Reading Assignments for First Topic: The Court Before Marshall
1. United States v. Yale Todd (Unreported, 1794). Law review article describing the case and the discovered documents, via the Scholarly Commons of the Washington and Lee Law School.
2. Hayburn's Case, 2 U.S. (2 Dall.) 409, 1 L.Ed. 436 (1792). The federal courts as veterans’ pension boards.
3. “Correspondence of the Justices” (1793) via University of Southern California Law School Faculty.
4. From Andrew C. McLaughlin’s A Constitutional History of the United States, last five paragraphs of chapter 16:
ORGANIZATION OF THE GOVERNMENT.
THE JUDICIAL SYSTEM.
. . . At the very beginning of the government Congress took up the task of establishing the judicial system. The framers of the Constitution had left to Congress a large measure of discretion. The general principles are laid down in the Constitution but the details are not given. The extent of the judicial power is stated in broad and comprehensive terms; the power is "vested in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish"; but the Constitution does not state the number of judges and does not make it obligatory on Congress to establish inferior courts. The task lay with Congress to work out a system of courts and to establish the system by law. The duty was one of great importance, and especially important was the task of designating the relationship between the state courts and the federal courts, a subject on which there had been considerable discussion in the past. The Judiciary Act, which is attributed chiefly to the skill of Oliver Ellsworth, was passed in September, 1789. It remained for over a century without vital alteration, and the more general and critical principles are still in force.
The Supreme Court, as established by the act, consisted of one chief justice and five associate justices. Thirteen districts were established, in each of which there was to be a district court. Three circuits were provided for; in each was to be held a court consisting of any two justices of the Supreme Court and the district judge. To the district courts was assigned cognizance of crimes of an inferior order and they were given exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction. The circuit courts were to have original jurisdiction, concurrent with the courts of the states, of all suits of a civil nature at common law or in equity, where the sum involved was more than five hundred dollars, and the suit was between a citizen of a state in which the suit was brought and a citizen of another state. To the circuit courts was assigned exclusive cognizance of crimes and offenses cognizable under the authority of the United States, except where the act otherwise provided, and also concurrent jurisdiction with the district courts of criminal cases which might be there instituted. Provision was made for removal of causes from a state court to a circuit court under certain conditions. Appeals might be made, by writ of error, from a district to a circuit court, and by like process from a circuit court to the Supreme Court.
Of paramount significance are the provisions of the act concerning review by the federal Supreme Court of judgments and decrees of state tribunals. This subject, which is covered by section twenty-five of the act, was in later years the center of acute and bitter controversy. The Constitution does not explicitly grant to the federal judiciary any such right to examine, review, or affirm the decisions of state courts. The Judiciary Act established this authority in the following manner: a case could be carried to the Supreme Court for review (1) when a decision of the highest state court "in which a decision in the suit could be had" was against the validity of a treaty or statute of the United States, or an authority exercised under the United States; (2) when the validity of a statute of a state or an authority exercised by a state had been drawn into question on the ground of its being repugnant to the Constitution, laws, or treaties of the United States, and the decision of the state court be in favor of the validity; (3) when there was drawn into question the construction of any clause of the Constitution or of a treaty or statute of the United States, and the decision was against the title, right, privilege, or exemption claimed by either party.
An examination of this statement, which at first sight appears perplexing, shows that the purpose was to provide that a state decision could be carried to the Supreme Court for review only if the state court was charged with failing to give full effect to the Constitution, laws, or treaties of the United States. And this fact carries us back again to what I have called the chief problem of the critical period, the problem of finding a method by which there would be assurance that the states would fulfill their obligations. The obligation to uphold the Constitution and the structure of the union was specifically thrown upon state judges. But how could there be any certainty that the judges would not uphold a state law, even though it be contrary to the "law of the land", or would not deny to a litigant at the bar a privilege claimed to belong to him under the federal Constitution, law, or treaty? To establish such certainty, or at least to provide for such assurance as federal judicial oversight would furnish, the Judiciary Act included the system of review of state decisions.
The Judiciary Act does not indicate any objection to a decision by a state court refusing to recognize the validity of a federal statute; but it does provide for a review to test the legality of the decision; it seems, indeed, to take for granted that such a decision might properly be rendered, and from this we are led to conclude that the federal Supreme Court could agree with the state tribunal as well as disagree; therefore the Judiciary Act, even though it makes no specific declaration of the power, assumes the right of a court, either state or national, to declare congressional acts void. As this fundamental statute was enacted by men, some of whom had been active in the Federal Convention, we are entitled to gather from it evidence of the intention of the framers to recognize this important judicial power. That fact should be taken into consideration by those who even to-day question the constitutional right of any court to declare an act void, or, to use the words of James Otis of an earlier day, pass it "into disuse".
