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Chief Justice John Marshall and the Origins of Judicial Review

Just as the Republican party was divided between its radical and moderate factions, so too was the Federalist party. And the most important moderate Federalist in 1801 was newly appointed Chief Justice John Marshall. Marshall had opposed the Alien and Sedition Acts and had been uneasy over Justice Chase’s behavior. Yet like other Federalists he feared the democratic excesses of the Republicans, and in 1801 he set out to save the Supreme Court and the federal judiciary from these popular Republican passions. As chief justice he thought he might be able to drain some of the bitterness from the controversy over the judiciary. In doing so not only did he help to lay the basis for what came to be called judicial review, but he also contributed mightily to the development of an independent judiciary. More than any other single judge, Marshall helped to carve out an exclusive sphere of activity for the judiciary that was separate from politics and popular legislative power.

Marshall was born in what became the frontier county of Fauquier, Virginia, bordering the Blue Ridge Mountains. His father, Thomas Marshall, was descended from Welsh yeomanry, began as a surveyor, and rose to prominence as one of the largest landowners in the county. Marshall’s father married an heir of the Randolphs, the most distinguished family in all of Virginia, and eventually became his county’s first magistrate and its representative in the colonial assembly. The career of Marshall’s father followed the pattern of another Welsh backcountry surveyor and farmer, Peter Jefferson, father of the future president. The resemblance of Marshall’s background to that of his distant cousin and lifelong enemy Thomas Jefferson is remarkable.

Unlike Jefferson, however, Marshall never acquired the cultivated elegance of his Randolph forebears and in fact never shed the rough but genial manners of his frontier father. He had simple tastes and a common touch that Jefferson never had, a popular style that Jefferson snidely attributed to “his lax lounging manners.” Marshall was unassuming and easygoing with a ready humor and twinkling black eyes. In fact, his extraordinary amiability was the source of much of his success. “I love his laugh,” his colleague on the Court Joseph Story said of him; “it is too hearty for an intriguer.”¹

Although Marshall attended the College of William and Mary for only three months and never acquired the vast erudition of Jefferson, he certainly did not lack learning. Indeed, he was hardly the unlettered country lawyer relying on only native genius that he sometimes has been made out to be. Although he admitted that his legal learning was “not equal to that of many of the great masters in the profession,” he did have an impressive knowledge of the common law that carried him far beyond Blackstone’s Commentaries on the Laws of England, with which he had begun his studies. In addition, he was widely read in the classics and in English literature, especially Jane Austen.

Yet there is no doubt that his natural abilities were what most distinguished Marshall from other lawyers and jurists. “His head,” said Senator Rufus King, “is the best organized of anyone I have known.”² Marshall could grasp a subject in its whole and yet simultaneously analyze its parts and relate them to the whole. He could move progressively and efficiently from premise to conclusion in a logical and rigorous manner and extract the essence of the law from the mass of particulars. In the words of Justice Story, he had the remarkable ability to seize, “as it were by intuition, the very spirit of juridical doctrines.” Even Jefferson acknowledged Marshall’s talent, but he scarcely respected it. Jefferson told Story that “when conversing with Marshall, I never admit anything. So sure as you admit any position to be good, no matter how remote from the conclusion he seeks to establish, you are gone. So great is his sophistry you must never give him an affirmative answer, or you will be forced to grant his conclusion. Why, if he were to ask me whether it were daylight or not, I’d reply, ‘Sir, I don’t know, I can’t tell.’ “³

The enmity between the two cousins began during the Revolutionary War. Unlike Jefferson, Marshall saw military action and suffered with Washington at Valley Forge in the winter of 1777–1778. He apparently regarded Jefferson as a shirker. Marshall believed that his own service as a captain in the Continental Army had made a nationalist of him, confirming him “in the habit of considering America as my country, and Congress as my government.” It also had convinced him that George Washington was “the greatest man on earth.”⁴

After the war Marshall practiced law in Richmond and by the 1780s became the leader of the Virginia bar. He became involved in Virginia politics and in the 1780s served in the state assembly and briefly on the executive council of state. The high point of his early career, however, was his participation on behalf of the Constitution in the Virginia ratifying convention of 1788. Having helped to create the new national government, he remained throughout his life emotionally committed to it. Even when most Virginians moved into the Jeffersonian Republican ranks in the 1790s, Marshall remained a loyal Federalist.

Although his fellow Federalists urged him to get more involved in national politics, Marshall was reluctant to give up his lucrative law practice. Even his acceptance of an appointment by President John Adams to be one of the three envoys to negotiate the end of mounting hostilities with France in 1797 was apparently in part based on his desire to raise some Dutch loans for some land purchases. Marshall’s dispatches to the United States during the XYZ Affair electrified the nation and made him an instant celebrity. The many toasts and banquets honoring him, coupled with the sudden revival of the declining fortunes of the Federalist party and pressure from George Washington, convinced Marshall to join Congress and later the Adams administration as secretary of state. By 1800 Jefferson thought that the spirit of “Marshallism” had come to dominate the Federalist party, at least in Virginia, and “nothing,” Jefferson told James Monroe, “should be spared to eradicate” such a “spirit.”⁵

Marshall’s doubts about the Alien and Sedition Acts separated him from the most extreme Federalists and drew him closer to the beleaguered President Adams. Having lost the election of 1800, Adams was already a lame-duck president in January 1801 when he had the opportunity to appoint a new chief justice of the United States. His first choice was John Jay, who had served earlier as chief justice; the president consulted no one and even sent Jay’s appointment to the Senate before getting Jay’s approval. Oliver Wolcott thought that everyone considered the nomination “as having been made in one of those ‘sportive’ humors for which our Chief is distinguished.” When Adams learned of Jay’s refusal, he realized that he could not delay much longer and possibly allow his Republican successor the appointment. On January 21 Adams sent the name of his secretary of state, John Marshall, to the Senate, the very day the Federalist House passed the new Judiciary Act.

Not all Federalists were happy with Marshall’s nomination. Theodore Sedgwick said that when Marshall was in the House in the late 1790s some members had “thought him temporizing, while others deemed him foolish.” Sedgwick himself said that Marshall was “attached to pleasures, with convivial habits strongly fixed,” and thus “he is indolent” with “a strong attachment to popularity,” making him “disposed on all popular subjects to feel the public pulse.” Nevertheless, after attempts by some Federalist senators to change the president’s mind, the Senate finally confirmed forty-five-year-old Marshall as the new chief justice on January 27, 1801.⁶

WHEN JEFFERSON’S ELECTION STALLED in the House of Representatives in early January, Marshall tended to favor Burr over Jefferson, even though he knew nothing about Burr. He had “almost insuperable objections” to Jefferson’s becoming president, he told Alexander Hamilton. Jefferson’s prejudices in favor of France rendered him “totally unfit for the chief magistracy” of the United States. Jefferson, he said, will play to the popular House of Representatives, increase his personal power, and weaken the presidency. “He will diminish his responsibility, sap the fundamental principles of the government & become the leader of that party which is about to constitute the majority of the legislature. . . . I cannot bring my self to aid Mr. Jefferson.” Yet on March 4, 1801, only a bit over a month after he himself had been confirmed as chief justice of the United States, he had to administer the oath of office of president to this man he disliked so much. Awkward as the situation was, all he could do to show his displeasure was to turn his back on Jefferson while administering the oath.⁷

Although the Federalist Court between 1789 and 1801 had decided only sixty-three cases, it certainly had done much to establish its position in the national government. It had claimed that the criminal common law ran in the federal courts, and it had sought to carve out an expanded definition of treason against the United States in order to bolster federal authority. It had enlarged its jurisdiction at the expense of the state courts, protected vested rights against state intrusion, and asserted the supremacy of federal statutes over state law. Besides beginning the task of creating its rules of procedure, the Court had gone a long way toward working out its relationship with the lower federal courts and state judiciaries.

