Setting an Unshakeable Foundation

John Marshall, the fourth Chief Justice of the United States Supreme Court. By: Henry Inman.

In the first years of the American Republic, there were drastic changes in the law. The importance and organization of laws were coming into place. At the top were constitutional rights, which, as James Cannon explained “must be protected and defended ‘as the apple of your eye’ from danger ‘or they will be lost forever.'” Gordon Wood, The Creation of the American Republic: 1776-1787, 293 quoting James Cannon, “Cassandra,” Apr. 1776, Force, ed., American Archives, 4th Ser., V, 1094, quoting from Hulme, Historical Essay, 143-44. Cannon continued, stating that constitutional rights must be set “on a foundation never more to be shaken,” meaning that constitutional rights “must be specified and written down in immutable documents. Id.

Through these developments, it was becoming increasingly clear that the colonies’ differences from Britain would continue as independence was declared and the states began as their own republics under the Confederation of states. Peter Van Schaack declared in 1786 that “[t]he complex subtleties” of English law did not suit “the simplicity of our courts” as “the appendages of an old dowager’s toilette ornamental to the bloom of nineteen.” Gordon Wood, The Creation of the American Republic: 1776-1787, 296 quoting Peter Van Schaack to Robert Yates, 1786, quoted in Richard B. Morris, ed., Select Cases of the Mayor’s Court of New York City, 1674-1784 (American Legal Records, 2 (Washington, 1935)), 56.

Despite the relative simplicity of American law, as compared to English law, during the years of the Early Republic, the laws had become “complicated to an unwieldy size,” which must have been exacerbated by the fact that Americans continued to borrow doctrines and laws from England, despite declaring independence. Gordon Wood, The Creation of the American Republic: 1776-1787, 300 quoting Benjamin Austin, Observations on the Pernicious Practice of the Law (Boston, 1786), 38, 12. This would lead many Americans to conclude that their society needed “but a few laws, and these simple, clear, sensible, and easy in their application to the actions of men.” “On the Present States of America,” Oct. 10, 1776, Force, ed., American Archives, 5th Ser., II, 969.

One idea to simplify the laws and better organize those laws was codification, the compiling and sorting of laws by subject matter and relevance. Codification became a goal for the legislatures, believing that it would alleviate many of the shortcomings of the legal system. In the 1780s, it became clear that codification was not going to quickly solve all of the perceived problems with the system, much to the disappointment of proponents Thomas Jefferson and James Madison. Gordon Wood, The Creation of the American Republic: 1776-1787, 302.

As Gordon Wood explained in The Creation of the American Republic: 1776-1787, these perceived problems were partly rooted in Americans’ wish to give express consent for every law, distrusting both the legislatures and the judges to create and interpret the laws. Id. at 304. As James Wilson said at the Constitutional Convention: “Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect.” Farrand, ed., Records of the Federal Convention, II, 73; Wilson, “Lectures on Law,” Wilson, ed., Works of Wilson, I, 460-62. A balance was necessary, however. There must not have been a conferral “upon the judicial department a power superior, in its general nature, to that of the legislature.” Id.

These early developments in American law helped set the stage for the appreciation and valuing of the rule of law that Americans continue to have presently. Americans knew they needed a system that departed from the overly complicated and burdensome legal system in England, but Americans were not quite sure what modifications exactly were needed. After a course of trial and error, it became clear that codification was one solution, and more than anything, a balance between the judiciary and legislature was necessary.

This process of discovering the best legal system for Americans helped progress the country, which was trying to both make a clean start and retain the best elements of the English system. Through all of it, James Cannon’s wish that constitutional rights were the most fiercely protected has remained true, as explained further in The Constitution’s Superiority. In all, the legal system’s beginnings helped set the stage for Americans’ protection of the rule of law. While that has likely led Americans to be more litigious than other countries, it has also created a culture of protection of rights. Few can dispute the benefits of protecting rights.

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