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Seriatim: The Supreme Court Before John Marshall

EDITED BY Scott Douglas Gerber
Copyright Date: 1998
Published by: NYU Press
Pages: 376
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  • Book Info
    Book Description:

    Seldom has American law seen a more towering figure than Chief Justice John Marshall. Indeed, Marshall is almost universally regarded as the "father of the Supreme Court" and "the jurist who started it all." Yet even while acknowledging the indelible stamp Marshall put on the Supreme Court, it is possible--in fact necessary--to examine the pre-Marshall Court, and its justices, to gain a true understanding of the origins of American constitutionalism. The ten essays in this tightly edited volume were especially commissioned for the book, each by the leading authority on his or her particular subject. They examine such influential justices as John Jay, John Rutledge, William Cushing, James Wilson, John Blair, James Iredell, William Paterson, Samuel Chase, Oliver Ellsworth, and Bushrod Washington. The result is a fascinating window onto the origins of the most powerful court in the world, and on American constitutionalism itself.

    eISBN: 978-0-8147-3857-3
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface
    (pp. ix-xii)
    S. D. G.
  4. Chapter 1 Introduction: The Supreme Court before John Marshall
    (pp. 1-25)
    Scott Douglas Gerber

    Students of judicial institutions in recent years have come to appreciate more than ever that to understand any court we must understand its origins.¹ Nowhere is this more correct than in the case of the Supreme Court because the origins of that institution are so closely identified with one justice—John Marshall. This holds true no matter what one thinks of Marshall. For those who hold Marshall in high esteem—and most scholars today do exactly that—the study of the Court prior to 1801 makes more plain the stamp Marshall placed on the institution. For those who view Marshall...

  5. Chapter 2 “Honour, Justice, and Interest”: John Jay’s Republican Politics and Statesmanship on the Federal Bench
    (pp. 26-69)
    Sandra Frances VanBurkleo

    In 1779, at the height of the Deane controversy, Richard Henry Lee pronounced John Jay a “Tory friend” and “Mercantile Abettor” masquerading as a republican.¹ Lee’s remarks were unusually sharp. But a good many others harbored similar reservations and, in the rarefied atmosphere of American Revolution studies, such criticisms die hard. Scholars expect a great deal of founding fathers, and Jay consistently falls short of the mark. As a result, readers find one-dimensional caricatures of Jay’s political thought, values, and objectives that merely perpetuate or deny the allegations of eighteenth-century critics. David Hackett Fischer, for example, once sketched a nostalgic,...

  6. Chapter 3 John Rutledge: Distinction and Declension
    (pp. 70-96)
    James Haw

    John Rutledge was a tall and imposing figure. His long, powdered hair ran back from a large forehead that set off his “dark piercing eyes, and firm mouth.” An aloof, dignified bearing revealed the pride of a South Carolina lowcountry (coastal plain) aristocrat. Normally polite and courteous, Rutledge had a temper and could lash out in anger. One French commentator characterized Rutledge in 1788, with some exaggeration, as “the most eloquent man in the United States, but also the proudest and most imperious.”¹

    On the South Carolina bench, Chancellor Rutledge personified authority. “Though ordinarily patient and always impartial, his temper...

  7. Chapter 4 Deconstructing William Cushing
    (pp. 97-125)
    Scott Douglas Gerber

    William Cushing was born on March 1, 1732, in Scituate, Massachusetts, into one of the oldest and most powerful families in the colony. His maternal grandfather, Josiah Cotton, was a county judge and member of the General Court, as well as a grandson of the Reverend John Cotton, the theological giant of seventeenth-century Massachusetts. On his father’s side, the family descended from Matthew Cushing, who settled in Hingham, Massachusetts, in 1638, and was ancestor of Thomas, Caleb, and Luther S. Cushing. William Cushing’s grandfather and father both served as members of the Governor’s Council and of the Superior Court of...

  8. Chapter 5 James Wilson: Democratic Theorist and Supreme Court Justice
    (pp. 126-154)
    Mark D. Hall

    James Wilson (1742–1798) is perhaps the most underrated Founding Father. He was one of six men to sign both the Declaration of Independence and the Constitution of the United States, and his influence on the latter was second only to James Madison’s. Wilson played a central role in the ratifying debates as well, and he also was the moving force behind the Pennsylvania Constitution of 1790. As a law professor and U.S. Supreme Court justice, Wilson produced some of the period’s most profound commentary on the Constitution and American law.

