Empire of Liberty: A History of the Early Republic, 1789-1815

The Federalist Supreme Court didn’t decide many cases between 1789 and 1801 but “had done much to establish its position in the national government” (436).

Established that criminal common law ran in federal courts; worked to expand the definition of treason in order to strengthen federal authority; increased the jurisdiction of federal courts at the expense of state courts; and asserted that federal statues had supremacy over state laws.

While the role of the federal courts were taking shape it wasn’t the final arbiter on constitutional interpretation with states and Congress still playing a large role in interpreting the Constitution.

With the Supreme Court being seen as aristocratic and thus a target of Republicans as well as having a problem with remaining stable (five of twelve justices, including two chief justices resigned between 1789 and 1801) Chief Justice John Marshall had to find a way to change the issues plaguing the Supreme Court.

He did away with the practice of each justice writing their own opinions so that it would seem as if the court was speaking with one voice; worked to build relationships and thus consensus among the justices; required justices to wear plain black robes which was seen as more Republican; worked to change Federalist judicial behavior such as the delivering of political grand jury instructions; and denied a long held Federalist view that English common law ran in the federal courts (though argued that there was such a thing as American common law and that did run in the federal courts).

One of the Court’s controversial opinions was its finding Burr innocent of treason.

Marshall had a narrow interpretation of what was legally treason which angered the Republicans who had wanted to see Burr convicted.

Ironically his narrow definition of treason took a view opposite of how many Federalists interpreted treason (who wanted a wide scope to increase the authority of the federal government) but it still angered Republicans.

The most famous case came in 1803 in Marbury v. Madison which involved William Marbury, a last minute appointee of John Adams, not receiving his commission to be a justice of the peace for the District of Columbia when Jefferson took office.

The court found that Marbury was entitled to his commission and that he was entitled to a legal remedy but that the Court could not issue a writ of mandamus as Marbury sought because the section of the Judicial Act of 1789 which granted the Court this right was unconstitutional given that Section III of the Constitution did not grant this authority to the Court.

This opinion was extremely savvy by Marshall and the Court.

It essentially called out the Jefferson administration for doing something illegal, found that the court couldn’t remedy Marbury which is what the Jefferson administration wanted, and set the precedent for judicial review by claiming that part of a legislative act was unconstitutional.

The practice of judicial review would give the Court more authority, having a say in what was constitutional and what was not even when looking at laws passed by Congress.

Judicial review was a new concept but it was one that wasn’t widely held as n obvious right or proper responsibility of the Supreme Court.

There are multiple examples following the Revolution of judges stating to legislatures what the limits of power were for those legislatures and whether or not the laws passed by them were constitutional.

This was unpopular to many, even those who feared legislative tyranny, as it was seen as a usurpation with unelected judges taking on essentially legislative powers.

Judicial review was the outcome of a few key developments in American thought:

The Constitution was viewed as fundamental law and unlike the English constitution it was written down which gave Americans something real, not theoretical, to interpret.

While this was a common view, Americans disagreed that this necessarily meant that judges were to be the final arbiters on what was constitutional.

Madison and Jefferson, for example, believed that in cases where there was disagreement over this fundamental law the people themselves should have final say.

The fact that the Constitution runs in the regular court system was also an important aspect to the development of judicial review.

This allowed for judges to interpret the Constitution based off existing statute and rules as well as led to judges expecting that the Constitution would be enforced just as statutes were.

This meant that the Constitution ceased to be just a political document and that it became a legal document as well (something Republicans like Jefferson never embraced).

Finally, Americans’ view on sovereignty also played a role in the development of judicial review.

Americans viewed not just their elected officials in the House of Representatives as their representatives but all government officials and agents.

The argument, articulated by Hamilton in Federalist No. 78 was that the courts were there to make sure that legislators did not ignore the will of the people who had granted them political power and that if statutes enacted by the legislator go against the interests of the people the courts are there to act in the people’s interest.

By the early decades of the 19th century it became common for judges, who were more consistently being viewed as representatives of the people, to be elected especially in the West.

By the 1790s many Americans accepted most of the circumstances that would lead to judicial review but actual acceptance of judicial review would take longer.

The first thing that was required to make judicial review more widely accepted was that law would have to become less partisan and more professional.

After 1800 judges stopped acting in political and magisterial capacities such as making political arguments to juries or taking part in diplomatic missions.

Legal journals and law schools became more common.

The Supreme Court also sought to avoid the most contentious issues distancing itself from the positions of the Federalists and not challenging the Republicans.

Up until McCulloch v. Maryland in 1819 the Court sought to build up the power of the federal government but not directly.

It consistently ruled in ways that reduced powers of the states by finding, in a number of cases, state laws and state judicial interpretations invalid.

Had the court increased federal power directly it would have aroused the suspicions of Republicans.

One of the most important cases was Fletcher v. Peck (1810) where a corrupt Georgia legislature had sold a large amount of land to speculators who then sold the land to buyers. Georgia voters voted in a new legislature who voided the sale of lands.

The Marshall court found that the state of Georgia had no right to void the contracts as it violated Article I, Section 10 of the Constitution regardless of the corruption or motives of the Georgia legislature.

This was a legal finding that refused to speculate on the politics of the matter helping to keep politics and the law in separate spheres.

Marshall’s drive to separate politics from the law was possible because so many were becoming disillusioned with the increasingly democratic politics of the early republic and Federalists, who had trouble being competitive politically in that environment, found sanctuary in the judicial system.

How to handle rights of corporations became a very important issue in the early republic given the increase in both public and private corporations in the country.

Corporations weren’t new as the English crown had granted special privileges via articles of incorporations to due things such as creating colonies.

Immediately following the Revolution corporations fell out of favor as it was seen as unrepublican to grant special privileges to a few well connected individual but as the country commercialized and the new states realized they didn’t have the capacity to accomplish all they had hoped and thus needed to grant privileges to private groups to accomplish certain goals of the states corporations came back in favor.

The Supreme Court first spoke to the nature of corporations by stating it was a public entity that served a public purpose that could be changed by a legislative act in Head v. Providence Insurance Company (1804) and then by declaring there was a distinction between public and private corporations in Terrett v. Taylor (1815).

If there was such a thing as private corporations that meant that these corporations were a type of private property that could be protected from state authority.

The most important case ended up being Dartmouth College v. Woodward (1819) where the board of trustees for Dartmouth College, created by royal charter in 1769, removed a president of the college. The legislature of New Hampshire ended up revoking the charter, created a new corporation (Dartmouth University) and reinstated the president who was removed.

Marshall found that this was unconstitutional as the original charter was a contract and using Justice Story’s opinion from Terrett v. Taylor, the college was a private corporation.

As the original charter was considered a contract it fell under the scope of Article I, Section 10 of the Constitution and the state could not interfere.

Ultimately this decision led to all private corporations, including the many businesses created in the United States since the Revolution, under the protection of the Constitution.

Paradoxically after the Revolution as the private rights of individuals increased the public power of states did as well.

The Revolution had granted greater power to the states and so the concern over private vested rights increased.

While the federal government may have shrunk as a result of the Jeffersonians the authority of states increased and it was left to the courts to untangle the conflicts between these two spheres.