The New Republican Nationalism

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Chief Justice John Marshall of the Supreme Court of the United States. By: Cephas Thompson.

John Marshall would serve as Chief Justice of the United States Supreme Court from 1801 to 1835 and had a lasting impact on the institution. More broadly, he shaped the development of policy in America.

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Division and Balancing of Political Power

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Richard Henry Lee. By: Billy Hathorn.

Because the Federalists outmaneuvered the Antifederalists in presenting the Constitution to the American people, the Antifederalists faced a predicament of what to do. As Richard Henry Lee stated, many who wished to change the federal structure of government realized that they had to accept “this or nothing.” Gordon Wood, The Creation of the American Republic: 1776-1787, 547 quoting Lee to Mason, Oct. 1, 1787, Ballagh, ed., Letters of R. H. Lee, II, 438. The Antifederalists were more or less forced to “attack the federal government in those mechanical Enlightenment terms most agreeable to the thought of the Federalists: the division and balancing of political power,” otherwise known as separation of powers. Gordon Wood, The Creation of the American Republic: 1776-1787, 548.

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Laboratories of Democracy

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Governor’s Palace. Williamsburg, Virginia.

In the months leading up to the Declaration of Independence, the states began the process of adopting their own constitutions. These constitutions, being drafted in 1776, approximately 13 years before the United States Constitution would be ratified, had to confront many of the same issues as the United States Constitution, with various approaches being taken. Read more

A Small Key to a Big Door

Dartmouth College, 1793.

The Supreme Court of the United States, led by Chief Justice John Marshall made a crucial decision in Dartmouth College v. Woodward in 1819. This decision resulted “in placing all private corporations under the protection of the United States Constitution.” Gordon Wood, Empire of Liberty, 466. The vast majority of corporations thus were “no longer exclusive monopolies,” but rather “[t]hey became private property belonging to individuals, not the state.” Id.

This development was a small key to open the big door of American commerce and capitalism. While countries in Europe were still monarchical and had antiquated systems that did not allow for privately held corporations, the United States Supreme Court ensured that America moved into the 19th Century with a system ready for innovation and entrepreneurship.

Over the course of the 19th Century, the Civil War notwithstanding, the ability of individuals to form their own corporations provided an incentive for success that would lead to widespread prosperity. While in other countries, the state had a piece of ownership in corporations, Americans had the privilege of private ownership at a time when that was uncommon.

Many of the developments in the early Republic have had reverberations over the past two centuries. Those developments sometimes began with small, humble steps, such as this holding by the Supreme Court. Those small steps have unquestionably aggregated to create a more prosperous society for America.

A Conscientious Path of Moderation

Painting of John Marshall, Chief Justice of the Supreme Court of the United States from 1801-1835.

The Constitution, in combination with the Judiciary Act of 1789, created the three-tiered court system that is familiar to modern Americans. However, one of the defining features of the judiciary is the concept of judicial review. Judicial review is the doctrine that permits a court, such as the Supreme Court in Marbury v. Madison, to declare an act of Congress unconstitutional. See Gordon Wood, Empire of Liberty, 442. In 1803, Chief Justice John Marshall was the first to exercise this power of the Supreme Court, setting the precedent for future courts, particularly in the 20th Century, to declare acts of Congress unconstitutional. Id.

Thomas Jefferson declared the following year, in 1804, that granting the courts the power of judicial review “would make the judiciary a despotic branch.” Malone, Jefferson the President: First Term, 155. James Madison explained that judicial review “makes the Judiciary Department paramount in fact to the Legislature, which was never intended and can never be proper.” Madison’s Observations on Jefferson’s Draft of a Constitution for Virginia, 1788, Papers of Jefferson, 6: 315.

Even lesser known Americans who believed the legislatures in the 1780s created unjust laws did “not agree that judges ought to have the authority to declare such legislation void.” Gordon Wood, Empire of Liberty, 444. One such American, Richard Dobbs Spaight, delegate to the Constitutional Convention from North Carolina stated that judicial review “operated as an absolute negative on the proceedings of the Legislature, which no judiciary ought ever to possess.” Richard Spaight to James Iredell, August 12, 1787, in Griffith J. McRee, Life and Correspondence of James Iredell (New York, 1857-1858), 2; 169-70.

