The Supreme Court Before John Marshall

Abstract

The Supreme Court Before John Marshall ROBERT LOWRY CLINTON It is an honor to have been asked to contribute to these essays commemorating the Supreme Court ofthe United States under the ChiefJusticeship ofJohn Marshall. Between 1801 and 1835, the Marshall Court made the lion’s share of the “landmark” decisions that laid the foundations of American constitutional law. Since that time, the Supreme Court has become the world’s most prestigiousjudicial institution. It is a beacon of liberty for people and nations everywhere. A large share of the credit for the success of this great institution is due the Marshall Court. During the Marshall era, the judicial branch was established as a coequal branch of the national government. When John Jay was offered the seat that Marshall ultimately took, he declined the post in January 1801. In a letter to President John Adams, Jay stated that he was “perfectly convinced” that the Court “would not obtain the energy, weight, and dig­ nity which was essential to its affording due support to the national government; nor ac­ quire the public confidence and respect which, as the last resort of the justice of the nation, it should possess.”1 Yet by the end of the Mar­ shall era, the Court had obtained both that “en­ ergy, weight, and dignity” and the “public confidence and respect” whose absence Jay had bemoaned and which has sustained the Court ever since. Just as credit for the success of the Su­ preme Court must go to Marshall and his col­ leagues, a large share of credit for the success of the Marshall Court is due Marshall himself. As Chief Justice William H. Rehnquist noted in the Supreme Court Historical Society’s 2001 Annual Lecture, during the 1790s the principal impact of the Court was that of de­ ciding, in the last resort, which oftwo litigants would win a particularlawsuit.2 The Court had not yet realized or embraced its full constitu­ tional role. As the Chief Justice also noted, Marshall changed all that. Marshall was able to do this because he had a remarkable ability to reason cogently and to write clearly, be­ cause he possessed uncommon political skill THE SUPREME COURT BEFORE JOHN MARSHALL 223 in administering the Court, and because he had a powerful vision of the Constitution. We must, however, be cautious. Marshall has become an icon, and iconic figures are often honored more as myth and legend than as reality. They have the potential to distort our historical vision. A numberofsuch myths have obscured or distorted our view ofthe Marshall Court in particular and of the early Supreme Court in general. I would like to focus in this essay on one of these myths: the widely held belief that the Marshall Court’s accomplish­ ments were largely unprecedented. This view holds that Marshall’s achievements—such as the establishment of judicial review—were acts ofcreation ex nihilo, rather than extraordi­ narily powerful expositions of constitutional developments already well under way. Com­ plementing this widely held belief has been a corresponding devaluation ofthe pre-Marshall Court. Yet nothing in law or history is really unprecedented, and the Marshall Court is no exception, however long Marshall’s shadow. It is therefore appropriate to revisit the preMarshall era. It is the era in our judicial his­ tory closest to the Founding itself, forming a bridge between the Constitution and the Marshall Court. It is the era in which the fed­ eral judiciary was founded and established, which encompasses the first decade of the Supreme Court’s existence, and in which the legal status of the Constitution was first raised, discussed, and debated from the Bench. To ignore or otherwise devalue the pre-Marshall Court is, in the end, to fail to understand the Marshall Court itself, and to fail to understand the Marshall Court is to fail to understand American constitutional history and the subsequent history of the Supreme Court. Reasons Why We Have Devalued the Work of the Pre-Marshall Court There are many reasons why modem histori­ ans have ignored or devalued the contribu­ tions of the pre-Marshall Court to our legal and constitutional traditions. Most of these reasons have to do...