Despite its promising development as a Federalist institution, however, it still remained, in Hamilton’s words, the “least dangerous” branch of the government and was far from having the final word on constitutional interpretation.⁸ Congress had claimed to be an equally important interpreter of the Constitution, and so had the states. As America became more democratic, the Supreme Court, like all courts, seemed increasingly aristocratic and vulnerable to popular attack. Finding able men to sit on it became more difficult. Between 1789 and 1801 twelve men had served on the Court. Five of them, including two chief justices, had resigned. The Court had trouble gathering a quorum, forcing cases to be carried over and occasionally sessions to be canceled entirely. Morale on the Court had become poor. John Jay, in declining Adams’s offer of reappointment as chief justice, explained that the Court had none of the necessary “Energy, weight and Dignity” to support the national government and little likelihood of acquiring any.⁹

Marshall set out to remedy this situation. He sought to solidify the Court by cutting down on the previous practice of each justice issuing his own opinion seriatim, a practice that was customary in both the eighteenth-century English courts and American state courts. Instead, he convinced the associate justices in most cases to reach a collective decision (usually written by him), thus enhancing the Court’s authority by having it speak with one voice.¹⁰

It was not that he imposed his opinions on his strong-minded colleagues. Instead, he turned the Court into “a band of brothers” and worked at building consensus through friendly discussion and more than an occasional glass of wine. The Court had a rule that it would indulge in wine-drinking only if it were raining. Marshall would look out the window on a sunny day and decide that wine-drinking was permissible since “our jurisdiction extends over so large a territory that the doctrine of chances makes it certain that it must be raining somewhere.”¹¹

During the first four years of Marshall’s tenure, from 1801 to 1805, the Court handed down forty-six written decisions, all of them unanimous. Marshall participated in forty-two, and in each of these he wrote the opinion of the Court. Even after 1810, when there were more Republican than Federalist justices, Marshall continued his amiable dominance. Joseph Story, who had entered the Court in 1811 at the age of thirty-two as a Republican and a teetotaler, quickly succumbed to Marshall’s charm and wine-drinking and became a fervent supporter. All in all between 1801 and 1815 Marshall wrote 209 of the Court’s 378 opinions.¹²

Ultimately Marshall’s greatest achievement was maintaining the Court’s existence and asserting its independence in a hostile Republican climate. He began by changing the lordly image of the Court. Under the Federalists the justices had tended to wear either individual academic gowns or robes of scarlet and ermine in imitation of the King’s Bench of England—dress that one Republican senator called the “party-colored robes” of an oppressive judiciary.¹³ By his example, Marshall induced his colleagues into wearing the plain black republican-style robes that the Virginia judges used.

This symbolic rejection of monarchism was only the first step in Marshall’s efforts to escape from the partisan politics of the 1790s. He strenuously sought to reach some sort of accommodation with the other branches of the government, and at least up to the War of 1812 he tried as much as possible to avoid too direct a confrontation with the Republicans. All of his evasion and caution, as he later told Justice Story, was based on his quite sensible fear that the justices might be “condemned as a pack of consolidating aristocratics.”¹⁴

In a series of decisions the Court retreated from some of the advanced positions the Federalists had tried to establish for the judiciary and federal law in the 1790s. Since the fiery partisan charges to grand juries by Federalist judges and justices, especially those of Justice Chase, had aroused the political passions of the Republicans, the chief justice quickly set about trying to change Federalist judicial behavior. He self-consciously refrained from injecting political statements in his grand jury charges and refused to have them published in the newspapers, “saying that he had laid it down as a rule from which he did not intend to depart.”¹⁵

Since the Federalist claim that the English common law ran in the federal courts had aroused such intense Republican hostility, he suggested in 1800 that this was not the case and blamed the currency of “this strange & absurd doctrine” on “some frothy newspaper publications.”¹⁶ Yet this sly suggestion was a bit disingenuous, since Marshall denied the presence only of “the common law of England” in the courts; he agreed that versions of an American common law existed in each state, which judges of both the state and federal courts could invoke. But even this was too exposed a position, and in several decisions between 1807 and 1811 Marshall’s Court declared that “the jurisdiction of the courts of the United States depends, exclusively, on the constitution and laws of the United States.”¹⁷ Finally in United States v. Hudson (1812) the Court decided that the federal courts did not possess any criminal common law jurisdiction after all. Although this decision swept away a number of lower federal court precedents and reversed two decades of Federalist claims, it was probably inevitable. The issue, as the Court said, had been “long since settled in public opinion.”¹⁸

Even in the 1807 trial of Aaron Burr, which Marshall regarded as “the most unpleasant case which has ever been brought before a Judge in this or perhaps in any other country which affected to be governed by laws,” the chief justice subtly undermined earlier Federalist positions.¹⁹ In his decision he rejected the broad definition of treason the Federalists had used in the 1790s in prosecuting the participants in the Whiskey and Fries rebellions and instead interpreted the Constitution’s definition of treason narrowly. Speaking for the court, Marshall declared that conspiracy to levy war and actual levying of war against the United States were “distinct offenses,” and “conspiracy is not treason.” Planning to wage war, enlisting soldiers, even marching to a meeting place before an “actual assembling” of an army—these were not enough to constitute treason. In effect, Marshall ignored the arguments of the prosecution and the testimony of 140 witnesses and through his narrow interpretation of the law virtually determined by himself the outcome of the trials of Burr and his associates.²⁰

The Republicans were furious. They enthusiastically supported their president who had brought the case to court and denounced Marshall for writing “a Treatise on the best way of committing treason without detection or punishment” and for “conniving in the escape of the traitor.” By outlining the law in the way that he did to the jury, Marshall, the Republicans complained, had effectively usurped the jury’s role and had undermined that sacred and popular institution. So angry were the Republicans with the decision that they overlooked the fact that Marshall had repudiated the English doctrine of constructive treason exploited by Federalists in the 1790s. All they could see in the decision was judicial arrogance and usurpation, and many vowed once again to reduce the Court “to its proper limits.” For his part Jefferson thought the decision demonstrated “the original error of establishing a judiciary independent of the nation.”²¹ Although a Republican mob in Baltimore hanged Marshall in effigy, much of the furor over the Burr decision soon subsided.

At the very outset of his tenure as chief justice Marshall had revealed his strategy of retrenchment and conciliation and his genius for compromise while at the same time asserting the authority of the Court. He knew that the Republicans’ takeover of the Congress and the presidency in 1801 posed a serious threat to the judiciary, and he meant to blunt that threat. Although some Federalists were urging Marshall and the Court to confront the Republicans directly and declare their 1802 repeal of the Judiciary Act of 1801 unconstitutional, Marshall realized that such a direct clash could seriously harm the Court. Already Republicans in Congress were daring the Court to try to disavow the repeal of the Judiciary Act. “If the Supreme Court shall arrogate this power to themselves, and declare our law to be unconstitutional, it will then behoove us to act,” asserted Congressman John Nicholas of Virginia. “Our duty is clear.”²²

Some such legislative reprisal against the Court was precisely what Marshall was trying to avoid; yet he did not want simply to roll over and surrender to the Republican Congress. Hearing the case Stuart v. Laird in circuit court in 1802, he accepted the legitimacy of Congress’s repeal of the Judiciary Act of 1801, a position later endorsed by the Supreme Court on appeal. If Marshall were to assert the Court’s authority amid this Republican anti-judicial climate, he knew it had to be done subtly and obliquely. The case of Marbury v. Madison (1803) gave him the opportunity.

WILLIAM MARBURY was one of the “midnight judges” appointed at the last minute by President Adams to be a justice of the peace for the District of Columbia. Adams, however, left office before Marbury’s commission could be delivered, and President Jefferson refused to deliver it. Marbury then brought suit in the Supreme Court seeking a writ of mandamus (a judicial command) requiring Secretary of State Madison to deliver his commission. (It was actually Secretary of State Marshall who had failed to deliver Marbury’s commission on time, which made it awkward, to say the least, for Chief Justice Marshall to hear the case.) Many thought that the Court might openly challenge the authority of the president. But in a direct contest with the president the Marshall Court could only lose: if the Court refused to order Jefferson to deliver the commission, the Republicans would win by default; if, however, the Court did order the president to do so and he refused, the Court would be humiliated. The Court thus had to move in a roundabout way to assert its authority.

