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Journal Article•DOI•

Federalists, Federalism, and Federal Jurisdiction

Alison L. LaCroix1•
University of Chicago1
24 Feb 2010-Social Science Research Network-
TL;DR: This article provides a new interpretation of the origins of three central obsessions of federal-courts and constitutional-law scholarship: the question whether lower federal courts are constitutionally required; the relative powers of Congress, the Supreme Court, and the lower federal Courts to define federal jurisdiction; and judicial supremacy.
Abstract: This Article provides a new interpretation of the origins of three central obsessions of federal-courts and constitutional-law scholarship: the question whether lower federal courts are constitutionally required; the relative powers of Congress, the Supreme Court, and the lower federal courts to define federal jurisdiction; and judicial supremacy. The Article argues that the extension of federal judicial power to the lower federal courts was a crucial element of the Federalists’ project of building national supremacy into the Republic’s structure. Chief Justice John Marshall, like many other federalist theorists who were affiliated with the Federalist Party, viewed the lower federal courts as essential to the establishment of a union in which national supremacy was instantiated through judicial structure. Marshall and his fellow federalists/Federalists shared a substantive commitment to structure – namely, a judiciary-centric federalism. In the early nineteenth century, most notably in two cases involving the Second Bank of the United States – Bank of the United States v. Deveaux (1809) and Osborn v. Bank of the United States (1824) – the Marshall Court carried out through case law what the political branches had been unable to do following the election of 1800: grant the lower federal courts the power to hear all cases arising under federal law. Judge-made doctrines therefore operated as a substitute for a legislative grant of jurisdiction, and federal courts throughout the period opposed Congress’s attempts to claim ultimate authority over federal jurisdiction. The traditional story of the Marshall Court’s nationalism has overlooked both this link between law and politics and the importance of the lower federal courts to early republican beliefs about federal structure.

Summary (6 min read)

Jump to: [INTRODUCTION] – [I. BACKGROUND: FEDERALISTS IN RETREAT?] – [10 FEDERALISTS AND FEDERAL JURISDICTION] – [II. THE MEANING OF FEDERAL JURISDICTION: RETREAT AND REDEFINITION] – [18 FEDERALISTS AND FEDERAL JURISDICTION] – [20 FEDERALISTS AND FEDERAL JURISDICTION] – [2010] FEDERALISTS AND FEDERAL JURISDICTION 21] – [26 FEDERALISTS AND FEDERAL JURISDICTION] – [2010] FEDERALISTS AND FEDERAL JURISDICTION 29] – [30 FEDERALISTS AND FEDERAL JURISDICTION] – [32 FEDERALISTS AND FEDERAL JURISDICTION [2010] – [2010] FEDERALISTS AND FEDERAL JURISDICTION 33] – [III. THE QUIET RETURN OF ARISING UNDER JURISDICTION] – [34 FEDERALISTS AND FEDERAL JURISDICTION [2010] – [2010] FEDERALISTS AND FEDERAL JURISDICTION 35] – [2010] FEDERALISTS AND FEDERAL JURISDICTION 37] – [FEDERALISTS AND FEDERAL JURISDICTION] – [40 FEDERALISTS AND FEDERAL JURISDICTION [2010] – [42 FEDERALISTS AND FEDERAL JURISDICTION [2010] – [IV. INSTITUTIONAL QUESTIONS] – [44 FEDERALISTS AND FEDERAL JURISDICTION] – [48 FEDERALISTS AND FEDERAL JURISDICTION [2010] – [2010] FEDERALISTS AND FEDERAL JURISDICTION 51] and [V. CONCLUSION]

INTRODUCTION

  • 1 Internally focused accounts of the Court's activities between 1801 and 1835 tend to emphasize doctrinal developments such as judicial review, vested rights, and the explication of the commerce and contracts clauses of the Constitution.
  • 2 Externalist accounts, meanwhile, focus on the Court's relationship to broader societal and cultural changes in the early Republic -most notably, the expansion of the national economy, changing conceptions of democracy and political membership, and growing sectional tensions centering on the issue of slavery.

I. BACKGROUND: FEDERALISTS IN RETREAT?

  • The Federalists' effort to vest the inferior federal courts with jurisdiction over cases arising under the Constitution, federal laws, or treaties came to fruition in the Judiciary Act of 1801, which for the 2010] FEDERALISTS AND FEDERAL JURISDICTION.
  • "If the real federal majority can act together much may and ought to be done to give efficiency to the government, and to repress the efforts of the Jacobins against it," Sedgwick observed.
  • The 1801 act was repealed by the newly Jeffersonian Congress in the wake of the elections of 1800.

10 FEDERALISTS AND FEDERAL JURISDICTION

  • [2010 appeared to have been utterly stymied.
  • To the extent the act appears in the conventional narrative of constitutional history, it is as the statutory basis for the so-called "midnight judges" that accompanied William Marbury's abortive appointment as a justice of the peace for the District of Columbia.

