The Constitution in the Supreme Court

The First Hundred Years, 1789-1888

David P. Currie

• Publisher: University of Chicago Press
• Year: 2015
• Print ISBN: 9780226131092, 9780226131085
• eBook ISBN: 9780226222424
• Topic: Politics & International Relations
• Subtopic: North American History
• Index: Politics & International Relations

Currie's masterful synthesis of legal analysis and narrative history, gives us a sophisticated and much-needed evaluation of the Supreme Court's first hundred years.

"A thorough, systematic, and careful assessment. . . . As a reference work for constitutional teachers, it is a gold mine."—Charles A. Lofgren, Constitutional Commentary

Part One

Chief Justices Jay and Ellsworth 1789–1801

Introduction to Part One

The accomplishments of the Supreme Court during the long period when John Marshall was Chief Justice were so great that the modest record of his predecessors tends to be overlooked. The relative paucity of early federal legislation, the absence of a general grant of original federal jurisdiction over cases arising under federal law, and the fact that the Court’s jurisdiction was largely appellate contributed to a low starting caseload. Yet for all this the twelve years before Marshall’s appointment proved to be a significant formative period during which the Justices established traditions of constitutional interpretation that were to influence the entire future course of decision.¹

The first Chief Justice was John Jay; his associates were John Rutledge, William Cushing, James Wilson, John Blair, and James Iredell. Of the original appointees only Cushing remained in 1801. Jay was replaced by Oliver Ellsworth, his brethren by Thomas Johnson, Samuel Chase, Bushrod Washington, and Alfred Moore. Johnson in turn was replaced by William Paterson.² Twelve men in all sat before Marshall.³

Several of these Justices, however, played no visible part in the decisions here considered. Rutledge, although he did some circuit duty, resigned without ever sitting on the Supreme Court. When reappointed as Chief Justice in 1795, he served only until the next session of Congress, for he was not confirmed.⁴ Johnson departed before any significant opinions were written; Ellsworth sat in none of the cases that produced real opinions; Washington and Moore belong to the Marshall period. As far as the written word is concerned, we therefore are studying seven men: Jay, Cushing, Wilson, Blair, Iredell, Paterson, and Chase.

The Supreme Court published full-scale opinions construing the Constitution in only three cases before 1801. Chisholm v. Georgia⁵ held that a state could be sued in federal court without its consent; Hylton v. United States,⁶ that a federal tax on carriages was not a “direct” tax required to be apportioned among the states according to the census; Calder v. Bull,⁷ that a state legislature had not passed a forbidden ex post facto law when it set aside a judicial decree in a will contest.

These three controversies, however, do not exhaust the pre-Marshall Court’s encounters with matters constitutional. In Ware v. Hylton,⁸ the Court invalidated a state law under the supremacy clause because it contradicted a treaty. Penhallow v. Doane’s Administrators⁹ produced opinions on federal powers before 1789; Cooper v. Telfair,¹⁰ on questions under a state constitution. On at least nine other occasions, the Court faced questions with constitutional overtones respecting the powers of the federal courts. In Hayburn’s Case,¹¹ the Court was asked to pass upon a statute subjecting certain circuit court decisions to revision by the Secretary of War; in Chandler’s Case¹² and United States v. Todd,¹³ upon the authority of circuit judges to act extrajudicially as “commissioners” under the same statute; and in La Vengeance,¹⁴ upon the scope of the admiralty jurisdiction. In Hollingsworth v. Virginia,¹⁵ the Court held that the eleventh amendment limited pending as well as future suits against states, and resolved a major issue as to the process of constitutional amendment. In Wiscart v. D’Auchy,¹⁶ it respected a statutory limitation on its appellate jurisdiction, and in Turner v. Bank of North America,¹⁷ it enforced a congressional restriction on the diversity jurisdiction, despite arguments that both restrictions offended article III. In Mossman v. Higginson,¹⁸ it read restrictively a statute providing federal jurisdiction when an alien was a party in order to avoid finding the law unconstitutional. Finally, the Court invoked constitutional support in its refusal to honor an executive request for an advisory opinion in the so-called Correspondence of the Justices.¹⁹ Not all these matters were clearly disposed of on constitutional grounds, and in none did the Court publish substantial opinions. But these facts are themselves of interest to the student of constitutional litigation.²⁰

1

Outlines of Federal Jurisdiction

Because jurisdiction is a threshold issue in every federal case, the Court would settle in its first forty years many of the fundamental issues surrounding the federal judicial power. A significant start was made in the cases decided before Marshall. These decisions are the subject of this chapter; the remaining pre-Marshall decisions are considered in the next.