The Court’s opinion set forth in 1803 answered several key questions. Was Marbury entitled to his commission? And if so, did the law afford him a remedy? Yes, answered Marshall to both questions. Marbury had a vested right in the office for the term fixed by statute, and the law had to provide a remedy for a violation of a vested legal right. The first officer of the nation, said Marshall, “cannot at his discretion sport away the vested rights of others.” A collision with President Jefferson seemed imminent, but when Marshall asked and answered his third question he wisely evaded it. Was the remedy for this violation of Marbury’s right a writ of mandamus issued by the Supreme Court? No, said Marshall. The Supreme Court could not issue such writs because Section 13 of the 1789 Judiciary Act authorizing that power was unconstitutional: Congress did not have the authority to alter the original jurisdiction of the Supreme Court contained in Section III of the Constitution.²³

By posing the questions in this unusual order Marshall was able to make his point without having to suffer the consequences. As Jefferson and other Republicans pointed out, the Court in its final question disclaimed all cognizance of the case, but in the first two questions declared what its opinion would have been if it had had cognizance of it.²⁴

Thus Marshall indirectly asserted the Court’s role in overseeing the Constitution without the serious political repercussions that would have followed from a head-on collision with the Republicans. Since the American people regarded their written Constitution as “the fundamental and paramount law of the nation,” wrote Marshall for the Court, then it followed that “a law repugnant to the Constitution,” such as part of the 1789 Judiciary Act, “is void; and that courts, as well as other departments, are bound by that instrument.”²⁵

Although Marshall’s decision in Marbury v. Madison has since taken on immense historical significance as the first assertion by the Supreme Court of its right to declare acts of Congress unconstitutional, few in 1803 saw its far-reaching implications. Certainly most Republicans were not troubled by it. If Marshall wanted to circumscribe the power of his Court, as he did in the Marbury decision, then he had every right to do so. But, said Jefferson, the judiciary was not the only branch of the government that had the right to interpret the Constitution. The executive and legislature could too. To grant the courts the exclusive authority to decide what laws were constitutional, declared Jefferson in 1804, “would make the judiciary a despotic branch.”²⁶

Since Marshall had not explicitly claimed that the Court had an exclusive right and duty to interpret the Constitution, his assertion of judicial authority in the Marbury decision was limited and ambiguous. In fact, it was the only time in Marshall’s long tenure as chief justice in which the Supreme Court declared an act of Congress unconstitutional; indeed, no other Supreme Court did so until the Dred Scott decision of 1857. Probably Marshall’s Marbury decision can be best understood as another example of his policy of restraint and of getting the Court out of harm’s way, even as he managed to lecture the president on the dereliction of his duty in not delivering Marbury his commission. Although the decision did make a major statement about the role of the judiciary in America’s constitutional system, it did not and could not by itself create the practice of judicial review. Much more was involved.

SUBSEQUENT HISTORY has brought into question Alexander Hamilton’s claim in the Federalist that the judiciary was the “weakest” branch of the new federal government.²⁷ The unelected, life-tenured judiciary grew remarkably strong, and at times became even bolder and more capable than the two elective branches in setting social policy. Certainly the federal judges, and especially the justices of the Supreme Court, precisely because they do not periodically have to face an electorate, have exercised an extraordinary degree of authority over America’s society and culture. The Supreme Court not only sets aside laws passed by popularly elected legislatures but also interprets and construes the law with a freedom that sometimes is virtually legislative in scope. Nowhere else in the modern world do courts wield as much power in shaping the contours of life as the Supreme Court does in the United States.

“Judicial review” is the usual name given to this sweeping judicial authority. But if judicial review means only the power of the Supreme Court to set aside legislative acts in violation of the Constitution, then the term is too narrow, for voiding legislation is only the most prominent part of broader manipulative or interpretative power exercised by the Court over wide areas of American life.²⁸

Historians and constitutional scholars have often emphasized some early examples of judges restricting legislatures in the immediate aftermath of the Revolution. As a consequence of what some saw as legislative tyranny in the 1780s, judges in some states—New Jersey, Virginia, New York, and North Carolina, and perhaps in several others as well—gingerly and ambiguously began moving in isolated but important decisions to impose restraints on what these legislatures were enacting as law. They attempted to say to the legislatures, as Judge George Wythe of Virginia declared in 1782, “Here is the limit of your authority, and, hither, shall you go, but no further.”²⁹ Yet cautious and tentative as they were, such attempts by the judiciary, like Wythe’s opinion in Virginia, “to declare the nullity of a law passed in its forms by the legislative power, without exercising the power of that branch,” were not easily justified; they raised, in the words of Wythe’s Virginia colleague Judge Edmund Pendleton, “a deep, and important, and . . . tremendous question, the decision of which might involve consequences to which gentlemen may not have extended their ideas.”³⁰

Even those who agreed that many of the laws passed by the state legislatures in the 1780s were unjust and even unconstitutional could not agree that judges ought to have the authority to declare such legislation void. Allowing unelected judges to declare laws enacted by popularly elected legislatures unconstitutional and invalid seemed flagrantly inconsistent with free popular government. Such judicial usurpation, said Richard Dobbs Spaight, delegate to the Constitutional Convention from North Carolina, was “absurd” and “operated as an absolute negative on the proceedings of the Legislature, which no judiciary ought ever to possess.” Instead of being governed by their representatives in the assembly, the people would be subject to the will of a few individuals in the court, “who united in their own persons the legislative and judiciary powers,” making the courts more despotic than the Roman decemvirate or of any monarchy in Europe.³¹ “This,” said a perplexed James Madison in 1788, “makes the Judiciary Department paramount in fact to the Legislature, which was never intended and can never be proper.”³²

Yet judicial review of some form did develop in these early decades of the new Republic. What was it? And how did it arise?

The first and most conspicuous source of something as significant and forbidding as judicial review lay in the idea of fundamental law and its embodiment in a written constitution. Almost all eighteenth-century Englishmen on both sides of the Atlantic had recognized something called fundamental law as a guide to the moral rightness and constitutionality of ordinary law and politics. Nearly everyone repeatedly invoked Magna Carta and other fundamental laws of the English constitution. Yet all these theoretical references to fundamental law could not have much day-to-day practical importance. For most this fundamental or natural law of the English constitution was seen as a kind of moral inhibition or conscience existing in the minds of legislators and others. It was so basic and primal, so imposing and political, that it was really enforceable only by the popular elective process or ultimately by the people’s right of revolution. Eighteenth-century Englishmen had difficulty calling upon this fundamental law in their everyday political and legal business.³³

The written constitutions of 1776–1777, however, gave Revolutionary Americans a concrete handle with which to grasp this otherwise insubstantial fundamental law. Suddenly, with these written documents the fundamental law and the first principles that Englishmen had referred to for generations gained a new degree of explicitness and reality. The constitution in America, said James Iredell of North Carolina in 1787, had therefore become not “a mere imaginary thing, about which ten thousand different opinions may be formed, but a written document to which all may have recourse, and to which, therefore, the judges cannot witfully blind themselves.”³⁴

But were the judges to have an exclusive authority to examine these fundamental laws and to determine what was constitutional and what was not? All Americans agreed that the written constitution, as Edmund Pendleton conceded in 1782, “must be considered as a rule obligatory upon every department, not to be departed from on any occasion.”³⁵ It was not immediately evident to Pendleton or to others, however, that the judiciary had any special or unique power to invoke this obligatory rule in order to limit the other departments of the government, particularly the legislatures. In other words, it was clear by the 1780s that legislatures in America were bound by explicitly written constitutions in ways that the English Parliament was not. But it was not yet clear that the courts by themselves were able to enforce those boundaries upon the legislatures.³⁶Members of the Philadelphia Convention, according to Madison’s notes, “generally supposed the jurisdiction given [to the Court] was constructively limited to cases of a Judiciary nature.” Madison later admitted that “in the ordinary course of Government” the judiciary might interpret the laws and the Constitution, but surely, he said, it had no more right to determine the limits of the Constitution than did the executive or legislature. Both Jefferson and Madison remained convinced to the end of their lives that all parts of America’s government had equal authority to interpret the fundamental law of the Constitution—all departments had what Madison called “a concurrent right to expound the constitution.”³⁷