II. THE MEANING OF FEDERAL JURISDICTION: RETREAT AND REDEFINITION

  • The first three decades of the nineteenth century were a time of exuberance, ferment, and uncertainty in the United States.
  • To be sure, many of the leading figures of the founding generation continued to dominate public life; for the first fifty years of the Republic, until 1825, every American president had served in the Continental Army or the Continental Congress.
  • James Monroe, who served in both, later had the distinction of being the last president to wear knee breeches, in 1825.
  • 20 This sartorial turning point captured a larger transition in American society and politics that took place in the early nineteenth century.
  • DANIEL COIT GILMAN AND JOHN FRANKLIN JAMESON, JAMES MONROE 215 (1883) (quoting Mrs. Tuley).

18 FEDERALISTS AND FEDERAL JURISDICTION

  • [2010 administration and the first decades of the nineteenth century -and, relatedly, between the years before and after the federal question interregnum of 1801-02.
  • Dallas's argument began with the coterminous power theory and then applied the theory to the "arising under" language of Article III's description of the judicial power of the United States.
  • 37 Nevertheless, Dallas insisted, the particular offense at issue here -bribery of the commissioner of the revenue -had never been codified by federal statute.
  • In what one imagines must have been a dramatic scene, Justice Samuel Chase -the justice responsible for the Pennsylvania circuit -then intervened.

20 FEDERALISTS AND FEDERAL JURISDICTION

  • The result was a sentence for Worrall of three months' prison time and a two-hundreddollar fine.
  • 45 Despite its inelegant conclusion, Worrall presaged two important themes for the Marshall Court, which convened for the first time three years later.
  • Attorneys and judges alike were clearly intent on determining whether bribery of a federal official fit the definition of an offense arising under federal law.
  • 47 Compare Dallas's language with that of section 11, however.

2010] FEDERALISTS AND FEDERAL JURISDICTION 21

  • Dallas's argument thus blended statutory and constitutional bases of jurisdiction, adding the more abstract and potentially riskier constitutional argument to what might otherwise have been a straightforward construction of section 11.
  • The phrase "arising under" resonates throughout Dallas's argument, a marker of a particular species of case with inherently federal qualities that was suitable for the original jurisdiction of the federal courts.
  • As the exchange between the attorneys and judges in Worrall demonstrates, one's position on the existence and scope of federal common law implicated deeper questions concerning the respective roles of courts and legislatures, the authority of federal judges to reason expansively about the scope of their powers, and even the nature of the federal-state relationship.
  • The controversy in the early Republic surrounding the federal common law tended to track party lines, with Federalists generally tending to endorse the notion, and Republicans typically viewing it as a cover for a project of centralization and the subordination of the states.
  • Story, a Republican and the leading nineteenth-century exponent of a robust federal common law, was obviously an exception to this general taxonomy.

26 FEDERALISTS AND FEDERAL JURISDICTION

  • [2010 formation were conceptually distinct from the legal framework governing its subsequent operations.
  • Congressional parentage did not ensure ongoing federal custody.
  • Horace Binney, attorney for the Bank, insisted that his clients possessed "a peculiar right to sue in the federal courts" because the act of Congress granting the Bank capacity required a corresponding grant of power when the Bank came before the federal courts.
  • Bank officials had erred in filing their suit in federal court, Key contended, because their vague nexus to federal law was insufficient to give them special access to those courts.
  • 66 Marshall's distinction between the capacity or rights of parties and the jurisdiction of courts presaged a recurring tension in the caselaw between rights, or causes of action, on one hand, and jurisdiction on the other.

2010] FEDERALISTS AND FEDERAL JURISDICTION 29

  • Would likely be free to bring suit in federal circuit court.
  • Key had invoked the specter of broad federal question jurisdiction as an impossibility, a reason to conclude that the Bank's claim belonged in state court and could reach a federal court only via a writ of error from the Supreme Court under Section 25.
  • Deveaux was decided in 1809 -seven years after the repeal of the Judiciary Act of 1801, and therefore seven years after the statute's brief experiment with broad federal question jurisdiction.
  • On Key's view, the 1801-02 interregnum was a dead letter, a constitutional nullity.

30 FEDERALISTS AND FEDERAL JURISDICTION

  • [2010 and with it the termination of "arising under" jurisdiction, comes from his correspondence at the time.
  • 75 The expansion of the federal circuit courts' personnel, powers, and jurisdiction were essential to the nation's expansion and development, Marshall maintained.
  • As Marshall's and Chase's discomfort with the actions of the political branches demonstrates, in the aftermath of the 1801 act's repeal, the nature and definition of the federal judicial power was in a state of flux.
  • 78 For those who believed that the federal courts ought to function as institutional enforcers of the Constitution's substantive commitment to federal supremacy in the sphere of federal law, however, the demise of "arising under" jurisdiction was a harsh blow to the constitutional structure.
  • Marshall and Chase brooded in this latter category.