    Despite Wilson’s many historic contributions and the high quality...

  9. Chapter 6 John Blair: “A Safe and Conscientious Judge”
    (pp. 155-197)
    Wythe Holt

    It is an honor and a privilege for my work to be included in a volume contributed to by such distinguished and knowledgeable scholars of such diverse backgrounds and approaches. It is a warm pleasure to have as fellow contributors my graduate school roommate, Jim Haw, and my good friends and coworkers in the tiny field of early American federal court history, Steve Presser, Sandra VanBurkleo, and Bill Casto. I have benefited greatly from readings of the prior version of this piece, with astute comments ranging from “cutting edge” to “cutting block” made by Scott Gerber, Brent Tarter, Jim Haw,...

  10. Chapter 7 James Iredell: Revolutionist, Constitutionalist, Jurist
    (pp. 198-230)
    Willis P. Whichard

    George Washington was ambitious for the federal judiciary of the infant American republic. Its “first arrangement,” he told Edmund Randolph, was “essential to the happiness of [the] country, and to the stability of its political system.”¹ Consequently, he sought “the first characters of the Union” for his initial judicial appointments.²

    Within two days of enactment of the Judiciary Act of 1789, President Washington appointed, and the Senate promptly confirmed, six justices for the original United States Supreme Court. As the president had wished, all brought distinguished biographies to the new nation’s highest bench. Washington’s search was not over, however; five...

  11. Chapter 8 William Paterson: Small States’ Nationalist
    (pp. 231-259)
    Daniel A. Degnan

    Appointed by George Washington in 1793 as a justice of the Supreme Court of the United States,¹ William Paterson was in the unique position given to a Founder. At the Constitutional Convention of 1787, he had helped to frame the Constitution under which he exercised judicial office.² In the first Senate, he had been one of the principal authors of the Judiciary Act of 1789, which constructed the federal judicial system. Indeed, the first nine sections of the act, which included the composition of the Supreme Court and the establishment of the district and circuit courts, were in Paterson’s handwriting.³...

  12. Chapter 9 The Verdict on Samuel Chase and His “Apologist”
    (pp. 260-291)
    Stephen B. Presser

    Was the appointment of Samuel Chase to the United States Supreme Court “one of the most regrettable nominations in the Court’s history,”¹ or did his jurisprudence make an important and positive contribution to the development of the young republic? Until recently, virtually every historian of the early Court dismissed Chase as the “bad boy” of the Ellsworth Court²—a rabid partisan, a bully, an American Jeffreys, or worse. He was, of course, the only United States Supreme Court justice ever to be impeached, and though the impeachment did not result in his removal from office by the Senate because the...

  13. Chapter 10 Oliver Ellsworth: “I have sought the felicity and glory of your Administration”
    (pp. 292-321)
    William R. Casto

    In March 1797, President Washington retired from public office, and Oliver Ellsworth, the chief justice of the United States, bid the president a cordial farewell. In a private letter, Chief Justice Ellsworth noted that he had sought with “ardor … the felicity and glory of your Administration.”¹ Undoubtedly, Ellsworth was referring in part to his service in the Senate from 1789 to 1796, but he penned these words at the end of his first year as chief justice. Surely no justice of today’s Supreme Court would claim to have sought with ardor the felicity and glory of a particular president’s...

  14. Chapter 11 Heir Apparent: Bushrod Washington and Federal Justice in the Early Republic
    (pp. 322-350)
    James R. Stoner Jr.

    Bushrod Washington (1762–1829) lived his life in close association with two great men, and to us two hundred years later he appears to have lived entirely in their shadows. They were, of course, his uncle George Washington, who, lacking a son of his own, seems early on to have fixed upon the son of his closest brother as his principal heir, and John Marshall, seven years Bushrod’s senior, who was his fellow student of the law at William and Mary, fellow member of the Richmond bar in the 1790s, and chief justice of the United States for twenty-nine of...

  15. Editor’s Note
    (pp. 351-352)
  16. Contributors
    (pp. 353-354)
  17. Index
    (pp. 355-361)
  18. About the Editor
    (pp. 362-362)
  19. Back Matter
    (pp. 363-363)