And when the several departments disagreed in their understanding of the fundamental law, wrote Madison in Federalist No. 49, only “an appeal to the people themselves . . . can alone declare its true meaning, and enforce its observance.” Written constitutions, including the Bill of Rights, remained for Jefferson and Madison a set of great first principles that the several governmental departments, including the judiciary, could appeal to in those extraordinary occasions of violation. But since none of these departments could “pretend to an exclusive or superior right of settling the boundaries between their respective powers,” the ultimate appeal in these quasi-revolutionary situations had to be to the people themselves.³⁸

In other words, many Revolutionaries and Founders still thought that fundamental law, even when expressed in a written constitution, was so fundamental, so different in kind from ordinary law, that its invocation had to be essentially an exceptional and delicate political exercise and not a part of routine judicial business.³⁹ This is why many of the delegates to the Philadelphia Convention in 1787 had regarded judicial nullification of legislation with a sense of awe and wonder, impressed, as Elbridge Gerry was, that “in some States, the Judges had actually set aside laws as being against the Constitution.” This is also why many others in the Convention, including James Wilson and George Mason, wanted to join the judges with the executive in a council of revision (modeled on that of New York) and thus give the judiciary a double negative over the laws.⁴⁰They considered 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.”⁴¹ This is also why some congressmen in 1792 debated establishing a regular procedure for federal judges to notify Congress officially when they declared a law unconstitutional—so nervous were they over the gravity of such an action.⁴²

When the federal circuit court of Pennsylvania in 1792 in Hayburn’s Case declared the federal Invalid Pension Act unconstitutional on the grounds that it violated the separation of powers, it did so in a hesitant and apologetic manner. What they did, the judges said, “was far from being pleasant. To be obliged to act contrary, either to the obvious directions of Congress, or to a constitutional principle, in our judgment equally obvious, excited feelings in us, which we hope never to experience again.” Congress quickly modified the Pension Act in order to avoid the crisis that would result if the Supreme Court declared the act unconstitutional.⁴³ One newspaper that favored judicial review in Hayburn’s Case nonetheless suggested that perhaps all the circuit court justices should be consulted before a law could be declared unconstitutional.⁴⁴

Everyone thus sensed that setting aside legislative acts could be no ordinary matter. As Justice Samuel Chase said in Hylton v. United States (1796), if the constitutionality of a federal law had been “doubtful,” he would have been bound “to receive the construction of the legislature.”⁴⁵ As late as 1800 in Cooper v. Telfair Associate Justices Bushrod Washington and William Paterson agreed that judicial review was an exceptional act, to be only infrequently exercised. “The presumption . . . must always be in favour of the validity of laws, if the contrary is not clearly demonstrated,” declared Washington. For the Supreme Court “to pronounce any law void,” said Paterson, there “must be a clear and unequivocal breach of the constitution, not a doubtful and argumentative implication.”⁴⁶

Thus for many Americans in the 1790s judicial review did exist, but it remained an extraordinary and solemn political action, akin to the interposition of the states suggested by Jefferson and Madison in the Kentucky and Virginia Resolutions of 1798–1799—something to be invoked only on the rare occasions of flagrant and unequivocal violations of the Constitution. It was not to be exercised in doubtful cases of unconstitutionality and was not yet accepted as an aspect of ordinary judicial activity.

THE IDEA OF FUNDAMENTAL WRITTEN LAW, important as it was, could not by itself have led to the development of America’s judicial review. What in the final analysis gives significance to Americans’ unusual notion of a constitution is not that it is written or that it is fundamental, but rather that it runs and is litigated in the ordinary court system. America’s federal and state constitutions may be higher laws, special acts of the people in their sovereign capacity, but they are just like lowly legislative statutes in that they are implemented through the normal practice of adversarial justice in the regular courts.

Thus the source of judicial review lay not in the idea of fundamental law or in written constitutions, but in the transformation of this written fundamental law into the kind of law that could be expounded and construed in the ordinary court system. This transformation was made possible by Americans’ exploiting the discretionary authority that English common law judges and their own colonial judges had always exercised.⁴⁷ American jurists were well aware of the complex set of rules for construing statutes that eighteenth-century English jurists, especially William Blackstone and Lord Mansfield, had created in order to fit the plethora of confused and ill-drafted parliamentary legislation into the body of the common law.⁴⁸ American judges took these rules—rules that Hamilton in Federalist No. 83 called “rules of common sense, adopted by the courts in the construction of the laws”—and applied them to both the state and federal constitutions. They in effect collapsed the earlier distinction between fundamental and ordinary law and turned constitutions into a species of statutes, super-statutes, no doubt, but statutes nonetheless. American judges could now construe the all-too-brief words of the Constitution in relation to subject matter, intention, context, and reasonableness, as if they were the words of an ordinary statute. The result was the beginning of the creation of a special body of textual exegeses and legal expositions and precedents that Americans have come to call constitutional law.

Considering the Constitution as a kind of law that was cognizable in the regular courts (and not, as in some other countries, in special constitutional courts) permitted American judges not only to expound and construe the Constitution according to existing rules of statutory construction but also to expect regular enforcement of the Constitution as if it were a simple statute.⁴⁹

The implications of this transformation were momentous. Once the Constitution became a legal rather than a political document, judicial review, although not judicial supremacy, became inevitable.⁵⁰ The secret of Marshall’s success in his Marbury decision was his unquestioned assumption that the Constitution was simply a law.⁵¹ Because, as he said, it was “emphatically the province and duty of the judicial department to say what the law is,” treating the Constitution as mere law that had to be expounded and interpreted and applied to particular cases like a statute suggested that American judges had a special authority to interpret constitutions that other branches of the government did not possess.⁵²

Jefferson would have none of this. For him the Constitution remained primarily a political document, and judges had no monopoly in interpreting it. Indeed, he believed that judges’ ability to interpret any law ought to be strictly limited. Statutes ought to be precisely drawn, and judges ought to be bound by the letter of these statutes. “Relieve the judges from the rigour of text law, and permit them to wander into its equity,” he said, “and the whole legal system becomes uncertain.” Jefferson rejected out of hand the eighteenth-century “revolution” in jurisprudence that Black-stone and Mansfield had created in England, dismissing their efforts to construe the common law equitably and to broaden judicial discretion as dangerous to liberty. The goal of judges was supposed to be “to render the law more & more certain.” The goal of Mansfield and Blackstone, according to Jefferson, had been the exact opposite. They intended “to render it more uncertain under pretense of rendering it more reasonable.” Jefferson realized that these English advocates of judicial flexibility had a powerful influence on American judicial thinking and practice. Indeed, he believed there was “so much sly poison” in Mansfield’s “seducing eloquence” that he wanted to forbid American courts from citing any English decisions rendered by the Court of the King’s Bench since Mansfield acceded to the court. Jefferson never ceased complaining that “the honeyed Mansfieldism of Blackstone” had forced young Americans to slide into “toryism” to the point where they “no longer know what whigism or republicanism means.”⁵³

John Marshall thought exactly the opposite. He believed Mansfield to be “one of the greatest Judges who ever sat on any bench, & who has done more than any other to remove those technical impediments which grew out of a different state of society, & too long continued to obstruct the course of substantial justice.” As the editor of the Papers of John Marshall has pointed out, “Among all the various elements composing the deep-seated conflict between these two Virginians, not the least important was Jefferson’s concern that an American Mansfield held the chief justiceship of the United States.”⁵⁴

ULTIMATELY, WHAT MADE ALL OF THIS new thinking about the judiciary comprehensible—what gave the judiciary equality with the legislative and executive branches in a tripartite system of government—was the Americans’ peculiar conception of representation, that is, the unusual way that American people embodied themselves in the institutions of government. By the time the new federal judiciary was being established in 1789, some Federalists were even coming to regard judges as another kind of agent or representative of the people.