32 FEDERALISTS AND FEDERAL JURISDICTION [2010

  • Contemporary commentators and modern scholars alike have noted that Federalists regarded the judiciary as their last redoubt following the rout of 1800.
  • 80 The Federalists' flight to the judiciary after 1801, therefore, reflected an ideological commitment to the judicial power of the United States as a linchpin of the still-fragile federal structure.
  • Returning to Deveaux, the authors can now situate that case in its particular intellectual and legal context.
  • After 1802, the concept of "arising under" jurisdiction possessed a meaning and content that it had not possessed before the 1801 act made it salient for constitutional and political debate.

2010] FEDERALISTS AND FEDERAL JURISDICTION 33

  • Transcended the limited realm of the legal term of art to become an organizing frame for constitutional discourse.
  • An awkward locution that had begun as a general descriptor of a characteristic had transformed into a standard, a phrase with almost talismanic power to shape thought and discussion.
  • 81 Thus, even though Marshall ultimately held that the jurisdiction in Deveaux was based on the parties' diversity, en route to that conclusion he first ruminated on the possibility of "arising under" jurisdiction.
  • Looking back longingly on the brief career of the 1801 act, some early-nineteenth-century Federalists resembled Jacobites in exile after the Glorious Revolution, nursing memories of past triumphs as they plotted their return to glory.
  • Others, however, remained inside the realm, seeking new ways to spread their ideology as they watched the stakes become ever greater.

III. THE QUIET RETURN OF ARISING UNDER JURISDICTION

  • The period between 1801 and 1802 had caused a fundamental rupture in the law of federal jurisdiction, a rupture brought about in part by the political upheaval of 1800.
  • The idea of "arising under" jurisdiction lingered on, inflecting constitutional debate for decades.
  • The oneyear career of federal question jurisdiction might have appeared to be an anomaly immediately upon its repeal.

34 FEDERALISTS AND FEDERAL JURISDICTION [2010

  • By the time Jefferson was standing for reelection to the presidency in 1804, one might reasonably have concluded that "arising under" jurisdiction was a relic of the prior regime.
  • 83 The two moments of 1801-02 and 1819-24, therefore, were connected across more than a decade, forming not two isolated points but a line cutting through early republican time.
  • In short, the rise and fall of the Judiciary Act of 1801 made possible the later reemergence of a version of federal question jurisdiction.
  • Osborn's agents loaded the funds into a wagon and moved them to a state bank, eventually delivering them to the state treasurer in Columbus.
  • Marshall, who had heard the case while sitting circuit, recused himself from hearing the case when it reached the Supreme Court.

2010] FEDERALISTS AND FEDERAL JURISDICTION 35

  • Which the initial injunction papers proved defective, the state agents were jailed and then released, and the federal court issued a showcause order against the state, the Bank brought a cause of action against Osborn in federal circuit court.
  • Upon Osborn's appeal, the questions before the Court concerned (1) the constitutionality of the tax, and (2) an Eleventh Amendment challenge to the suit, on the theory that Osborn's role as state auditor meant that the Bank was improperly attempting to sue the state of Ohio.
  • When the Bank initiated an action in federal circuit court, the Planters' Bank raised a jurisdictional challenge, arguing that the Bank had no basis for bringing suit in federal court because its claim derived from the original Georgia noteholders, who were incapable of suing in federal court.
  • That the act of Congress has not given it.
  • 88 This power in the Bank translated into jurisdiction on the part of the federal courts, the attorneys argued.

2010] FEDERALISTS AND FEDERAL JURISDICTION 37

  • Given for the sake of the suitor, never for the sake of the Court.".
  • "We argued the other day the cause of the Bank with the State of Ohio, and I entertain strong hopes of success.the authors.the authors.
  • But the Court has since directed an argument of the question whether the Bank has a right to institute suits in the Federal Courts.".

FEDERALISTS AND FEDERAL JURISDICTION

  • [2010 against the Bank it sweeps the dockets of Kentucky and Ohio, and calls in question all that has been decided for the Bank in that State.".
  • Marshall next took up this foundational question of Congress's authority to vest the Bank with federal jurisdiction.
  • "There is scarcely any case, every part of which depends on the constitution, laws, or treaties of the United States," he noted.
  • In response to appellants' argument that granting the right to sue to a party did not necessarily give rise to jurisdiction on the part of a particular court, Marshall admitted the distinction.

