66

93-1823-CONCUR

18 MISSOURI v. JENKINS

governed are now reduced to a regular system." The
Federalist No. 83, at 569, and n.

In reponse to Anti-Federalist concerns that equity
would permit federal judges an unchecked discretion,
Hamilton explicitly relied upon the precise nature of the
equity system that prevailed in England and had been
transplanted in America. Equity jurisdiction was
necessary, Hamilton argued, because litigation "between
individuals" often would contain claims of "fraud, acci-
dent, trust or hardship, which would render the matter
an object of equitable, rather than of legal jurisdiction."
Id., No. 80, at 539. "In such cases," Hamilton con-
cluded, "where foreigners were concerned on either side,
it would be impossible for the federal judicatories to do
justice without an equitable, as well as a legal jurisdic-
tion." Id., at 540. Thus, Hamilton sought to narrow the
expansive Anti-Federalist reading of inherent judicial
equity power by demonstrating that the defined nature
of the English and colonial equity system - with its
specified claims and remedies - would continue to exist
under the federal judiciary. In line with the prevailing
understanding of equity at the time, Hamilton described
Article III "equity" as a jurisdiction over certain types of
cases rather than as a broad remedial power. Hamilton
merely repeated the well-known principle that equity
would be controlled no less by rules and practices than
was the common law.

In light of this historical evidence, it should come as
no surprise that there is no early record of the exercise
of broad remedial powers. Certainly there were no
"structural injunctions" issued by the federal courts, nor
were there any examples of continuing judicial supervi-
sion and management of governmental institutions.
Such exercises of judicial power would have appeared to
violate principles of state sovereignty and of the separa-
tion of powers as late in the day as the turn of the
century. "Born out of the desegregation litigation in the