The Genius of Hamilton and the Birth of the Modern Theory of the Judiciary
Cambridge Companion to The Federalist (Jack Rakove & Colleen Sheehan eds., Cambridge University Press Forthcoming)
54 Pages Posted: 30 Nov 2017 Last revised: 14 Dec 2017
Date Written: August 25, 2017
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.
Keywords: Constitutional Law, Legal History, Judicial Review
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