Some believed that “the power of the judges alone to declare unconstitutional laws void was too extreme, too exceptional, and too fearful an act to be used against all those ordinary unjust, unwise, and dangerous laws that were nevertheless not ‘so unconstitutional as to justify the Judges in refusing to give them effect.'” Gordon Wood, Empire of Liberty, 446 quoting Farrand, ed., Records of the Federal Convention, 1: 97, 73. Thus, some congressmen in 1792 considering establishing a procedure for federal judges to notify Congress when they would declare a law unconstitutional. Gordon Wood, Empire of Liberty, 446.

It is notable that so many Americans were comfortable with this increasingly powerful judiciary, with the newly created tool of judicial review. Although judicial review was used in Marbury v. Madison, it would not be used again until the Dred Scott decision in 1857. Nonetheless, Americans began to associate the judiciary with being additional representatives of Americans’ collective interests. The fact that the judiciary began to assert itself in more drastic ways into the tripartite government system, combined with most Americans’ desire to have additional representation, permitted the judiciary to become a permanent part of American life.

Further, the importance of the creation of the doctrine of judicial review could hardly be understated. While some were uncomfortable with the idea of the future of democracy occasionally being in the hands of a few judges, it provided a more neutral, reasonable filter for legislation and acts of Congress. Undoubtedly, mistakes have been made and continue to be made by the judiciary, but most Americans would take comfort that as the decades and centuries have progressed, one bad court has been counterbalanced by a good court, leaving America to go down a conscientious path of moderation.

A Most Flawed Inheritance

John Jay, the first United States Supreme Court Chief Justice. By: Gilbert Stuart.

Prior to the Revolution, the colonists relied on a court system with royally appointed judges that served indefinitely “during good behavior,” which ultimately meant that judges would hold office so long as the crown was pleased with them. Gordon Wood, Empire of Liberty, 400. This led to the colonists ultimately associating the judiciary with the “resented royal governors, or chief magistrates,” which undermined the colonists’ confidence that the courts were an option for redress. Id.

The colonists viewed the judiciary not “as an independent entity or even as a separate branch of government,” but as a political body “that performed numerous administrative and executive tasks.” Id. During these early years, the “courts in most colonies had assessed taxes, granted licenses, overseen poor relief, supervised road repairs, set prices, upheld moral standards, and all in all monitored the localities over which they presided.” Id. quoting William E. Nelson, Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760-1830 (Cambridge, MA, 1975), 14-16.

As such, early Americans, including John Adams, concluded that there were two kinds of constitutional powers: “those of legislation and those of execution.” Gordon Wood, Empire of Liberty, 401.

After the Revolution, the role of courts in citizens’ lives changed. The Constitution’s division of government into the three branches played a significant role in this, but progress was gradual. For example, even after the Revolution, Alexander Hamilton described the duties of judges as “two-fold, ‘judicial and ministerial,’ and the ministerial duties were ‘performed out of Court and often without reference to it.'” Id. quoting Alexander Hamilton, The Examination, February 23, 1802.

This led to John Jay, the first Chief Justice of the Supreme Court, to conclude that the Court did not have “the ‘Energy, weight and Dignity’ to support the national government and little likelihood of acquiring any.” Gordon Wood, Empire of Liberty, 437 quoting John Jay to John Adams, January 2, 1801, in Maeva Marcus et al., eds., The Documentary History of the United States Supreme Court (New York, 1992) 4:664.

This brief look into the place of the courts at the time of the Revolution and shortly thereafter highlights the changes between the years of the early Republic and modern times. Courts are purely limited to adjudicating disputes. Depending on the jurisdiction, those disputes can be as narrow and specific as family matters, or matters under a threshold dollar amount like $5,000.00, while other courts hear more general matters. But courts do not engage in any of the administrative or ministerial functions that partially defined the role of courts in citizens’ lives.

The most notable change since the early years of the Republic is the trust that citizens place in the judiciary. While in the early years citizens were disenchanted with the courts because the courts were so closely tied with the crown, courts now likely garner the highest respect between the three branches of government. While there are instances of corruption or wrongdoing in the court system, many look to the courts as a hallmark of America’s success in peacefully, justly, and fairly adjudicating disputes amongst citizens. Fortunately for modern Americans, this most flawed inheritance of a dysfunctional court system has been converted into one that is widely admired and heavily used.