Academic journal article Argumentation and Advocacy

Chisholm V. Georgia and the Question of the Judiciary in the Early Republic

Academic journal article Argumentation and Advocacy

Chisholm V. Georgia and the Question of the Judiciary in the Early Republic

Article excerpt

Legal argumentation, as a number of scholars have concluded, arises from and returns to legal and political culture. Judges do not speak from and address themselves to some ahistorical entity known as "the Law"; rather, they are immersed in and responsive to a community, a set of ideals and values, and various legal purposes. The process of legal argumentation, as Richard Rieke (1991) has put it, is the process of "judicial dialogue," in which judges speak to and from a community of interests about shared norms. As Marouf Hasian, Jr., and Earl Croasmun (1992) insist, we need to understand the social context in which legal texts function if we are to grasp their meaning and power. Furthermore, Edward Schiappa (2001) adds, social knowledge, shared understanding, and communal resources of definition are crucial for understanding legal argument. Legal reasoning operates, Kurt Nutting (2002) writes, with "shared practices, skills, and understandings" (p. 124). As Balter (2001) puts it: "Law is a social system that must serve not only its own interests, but also those of the lifeworld of which it is a part" (p. 388). Thus, to understand judicial rhetoric and argumentation, we need to understand the values, needs, purposes, stories, expectations, and hopes of the social, legal, and political culture in which justices speak (Aune, 1999; Feteris, 1997; Lewis, 1994; Mathewson, 1998; Wiethoff, 1985).

Just as there is no one "public" (Hauser, 1999), however, there is no unified legal and political culture. There are multiple, competing legal and political cultures that present judges with ambiguity and moments of choice. Confronted with these various legal and political cultures, judges must select those values, needs, and purposes that seem most pertinent and compelling in a given case. Although there are certain expectations regarding and constraints on judicial decision making, there is always some ambiguity about which legal and political cultures a judge will choose to address when crafting an opinion. Judicial opinions, then, offer us insight into the process by which judges rhetorically navigate the waters of ambiguity and choice in addressing competing legal and political cultures.

One of the best illustrations of this ambiguity is the predicament faced by the early Supreme Court after ratification of the Constitution. Although Alexander Hamilton (Hamilton, Madison, & Jay, 1961) famously said that the Supreme Court was "the least dangerous" branch of government (p. 464), it was not clear to the first justices what roles they would play, how they would decide cases, and what the scope and limits of their power would be (Casto, 1995). Consequently, deciding the Court's first cases demanded negotiation of the ambiguities of the newly created American judiciary.

The early Supreme Court, and the early republic in general, had no clear grasp of the legal values that would guide the nation. As Publius said about the radical experiment that was the judiciary: "'Tis time only that can mature and perfect so compound a system, can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent WHOLE" (Hamilton et al., 1961, p. 490). For the Court, this was a time of legal and political indecision like few others in the nation's history. How the Court chose to respond to this indecision would influence profoundly the nation's legal and political discourse for generations to come.

The Court had the chance to respond to this remarkable ambiguity in its very first case--Chisholm v. Georgia (1793). On its face, the case was simply a debt dispute that involved the legal standing of "foreigners" (citizens of a different state or country) to sue a state. But the majority's decision turned the case into "the first constitutionally significant case ever decided by the Supreme Court" (Amar, 2005, p. 332). The Court's remarkable, and controversial, decision shifted the case away from the common law tradition, which, until that time, had been the dominant legal force in America, and toward constitutional arguments regarding the dimensions of political representation. …

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