Ferguson on The Ciceronian Origins of American Law and Constitutionalism @HarvardJLPP

Jack Ferguson, U. S. Court of Appeals for the Sixth Circuit, is publishing The Ciceronian Origins of American Law and Constitutionalism in volume 48 of the Harvard Journal of Law & Public Policy. Here is the abstract.

In his treatise on American constitutionalism, John Adams wrote that “as all the ages of the world have not produced a greater statesman and philosopher united than Cicero, his authority should have great weight.” This Article considers the Founding generation’s intellectual debt to Marcus Tullius Cicero, the classical Roman statesman-philosopher, and what it tells us about how the Founders approached law and constitutionalism. There are ongoing scholarly efforts to recover the general law tradition and classical lawyering of the eighteenth century, but as of yet, no account has been given of Cicero’s prominent role in that era. This Article gives that account. This Article first examines Cicero’s legal thought and how it shaped notions of natural law and the law of nations (or general law) in the seventeenth and eighteenth centuries. Grotius, Pufendorf, Coke, Vattel, Blackstone, Lord Mansfield, James Wilson, Joseph Story, and others grounded their work in Cicero’s writings on law. As a case study, this Article shows how Cicero contributed to the formation of American judicial review. Cicero’s interpretive principles dealing with hierarchies of law were adopted by Federalist No. 78, Alexander Hamilton’s prominent defense of judicial review. This Article then considers Cicero’s work on republicanism and constitutionalism. The Founding generation’s concepts of popular sovereignty, mixed government, checks and balances, and the rule of law can be traced back to Cicero, who was the primary expositor of the classical republican tradition. Finally, this Article evaluates Cicero’s influence on eighteenth-century notions of the ideal executive. As a constitutional theorist, Cicero laid the conceptual groundwork for Hamilton’s unitary energetic executive. And by his historical example as consul of Rome, Cicero inspired Hamilton’s efforts in the Washington administration to put down the Whiskey Rebellion of 1794, an early historical precedent on insurrection and the domestic use of military force. Cicero influenced the Founders’ work in numerous ways. To the extent their law is ours today, his relevance endures.

Download the article from SSRN at the link.

Schwartz on May 30, 1787 @WisconsinLaw

David S. Schwartz, University of Wisconsin Law School, has published May 30, 1787 as Univ. of Wisconsin Legal Studies Research Paper No. 1801. Here is the abstract.

In Federalist 39, James Madison characterized the proposed Constitution as "partly national, and partly federal." The federalism debates that have dominated constitutional law and politics from the beginning of the republic to the present play out the tensions between, and relative weights of, these "national" and "federal" elements. The history of U.S. constitutional politics is one in which the nationalism of the Philadelphia Convention was rhetorically downplayed in the ratification debates, and then significantly rolled back by erstwhile Anti-Federalists who became ascendant after the election of 1800. The dominance of the Anti-Federalist-influenced Jeffersonian Republican party after 1800 habituated our constitutional order to an ideology of federalism that, to this day, exaggerates the Constitution's original commitment to its "partly federal" character. Our understanding of U.S. federalism and its history is doomed to incompleteness, if not distortion, without a proper account of the evolution the word "federal" in our constitutional order, from its origin as a descriptor of the decentralized Confederation system to a descriptor of today's predominantly centralized national government. This essay offers a first step toward a semantic or etymological history of the word "federal," by describing and analyzing the first significant appearance of the words "national" and "federal" at the outset of the Philadelphia Convention. I argue that, to the Framers, "federal" referred to the Confederation system that they believed was a failure. On the first day of substantive debate "May 30, 1787" the Framers decisively rejected a "federal" constitution in favor of a "national" one. This decision guided their deliberations for the rest of the Convention, only to be swept under the rug by the rhetorical strategy of the pro-ratification "Federalists."

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Treanor on the Genius of Hamilton and the Birth of the Modern Theory of the Judiciary @GeorgetownLaw

William Michael Treanor, Georgetown University Law Center, is publishing The Genius of Hamilton and the Birth of the Modern Theory of the Judiciary in the Cambridge Companion to the Federalist (Jack Rakove & Colleen Sheehan eds., Cambridge University Press Forthcoming). Here is the abstract.

In late May 1788, with the essays of the Federalist on the Congress (Article I) and the Executive (Article II) completed, Alexander Hamilton turned, finally, to Article III and the judiciary. The Federalist’s essays 78 to 83 – the essays on the judiciary - had limited effect on ratification. No newspaper outside New York reprinted them, and they appeared very late in the ratification process – after eight states had ratified. But, if these essays had little immediate impact – essentially limited to the ratification debates in New York and, perhaps, Virginia – they were a stunning intellectual achievement. Modern scholars have made Madison’s political and constitutional theory the great story of the Federalist, and Federalist 10, in particular, has long been “in the center of constitutional debate.” But careful study of essays 78 through 83 reveals that Hamilton had an innovative and consequential vision of the law and the judicial role that deserves at least as much attention as Madison’s contributions.

Download the essay from SSRN at the link.

Ferejohn and Hills on Publius's Political Science

John A. Ferejohn and Roderick M. Hills, Jr., both of NYU Law School, have published Publius's Political Science. Here is the abstract.

“Publius,” the collective author of The Federalist, was not just a polemicist and normative theorist but also a political scientist. We argue that the political psychology, and institutional predictions that comprise The Federalist are best understood as political science, because the predictions could be – and were – revised in light of “that best oracle of wisdom, experience” (Federalist 15). After outlining some “maintained hypotheses” about human nature that undergird The Federalist, we describe three respects in which James Madison revised, in light of post-1790 experience, Publius’ institutional predictions. The Federalist pressed the view that the national legislature would be the most powerful branch, requiring the Constitution to bolster the implied powers of the executive, limit states’ power, and dampen direct popular participation by the People themselves. After the successes of Hamilton’s initiatives demonstrated the potency of the Presidency during the 1790s, Madison radically revised all three of these institutional predictions, calling for limits on implied presidential powers, a broad construction of states’ reserved authority, and, most dramatically, popular participation through disciplined political parties. Rather than view these revisions as abandoning the political theory of The Federalist, we argue that Madison and Hamilton both retained Publius’s foundational normative assumptions, while revising their predictions about institutional behavior in light of the empirical evidence – precisely the proper response of an empirically oriented political scientist. In this sense, Hamilton’s and Madison’s post-ratification breach was less a retreat by either from Publius’ political theory and more a confirmation of the status of The Federalist as, in part, political science revised in light of political experience.

Download the article from SSRN at the link.