40 FEDERALISTS AND FEDERAL JURISDICTION [2010

  • It proceeds to bestow upon the being it has made, all the faculties and capacities which that being possesses.
  • This interpretation of the case captures the reasoning in Johnson's dissenting opinion rather than that of the majority.
  • L. Rev. (forthcoming 2010) (discussing the doctrinal consequences of the Court's holding in Osborn that federal law "forms an original ingredient in every cause" to which the Bank was a party).

42 FEDERALISTS AND FEDERAL JURISDICTION [2010

  • Johnson's with respect to the consequences that followed from that statement.
  • For Marshall, all cases involving the Bank arose under federal law not only because the Bank was the creature of federal law, but because Congress had said that all cases involving the Bank arose under federal law.
  • The renaissance of federal question jurisdiction, then, was a limited one, because it applied only to cases involving the Bank.
  • But it was nevertheless a reassertion through caselaw of an aspect of the federal judicial power that had been lost through legislative overruling.

IV. INSTITUTIONAL QUESTIONS

  • As the decisions in Osborn and Planters' Bank suggest, Marshall, Story, and their fellow Federalist judges and commentators were committed to a broad vision of the jurisdiction of the federal courts, not only to a broad vision of the jurisdiction of the Supreme Court.
  • Here, again, the nationalist narrative falls short, insofar as it presents the Marshall Court as institutionalizing its commitment to nationalism by expanding the reach of the Supreme Court itself.
  • Rather, these classics of the Marshall Court oeuvre reflected a broader commitment to building the power of the federal courts, plural.

44 FEDERALISTS AND FEDERAL JURISDICTION

  • [2010 Supreme Court could hear appeals from the highest court of a state.
  • As long as the Court maintained its Section 25 power to review state-court decisions, surely that practice would allow the Court ample opportunity to correct erroneous interpretations of the federal Constitution or to pay due regard to issues of uniformity.
  • For the single federal question case to survive repeal, see Holt, supra note __.

48 FEDERALISTS AND FEDERAL JURISDICTION [2010

  • On what the Court regarded as the essentially federal quality of the case rather than more mechanical supremacy-based notions of the relationship between state courts and the Supreme Court.
  • But the fervor with which Story described these imperatives, especially the need for uniformity and the fear of state prejudice, also underpinned a conviction that lower federal courts vested with original jurisdiction over the special category of federal cases were necessary to ward off what Story regarded as the self-serving and fissiparous tendencies of the states.
  • It is truly surprising and mortifying to know how little effective power now exists in this department.

2010] FEDERALISTS AND FEDERAL JURISDICTION 51

  • Story's comments accompanying the draft bill convey the urgency with which he and his colleagues viewed the question of establishing federal question jurisdiction in the circuit courts.
  • Such jurisdiction was essential, they believed, not only because it would provide stronger support for federal statutes and treaties, but because it would ensure that the structure of the federal republic was centered on courts.
  • They regarded the structure as incomplete, truncated by the election of 1800 and the ensuing repeal of the jurisdictional grant contained in the Judiciary Act of 1801.
  • In Marshall's 1819 newspaper essays, he discussed "the judicial department" of the United States and its place in the 132 See 10 PAPERS OF JOHN MARSHALL, supra note __, at 284.

V. CONCLUSION

  • In a letter to Story in 1821, Marshall mused about the relationship between the federal judiciary -an arm of the United States government -and the Republic itself.
  • In the wake of controversial decisions by the Court to permit Supreme Court review of state-court decisions and state legislation, several congressmen had proposed bills intended to curtail the Court's power to decide constitutional cases.
  • "A deep design to convert their government into a meer league of states has taken strong hold of a powerful & violent party in Virginia," Marshall wrote.
  • "The attack upon the judiciary is in fact an attack upon the union.

