Government by Discussion: Continuing Debate over Judicial Space

  • Shannon C. Stimson


In the task of searching for ways to ‘interpret’ the American Constitution and to understand (so as to delimit) the function of the Supreme Court, constitutional and jurisprudential theorists have almost invariably begun with Marshall’s principal opinions. He remains ‘The Source’, even as widespread uncertainty and disagreement persist about the actual character of his contribution to understanding the court’s function or indeed about any particular opinion he may have written. Nevertheless, from the perspective of jurisprudential innovation, the differing perspectives on the role of courts and juries in maintaining a space for reflective judgment within the sphere of popular politics that we have already examined preceded Marshall’s major opinions (such as Marbury). Indeed, importantly, there is every reason to believe that Marshall’s jurisprudence drew from, rather than added to, at least two of these perspectives, those of Hamilton and Wilson.


Judicial Review Political Sphere American Revolution Reflective Judgment Popular Politics 
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  1. 1.
    It was Edward Corwin’s observation that, ‘as a good Federalist, Chief Justice Marshall sought, naturally, to embody the point of view of his party’ in constitutional law. See Corwin, Court Over Constitution (Princeton, 1938). It was, perhaps, Corwin’s established brilliance as a constitutional scholar, as well as the period in which this claim was made, that explains the plausibility and longevity of this interpretation. See, however, William Nelson’s effective critique of this position, in ‘The Eighteenth-Century Background of John Marshall’s Constitutional Jurisprudence’, Michigan Law Review, vol. 76, 1978, pp. 894ff.Google Scholar
  2. 2.
    See Christopher G. Tiedeman, The Unwritten Constitution of the United States (New York, 1890), p. 163; Thomas Cooley, A Treatise on The Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union (Boston, 1903), pp. 237–8; Raoul Berger, Congress v. The Supreme Court (Cambridge, Mass. 1969), pp. 335–6; Charles J. Cooper and Nelson Lund, ‘Landmarks of Constitutional Interpretation’, Policy Review, Spring 1987, pp. 10–24.Google Scholar
  3. 5.
    Nelson, op. cit., pp. 895–6.Google Scholar
  4. 6.
    Nelson, op. cit., pp. 917, 901.Google Scholar
  5. 7.
    Nelson, op. cit., pp. 901–2.Google Scholar
  6. 8.
    Nelson, op. cit., p. 918.Google Scholar
  7. 9.
    Jonathan Elliot, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Philadelphia, 1907), vol. III, p. 561. Perhaps nowhere were the problems of legal heterogeneity and uncertainty greater, and the lack of legal consensus more pressing, than in post-revolutionary New York — a state which even by 1775 could be accurately called a microcosm of the social, political, and legal diversity which would increasingly characterize the nation. In reviewing the failure of New York constitutional framers to consider explicitly the scope and powers of judicial and jural administration, commentators such as Julius Goebel Jr find ‘inadvertent omission’ an unlikely explanation, but suggest no alternative. However, the failure of the Articles of Confederation (1781) to include a national judiciary, the studied opacity of the judiciary power in the Federal Constitution, and the failure of the Judiciary Act of 1789 to confront directly either questions of judiciary versus jury control over the content of law or questions of the general reception of the common law, are powerful indices of a high level of disagreement and lack of consensus about jurisprudential questions which existed both within and certainly between the states. Governeur Morris, a member of the drafting committee at the Convention, explained the general looseness of the Constitution’s judiciary clause in terms of the lack of consensus: ‘On that subject opinions had been maintained with so much professional astuteness that it became necessary to select phrases, which expressing my own notion would not alarm others.’ Farrand, Records of the Federal Convention, vol. III, p. 420.Google Scholar
  8. 12.
    Samuel Konefsky, John Marshall and Alexander Hamilton (New York, 1964), p. 109.Google Scholar
  9. 13.
    Robert Ferguson, Law and Letters in American Culture (Cambridge, Mass., 1984), p. 23. The relevant cases are Marhury v. Madison (1 Cranch 137, 1803); Cohens v. Virginia (6 Wheaton 264, 1821); McCulloch v. Maryland (4Wheaton, 316, 1819); Dartmouth College v. Woodward (4 Wheaton, 518, 1819); Sturgis v. Crowninshield (4 Wheaton, 122, 1819).Google Scholar
  10. 14.
    6 Wheaton, 418, 414, 384, 382, 393–4. Certainly, in not all cases will such ‘persuasion’ prove effective. Some historians suggest that Marshall’s decision in Cohens v. Virginia ‘precipitated widespread and bitter criticism [of the Court] that lasted for years.’ George Haskins and Herbert Johnson, eds, History of the Supreme Court of the United States (New York, 1981), vol. II, p. 106; Konefsky, John Marshall and Alexander Hamilton, p. 95. The decision’s unpopularity presents another difficulty for the claim that Marshall relied for the exercise of judicial review on a ‘consensus’ which inhered in the nation.Google Scholar
  11. 15.