Such a remarkable conclusion followed from the logic of the Americans’ conception that sovereignty—the final, supreme, and indivisible lawmaking authority in the state—remained with the people themselves. In England sovereignty rested in Parliament because it embodied the whole society, all the estates of the realm, within itself, but the sovereign American people were never eclipsed by their governments. They remained legally viable even after doling out bits and pieces of their power, but never all of it, to their various agents in the state and federal governments.

Only by conceiving of sovereignty as remaining with the people could Americans make sense of their new constitutional achievements such as federalism, that is, the remarkable division of power between central and provincial governments, the ideas of special constitution-making conventions, and the process of popular ratification of constitutions. This conception of sovereignty eventually made possible the emergence of unusual institutions and processes of later years, such as the primaries, referendums, recall of officials, and ballot initiatives introduced by Progressive reformers at the beginning of the twentieth century. It also made possible the idea that a judge was just another representative agent of the people.

In 1776 most Americans had initially thought of the lower houses of their new state legislatures as the exclusive embodiments of the people, which is why nearly all of them had been called the “house of representatives.” During the following decade, partly as a result of the heavy criticism of their legislative abuses, the lower houses began to lose their exclusive authority as representatives of the people. Some Americans began to regard the upper houses, or senates, as being just as representative of the people as the lower houses. Originally, the senates had not been considered representative bodies at all. They were supposed to be composed of the wisest and most distinguished members of the society; consequently, even when they were elected, they presumably had no constituents.

It was soon apparent, however, that justifying a senate or upper house smacked of “aristocracy” and was too politically incorrect to be used publicly. Instead, those who wished to justify senates had to argue that they were simply “double representations” of the people. But if the people could be represented twice, then, of course, they could be represented in additional ways as well. As a result, many came to think of all elected officials, including senators and governors, as representatives of the people, and the term “house of representatives” became an awkward reminder that Americans had once thought of popular representation as the English had, as confined to the lower houses of their legislatures.

Regarding the legislatures as something less than a full embodiment of the people allowed the defenders of judicial authority, like Alexander Hamilton in Federalist No. 78, to suggest that judges were as much agents of the people as the members of the legislatures. Americans, said Hamilton, had no intention of allowing “the representatives of the people to substitute their will to that of their constituents.” In fact, it was “far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned their authority.” The authority of the judges to set aside acts of the legislatures, said Hamilton, did not “by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature declared in its statutes, stands in opposition to that of the people, declared in the constitution, the judges . . . ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”⁵⁵

In his “Lectures on Law” presented in 1790–1791 James Wilson (the first justice to take the oath of office as a member of the Supreme Court) expanded the logic of seeing all parts of the government as agents of the sovereign people. Some individuals call the legislature “the people’s representatives,” complained Wilson; they seem to imply by that term “that the executive and judicial powers are not connected with the people by a relation so strong, or near, or dear. But it is high time that we should chastise our prejudices,” said Wilson, “and that we should look upon the different parts of the government with a just and impartial eye. The executive and judicial powers are now drawn from the same source, are now animated by the same principles, and are now directed to the same ends, with the legislative authority: they who execute, and they who administer the laws, are as much the servants, and therefore as much the friends of the people, as they who make them.”⁵⁶

Of course, only a minority as yet saw the judges as just another kind of servant of the people; but those that did were always ready to exploit the implication. Some even concluded that if the judges were really agents of the people, then they should be elected as other agents were. Although this logic would not be followed in actual practice until the middle decades of the nineteenth century, the Republican radical John Leland made this point explicitly as early as 1805. “The election of all officers, to fill all parts of the government,” he said, “is the natural genius that presides over the United States. . . . If men are incompetent to elect their judges, they are equally incompetent to appoint others to do it for them.” Judges should not be immune to the authority of the people. “A judicial monarch is a character as abhorrent as an executive or legislative monarch.”⁵⁷

In the succeeding decades many of the states, especially the new states of the West, began electing their judges. And today at least thirty-nine states elect their judges in one way or another. Certainly making the judiciary an equal part of a modern tripartite representative government in the early Republic helped to strengthen judicial authority and to justify judicial independence. This was perhaps the Federalists’ greatest legacy.

ALTHOUGH MANY AMERICANS in the 1790s had come to accept most of the principles that made for an understanding of judicial review, that acceptance remained largely partisan—shared by most Federalists but not by most Republicans and probably not by the bulk of the American people.⁵⁸ To make judicial review something more than an instrument of the Federalist cause, something else was needed—some radical change in the character of adjudication, some separation of law from politics.

If the higher law of the Constitution were to be brought down to the level of a lowly statute, and if setting aside statutes as unconstitutional were to be simply part of the routine business of legal interpretation and not an earthshaking political exercise, then it followed that the entire process of adjudication had to be removed from the passions and interests of politics and from legislative tampering. Somehow or other judges had to carve out for themselves an exclusive sphere of disinterested professional legal activity.

After 1800 this was precisely what happened. Judges shed their traditional broad and ill-defined political and magisterial roles that had previously identified them with the executive branch or chief magistracy and adopted roles that were much more exclusively legal. The practices of judges’ politically haranguing juries from the bench and of justices’ performing diplomatic missions while sitting on the Court were discontinued. Judges increasingly saw themselves as professional jurists, qualified only for hearing cases and interpreting the law.

As early as Hayburn’s Case in 1792 the federal circuit court for the district of Pennsylvania protested Congress’s Invalid Pension Act for violating the separation of powers. The act had given the judges of the United States circuit courts the administrative task of deciding the pension claims of veterans injured in the Revolutionary War. Their decisions, however, were subject to review and reversal by the secretary of war and the Congress. The circuit court, which comprised two Supreme Court justices and the district judge, refused to hear William Hayburn’s petition for a pension and declared the Pension Act unconstitutional on the grounds that engaging in non-judicial activities that were subject to revision by other branches of government violated judicial independence. Although the judges apologized for their decision, they nonetheless expressed a clear understanding of their distinctive judicial status. No longer did they want to be considered as political magistrates with administrative responsibilities.⁵⁹

With the spread of this kind of thinking judges increasingly limited their activities to the regular courts, which became more professional and less burdened by popular juries. Even at the outset the Supreme Court had avoided giving an opinion that did not arise out of actual litigation between parties. In 1790 Chief Justice John Jay refused a request from Secretary of the Treasury Hamilton for the Court to take a stand against Virginia’s opposition to the federal assumption of state debts. Then again in 1793 the Court turned down President Washington’s request for extra-judicial opinions on matters relating to international law, neutrality, and the British and French treaties. Although some states continue to this day to give advisory opinions, these early refusals to offer advisory opinions helped to establish the Supreme Court and other federal courts as purely judicial bodies hearing particular litigated cases.⁶⁰

Yet even after 1800 the withdrawal of judges from politics did not occur quickly. Of the ten justices that served between 1802 and 1823 on New York’s supreme court, for example, four had tried to become governor and three had succeeded. The fact that New York’s justices of the supreme court sat with the chancellor and governor on the state’s peculiar council of revision (abolished in 1821) no doubt contributed to their greater political activity.

Despite these vestiges of an earlier era, more and more judges tended to avoid partisan politics and to pride themselves on their judicial expertise and impartiality. They supported the publishing of judicial opinions and the collecting of law reports. In 1798 Alexander J. Dallas published the first volume of cases decided by the Supreme Court of the United States, and in 1804 William Cranch began publication of his Supreme Court Reports. By the early nineteenth century the states themselves were busy publishing reports of their court decisions. By 1821 Justice Story estimated that more than 150 volumes of American reports already existed, “containing,” he said, “a mass of decisions which evince uncommon ambition to acquire the highest professional character.”⁶¹

Everywhere jurists published treatises and promoted the emergence of law as a science known best by trained impartial experts. The states tried to comply with this view by erecting new qualifications for entrance to the bar. New Hampshire required at least two years of practice before the Court of Common Pleas for admittance. In Delaware and Maryland three years of law study were needed followed by examinations. Universities added professors of law to their faculties, and some jurists called for the establishment of separate law schools to teach the new science of law. The most notable was that established by Tapping Reeve in Litchfield, Connecticut, in 1784. The founding of Harvard Law School followed in 1817. Yale’s Law School grew out of the offices of New Haven lawyer Seth Staples in the 1810s.⁶²

As jurists and lawyers became more professional and the law was increasingly regarded as a special science, the courts tried to avoid the most explosive and partisan political issues. Certainly that was the secret of much of the success of the Marshall Court in these years. Not only did the Court retreat from the advanced and exposed political positions that the Federalists had tried to stake out for the national judiciary in the 1790s, but it also sought at every turn, at least up to the War of 1812, to avoid serious confrontations with the Republicans. Even the Court’s decision to issue a single anonymous “opinion of the Court” tended to dampen controversy and to give the impression of more consensus than existed in fact. In many of its decisions the Court sought to curtail governmental power—something that Marshall and other Federalists knew would be acceptable to many Republicans who were eager to expand the areas of individual freedom.