 The absence of explicit provision for inferior courts is doubtless due to the uncertainty of the framers about the advisability of explicitness. Then there was a difference of opinion in regard to the need for any inferior courts. See the discussion in the Convention, June 5, 1787.
 There were then eleven states in the union. Each was made a district. Maine, then a part of Massachusetts, was also made a district, as was the Kentucky region, then a part of Virginia.
 Statutes at Large, I, ch. 20, sec. 9.
 The reader should notice that this does not refer to an appeal from a state court, but for removal of a cause at an early stage in the proceedings. Ibid., sec. 12.
 Ibid., sec. 22. The text above does not attempt to give in detail the extent and character of the jurisdiction prescribed by the statute; such portions of the act as appear especially important are selected.
 See C. A. Beard, The Supreme Court and the Constitution, where this subject is treated at length.
original jurisdiction—the authority of a court to “try” a case, that is, to hold a trial in which the material facts are determined and the appropriate law applied; “original” is distinguished from “appellate” jurisdiction, which is the authority of a court to review a lower court’s rulings.
concurrent jurisdiction—the authority of more than one legal system or more than one court within a legal system to decide a case; “concurrent” is distinguished from “exclusive” jurisdiction, which is the authority which only one court possesses to decide a case. Thus, under the Judiciary Act of 1789, civil suits (1) based on the common law or on equity (2) in which more than $500 was involved or sued for and (3) in which the plaintiff was from one state and the defendant was from another could be brought either in a federal circuit court or in a local state court: both courts—both legal systems—had concurrent jurisdiction over such suits. On the other hand, with some exceptions, criminal cases based on alleged violations of federal criminal laws could be decided only in federal courts, not in state courts: the federal courts had exclusive jurisdiction over cases involving federal crimes.
writ of error—one of the several procedures for “appealing” a decision to a higher appellate court. A writ of error is a command (a “writ”) from an appellate court to a lower court (trial court or appellate court) to send up the record so that judicial errors alleged by the “plaintiff in error” may be reviewed by higher court. This writ limits the court’s review to the alleged errors of law. An “appeal” in the narrow sense allows the higher court to review alleged errors in law and fact. The “plaintiff in error” corresponds to the “appellant”; the “defendant in error” corresponds to the “appellee.” The defendant in error or the appellee is the party that won the decision below and is opposing appellate review. Another procedure for securing appellate review used in the early court was the writ of prohibition, a command from the appellate court to the lower court to stop proceeding in a particular case. Today, review by the Supreme Court is almost exclusively by the “writ of certiorari,” which is similar to the writ of error in that it orders the lower court to send up a certified record of the case. The party asking for review by this means is referred to as the “petitioner”; the party opposing review is the “respondent.” “Appeal” in the broad sense refers to any and all of these methods of securing appellate review of a lower court decision.
5. Hylton v. United States, 3 U.S. (3 Dall.) 171, 1 L.Ed. 556 (1796). A federal tax on chariots.
6. From McLaughlin’s Constitutional History, first ten paragraphs of chapter 23:
MARSHALL, CHIEF JUSTICE.
THE EARLY HISTORY OF THE SUPREME COURT.
Before Adams left office he appointed John Marshall Chief Justice of the United States. This office Marshall held for more than three decades (1801-1835), and his influence in shaping the foundations of American constitutional law can hardly be overestimated. Presidents were elected and retired from office; parties were broken up and reconstituted; changes in social and economic conditions were wrought by time; the population of the land greatly increased in numbers; the boundaries of the republic were extended; new states were formed; old ideas and mental attitudes of the eighteenth century passed away; but Marshall in the quiet of the court-room continued to give forth decisions from the bench and to win for himself fame as one of the great judges of all time. He had a unique opportunity. He was called upon to construe the fundamental law of a nation, to lay down principles which were to be of supreme consequence in securing national stability and national development. No other justice in the course of the past ages had such an opportunity and such responsibilities. The Constitution which he was called upon to interpret and apply was the Constitution, moreover, of a federal, not of a unitary or centralized state; in consequence, judicial problems were novel, and little help could be gained from precedent, especially in deciding those controveries which were most vital and significant. If not always free from emotional strain, he was peculiarly judicial in his outward attitude; he was decisive without being overbearing. His literary style, especially in his more important opinions in the years when he had reached the summit of his intellectual power, was clear, simple, and eloquent, if the occasion made eloquence appropriate. The layman as well as the learned practitioner can read his words and grasp their meaning.