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EDERALISTS,FEDERALISM,ANDFEDERALJURISDICTION
AlisonL.LaCroix
THELAWSCHOOL
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FEDERALISTS, FEDERALISM,
AND FEDERAL JURISDICTION
ALISON L. LACROIX
*
This Article provides a new interpretation of the origins of
three central obsessions of federal-courts and constitutional-law
scholarship: the question whether lower federal courts are
constitutionally required; the relative powers of Congress, the
Supreme Court, and the lower federal courts to define federal
jurisdiction; and judicial supremacy. The Article argues that the
extension of federal judicial power to the lower federal courts was a
crucial element of the Federalists’ project of building national
supremacy into the Republic’s structure. Chief Justice John
Marshall, like many other federalist theorists who were affiliated
with the Federalist Party, viewed the lower federal courts as
essential to the establishment of a union in which national supremacy
was instantiated through judicial structure. Marshall and his fellow
federalists/Federalists shared a substantive commitment to structure
– namely, a judiciary-centric federalism. In the early nineteenth
century, most notably in two cases involving the Second Bank of the
United States – Bank of the United States v. Deveaux (1809) and
Osborn v. Bank of the United States (1824) – the Marshall Court
carried out through case law what the political branches had been
unable to do following the election of 1800: grant the lower federal
courts the power to hear all cases arising under federal law. Judge-
made doctrines therefore operated as a substitute for a legislative
grant of jurisdiction, and federal courts throughout the period
opposed Congress’s attempts to claim ultimate authority over federal
jurisdiction. The traditional story of the Marshall Court’s
nationalism has overlooked both this link between law and politics
and the importance of the lower federal courts to early republican
beliefs about federal structure.
*
Assistant Professor of Law, University of Chicago Law School. I thank William
Birdthistle, John Carson, Andrew Coan, Adam Cox, Rosalind Dixon, Tom Green, Dan Hamilton,
Aziz Huq, Bill Novak, Martha Nussbaum, Richard Primus, Gil Seinfeld, and the participants in the
University of Michigan Law School Legal History Workshop, the University of Wisconsin
Discussion Group on Constitutionalism, and the American Bar Foundation/Illinois Legal History
Seminar for helpful comments and discussion. I thank the Mayer Brown Faculty Research Fund
for research support. Jeffrey Bergman and Evan Berkow provided excellent research assistance.
2 FEDERALISTS AND FEDERAL JURISDICTION [2010
We have no more right to decline the exercise of
jurisdiction which is given, than to usurp that which is
not given.
- Cohens v. Virginia (1821)
Ohio has begun with reprisals? God grant that some
other state may not resort to arms!
- Henry Wheaton, The Dangers of the
Union (1821)
INTRODUCTION
The story of the Supreme Court under Chief Justice John
Marshall is typically told in terms of a handful of familiar themes:
nationalism, the growth of centralized governmental power, and the
rise of the Court as ultimate constitutional arbiter.
1
Internally
focused accounts of the Court’s activities between 1801 and 1835
tend to emphasize doctrinal developments such as judicial review,
vested rights, and the explication of the commerce and contracts
clauses of the Constitution.
2
Externalist accounts, meanwhile, focus
on the Court’s relationship to broader societal and cultural changes in
the early Republic – most notably, the expansion of the national
economy, changing conceptions of democracy and political
membership, and growing sectional tensions centering on the issue of
slavery.
3
For the internalists, the Court was the driving force behind
the nationalist effort; for the externalists, the Court was one among
1
See, e,g., ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT 37 (4th ed.
2005) (describing Marshall Court’s “great task” of “shaping the Constitution into a charter for
nationalism).
2
See, e.g., CHARLES WARREN, THE SUPREME COURT IN UNITED STATES HISTORY
(1922); G
EORGE LEE HASKINS AND HERBERT JOHNSON, FOUNDATIONS OF POWER: JOHN
MARSHALL 1801-1815 (1981).
3
See G. Edward White, Constitutional Change and the New Deal: The
Internalist/Externalist Debate, 110 A
M. HIST. REV. 1094 (2005) (discussing the internalist-
externalist distinction in legal historiography).
2010] FEDERALISTS AND FEDERAL JURISDICTION 3
many institutions responding to a broader moment of societal
transformation. In both cases, the dominant narrative of the Court in
the early Republic is one of nationalism – both in terms of
substantive constitutional values of union and in more process-based
notions of federal jurisdiction and national supremacy.
In this Article, I seek to move beyond these binaries by
bringing the techniques of intellectual history to U.S. constitutional
history – thereby taking the Court’s decisions seriously, on their own
terms and in their own temporal and ideological context. Such an
approach avoids both a quest for an elusive original meaning and a
reductive surrender to radical indeterminacy. Instead, my approach
seeks to understand how they – Marshall and his contemporaries –
understood their acts of constitutional interpretation then, with the
assumption that the choice of the relevant “then” is all-important for
the ultimate question of meaning.
4
This Article situates the Marshall Court’s constitutional
jurisprudence within the framework of early-nineteenth-century
political and social turmoil while also tracing the subtle arguments
and doctrinal shifts that underpinned the Court’s decisions. I seek to
avoid the internalist-externalist dichotomy because it often has the
unfortunate consequence of replicating another interpretive binary,
that of law versus politics.
5
Some externalist interpretations of
judicial action tend to attribute judges’ decisions to politics, implying
that courts’ actions are epiphenomenal of broader political dynamics.
The peril for internalist accounts, meanwhile, is that they can pay too
little attention to politics, sealing judges inside their own
pronouncements without situating those pronouncements in the
political, social, and economic context in which they were uttered.
To paraphrase Morton Horwitz, the externalist account treats law as a
dependent variable, while the internalist account assumes that it is a
4
See generally Quentin Skinner, Meaning and Understanding in the History of Ideas, 8
H
IST. AND THEORY 3 (1969) (discussing the difficulties of interpretation across time); cf. Alison L.
LaCroix, Temporal Imperialism, 158 U.
PA. L. REV. __ (forthcoming 2010) (examining the
Supreme Court’s efforts to interpret its decisions across time).
5
See generally MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-
1960, at 112 (1992) (elaborating on the law-politics distinction and its limitations).
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23 May 2019-Social Science Research Network
TL;DR: This article examined the career of the Georgia lawyer E.A. Nisbet during his legal education, time on the Georgia Supreme Court, and work as a private lawyer, and demonstrated a consistent commitment to a technical American legal culture that allowed elite southern lawyers like him to support slavery in subtle but important ways.
Abstract: Elite southern lawyers professed and demonstrated commitment to a vision of legal practice and decisionmaking that they shared with their northern colleagues, even as legal arguments over slavery and secession played out contentiously in politics and the courts. This vision was rooted, not in commitments to slavery, free labor, or economic development but rather in legalism, characterized by commitment to legal rules and reasoning, and legal practice, distinguished by dedication to routine commercial work. Insulated from many of the political and economic conflicts of the antebellum era, a national legal culture allowed southern lawyers to serve as economic intermediaries between North and South. This article examines this culture through a study of the career of the Georgia lawyer E.A. Nisbet. During his legal education, time on the Georgia Supreme Court, and work as a private lawyer Nisbet demonstrated a consistent commitment to a technical American legal culture that allowed elite southern lawyers like him to support slavery in subtle but important ways.