    John Roche, John Marshall: Major Opinions and Other Writings (New York, 1967), pp. 121, 134.Google Scholar
  12. 16.
    ‘A Friend to the Constitution’, Alexandria Gazette, 30 June — 15 July 1819, in Gerald Gunther, ed., John Marshall’s Defense of McCulloch v. Maryland (Stanford, 1969).Google Scholar
  13. 17.
    Louis Hartz, The Liberal Tradition in America (New York, 1955), pp. 10–11. This essay also takes issue which Hartz’s rendering of the character of Locke’s influence in American political thought. For Hartz, ‘Lockianism’ is a code word for an ‘irrational’ moral uniformity which may well characterize certain elements of the American perspective, but has little or nothing to do with Locke’s own epistemology or politics.Google Scholar
  14. 18.
    For some of the most recent philosophical debates over which perspectives in fact do, or ‘should’, characterize American thought about politics and law, see Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass., 1979); Dworkin, A Matter of Principle (Cambridge, Mass., 1985), ch. 2; Richard Rorty, ‘Postmodernist Bourgeois Liberalism’, Journal of Philosophy, vol. 80, 1983, Consequences of Pragmatism: essays, 1972–1980 (Minneapolis: University of Minnesota Press, 1982), and Philosophy and the Mirror of Nature (Princeton, 1979); Richard J. Bernstein, ‘One Step Forward. Two Steps Backward: Rorty on Liberal Democracy and Philosophy’, Political Theory, vol. 15, no. 4, 1987.Google Scholar
  15. 19.
    Max Radin, Handbook of Anglo-American Legal History (St Paul, Minn., 1936), p. 217; James Willard Hurst, The Growth of American Law: The Law Makers (Boston, 1950), p. 351; ‘The Changing Role of the Jury in the Nineteenth Century’, Yale Law Journal, vol. 74, 1964, p. 179.Google Scholar
  16. 22.
    Shaw’s own jurisprudential thought has been strongly compared to that of Marshall. See G. Edward White, The American Judicial Tradition (Oxford, 1976). Shaw’s problems with the issue of jury control over law, particularly in Commonwealth v. Porter 51 Mass. (10 Met.) 263 (1845), are briefly discussed in ‘Changing Role of the Jury’, Yale Law Journal, 1974, pp. 176–7.Google Scholar
  17. 25.
    See Joseph Story, Commentaries on the Constitution of the United States (Boston, 1891), vol. II, pp. 560–1.Google Scholar
  18. 27.
    Charles Fried, ‘The Artificial Reason of Law or: What Lawyer’s Know’, Texas Law Review, vol. 60, 1981, p. 54. On this collapsed perspective of common and constitutional law, the constitutional question of a ‘right to privacy in a public telephone booth’ becomes a complex and knotty problem of ‘professional’ reasoning in which public arguments from either principles of political or constitutional thought can have no place.Google Scholar
  19. 28.
    Even the most profound critiques of American oracular theories of jurisprudence, such as John Chipman Gray’s work, The Nature and Sources of the Law (New York, 1909), has been observed by H. L. A. Hart to resemble ‘much more an English textbook on jurisprudence … than any other American book’, and equally to acknowledge the influence of Bentham and Austin, whose work I would argue has little significance for American problems of constitutional adjudication. Indeed, Hart notes that Gray uses English thinkers and techniques ‘to pursue a most un-English theme: that the law consists of rules laid down by the courts used to decide cases and that all else, statutes and past precedents included, are merely sources of law.’ See Hart, Essays in Jurisprudence and Philosophy (Oxford, 1983), pp. 128–9. The more recent contribution of Ronald Dworkin to building a single, normative theory of how American judges may ‘rightly’ decide constitutionally controversial, ‘hard cases’, suggests the confusions inherent in not more clearly separating English and American jurisprudential foundations and concerns. Dworkin takes as his principal opponent H. L. A. Hart and with him a tradition of English analytic, positivist, and utilitarian jurisprudence inspired by Bentham which has penetrated, if at all, only a very little way into American constitutional jurisprudence. (The notable exception is Richard Posner’s work: see ‘UtiHtarianism, Economics, and Legal Theory’, Journal of Legal Studies, vol. 8, 1979). Then, by employing a model for constitutional reasoning which most closely approximates English common law cases of product liability, Dworkin hopes to take the controversy out of disputed cases by squeezing the ‘discretion’ out of judicial ‘interpretation’. However, judicial discretion is not the same thing as judicial space, as should be clear from the above analysis, and no amount of effort to eliminate the appearance of judicial choice (by showing that only one right answer exists) will lessen the American judiciary’s controversial position.Google Scholar
  20. 29.
    H. L. A. Hart, ‘American Jurisprudence Through English Eyes: The Nightmare and the noble Dream’, in Essays in Jurisprudence and Philosophy (Oxford, 1983), p. 146.CrossRefGoogle Scholar
  21. 31.
    Sir Ivor Jennings, The Law and the Constitution (London, 1959), p. 254.Google Scholar

Copyright information

© Shannon C. Stimson 1990

Authors and Affiliations

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

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