Prior to its decision in McCulloch v. Maryland in 1819, the Marshall Court did not attempt to build up the power of the federal government positively. That enhancement of governmental power would have aroused Republican hostility everywhere. Instead, it moved to reduce governmental power, not at the federal but at the state level. It declared a large number of state judicial interpretations and state laws invalid because they violated the national Constitution. In doing so it indirectly augmented the supremacy of the nation and its own authority as well. In a series of decisions beginning with United States v. Peters (1809) and Fletcher v. Peck (1810) and proceeding through Martin v. Hunter’s Lessee (1816), the Supreme Court established its right to review and reverse decisions of state courts and state legislatures involving interpretations of federal law and the federal Constitution. At the same time, the Court’s insistence on the rule of law binding the entire country worked to strengthen people’s feeling of being citizens of the United States and not just their individual state.⁶³

In the Peters case the Pennsylvania state legislature had ignored a federal district court decision and had claimed the right by itself to interpret federal law. In a powerful opinion Marshall declared that a state legislature could not annul the judgments of the courts of the United States in this way or else the Constitution would become “a solemn mockery.” The nation, if it were to be one, had to have “the means of enforcing its laws by the instrumentality of its own tribunals.” When Pennsylvania appealed to President Madison for help in resisting this judgment, Madison refused, fearing the effect it would have on the New England states that were resisting federal law.⁶⁴

In the Martin case the Virginia Court of Appeals had refused to obey an earlier decision of the U.S. Supreme Court. But it also had denied the right of Congress in the Judiciary Act of 1789 to grant authority to the Supreme Court to hear appeals from the state courts. In a masterful opinion written by Justice Joseph Story (with Marshall absenting himself because of a conflict of interest), the Court asserted the supremacy of the nation. It said that the people, not the states, had created the Constitution, and therefore they had the right to grant to the national government whatever powers they chose and to prevent the states from exercising powers they believed incompatible with the authority of the central government. From these premises the Court went on to declare that no state decision involving federal matters could be final. To enforce the supremacy clause of the Constitution and to maintain the uniformity of national law throughout the country, the Supreme Court had to have the ultimate authority to hear appeals from state courts on federal issues. This became the cornerstone of the American judicial system.

At the same time, following the test case Fletcher v. Peck (1810), the Court overturned a series of state laws that interfered with private contracts and thus violated Article I, Section 10 of the Constitution. The Fletcher case was the result of a twenty-year process of legal and political manipulations arising out of the Yazoo land scandal of the 1790s. In the early 1790s the corrupt Georgia legislature had sold thirty-five million acres of land to several Yazoo land companies for $500,000, the price adding up to something less than two cents an acre. In 1796 the outraged voters of Georgia elected a new legislature that voided the sale and burned all records of it. In the meantime, however, the speculative land companies had sold many acres to good faith buyers, many of whom were New Englanders. Confusion and lawsuits followed. The Jefferson administration tried to work out a compromise among the various interests, which enraged John Randolph, who, according to William Plumer, lashed out at everyone, “demo’s and feds indiscriminately,” in the most “coarse & vulgar” manner, charging everyone “with peculation, bribery, & corruption.” By 1810 the Supreme Court had received a contrived case that sought to settle the whole matter, at least legally.⁶⁵

In his opinion in the Fletcher case Marshall decided that the Georgia legislature’s rescinding of a previous corrupt legislative sale of the Yazoo lands had violated the contract clause in Article I, Section 10 of the Constitution, and was thus invalid. The legislature’s original sale, however corrupt, was in the nature of a contract that gave the buyers vested rights in the property, and no subsequent state law could divest those rights. Not only was this the first major Supreme Court decision to declare a state statute in violation of the Constitution, but Marshall also shrewdly stated that the Court had no business getting into the motives of the Georgia legislature, thus helping to underline the idea that law and politics were separate spheres.

In the Fletcher decision Marshall also argued that it was not simply “the particular provisions of the Constitution of the United States” that nullified the Georgia statute but also those “general principles which are common to our free institutions.” The Court, he said, could draw upon these principles to protect individual property rights from the “sudden and strong passions” of the popular state legislatures. The Constitution, said Marshall, contained “what may be deemed a bill of rights for the people of each state.” Justice William Johnson in a concurring opinion carried this point of fundamental principles much further. He agreed with Marshall that the state of Georgia did not have the power to revoke its grant once made. He agreed, however, not on the basis of the contract clause of the Constitution, but “on a general principle, on the reason and nature of things; a principle which will impose laws even on the Deity.”⁶⁶

These kinds of judicial appeals to reason and the nature of things became increasingly common in the early Republic. They grew out of the Americans’ ambiguous and unusually instrumental attitude toward law that had its roots in the colonial period. Each of the states began developing its own non-statutory body of rules and procedures—its own common law. In place of the customs and technicalities of the English common law, the courts offered prudent and pragmatic regulations and justified them by what Connecticut jurist Jesse Root in 1798 called the “the reasonableness and utility of their operation.”⁶⁷ By the early decades of the nineteenth century some Americans regarded their common law as something that could be self-consciously created and manipulated, but of course only in a piecemeal fashion; indeed, some were even expanding Lord Mansfield’s view that judges ought to be the chief agents of legal change. Only the courts, Zephaniah Swift, chief justice of the Connecticut supreme court, declared in 1810, “possess a discretion of shaping the rules . . . [and] furnishing remedies according to the growing wants, and varying circumstances of men, . . . without waiting for the slow progress of Legislative interference.”⁶⁸

Although most judges continued to deny that they made law in the way legislatures did, it became increasingly obvious that they did something more than simply discover it in the precedents and customs of the past. Indeed, many judges soon came to realize that they had the primary responsibility to make new law to meet new circumstances.⁶⁹ Judges could justify this extraordinary role for themselves only by claiming that they were pulling back from overt participation in politics and by designating as issues of law some particular things that were now within their special jurisdiction.⁷⁰

Jurists and politicians in the early Republic began to draw lines around what was political or legislative and what was legal or judicial and to explain the distinctions by the doctrine of separation of powers. In his Marbury decision Marshall clearly drew this distinction. Some questions were political, he said; “they respect the nation, not individual rights,” and thus were “only politically examinable.” But questions involving the vested rights of individuals were different; they were in their “nature, judicial, and must be tried by the judicial authority.”⁷¹ By turning all questions of individual rights into exclusively judicial issues, Marshall appropriated an enormous amount of authority for the courts. After all, even Jefferson in 1789 had conceded the authority of judges, “kept strictly to their own department,” to protect the rights of individuals. Of course, Jefferson had not anticipated Marshall’s expansive notion of rights.⁷²

Although Marshall had the extraordinary rhetorical ability to make everything he said seem natural and inevitable, his separation of law from politics would not have been possible without large numbers of influential people becoming increasingly disillusioned with the kind of legislative democracy that was emerging in the early Republic. This abhorrence of democratic politics and reliance on the judiciary were, of course, much easier for Federalists who were having more and more difficulty getting elected. As Virginia jurist St. George Tucker pointed out in his annotated edition of Blackstone’s Commentaries of 1803, because the men of greatest talents, education, and virtue were not able to compete as well as others in the new scrambling, pushy, and interest-mongering world of popular electoral politics, they necessarily had to look to the law for security.⁷³

Marshall himself, like all “honest men who have honorable feelings,” was increasingly “disgusted with . . . the political world” he saw around him, and was “much more gloomy” about the democratic future.⁷⁴ Everywhere the growth of democracy demanded the insulating of legal issues from popular politics; “for,” as Marshall put it, “nothing is more to be deprecated than the transfer of party politics to the seat of Justice.”⁷⁵ But even Marshall did not foresee all the implications of what was happening. In 1805, on the eve of the impeachment trial of Justice Samuel Chase, Marshall continued to concede that a legislature possessed judicial capacities and could overturn judicial opinions that it deemed unsound. So the separation of legislation from jurisprudence, politics from law, came hard to those reared in the old-fashioned tradition that legislatures were at heart just courts.

