BRADLEY THOMPSON: Two Views of Justice in the American Founding.
The Declaration of Independence holds as one of its four self-evident truths that the sole purpose of government is the protection of man’s unalienable rights to “Life, Liberty and the pursuit of Happiness.” The idea of rights is connected to the broader concept of justice. Likewise, the Preamble to the Constitution says that one of the principal ends of the new federal government is to “establish justice.” To a person, the Founding generation held the protection of private property and the sanctity of contracts as direct derivatives of the rights to life and liberty and therefore as constituent principles of justice. The American Revolution (1764-1783) and the American Founding (1787-1800) were, if nothing else, concerned about justice.
How did the Founding generation understand the nature of justice? More particularly, how did they understand the protection of private property and the sanctity of contracts as manifestations of justice? How did the Founders institutionalize and bring to life the protection of private property and the sanctity of contracts into their founding moment?
These are complex questions, which, despite their obvious importance, have gone largely neglected by scholars of the American Founding period. This essay examines one concrete but important instance of how the Founders built their understanding of justice into the core legal-political institutions of the new nation. What is most interesting about this particular founding moment is that two deepest theoreticians of the American Founding—i.e., Alexander Hamilton and James Madison—disagreed over how to apply their shared understanding of justice to a concrete instance. Hamilton and Madison were the two leading architects and proponents of the new Constitution both in and out of the constitutional convention, and they joined forces to co-author (along with John Jay) the 85 essays of The Federalist, which was the most comprehensive defense of the newly drafted Constitution ever written. But to be in government and to apply the Constitution’s principles to legislation and the governance of the new nation was something altogether different. The task of legislation is complex and fraught with complications and challenges that tore these former intellectual and political comrades-in-arms apart. The consequences of their competing views of justice and contracts (or at least the application of a shared view of justice) would shape the future of the new nation.
Exit quote: “This mostly forgotten episode in American history represented a critical moment in the Founding of the United States. The representatives sitting in the second session of the first Congress were tasked with setting the foundation and determining the standard of justice that would guide the new nation into the nineteenth century and beyond. Put differently, the First Congress was assigned the task of determining the kind of society America would be in the present and future. To that end, the two titans of the American Founding—Alexander Hamilton and James Madison—presented the American people with two different standards of justice, or, at least, two different ways of applying a common concept of justice. The people’s representatives would have to choose which standard or application of justice would define America’s future.”