John Marshall, the Supreme Court, and American Nationalism.


 “Constitutional History”

This is a course in American Constitutional History. Let’s first take a look at what constitutional history is. All human institutions—all human beings—have constitutions. We are all put together—that is, we are all constituted—in a certain way. As such, we all govern ourselves in a certain way. In terms of national constitutions, each enduring nation has one, either in the form of a single written document, such as the United States Constitution, or in the form of multiple documents and revered traditions, such as Britain’s or Canada’s constitution.

“American constitutional history” has a couple of different meanings. Broadly, it means the study of the development of our entire system of government—its fundamental legal rules and its political practices and conventions, including all of the subjects typically covered by an American Government textbook: political parties, interest groups, the news media, and the rest. This approach is applicable to all countries. Andrew McLaughlin’s and Melvin Urofsky’s texts are constitutional histories of this broad type. 

More narrowly, American constitutional history is the study of leading Supreme Court cases that have interpreted our written constitution. It studies the issues and the historical conditions that led to these cases and the legal, political, social, and economic consequences flowing from these cases. The John Garraty text and the Nowak and Rotunda treatise are representative. This course will follow this more narrow understanding of constitutional history.

Most of the topics in the course—except this first one—will focus on one of Justice Marshall’s famous opinions. In addition to cases, the assigned readings from John Garraty’s collection of stories, Quarrels that Have Shaped the Constitution, will provide the background and the setting for most of the cases. Excerpts from Andrew C. McLaughlin’s Pulitzer Prize-winning text, A Constitutional History of the United States, will provide commentaries on the cases and additional background. The introductory section of each of these lectures will introduce the case and the subject for each class and pose several questions to guide you through the first assignment. Part One of the lecture will address the study questions and briefly discuss the legal and political implications of each case. It will also introduce the second brief reading assignment in each class. Part Two will discuss the second reading assignment and the historical implications of the Marshall-era decisions.

Theme of the Course

The argument or theme of the course is pretty straightforward: at the end of the Revolutionary War, two broad visions of America’s future dominated the thinking of America’s political leaders. One vision saw the social, economic, as well as the political activity of Americans centered in the states and local communities. This state-centered vision, called by historian Forrest McDonald and others, the “republican” view, is usually identified with Thomas Jefferson, James Madison, and the leading Virginia statesmen of the era. As Jefferson famously said, “Virginia, sir, is my country.”

The other vision emphasized the importance of a unified country with a strong national government that would bind the country together with national policies—particularly national economic policies—and eventually lead the people to identify themselves as Americans, rather than Pennsylvanians or Virginians. This vision is generally referred to as the “nationalist” view and is associated with Alexander Hamilton, John Adams, and the Federalists.

These visions are distinguished from one another by their different emphases, not by their radical rejection of each other. Most republicans also dreamed of a powerful and economically prosperous America and supported the call in the 1780s for a stronger central government with authority to control the states in a few areas, such as international relations and interstate commerce. Indeed, at the 1787 Philadelphia Convention it was Madison and the Virginia delegation that put forward the so-called Virginia Plan, which proposed a somewhat stronger national government than the government existing under the Articles of Confederation.

Both nationalists and republicans recognized and appreciated the essential role that the state governments played in American life. Nationalists generally did not want to eliminate the states, but wanted a national government strong enough to exercise some real control over the states and to lead the nation to economic greatness. 

The point to be made here is that the 1787 Constitution represented a compromise—or rather a collection of compromises—between republicans, nationalists, and other interests represented at Philadelphia. Its effect on American society would depend on how its compromise language would be understood and applied by Americans over time.

And this brings us to the main point—the thesis, if you will—of the course:

It is largely because of John Marshall and his position as undisputed leader of the Court during the first thirty-five years of the Nineteenth Century (1) that the Supreme Court came to be acknowledged as the principal interpreter of the written Constitution, and (2) that a number of key sections or clauses of the Constitution were given a decidedly nationalist rather than republican interpretation. This is not a conspiracy theory: the nationalists were not the conspirators and the republicans the victims. Rather, it is a story about how the nationalists managed to establish the lasting interpretations of constitutional language that provided a foundation for the powerful national government and relatively weak state governments that now characterize American politics.

A few basic points of law

In this course and in law courses generally, we commonly talk about studying “cases.” What we really mean is studying the courts’ opinions in the cases. A legal case or controversy in the United States and the Anglo-American common law countries is just that—a controversy or dispute between two or more litigants, called parties, that ask a court to resolve or decide. The overwhelming majority of legal disputes are compromised or settled by the parties themselves without any court action whatsoever. Where the parties cannot or will not compromise their differences on a legal issue or question, the question is presented to the court for judicial resolution.

Now in our legal system, the courts, when called upon to resolve a properly presented dispute, may not duck the case: the court must decide which party’s position on the legal question is correct and which is incorrect. The court must determine who wins on that issue and who loses. This determination is called either the decision or the judgment. (“Decision” and “judgment” are used synonymously in this course.) The opinion in the case is the court’s statement of the reasons for its decision or judgment.