His early training and preparation for his task were not very thorough; he had had none of the prolonged drill to which the modern student is subjected; but his experiences in the army and in political life had given him an insight into practical problems and had furnished him with stern convictions. The years spent in the Revolutionary army, where he had suffered the slings and arrows of outrageous fortune, had left their deep impressions; and if we seek the basic depths of his devoted nationalism, we can doubtless find them in the privations of Valley Forge; these privations, he well knew, were the product of incompetent government, an imperfect union of the states, and the absence of national patriotism. In his greatest and most powerful opinions, as we read them to-day, he appears to us to be speaking not in the terms of technical law but as one of Washington's soldiers who had suffered that the nation might live. Had he been more of a technical lawyer, thoroughly steeped in the history and entangled in the intricacies of the law, he might not have been so great a jurist; for his duties called for the talent and the insight of a statesman capable of looking beyond the confines of legal learning and outward onto the life of a vigorous people entering upon the task of occupying a continent and soon to be confronted with new and imperious problems.
There appears to be a tendency among modern writers to attribute to Marshall the creation of the elementary principles of constitutional construction. This is true of both those who extol and those who criticize or lament his work, especially his great decisions which expounded the principles of nationalism. But as a matter of plain fact, his predecessors in the Court, when passing on questions which involved the general nature of the Constitution and the structure of the union, viewed the Constitution in much the same way as Marshall did. From the very beginning to the present there has been no variation from the main line of construction which Marshall in successive cases drew with a firm and strong hand; the decisions made by the Court in the first decade of the Constitution's life furnished solid foundation for later constructions embodying legal nationalism.
The most important of the early decisions, that were rendered before Marshall came to the bench, was Chisholm v. Georgia. The question at issue was whether one of the states of the union was suable by a citizen of another state. As the Constitution then stood, the judicial power of the United States extended to controveries "between a State and citizens of another State", and therefore at first sight the question appeared easily answerable in the affirmative. And still, if the states were supposed to retain even partial sovereignty, their suability presented difficulties. Moreover, the prospect of a state's being brought before the Court and ordered to pay its debts was not alluring. The dignity of the state would be affronted; and its treasure, if it had any, diminished. The Court discussed the question at great length and decided that a state could be sued.
In giving their opinions the justices considered not only the clause directly involved but also the nature of the union. Justice Iredell dissented, holding that in the absence of explicit legislation by Congress a state could not be sued, and said that his "present opinion" was against any construction of the Constitution which would "admit, under any circumstances, a compulsive suit against a State for the recovery of money."  He declared that every state "in every instance where its sovereignty has not been delegated to the United States, I consider to be as completely sovereign, as the United States are in respect to the powers surrendered."  This was the doctrine of divided sovereignty which appeared in other opinions as the doctrine of the Court. Justice Wilson construed the Constitution in terms of decided nationalism: "As a Judge of this Court, I know, and can decide upon the knowledge, that the citizens of Georgia, when they acted upon the large scale of the Union, as a part of the 'People of the United States,' did not surrender the Supreme or sovereign Power to that State; but, as to the purposes of the Union, retained it to themselves. As to the purposes of the Union, therefore, Georgia is NOT a sovereign State." Chief Justice Jay said, "Every State Constitution is a compact made by and between the citizens of a State to govern themselves in a certain manner; and the Constitution of the United States is likewise a compact made by the people of the United States to govern themselves as to general objects, in a certain manner." His general position was that "the sovereignty of the nation is the people of the nation, and the residuary sovereignty of each State, in the people of each State...." The people of the United States, he declared, "acting as sovereigns of the whole country", established "a Constitution by which it was their will, that the State Governments should be bound, and to which the State Constitutions should be made to conform."
