisan politics. This article considers early judicial independence through a differ¬ent lens—the idea that the executive and legislative branches cannot interfere with judicial proceedings. This notion, which seems self-evident to us now, was less clear at the Founding. State legislatures in the 1780s routinely overrode judicial decisions, and it was not until the 1820s that courts seriously began to question the practice. As this article shows, the most insistent assertions of judicial invio¬lability came not from courts, but instead from the executive branch officials—in large part because they had little other choice. With a threadbare bureaucracy and no standing army, the early federal gov¬ernment existed more in theory than in fact. What it had was courts, which sat in every major port city and enjoyed broad jurisdiction over maritime matters. Forcing foreign disputants to adjudicate their claims in court spared the executive from making decisions that risked anger¬ing powerful European empires, and enabled it to leverage judicial resources to solve problems it could not manage on its own. In so doing, executive officers helped transform a still-undefined concept of judicial independence into a putatively hard barrier between the branches.","PeriodicalId":415267,"journal":{"name":"Journal of American Constitutional History","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130786352","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Strategic Ambiguity and Article VII: Why the Framers Decided Not to Decide","authors":"Roderick M. Hills, Jr.","doi":"10.59015/jach.fflu5656","DOIUrl":"https://doi.org/10.59015/jach.fflu5656","url":null,"abstract":"The U.S. Constitution ratified in 1788 contains a lot of appar-ently ambiguous language—abstract phrases like “executive pow-er,” “judicial power,” and “necessary and proper”—the meaning of which seemed to be reasonably debatable. The array of approaches to constitutional interpretation dubbed “originalist” all share the ambition of eliminating these apparent ambiguities by careful ex-humation of facts about linguistic usage and constitutional purposes in existence when the Constitution was ratified. This article argues that Article VII’s two-stage ratification process is one such original fact suggesting that apparently ambiguous language ought to be construed as deliberately ambiguous. That process gave the drafters at the Philadelphia convention (the first stage) incentives to choose deliberately ambiguous language as a strategy to mollify critics of the Constitution in the state ratifying conventions (the second stage). The drafters at Philadelphia were overwhelmingly drawn from “Federalists”—politicians who favored a strong national government. Because critics of cen-tralization (dubbed “Anti-Federalists” by their Federalist oppo-nents) were simply not present in significant numbers at the draft-ing stage, the Federalists could not use clarifying amendments to determine precisely what their opponents would tolerate in the ratifying conventions. Because Article VII did not permit the state ratifying conventions to approve clarifying amendments, the rati-fication process created a risk that, offended by specific language in an unamendable proposal, Anti-Federalist ratifiers would reject the entire proposal and doom the project of a stronger central gov-ernment that everyone desired. By proposing and approving delib-erately ambiguous language, Federalist drafters and Anti-Federalist ratifiers could sidestep their most intractable disagreements, mak-ing deliberate ambiguity a rational strategy for facilitating ratifica-tion. Moreover, this rational strategy is also normatively attractive. The critics of the Constitution deeply resented the Article VII pro-cess as an unjust device for “driving [the Constitution] down our throats.” By reducing the power of the Federalist agenda-setters to force through specific constitutional language with a reversion threat, the presumption of ambiguity respects contemporary norms of fair dealing, thereby advancing the goal of popular sovereignty with which Federalists defended the Constitution’s legitimacy.","PeriodicalId":415267,"journal":{"name":"Journal of American Constitutional History","volume":"88 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132172700","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Franklin’s Talmud: Hebraic Republicanism in the Constitutional Convention and the Debate Over Ratification, 1787-1788","authors":"Daniel D. Slate","doi":"10.59015/jach.wndf2300","DOIUrl":"https://doi.org/10.59015/jach.wndf2300","url":null,"abstract":"Hebraic republicanism, a tradition of political thought origi-nating in the sixteenth century, found in rabbinic Judaism a set of sources and ideas that made it possible to argue that constitutional republics, with powers limited by the rule of law, were the only le-gitimate form of government. This article demonstrates that He-braic republicanism had a profound influence on the founding of America, both during the debates over the ratification of the Con-stitution and at the Federal Convention, in particular in the for-mulation of the republican government Guarantee Clause of Article IV, Section 4. This article argues that a full understanding of the Constitution must account for this important but previously unexplored chapter in the history of American constitutional thought. The American writers sound-ing