8 citations

References
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Book Chapter•DOI•
Meaning and understanding in the history of ideas

[...]

Quentin Skinner1•
University of Cambridge1
01 Jan 1969-History and Theory
TL;DR: The problem of coherence in the history of ideas can be traced back to the notion of the coherence of a moral philosophy as discussed by the authors, which was introduced in the early 20th century.
Abstract: ed from it and more readily communicated. To write a textbook in the history of ideas, of course, is simply to fall prey systematically to this temptation which, incidentally, is why textbooks in the subject are not merely poor things, but are actively misleading, and why this difficulty is not to be circumvented even by providing textbooks in which the "message" is given in the author's own words. The inevitable result which can be illustrated from far more respectable sources than the synoptic and pedagogic histories will still be a form of writing which might be labelled the mythology of coherence. The writing of the history of ethical and political philosophy is pervaded by this mythology.69 Thus if "current scholarly opinion" can see no coherence in Hooker's Laws, the moral is to look harder, for "coherence" is surely "present."70 If there is doubt about the "most central themes" of Hobbes's political philosophy, it becomes the duty of 'the exegete to discover the "inner coherence of his doctrine" by reading the Leviathan a number of times, until in a perhaps excessively revealing phrase he finds that its argument has "assumed some coherence."'7' If there is no coherent system "readily accessible" to the student of Hume's political works, the exegete's duty is "to rummage through one work after another" until the "high degree 69. A similar point about the problem of accommodating different "levels of abstraction" has been made by J. G. A. Pocock, "The History of Political Thought: A Methodological Enquiry," in Philosophy, Politics and Society, Second Series, ed. Peter Laslett and W. G. Runciman (Oxford, 1962), 183-202. This "scripturalist tendency" is also mentioned by Peter Laslett sub "Political Philosophy, History of," in The Encyclopedia of Philosophy, ed. Paul Edwards et al., 8 vols. (New York, 1967), VI, 371. 70. Arthur S. McGrade, "The Coherence of Hooker's Polity: The Books on Power," Journal of the History of Ideas 24 (1963), 163. 71. Howard Warrender, The Political Philosophy of Hobbes (Oxford, 1957), vii. This content downloaded from 157.55.39.210 on Sat, 30 Jul 2016 06:00:09 UTC All use subject to http://about.jstor.org/terms THE HISTORY OF IDEAS 17 of consistency in the whole corpus" is duly displayed (again in a rather revealing phrase) "at all costs."72 If Herder's political ideas are "rarely worked out systematically," and are to be found "scattered throughout his writings, sometimes within the most unexpected contexts," the duty of the exegete again becomes that of trying "to present these ideas in some coherent form."73 The most revealing fact about such reiterations of the scholar's task is that the metaphors habitually used are those of effort and quest; the ambition is always to "arrive" at "a unified interpretation," to "gain" a "coherent view of an author's system."74 This procedure gives the thoughts of various classic writers a coherence, and an air generally of a closed system, which they may never have attained or even been meant to attain. If it is first assumed, for example, that the business of interpreting Rousseau's thought must center on the discovery of his most "fundamental thought," it will readily cease to seem a matter of importance that he contributed over several decades to several quite different fields of enquiry.75 Again, if it is first assumed that every aspect of Hobbes's thought was designed as a contribution to the whole of his "Christian" system, it will cease to seem at all peculiar to suggest that we may turn to his autobiography to elucidate so crucial a point as the relations between ethics and political life.76 Again, if it is first assumed that even Burke never essentially contradicted himself or changed his mind, but that a "coherent moral philosophy" underlies everything he wrote, then it will cease to seem at all unrealistic to treat "the corpus of his published writings" as "a single body of thought."77 Some measure of the lengths to which such procedures of abstracting the variety of a man's thoughts to the level at which they can be said (all passion spent) to "attain" some coherence is provided by a recent study of Marx's social and political thought. Here it has seemed necessary, to justify the exclusion of Engels's thoughts, to point out that Marx and Engels were after all "two distinct human beings."78 It does sometimes happen, of course, that the aims and successes of a given writer may remain so 72. John B. Stewart, The Moral and Political Philosophy of David Hume (New York, 1963), v-vi. 73. F. M. Barnard, Herder's Social and Political Thought (Oxford, 1965), xix. Cf. also 139. 74. E.g., J. W. N. Watkins, Hobbes's System of Ideas (London, 1965), 10. 75. Ernst Cassirer, The Question of Jean Jacques Rousseau, tr. and ed. Peter Gay (Bloomington, Indiana, 1954), 46, 62. As Gay indicates in his Introduction, it may well have been salutary at the time when Cassirer was writing to have insisted on such an emphasis, but it remains questionable whether the somewhat a priori assumptions of the study are not misconceived. 76. F. C. Hood, The Divine Politics of Thomas Hobbes (Oxford, 1964), 28. 77. Charles Parkin, The Moral Basis of Burke's Political Thought (Cambridge, 1956), 2, 4. 78. Shlomo Avineri, The Social and Political Thought of Karl Marx (Cambridge, 1968), 3. This content downloaded from 157.55.39.210 on Sat, 30 Jul 2016 06:00:09 UTC All use subject to http://about.jstor.org/terms

