The American Revolution In The Law: Anglo-american Jurisprudence Before John Marshall

THE AMERICAN REVOLUTION IN THE LAW The American Revolution In The Law Anglo-American Jurisprudence before John Marshall Shannon C. Stimson Associate Professor of Government and of Social Studies Harvard University M MACMILLAN © Shannon C. Stimson 1990 Softcover reprint of the hardcover 1st edition 1990 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright LicensingAgency 33-4 Alfred Place, London WC1E 7DP. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. First published 1990 Published by THE MACMILLAN PRESS LTD Houndmills, Basingstoke, Hampshire RG21 2XS and London Companies and representatives throughout the world Phototypeset by Input Typesetting Ltd, London British Library Cataloguing in Publication Data Stimson, Shannon C. The American Revolution in the Law: Anglo-American Jurisprudence before John Marshall. 1. United States. Jurisprudence, history, legal and political theory. I. Title 347.3 ISBN 978-1-349-10058-3 ISBN 978-1-349-10056-9 (eBook) DOI 10.1007/978-1-349-10056-9 For Joseph and Emily Contents Preface ix Acknowledgements xi PART I REVOLUTIONS AND CONCEPTUAL CHANGE 1 Political Thought and Historical Problematics Origins of Judicial Space 3 2 Historical Transformations and Legal Legacies The New Legal History and the 'Good Old Law' Legal Uncertainty and Fundamental Law The Problem of Judicial 'Independence' Juries and the Limitations of Judicial Space Juries and the English Constitutional Denouement 10 3 Juries and American Revolutionary Jurisprudence Bringing Locke Back In Law and Adjudication: Who Shall Judge? Juries and Judicial Independence in Revolutionary America Legal Uncertainty and Jural Space in Colonial Law Denouement on Judges and Jural Powers in PostRevolutionary America 34 PART II FROM JUDICIAL SPACE TO JUDICIAL REVIEW: FOUR PERSPECTIVES ON THE POWER OF JUDGMENT IN AMERICAN POLITICS 4 Locating the 'Voice of the People' The Power of Juries and the 'Reason' of Law Adams and the Wilkite Controversy Law, Judgment, and the Moral Sense Juries and the Expansion of Democratic Republics 69 5 Law in the Context of Continuous Revolution Jefferson and the Reconsideration of Jural Judgment Laws from the Nature of Men Reason as Will, and the Problem of Reflective Judgment 86 vii viii Contents Legal Certainty and Political Utility Politics in the Absence of Judicial Space Denouement on Jefferson's Jurisprudence 6 The Politics of Judicial Space The New Politics and the New Law Reason, Will, and Judicial Independence Judicial Space and Judicial Review Judgment and the Centre of Liberalism Common Sense Judgment and the Democracy of Majority Rule Judgment and Democratic Self-Rule Juries and Democratic Self-Rule Judicial Review and 'Juries of the Country' 7 Government by Discussion: Continuing Debate over Judicial Space Rethinking the Jurisprudence of John Marshall Judicial Retrenchment and Judicial Space 106 137 Notes 149 Bibliography