I. “CASES” AND “CONTROVERSIES”

A. Hayburn’s Case

In 1792, Congress authorized pensions for disabled war veterans. The statute required applicants to file proofs with “the circuit court,” which, if it found the applicant eligible, was to certify its finding to “the Secretary at War.”¹ The Secretary in turn could place the name of the certified applicant on the pension list, or he could withhold the name and report the matter to Congress if he had “cause to suspect imposition or mistake.”²

William Hayburn filed for a pension under this statute, and the Circuit Court for the District of Pennsylvania refused to entertain his application. Although the judges apparently wrote no opinion, they took the unusual step of explaining their refusal in a letter to President Washington. Two other circuits³ also addressed their views to the President, though one⁴ conceded that no application was pending before it. All three courts concluded that the statute was unconstitutional because it attempted to subject court decisions to revision by the Secretary of War.⁵ Five Supreme Court Justices sitting on circuit⁶ joined in these declarations of unwillingness to carry out an act of Congress they deemed unconstitutional—eleven years before Marbury v. Madison.⁷

Attorney General Edmund Randolph then asked the Supreme Court for a writ of mandamus compelling the circuit court to pass upon Hayburn’s petition. An examination on the merits would have required the Court to decide whether the statute conferred either nonjudicial power on the courts or judicial power on the Secretary of War, and if so, whether negative implications should be drawn from the provision of article III stating that “the judicial Power . . . shall be vested in . . . Courts.”⁸ But the Court never reached these questions. The Attorney General, having neglected to secure Hayburn as his client, announced that he was acting “without an application from any particular person, but with a view to procure the execution of an act of congress.”⁹ Evidently on its own motion, the Court “declared, that they entertained great doubt” as to the right of the Attorney General “to proceed ex officio” The latter attempted to justify this manner of proceeding, “[b]ut the Court being divided in opinion on that question, the motion, made ex officio, was not allowed.”¹⁰ The Attorney General then entered an appearance as counsel for Hayburn, but the case later was mooted by the adoption of a new statute providing “in another way, for the relief of the pensioners.”¹¹

The Court seems to have taken for granted, as it since has held,¹² that certain objections to subject matter jurisdiction might properly be raised by the Court on its own motion. Were it otherwise, jurisdictional limitations serving important institutional goals¹³ might be evaded by the agreement of parties with no incentive to enforce them.¹⁴ The point is not confined to constitutional limitations on jurisdiction, but it embraces them; it is an important part of the procedural framework for the enforcement of constitutional limitations. Dallas’s report, however, does not indicate that the Justices stopped to explain that they had the power or duty to raise such issues, or whence it was derived.

Nor does the report reveal the Justices’ reasons for concluding that the Attorney General lacked authority to proceed ex officio. Indeed, we must turn to the newspapers to find that the vote was 3–3,¹⁵ for Dallas reveals only that the Court was “divided.”¹⁶ Remembering the future, we can surmise that three Justices may have concluded that the Court could decide only “Cases” and “Controversies”—the terms employed in article III;¹⁷ that there was no case or controversy unless the applicant for relief himself was injured by the disputed action;¹⁸ and that the analogy of the Government’s acknowledged authority to prosecute crimes¹⁹ did not take the case outside this principle.²⁰

None of these conclusions is obvious, and it is by no means clear that the Justices meant to invoke what we now know as the constitutional dimension of the law of standing to sue. It is conceivable that they gave a narrow reading to section 35 of the Judiciary Act,²¹ which authorized the Attorney General only “to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned,”²² or to section 13,²³ which gave the Supreme Court mandamus jurisdiction only “in cases warranted by the principles and usages of law”²⁴—which in turn might have required an interested plaintiff. Either of these positions would have raised the further question whether, if the Attorney General’s application was a case or controversy within article III, Congress had the power to deprive the Court of jurisdiction over it under its constitutional authority to make “Exceptions” to the Court’s appellate jurisdiction.²⁵

In short, the reported disposition of this first constitutional controversy in the Supreme Court was inconclusive. We know the Court left...

Table of contents

• Cover
• Copyright
• Title Page
• Contents
• Introduction
• Part One: Chief Justices Jay and Ellsworth, 1789–1801
• Part Two: Chief Justice Marshall, 1801–1835
• Part Three: Chief Justice Taney, 1836–1864
• Part Four: Chief Justice Chase, 1865–1873
• Part Five: Chief Justice Waite, 1874–1888
• Epilogue
• Appendix A: Justices of the Supreme Court, 1789–1888
• Appendix B: The Constitution of the United States
• Notes
• Table of Cases
• Index