1,400 citations

Journal Article•DOI•
The Records of the Federal Convention of 1787

[...]

Andrew Cunningham McLaughlin, Max Farrand
01 Jul 1911-The American Historical Review
TL;DR: Gathers diary entries, letters, and resolutions by participants in the Constitutional Convention of 1787 as discussed by the authors, which is a collection of diary entries and letters written by participants of the 1787 Convention.
Abstract: Gathers diary entries, letters, and resolutions by participants in the Constitutional Convention of 1787.

554 citations

Book•
What Hath God Wrought: The Transformation of America, 1815–1848

[...]

Daniel Walker Howe
29 Oct 2007
TL;DR: The Oxford History of the United States is by far the most respected multi-volume history of our nation as mentioned in this paper, and it is the most widely used history book in the world.
Abstract: The Oxford History of the United States is by far the most respected multi-volume history of our nation. In this prize-winning, critically acclaimed addition to the series, historian Daniel Walker Howe illuminates the period from the battle of New Orleans to the end of the Mexican-American War, an era when the United States expanded to the Pacific and won control over the richest part of the North American continent. Howe's panoramic narrative portrays revolutionary improvements in transportation and communications that accelerated the extension of the American empire. Railroads, canals, newspapers, and the telegraph dramatically lowered travel times and spurred the spread of information. These innovations prompted the emergence of mass political parties and stimulated America's economic development from an overwhelmingly rural country to a diversified economy in which commerce and industry took their place alongside agriculture. In his story, the author weaves together political and military events with social, economic, and cultural history. He examines the rise of Andrew Jackson and his Democratic party, but contends that John Quincy Adams and other Whigs-advocates of public education and economic integration, defenders of the rights of Indians, women, and African-Americans-were the true prophets of America's future. He reveals the power of religion to shape many aspects of American life during this period, including slavery and antislavery, women's rights and other reform movements, politics, education, and literature. Howe's story of American expansion culminates in the bitterly controversial but brilliantly executed war waged against Mexico to gain California and Texas for the United States. Winner of the New-York Historical Society American History Book Prize Finalist, 2007 National Book Critics Circle Award for Nonfiction

388 citations

Journal Article•DOI•
Legitimacy and Deterrence Effects in Counterterrorism Policing: A Study of Muslim Americans

[...]

Tom R. Tyler1, Stephen J. Schulhofer1, Aziz Z. Huq2•
New York University1, University of Chicago2
01 Jun 2010-Law & Society Review
TL;DR: In this paper, the authors compare two perspectives on why people cooperate with law enforcement, both developed with reference to general policing, in the context of antiterror policing and specifically among members of the Muslim American community.
Abstract: This study considers the circumstances under which members of the Muslim American community voluntarily cooperate with police efforts to combat terrorism. Cooperation is defined to include both a general receptivity toward helping the police in antiterror work and the specific willingness to alert police to terror-related risks in a community. We compare two perspectives on why people cooperate with law enforcement, both developed with reference to general policing, in the context of antiterror policing and specifically among members of the Muslim American community. The first is instrumental. It suggests that people cooperate because they see tangible benefits that outweigh any costs. The second perspective is normative. It posits that people respond to their belief that police are a legitimate authority. On this view we link legitimacy to the fairness and procedural justice of police behavior. Data from a study involving interviews with Muslim Americans in New York City between March and June 2009 strongly support the normative model by finding that the procedural justice of police activities is the primary factor shaping legitimacy and cooperation with the police.