Often, the winner of the case is not really interested in why he won, just in that he won. Under the common law system of stare decisis or legal precedents, the rest of the legal community—lawyers and judges alike—are far more interested in the reasons for the decision—that is, in the opinion. The system of stare decisis is based on the idea that similar legal controversies will be similarly decided. Disputes that are decided now and in the future must be decided in the same way, using the same legal principles, as similar disputes were decided in the past—in other words, they must be decided on the basis of case-law precedents. If a lawyer counsels a client to act or to litigate inconsistently with legal precedent, the client is probably going to suffer a defeat if the action is ever challenged in court and decided by a court. If a judge or court does not decide a case in accordance with legal precedent—and courts often do not, usually because they mistake the precedents, but sometimes because they willfully reject the precedents—then the judge will be reversed by an appellate court that does follow the precedent if the case is appealed. The fact that many cases are not appealed, often because of the expense involved, is the reason that cases are never uniformly decided in a legal system. Also, the appellate courts themselves sometimes reject precedents—they “overrule” older cases—and establish new precedents.

One final point relevant to this first set of assigned cases: American appellate courts usually sit in panels of three or more judges when deciding appeals.  When the United States Supreme Court decides a case, all nine members of the court sit as one body, unless a justice recuses himself—that is, does not participate in deciding the case—because of some personal interest in the case.  To determine who wins, appellate courts simply use the majority rule. If two of the three judges on a panel decide that the appellant should win, the “court” decides for the appellant; accordingly, if at least five of the nine Supreme Court justices decide for the appellant or the petitioner, the appellant or petitioner wins. Where there is an even number of judges on the deciding court, as there was during the early days of the Supreme Court, the party challenging a lower court ruling must convince a majority of the judges to decide in its favor: tie votes leave the lower court judgment in place.

When it comes to the opinion, however, things are a bit more complicated. If a majority of the judges agree to the same rationale for the decision, then it is the general practice of courts today to appoint one of the judges in the majority to write an “opinion of the court.” The court as an institution has acted through a majority, and the court’s opinion may serve as precedent for future cases. Individual judges may disagree with the decision or judgment of the court (that is, with who won the case) and write dissenting opinions explaining their disagreement. Members of the majority may also write separate concurring opinions explaining or adding points not in the majority opinion. Where a sufficient number of judges have heard an appeal (such as on the Supreme Court, where nine justices typically hear and decide each case), it is possible that a member of the majority who decide the case disagrees with the rationale that the rest of the majority agrees to. This member may then write an opinion concurring in the judgment—that is, concurring in the decision—but not in the opinion of the Court. Thus, six justices may agree on the decision or judgment of the case and three may disagree. Five of the six may agree on a rationale for the decision. Since five is a majority of the Court’s membership of nine justices, their rationale becomes the opinion of the court and serves as precedent for later, similar cases. The sixth justice may write an opinion concurring in the judgment, explaining why the justice agrees with the majority’s decision but disagreeing with the majority’s opinion (rationale). The three who disagree with the majority decision may write dissenting opinions.

If a majority of the judges who heard and decided the case cannot agree on a single rationale for the Court’s decision, however, there can be no majority opinion; hence no “opinion of the court.” The Court as an institution cannot then render a precedent setting opinion. In such cases the opinion of the largest group of justices in the majority decision are called plurality opinions. They do not set precedents because they do represent the opinion or rationale of a majority of the justices on the Court.

To further complicate matters, some appellate courts, such as the British House of Lords, still render their opinions “seriatim”; that is, each member of the court issues his own individual opinion, leaving it to the legal community to determine whether there is a common rationale contained within a majority of the judges’ opinions.

Introduction to the first assignment

We will be looking closely at several of the most famous of Marshall’s opinions on constitutional law in the following classes. But we must first recall—and both McLaughlin and Robert Clinton remind us—that the Supreme Court existed for ten years before John Marshall became Chief Justice. According to Clinton, the court decided about 60 cases during that decade, and a number of the cases presented constitutional issues. For this first class, I would like you to read a short introduction to the federal judiciary by Andrew McLaughlin and three short sets of materials: (1) the article by Wilfred Ritz on “United States v. Yale Todd (U.S. 1794);” (2) the two letters and the court statement that constitute Hayburn’s Case, and (3) the letters called “the Correspondence of the Justices.” Ritz’s article should be read first because it provides the framework for understanding the letters and the earlier Court action in Hayburn’s Case.

First Assignment

At the end of McLaughlin’s text, I provide a couple of definitions of the different types of jurisdiction that are referred to in the excerpt. Note also McLaughlin’s identification of the particular type of federal judicial authority that was to prove so controversial to the early Supreme Court. 

The three sets of materials—(1) the article on Yale Todd, (2) the judges’ opinions in Hayburn’s Case, and (3) the “Justices’ Correspondence”—are not typical judicial opinions. In fact, if opinions provide the rationale for courts’ decisions, it is difficult to find the opinions in the Hayburn, Chandler, and Yale Todd cases. Yet the Hayburn and the Todd cases helped to establish one of the Court’s most important precedents. The correspondence with Secretary of State Thomas Jefferson provided another. As you read each set of materials, ask yourself:

1. In what sense does this material present a legal “case” or “controversy”—an issue or dispute that courts of law are expected to resolve?

2. What is the decision or judgment of the Court in each case; that is, who won? Did Yale Todd win? Did William Hayburn win? Did Thomas Jefferson get what he wanted?

3. In each case, what generally is the legal issue that the Court is asked to decide? Once you have a sense of what the legal dispute is about, then try to identify the issue more precisely and to identify the Court’s response to the precise issue.

4. What is the opinion of the court in each case; that is, what are the reasons for the decision? Indeed, is there a formal court opinion in each case? What constitutional precedent did each case or set of correspondence establish?


In the next section, we will discuss the assigned cases and other cases. You will then be asked to read a final case from the Court’s first decade, Hylton v. United States.

©William S Miller