Yet, as American society became more commercial, with increasing numbers caught up in buying and selling and creating new modern sorts of property—property as venture capital, as a product of a person’s labor and entrepreneurial skills—the judiciary’s role in protecting property from capricious and irresponsible popular legislatures at both the state and federal levels became increasingly attractive to more and more people.⁷⁶ Consequently, many members of Jefferson’s own party, who always talked about equal rights, began to accept the Marshall Court’s message that all issues involving property rights were legal questions cognizable only by the courts, in effect, isolating these issues from partisan debate and the clashes of interest-group politics. Even the strongly pro-Jefferson Virginia Court of Appeals in 1804 acknowledged that the state legislature could do many things, but it could not violate private and vested rights of property.⁷⁷

But could the state itself create private property? State legislatures could grant charters of incorporation, but once vested in individuals did these charters become rights that could no longer be touched by the granting agency? These questions bedeviled the politics of the states and eventually produced one of the most important legal developments of the first decade and a half of the Marshall Court.

AMERICANS WERE FAMILIAR with the use of public corporate charters. In the past the English crown and the colonial governments had often granted monopolistic charters of incorporation to private persons and associations to carry out a wide variety of endeavors presumably beneficial to the whole society, such as founding a colony, maintaining a college, or creating a bank. In 1606 the English crown had given just such a charter to the Virginia Company to settle parts of North America. These corporate privileges had not been frequently granted or widely available; they had been made at the initiative of the government, not private interests; and they had recognized no sharp distinction between public and private. Although the Virginia Company had been composed of private entrepreneurs, it was as much public as it was private. The same was true of the seventeenth-century corporate charters of Massachusetts Bay, Connecticut, and Rhode Island, as well as those of Harvard, Yale, Dartmouth, and all the other colonial colleges. Although in the nineteenth century most of the colleges, especially those with religious affiliations, eventually became private institutions, at the time of the Revolution they were still regarded as public institutions with communal responsibilities, and as such they received tax money and public support.

Since these corporate charters tended to be exclusive monopolies given to a favored few, most of the American Revolutionary leaders in 1776 had viewed them with suspicion. In a republic, they believed, no person should be allowed to exploit the public’s authority for private gain. Consequently, several of the states had written into their Revolutionary constitutions prohibitions against any man or group of men receiving special privileges from the community. The Massachusetts constitution of 1780, for example, had stated that “no man, nor corporation, or association of men, have any other title to obtain advantages, or particular and exclusive privileges, distinct from the those of the community, than what arises from the consideration of services rendered to the public.”

Although the new Revolutionary states had expected to involve themselves directly in economic life and education, they soon discovered that what they wanted to do was more than they could handle, both administratively and fiscally. Because the new democratically elected legislatures were often unwilling to raise taxes to pay for all that the governmental leaders desired to do, the states were forced to fall back on the traditional pre-modern practice of enlisting private wealth to carry out public ends. Instead of doing the tasks themselves, as many devout republicans had expected, the states ended up doing what the crown and all pre-modern governments had done—granting charters of incorporation to private associations and groups to carry out a wide variety of endeavors presumably beneficial to the public, in banking, transportation, insurance, education, and other enterprises. The states did not intend to abandon their republican responsibility to promote the public good; they simply lacked the money to do it directly. And of course there were many private interests that were only too eager to acquire these presumably exclusive corporate privileges.

Yet because of a republican aversion to chartered monopolies, the creation of corporations in the years following the Revolution provoked strenuous opposition and heated debate. In these decades attempts by the states to grant such corporate privileges to select individuals and groups immediately raised storms of protest.⁷⁸ Critics charged that such grants, even when their public purpose seemed obvious, such as those for the College of Philadelphia or the Bank of North America or the city of Philadelphia, were repugnant to the spirit of American republicanism, “which does not admit of granting peculiar privileges to any body of men.” Such franchises and privileged grants may have made sense in monarchies as devices serving “to circumscribe and limit absolute power.” Certainly the colonists had seen their various crown and corporate charters in just this defensive way. But now that only the people ruled, these grants of corporate privileges seemed pernicious, for, as Justice John Hobart of New York declared, “all incorporations imply a privilege given to one order of citizens which others do not enjoy, and are so far destructive of the principle of equal liberty which should subsist in every community.”⁷⁹

As a consequence of this kind of opposition, these corporations were radically transformed. As American society, in the North at least, spawned a variety of interests and became more democratic, it became increasingly difficult for the state legislatures to resist appeals to bestow these corporate privileges ever more widely, especially since many of their members were themselves involved in the businesses they were incorporating. With a huge proportion of the representatives in the state legislatures turning over annually, each special interest in society began clamoring for its own cluster of legal privileges. Eventually the corporate charter became, as James Sullivan of Massachusetts complained in 1792, merely “an indulgence to a few men in the state, who happened to ask the legislature to grant it to them.”⁸⁰ What one community or group of entrepreneurs had, others wanted as well, and so the corporate charters multiplied in ever increasing numbers.

Only about a half-dozen business corporations had been chartered in the entire colonial period. Now such corporate grants for businesses virtually turned into popular entitlements. The legislatures incorporated not just banks but insurance companies and manufacturing concerns, and they licensed entrepreneurs to operate bridges, roads, and canals. The states issued 11 charters of incorporation between 1781 and 1785, 22 more between 1786 and 1790, and 114 between 1791 and 1795. Between 1800 and 1817 they granted nearly 1, 800 corporate charters. Massachusetts alone had thirty times more business corporations than the half dozen or so that existed in all of Europe. New York, the fastest-growing state, issued 220 corporate charters between 1800 and 1810.

It seemed clear as early as 1805, as a committee of New York City justifying multiple ferry leases put it, that “the only effectual method of accommodating the public is by the creation of rival establishments.” “Thus,” as one American noted in 1806, “if two baking companies are thereby permitted, where there was but one, bread may be cheaper in consequence; or if there are two banks thus instituted, and neither of them taxed, more of the people will be favoured by loans, than where there is but one bank; and a further increase will reduce even the rate of interest.” Competition among corporations, including literary and scientific bodies, now seemed the best way of promoting the welfare of the whole community. In other words, the thinking behind the Charles River Bridge decision of the Supreme Court in 1837—that competition among corporations was good for the public—was already present a generation earlier.⁸¹

Eventually the pressure to dispense these corporate charters among special interests became so great that some states sought to ease the entire process by establishing general incorporation laws. Instead of requiring special acts of the legislature for each charter specifying the persons, location, and capitalization involved, the legislatures opened up the legal privileges to all who desired them. Beginning first with religious associations in the 1780s, the states, led by New York in 1811, extended the privileges of corporation to manufacturers, and later to banks and other entrepreneurial activities. With this multiplication not only was the traditional exclusivity of the corporate charters destroyed, but the public power of the state governments was dispersed. As early as 1802, James Sullivan, the perennial Massachusetts attorney general, warned that “the creation of a great variety of corporate interests . . . must have a direct tendency to weaken the powers of government.” But the numbers only increased to the point where the governor of Massachusetts expressed the fear that so many corporate grants were being created “unsparingly and with an unguarded hand” that there was a real danger of the state government’s ending up with “only the very shadow of sovereignty.”⁸²

Since many states were bewildered by the nature of these multiplying corporations—Were they public, were they private? Could the charters be revoked after they were granted? Were they vested rights?—the Supreme Court sooner or later had to try to sort the matter out.