Hebraist themes included many of the most significant figures of the time, among them the framer Roger Sherman, the New York Anti-Federalist leader Melancton Smith, the Anti-Federalist essayist and historian Mercy Otis Warren, and, perhaps most re-markably, Benjamin Franklin, the founders’ elder statesman, who devoted most of the sole essay he contributed to the ratification controversy to a political analysis of biblical passages, basing his ar-gument on Josephus and the Talmud. Franklin’s essay is of particu-lar interest, as his innovative use of Judaic sources demonstrates that political Hebraism —the reliance on rabbinic interpretations for political thought—not only persisted but also continued to de-velop in new ways well into late eighteenth-century America. He-braic political thought gave structure to the risks and opportunities constitution-making presented, offered a powerful set of rhetorical framings that writers and speakers deployed in the ratification struggles in Massachusetts, New Hampshire, New York, Maryland, and Virginia, and supplied the central, antimonarchist meaning of the Constitution’s Guarantee Clause. This article argues that we cannot fully comprehend either the American founding or the his-tory of political Hebraism unless we understand the role of Hebra-ic republicanism in the creation of the American Constitution.","PeriodicalId":415267,"journal":{"name":"Journal of American Constitutional History","volume":"68 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126600597","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Interpreting Ratification","authors":"Andrew Coan, David S. Schwartz","doi":"10.59015/jach.hcvk2366","DOIUrl":"https://doi.org/10.59015/jach.hcvk2366","url":null,"abstract":"For two centuries, constitutional interpreters have relied on statements from the ratification debates—especially The Federalist—as persuasive authority in constitutional interpretation. This reliance, which has only increased with the rise of public-meaning originalism, mistakes Federalist campaign literature and oratory for objective and disinterested constitutional interpretation, and mistakenly dismisses the interpretations of Anti-Federalists as irrelevant. Focusing on the debate over enumerated powers, this article challenges the unfounded assumptions of Federalist objectivity and Anti-Federalist irrelevance and models the historical method necessary to interpret the ratification debates rigorously. More specifically, the article advances three central claims. First, the probable insincerity of much Federalist advocacy—including The Federalist—significantly undercuts its authority as evidence of a determinate original public meaning. Second, Anti-Federalist advocacy opposing ratification is much more probative evidence of original public meaning than has generally been recognized. Third, the most prominent arguments for privileging Federalist over Anti-Federalist advocacy are internally flawed and historically unfounded. More important, none of those arguments can be squared with the tenets of public-meaning originalism. All of this significantly undermines a principled originalist case for limiting federal power. It also calls into question the resolving power of originalism as a practical method for deciding controversial cases. Both of these implications would represent seismic shifts in U.S. constitutional law.","PeriodicalId":415267,"journal":{"name":"Journal of American Constitutional History","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115740681","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Soul of a Free Government: The Influence of John Adams’s A Defence on the Constitutional Convention","authors":"M. Bilder","doi":"10.59015/jach.axbf8835","DOIUrl":"https://doi.org/10.59015/jach.axbf8835","url":null,"abstract":"Contrary to the conventional modern view, John Adams’s A Defence of the Constitutions of Government of the United States of America (1787) was deeply influential on the Constitutional Convention. Adams’s constitutional system, though not original with him, provided a useful synthesis that emphasized balance as a working principle, checks as the operational corollary, and institutional structures reflecting the many, the few, and the one. Through the contemporaneous serialization in the Pennsylvania Mercury beginning May 11, 1787, this system and Adams’s conceptual terminology were read by key Framers and infusedthe Convention debates. The debate over the Virginia plan responded to Adams’s structural arguments and revealed the instability of the word “monarchy.” During the subsequent debate over the Senate, Adams’s ambivalence over “aristocracy” led to recognition of the new American aristocracy of white slaveowners. Finally, the Committee of Style and Arrangement draft, despite abandoning Adams’s vocabulary, closely paralleled his structural recommendations. The apparent irrelevancy of the Defence to modern scholars arose, ironically, from its crystallization of then-conventional wisdom, the very feature that resonated with so many delegates and generated its significant influence on the Convention. Adams’s Defense thus provides one more example that the Convention’s decisions cannot be understood without including the larger Framing generation.","PeriodicalId":415267,"journal":{"name":"Journal of American Constitutional History","volume":"73 