You could argue that there are two basic visions for America: the Hamiltonian and the Jeffersonian. The former is nationalist, calling for centralized power and an industrial, mercantilist society characterized by banking, commercialism, and a robust military. Its early leaders had monarchical tendencies. The latter vision involves a slower, more leisurely and agrarian society, political decentralization, popular sovereignty, and local republicanism. Think farmers over factories.
Both have claimed the mantle of liberty. Both have aristocratic elements, despite today’s celebration of America as democratic. On the Hamiltonian side we can include John Adams, John Marshall, Noah Webster, Henry Clay, Joseph Story, and Abraham Lincoln. In the Jeffersonian camp we can place George Mason and Patrick Henry (who, because they were born before Jefferson, could be considered his precursors), the mature (rather than the youthful) James Madison, John Taylor of Carolina, John C. Calhoun, Abel Upshur, and Robert Y. Hayne. The Jeffersonian Republicans won out in the early nineteenth century, but since the War Between the States, the centralizing, bellicose paradigm has dominated American politics, foreign and monetary policy, and federal institutions.
Jeffersonians hold a “compact theory” of the Constitution:
“The constitution of the United States of America . . . is an original, written, federal, and social compact, freely, voluntarily, and solemnly entered into by the several states of North-America, and ratified by the people thereof, respectively; whereby the several states, and the people thereof, respectively, have bound themselves to each other, and to the federal government of the United States; and by which the federal government is bound to the several states, and to every citizen of the United States.”
Under this model, each sovereign, independent state is contractually and consensually committed to confederacy, and the federal government possesses only limited and delegated powers—e.g., “to be the organ through which the united republics communicate with foreign nations.”
Employing the term “strict construction,” many decry what we call “activist” federal judges, insisting that “every attempt in any government to change the constitution (otherwise than in that mode which the constitution may prescribe) is in fact a subversion of the foundations of its own authority.” Strictly construing the language of the Constitution meant fidelity to the binding, basic framework of government, but it didn’t mean that the law was static. Among legitimate concerns, for instance, was how the states should incorporate, discard, or adapt the British common law that Blackstone had delineated.
We understand the common law as embedded, situated, and contextual rather than as a fixed body of definite rules or as the magnificent perfection of right reason, a grandiose conception derived from the quixotic portrayals of Sir Edward Coke. “[I]n our inquiries how far the common law and statutes of England were adopted in the British colonies,”
In other words, if you want to know what the common law is on this side of the pond, look to the operative language of governing texts before you invoke abstract theories. Doing so led Founding scholars to conclude that parts of English law were “either obsolete, or have been deemed inapplicable to our local circumstances and policy.” In this, they anticipated Justice Holmes’s claim that the law “is forever adopting new principles from life at one end” while retaining “old ones from history at the other, which have not yet been absorbed or sloughed off.”
What the several states borrowed from England was, for the Founders, a filtering mechanism that repurposed old rules for new contexts. They used other verbs to describe how states, each in their own way, revised elements of the common law in their native jurisdictions: “modified,” “abridged,” “shaken off,” “rejected,” “repealed,” “expunged,” “altered,” “changed,” “suspended,” “omitted,” “stricken out,” “substituted,” “superseded,” “introduced.” The list could go on.
The English common law, accordingly, wasn’t an exemplification of natural law or abstract rationalism; it was rather the aggregation of workable solutions to actual problems presented in concrete cases involving real people.
Having been clipped from its English roots, the common law in the United States had an organic opportunity to grow anew in the varying cultural environments of the sovereign states.
St. George Tucker, a scholar who studied Blackstone’s legal thoughts as they related to US jurisprudence
had a knack for aphorism. “[T]he ignorance of the people,” he said, “is the footstool of despotism.” More examples: “Ignorance is invariably the parent of error.” “A tyranny that governs by the sword, has few friends but men of the sword.”
Reading Tucker reminds us that for most of our country’s formative history the principal jurisprudential debates were not about natural law versus positivism, or originalism versus living constitutionalism, but about state versus federal authority, local versus national jurisdiction, the proper scale and scope of government, checks and balances, and so forth. To the extent these subjects have diminished in importance, Hamilton has prevailed over Jefferson. Remembering Tucker today can help us see the costs of that victory.