In 1804 the Marshall Court grappled with the nature of a corporation for the first time. In Head v. Providence Insurance Company, Marshall stressed the traditional view of a corporation, that it was a public entity that presumably could be changed by the legislature that originally chartered it. By a corporation the Court meant all entities chartered for public purposes—towns, turnpikes, canals, insurance companies, and colleges.

This stress on the need for a “public purpose” behind the state’s activity, however, eventually forced the Supreme Court in Terrett v. Taylor (1815) to separate corporations into two kinds, public and private, a distinction new to American law. Legislatures could modify charters of public corporations, declared Justice Joseph Story, who wrote the decision; but such public corporations included only counties, towns, and cities. The charters of all the other corporations, including businesses and colleges, were private property. In overturning a Virginia statute in Terrett, Story’s decision concluded by saying that “we think ourselves standing upon the principles of natural justice, upon the fundamental laws of every free government, upon the spirit and letter of the constitution of the United States, and upon the decisions of most respectable judicial tribunals.” Story, however, never specified what “letter” of the Constitution he was referring to.⁸³

If corporations such as banks and other businesses were indeed private, and not public, then it could be intelligibly argued that their charters were actually kinds of private property protected from subsequent violation or regulation by state authority. No one doubted the capacity of the legislature to take private property for public purposes with compensation, that is, using the power of eminent domain, but this power, it was now argued, could not be extended so far as to abridge rights expressly vested prior to the legislature’s assertion of its power—at least not without some sort of compensation for such abridgements.⁸⁴ “In granting charters,” declared William Robinson in the Pennsylvania assembly in 1786 in defense of the charter of the Bank of North America, “the legislature acts in a ministerial capacity”; that is, it acted as the crown had acted in mobilizing private resources for public purposes. This bestowing of charters, said Robinson, “is totally distinct from the power of making laws, and it is a novel doctrine in Pennsylvania that they can abrogate those charters so solemnly granted.” There was a difference between laws and charters. Laws were general rules for the whole community; charters, argued Robinson, “bestow particular privileges upon a certain number of people. . . . Charters are a species of property. When they are obtained, they are of value. Their forfeiture belongs solely to the courts of justice.”⁸⁵ It was a strained, premature argument, and it did not immediately take hold; but it pointed the way to the future.

By 1802 Hamilton was contending that legislatures could not violate charters once granted. “The proposition, that a power to do, includes virtually, a power to undo, as applied to a legislative body,” he wrote, “is generally but not universally true. All vested rights form an exception to the rule.”⁸⁶ When state legislatures in North Carolina, Virginia, Massachusetts, and New Hampshire tried to change the charters of colleges they had once granted, the boards of trustees contended that their charters were vested rights that could no longer be tampered with. Yet many believed that institutions chartered to fulfill a public purpose had to be responsible to the public. “It seems difficult to conceive of a corporation established for merely private purposes,” declared a North Carolina judge in 1805. “In every institution of that kind the ground of the establishment is some public good or purpose to be promoted.”⁸⁷ With so many contrary legal arguments flying about, the issue had to be resolved at the highest judicial level.

The stage was set for the famous case Dartmouth College v. Woodward, decided by the Supreme Court in 1819. Dartmouth College had been incorporated by a royal charter in 1769. In 1815 the trustees of the college, who were Congregationalists and Federalists, removed John Wheelock, who was a Presbyterian and Republican, from the presidency of the college. Wheelock appealed to the legislature of New Hampshire, which revoked the old charter of 1769 and created a new corporation, Dartmouth University, with a new set of trustees who reinstated Wheelock to the presidency. The old Federalist trustees sued, arguing that the state legislature had violated their vested rights. The state supreme court rejected their argument, declaring in traditional fashion that Dartmouth was a public corporation subject to state control and regulation in the public interest. This decision was appealed to the Supreme Court of the United States.

In his creative decision Marshall contended that Dartmouth was a private corporation as defined by Story in Terrett v. Taylor. He then went on to declare (he said “it can require no argument”) that the college’s original charter was a contract under Article I, Section 10 of the United States Constitution and was thus immune to any state violation.⁸⁸ Although Marshall’s reference to the text of the Constitution had often been peculiar to him and not generally shared by his colleagues on the Court, the idea that a charter was a kind of contract had been part of Federalist thinking for several decades. In 1802 New York senator Gouverneur Morris had used the presumed similarity of a charter and a contract to oppose the Jeffersonian Republicans’ elimination of the circuit court positions created by the Federalists in the Judiciary Act of 1801. When you give an individual the right to make a toll road or bridge, said Morris, “can you, by a subsequent law, take it away? No; when you make a compact, you are bound by it.”⁸⁹

Although Marshall and his Court could scarcely have grasped the momentous implications for American business of their Dartmouth College decision, the decision did result in placing all private corporations under the protection of the United States Constitution. All private corporations, not just the four dozen or so educational institutions existing in 1819, but the hundreds of business corporations that had been created since the Revolution, had become different from their monarchical predecessors: most were no longer exclusive monopolies, and most were no longer public. They became private property belonging to individuals, not the state.

When Jefferson learned as early as 1816 of the argument the Federalist attorneys, including Daniel Webster, were making—that corporations created vested rights immune to subsequent legislative changes—he was furious. He could not believe that such an idea had any standing whatsoever. The notion that charters once publicly granted were beyond legislative tampering “may be a salutary provision against the abuses of a monarch,” he told Governor William Plumer of New Hampshire, “but is most absurd against the nation itself.” Such a doctrine, inculcated by “our lawyers and priests,” he said, supposed “that preceding generations held the earth more freely than we do; had a right to impose laws on us, unalterable by ourselves, and that we, in like manner, can make laws and impose burdens on future generations, which they will have no right to alter; in fine, that the earth belongs to the dead and not the living.”⁹⁰

THERE WAS A CURIOUS PARADOX in these legal developments. Just as the private rights of individuals expanded in these years of the early Republic, so too did the public power of the states and municipal governments. Despite the generous bestowal of corporate charters on private interests, the republican belief that the government should have a distinct and autonomous sphere of public activity remained strong, especially among the new states west of the Appalachian Mountains.⁹¹ Even in the older states many Americans retained a republican faith in the power of government to promote the public good. Those who sought to protect the rights of individuals and private corporations did not deny the public prerogatives of the states. In fact, the heightened concern for the private vested rights of persons was a direct consequence of the enhanced public power the republican Revolution had given to the states and municipalities. Although the power of the federal government certainly declined in the decades following Jefferson’s election as president, the public authority, the police powers, and the regulatory rights of the states and their municipalities grew stronger.

Separating the political from the legal, the public from the private individual, actually allowed for more vigorous state action as long as that action remained within the public realm and served what was called a “public purpose.” Individuals may have had rights, but the public had rights as well—rights that grew out of the sovereignty of the state and its legitimate power to police the society. The state of New York, for example, remained deeply involved in the social and economic spheres. Not only did the state government of New York distribute its largess to individual businessmen and groups in the form of bounties, subsidies, stock ownership, loans, corporate grants, and franchises, but it also assumed direct responsibility for some economic activities, including building the Erie Canal.⁹²

Even when the states began dissipating their newly acquired public power by reverting to the pre-modern practice of enlisting private wealth to carry out public ends by issuing increasing numbers of corporate charters, they continued to use their ancient police power to regulate their economies. Between 1780 and 1814 the Massachusetts legislature, for example, enacted a multitude of laws regulating the marketing of a variety of products—everything from lumber, fish, tobacco, and shoes, to butter, bread, nails, and firearms. The states never lost their inherited responsibility for the safety, economy, morality, and health of their societies.⁹³ The idea of a public good that might override private rights remained alive.

Despite all this state police power legislation and regulation, however, it was usually left to the courts to sort out and mediate the conflicting claims of public authority and the private rights of individuals. The more the state legislatures enacted statutes to manage and regulate the economy, the more judges found it necessary to exert their authority in order to do justice between individuals and make sense of what was happening. Precisely because of the exuberantly democratic nature of American politics, the judiciary right from the nation’s beginning acquired a special power that it has never lost. By protecting the rights of minorities of all sorts against popular majorities, it has become a major instrument for both curbing that democracy and maintaining it.