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114444753","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A MARvel of Constitutional Demythologizing","authors":"Jack N. Rakove","doi":"10.59015/jach.mtyz9289","DOIUrl":"https://doi.org/10.59015/jach.mtyz9289","url":null,"abstract":"","PeriodicalId":415267,"journal":{"name":"Journal of American Constitutional History","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132074416","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"“Charlottesville” as Legal History","authors":"Risa Goluboff","doi":"10.59015/jach.twyz8370","DOIUrl":"https://doi.org/10.59015/jach.twyz8370","url":null,"abstract":"","PeriodicalId":415267,"journal":{"name":"Journal of American Constitutional History","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126260331","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Constructing a Modern Canon for The Federalist","authors":"Sanford Levinson","doi":"10.59015/jach.kosf4800","DOIUrl":"https://doi.org/10.59015/jach.kosf4800","url":null,"abstract":"","PeriodicalId":415267,"journal":{"name":"Journal of American Constitutional History","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121606536","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Public Defender Movement in the Age of Mass Incarceration: Georgia’s Experience","authors":"Robert L. Tsai","doi":"10.59015/jach.yxgv7332","DOIUrl":"https://doi.org/10.59015/jach.yxgv7332","url":null,"abstract":"Focusing on the efforts of the Southern Center for Human Rights, this article offers a grassroots history of the creation of the first statewide public defender in the State of Georgia in 2003. Whereas federal court litigation to improve indigent defense failed to achieve lasting reform, a shift in tactics toward “rebellious localism,” characterized by state court lawsuits against county and city officials, succeeded in prodding lawmakers to create a new framework for delivering legal services to indigent defendants. This model of legal change was effective in documenting structural flaws and creating momentum for reform. Yet other conditions—such as front-end criminal law policies and funding decisions—continued to shape the actual quality of representation received by poor people.","PeriodicalId":415267,"journal":{"name":"Journal of American Constitutional History","volume":"25 12","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120866454","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The “Cruel and Unusual” Legacy of the Star Chamber","authors":"Donald A. Dripps","doi":"10.59015/jach.aflg7630","DOIUrl":"https://doi.org/10.59015/jach.aflg7630","url":null,"abstract":"Supreme Court justices have read the “cruel and unusual pun-ishments” clause as prohibiting torturous methods of punishment, prohibiting grossly disproportionate punishments, and/or prohibit-ing arbitrary discretion over the infliction of the death penalty. All three accounts face familiar and formidable historical challenges. There is general agreement that the founders took the clause from Article 10 of the English Bill of Rights, and that Article 10 repudi-ated the sentence passed on Titus Oates by the infamous Judge Jef-freys in 1685. Yet, although the methods of punishment inflicted on Oates—two days of horrific flogging, recurring stands in the pillory, and life imprisonment—were horrific, they were not capi-tal, were not unusual in 1685, and were all included in the Crimes Act passed by the First U.S. Congress in 1790. None of the major interpretations of “cruel and unusual punishment” accounts for this puzzling aspect of the aftermath of the Oates case. Nor do they ex-plain the adoption of the Eighth Amendment, which primarily re-sponded to Anti-Federalist fears that Congress might adopt tor-turous methods of capital punishment. Prevailing theories fail to account for the disconnect between what the English provision did and what the American provision meant to do. This Article argues that prevailing accounts are breathtakingly incomplete. The full story begins not with the flogging of Titus Oates in 1685, but with the abolition of the Star Chamber in 1641. Sen-tencing Oates, Jeffreys claimed for King’s Bench all the Star Chamber’s lawless power to determine punishments less than capi-tal. The English Article 10 repudiated this attempt to resurrect the Star Chamber. Then Congress, responding to Anti-Federalist fears about Congress adopting European-style executions by torture, freighted the “cruel and unusual” language with two additional meanings. The clause now applied to capital, as well as noncapital, penalties. It now also restricted legislative as well as judicial discre-tion. Synthesizing the English original and the later concerns of the American founders, the Eighth Amendment forbids lawless dis-cretion in both capital and noncapital cases, and torturous methods of punishment. Proportionality was left to the legislature, subject to the powerful check provided by a constitutional requirement of even-handed enforcement. At a time when the Court is reconsidering longstanding prece-dents from originalist premises, this account is not only a major advance in the academic literature. It may also be, practically speaking, a matter of life and death.","PeriodicalId":415267,"journal":{"name":"Journal of American Constitutional History","volume":"110 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124744923","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}