Georgia indulged in loud lamentation; its house of representatives passed a bill "declaratory of certain parts of the retained sovereignty of the state" and subjecting to death "without benefit of clergy" any officer or other person levying on the property of the state by virtue of the authority of any court. It is impressive, this tender sense of sovereign self-sufficiency, in a state of about 80,000 inhabitants including slaves. But Georgia was not alone. Suits had been begun against Maryland, New York, and Massachusetts; and those states, as well as others, were eager to banish the danger of being compelled to pay their debts. An amendment was drawn up by Congress and proposed to the states for their acceptance in 1794, but not until January 8, 1798, was announcement made of complete ratification: "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State."
The amendment did not by these words explicitly exclude a suit brought against a state by one of its own citizens. The question arose nearly a century after the decision in the Chisholm case. In the later case, the Supreme Court solemnly declared Iredell's position to be right, and that of the other judges wrong: "The suability of a State without its consent was a thing unknown to the law. This has been so often laid down and acknowledged by courts and jurists that it is hardly necessary to be formally asserted. It was fully shown by an exhaustive examination of the old law by Mr. Justice Iredell in his opinion in Chisholm v. Georgia; and it has been conceded in every case since, where the question has, in any way, been presented...." 
In the case of Calder v. Bull the term "ex post facto" was interpreted as applying only to criminal laws. The Court also indicated what provisions in an act would be considered ex post facto in character. In addition, the announcement was clearly made that the state legislatures retain all powers delegated to them by the state constitutions which are not taken away by the federal Constitution, and that the federal Court had no jurisdiction to determine that any law of a state contrary to the constitution of such state is void. Of special interest is one statement of Justice Chase: "An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority."  Justice Iredell, on the other hand, declared that, while an act violating constitutional provisions is void, the Court cannot pronounce it void merely because in the opinion of the judiciary it is contrary to the principles of natural justice. In this matter Iredell's opinion coincides with principles later followed by the courts; but the due process of law clause in the fifth and fourteenth amendments of the federal Constitution, and like provisions in state constitutions, as judicially construed in later years, make the distinction not very important, if there be any distinction at all.
An important decision [Ware v. Hylton] was rendered concerning the binding effect of the treaty of peace and especially of the provision which declared that "creditors on either side shall meet with no lawful impediment to the recovery ... of all bona fide debts heretofore contracted." The Court held that the treaty nullified the sequestering act of Virginia which was passed during the Revolution, and that, as the Constitution declared that all treaties "made, or which shall be made, under the authority of the United States, shall be the supreme law of the land", the treaty was binding upon the states and must be recognized and applied by the judiciary. "A treaty", said Justice Chase, "cannot be the supreme law of the land, that is of all the United States, if any act of a State Legislature can stand in its way."  The nationalistic interpretation of the Constitution stands forth conspicuously in this opinion.
In this same year (1796) the Court, passing upon the question whether a tax on carriages was or was not a direct tax as the term appears in the Constitution, declared such a tax could be levied without apportionment among the states [Hylton v. United States]. Members of the Court expressed the opinion that only two taxes could be classified as direct — a capitation tax and a tax on land. But this opinion, though at times referred to in later cases, did not finally settle the question concerning the actual limits of direct taxation. A century afterwards the Court declared unconstitutional an act levying taxes on incomes. The nature of that decision will be discussed in later pages of this work. . . .
 "To the accomplishment of that task [of laying down the legal principles of nationalism] Marshall brought the master-mind of American constitutional government, hardly the perfection of legal reasoning and learning, but so sound a common-sense for the practical working of legal theory, so just an instinct for the national welfare, and so austere and unswerving a judicial fairness and openness of mind that no judge since may be compared with him." Introduction to The Constitutional Decisions of John Marshall (J. P. Cotton, Jr., ed.), I, p. xxxvi.
 It is doubtless this quality of Marshall's work which has occasionally induced some writers (in the present writer's judgment) to overstress his political purposes as distinguished from the compulsion of purely legal or, we might say, abstract principles of disembodied law — if there be such a thing.
 2 Dallas 419 (1793).
 Marshall in the Virginia convention of 1788 said, "I hope that no gentleman will think that a state will be called at the bar of the federal court.... It is not rational to suppose that the sovereign power should be dragged before a court." Elliot, Debates, III, p. 555. Madison said, "It is not in the power of individuals to call any state into court." Ibid., p. 533. See also Hamilton, in The Federalist, no. LXXXI.
 2 Dallas 419, 449.
 "The United States are sovereign as to all the powers of Government actually surrendered". 2 Dallas 419, 435.
 But it is not plain that the act meant that Georgia retained full sovereignty.