300 citations

Journal Article•
The Design of a Carbon Tax

[...]

Gilbert E. Metcalf1, David A. Weisbach2•
Tufts University1, University of Chicago2
01 Jan 2009-Harvard Environmental Law Review
TL;DR: In this article, the authors consider the design of a tax on greenhouse gas emissions for a developed country such as the United States and propose an origin-based system for trades with countries that have an adequate carbon tax.
Abstract: We consider the design of a tax on greenhouse gas emissions for a developed country such as the United States. We consider three sets of issues: the optimal tax base, issues relating to the rate (including the use of the revenues and rate changes over time) and trade. We show that a well-designed carbon tax can capture about 80% of U.S. emissions by taxing fewer than 3,000 taxpayers and up to almost 90% with a modest additional cost. We recommend full or partial delegation of rate setting authority to an agency to ensure that rates reflect new information about the costs of carbon emmissions and of abatement. Adjustments should be made to the income tax to ensure that a carbon tax is revenue neutral and distributionally neutral. Finally, we propose an origin-based system for trades with countries that have an adequate carbon tax. We suggest a system that imposes presumptive border tax adjustments with the ability of an individual firm to prove that a different rate should apply. The presumptive tax could be based either on average emissions for production of the item by the exporting country or by the importing country.

299 citations

Related Papers (5)
Federalists, Federalism, and Federal Jurisdiction

[...]

01 Feb 2012-Law and History Review
Alison L. LaCroix
“A Considerable Surgical Operation”: Article III, Equity, and Judge-Made Law in the Federal Courts

[...]

01 Nov 2010-Duke Law Journal
Kristin A. Collins
The New Wheel in the Federal Machine: From Sovereignty to Jurisdiction in the Early Republic

[...]

20 Jan 2008-Social Science Research Network
Alison L. LaCroix
Revising Our "Common Intellectual Heritage": Federal and State Courts in Our Federal System

[...]

01 May 2016-Notre Dame Law Review
Judith Resnik
Tribes, Wars, and the Federal Courts: Applying the Myths and the Methods of Marbury v. Madison to Tribal Courts’ Criminal Jurisdiction

[...]

01 Jan 2004-Social Science Research Network
Judith Resnik
Frequently Asked Questions (10)
Q1. What are the contributions mentioned in the paper "Federalists, federalism and federal jurisdiction" ?

In the wake of controversial decisions by the Court to permit Supreme Court review of state-court decisions and state legislation, several congressmen had proposed bills intended to curtail the Court 's power to decide constitutional cases this paper. 

for Marshall as for Story, the crucial institution that made the government a federal republic rather than a league was the Article III judiciary. 

Such jurisdiction was essential, they believed, not only because it would provide stronger support for federal statutes and treaties, but because it would ensure that the structure of the federal republic was centered on courts. 

I seek to avoid the internalist-externalist dichotomy because it often has the unfortunate consequence of replicating another interpretive binary, that of law versus politics. 

In the wake of controversial decisions by the Court to permit Supreme Court review of state-court decisions and state legislation, several congressmen had proposed bills intended to curtail the Court’s power to decide constitutional cases. 

Despite the rapid demise of federal question jurisdiction, the idea of “arising under” jurisdiction lingered on, inflecting constitutional debate for decades. 

Contemporary commentators and modern scholars alike havenoted that Federalists regarded the judiciary as their last redoubt following the rout of 1800.79 

The proper forum for a claim in which “the only ground of jurisdiction is a question upon the construction of the constitution, or of a law, or treaty of the United States,” Key argued, was state court, with the subsequent possibility of a writ of error from the Supreme Court pursuant to Section 25 of the Judiciary Act of 1789.67 Moreover, Key went on, the very notion that Congress possessed the power to expand federal jurisdiction as it pleased ran afoul of the states’64 1809 U.S. LEXIS 418, 15. 

112The best evidence of this commitment to federal courts as acategory rather than to a single supreme federal court comes from Marshall and Story’s attitudes toward Section 25 of the Judiciary Act of 1789, which established the writ of error procedure by which the108 See, e.g. MCCLOSKEY, supra note __, at 51-52. 

Both these dualities are limited, not least because they ignore contemporary legal actors’ sense of themselves as existing in a particular political, social, and economic context and, at the same time, as engaging in the act of legal interpretation, an act that seeks legitimacy from its aspiration to transcend the limits of a particular moment.