 Ames, The Proposed Amendments, loc. cit., p. 156.
 Messages and Papers of the Presidents (J. D. Richardson, compiler; hereafter referred to as Richardson, Messages and Papers), I, p. 260.
 Hans v. Louisiana, 134 U. S. 1, 16 (1890). An important early case in interpreting the amendment is Osborn v. Bank of the United States, 9 Wheaton 738 (1824). See also, Cohens v. Virginia, 6 Wheaton 264, 412 (1821).
 Naturally one may inquire (1) whether the states in adopting the Constitution including the third article did not thereby consent to suits; (2) whether the states retained their fundamental character or quality of sovereignty, for the jurists of 1793 and 1890 really agreed that the states retained only modified sovereignty. In the Hans v. Louisiana case Justice Harlan dissented as to the disapproval of Chishoim v. Georgia. He said that comments made upon the decision in Chisholm v. Georgia were not necessary to the determination of the present case and besides, "the decision in that case was based upon a sound interpretation of the Constitution as that instrument then was." In 1907 (Kawananakoa v. Polyblank, 205 U. S. 349, 353), we find this: "A sovereign is exempt from suit, not because of any formal conception of obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law...." In 1883 the Court declared that a state, by assuming the prosecution of debts owing to its citizens by another state, cannot create a controversy with another state within the meaning of the term as used in the Constitution. New Hampshire v. Louisiana, and New York v. Louisiana, 108 U. S. 76. In 1904, the question arose as to whether one state can sue another and be entitled to recover, when claims of individuals have passed absolutely into the hands of the state. The Court decided that the suit can be instituted: "Obviously that jurisdiction is not affected by the fact that the donor of these bonds could not invoke it." Four justices dissented. South Dakota v. North Carolina, 192 U. S. 286, 312.
 3 Dallas 386 (1798).
 Ibid., 388. Capitalization and italics of the original omitted.
 Ibid., 399.
 But see Loan Association v. Topeka, 20 Wallace 655, 663 (1875), in which the Court speaks of "Implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name."
 Ware v. Hylton, 3 Dallas 199, 236 (1796). Italics of the original omitted.
 Hylton v. the United States, 3 Dallas 171 (1796). The Constitution says "Representatives and direct taxes shall be apportioned among the several States ... according to their respective numbers...." Art. I, sec. 2, para. 3. "No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken." Art. I, sec. 9, para. 4.
 Pollock v. Farmers' Loan and Trust Co., 157 U. S. 429; 158 U. S. 601 (1895).
1. In light of Secretary Thomas Jefferson’s very reasonable request to the Court for its legal interpretations of national treaties, do you think that the Virginia Plan proposal for a Council of Revision should have been approved? Should the Court be permitted to render advisory opinions to the President or to Congress as, for example, the Canadian Supreme Court and the constitutional courts of several European nations are authorized to do?
2. If Congress had been insistent that the Supreme Court justices or other federal judges review pensioners’ claims, and if the judges continued to refuse to do so, what could Congress or the President have done to force the judges’ compliance with the statutes? Are the judges “above the law,” or at least above those laws that they do not wish to observe? To whom are they accountable for their legal opinions?
Related Cases and Recommended Readings
Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 1 L.Ed. 440 (1793). Suit by South Carolinian against Georgia to collect a Revolutionary War debt.
VanHorne's Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 1 L.Ed. 391 (C.C.D.Pa. 1795) (jury instructions). A Pennsylvania-Connecticut land dispute.
Ware v. Hylton, 3 U.S. (3 Dall.) 199, 1 L.Ed. 568 (1796). State laws sequestering the land of British subjects during the Revolutionary War.
Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798). Ex post facto laws.
Muskrat v. U.S., 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246 (1911). Case or controversy requirement—advisory opinions, collusive suits.
Robert Lowry Clinton, “The Supreme Court Before John Marshall,” via Recent Archives of the Journal of Supreme Court History.
Forrest McDonald. E Pluribus Unum. 2d ed. Indianapolis: Liberty Fund, 1979. “Preface to the Second Edition”; Chapter 1, “From One, Many”; Chapter 6, “The Philadelphia Convention.”
Melvin Urofsky and Paul Finkelman. A March to Liberty: A Constitutional History of the United States. Volume I: From the Founding to 1890. 2d ed. Oxford University Press, 2002. Chapter 8, “The Supreme Court: The First Decade.”
©William S Miller