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The Supreme Court Before John Marshall - Robert Lowry Clinton

It is an honor to have been asked to contribute to these essays commemorating the Supreme Court of the United States under the Chief Justiceship of John Marshall. Between 1801 and 1835, the Marshall Court made the lion’s share of the "landmark" decisions that laid the foundations of American constitutional law. Since that time, the Supreme Court has become the world’s most prestigious judicial institution. It is a beacon of liberty for people and nations everywhere.

A large share of the credit for the success of this great institution is due to the Marshall Court. During the Marshall era, the judicial branch was established as a coequal branch of the national government. When John Jay was offered the seat that Marshall ultimately took, he declined the post in January 1801. In a letter to President John Adams, Jay stated that he was "perfectly convinced" that the Court "would not obtain the energy, weight, and dignity which was essential to its affording due support to the national government; nor acquire the public confidence and respect which, as the last resort of the justice of the nation, it should possess." Yet by the end of the Marshall era, the Court had obtained both that "energy, weight, and dignity" and the "public confidence and respect" whose absence Jay had bemoaned and which has sustained the Court ever since.

Just as credit for the success of the Supreme Court must go to Marshall and his colleagues, a large share of credit for the success of the Marshall Court is due to Marshall himself. As Chief Justice William H. Rehnquist noted in the Supreme Court Historical Society’s 2001 Annual Lecture, during the 1790s the principal impact of the Court was that of deciding, in the last resort, which of two litigants would win a particular lawsuit. The Court had not yet realized or embraced its full constitutional role. As the Chief Justice also noted, Marshall changed all that. Marshall was able to do this because he had a remarkable ability to reason cogently and to write clearly, because he possessed uncommon political skill in administering the Court, and because he had a powerful vision of the Constitution.

We must, however, be cautious. Marshall has become an icon, and iconic figures are often honored more as myth and legend than as reality. They have the potential to distort our historical vision. A number of such myths have obscured or distorted our view of the Marshall Court in particular and of the early Supreme Court in general. I would like to focus in this essay on one of these myths: the widely held belief that the Marshall Court’s accomplishments were largely unprecedented. This view holds that Marshall’s achievements–such as the establishment of judicial review–were acts of creation ex nihilo, rather than extraordinarily powerful expositions of constitutional developments already well under way. Complementing this widely held belief has been a corresponding devaluation of the pre-Marshall Court.

Yet nothing in law or history is really unprecedented, and the Marshall Court is no exception, however long Marshall’s shadow. It is therefore appropriate to revisit the pre-Marshall era. It is the era in our judicial history closest to the Founding itself, forming a bridge between the Constitution and the Marshall Court. It is the era in which the federal judiciary was founded and established, which encompasses the first decade of the Supreme Court’s existence, and in which the legal status of the Constitution was first raised, discussed, and debated from the Bench. To ignore or otherwise devalue the pre-Marshall Court is, in the end, to fail to understand the Marshall Court itself, and to fail to understand the Marshall Court is to fail to understand American constitutional history and the subsequent history of the Supreme Court.

Reasons Why We Have Devalued the Work of the Pre-Marshall Court

There are many reasons why modern historians have ignored or devalued the contributions of the pre-Marshall Court to our legal and constitutional traditions. Most of these reasons have to do with the distinctively modern habit of reading concerns of the present into those of the past. There follows a corresponding neglect of the need to try to understand people and institutions of bygone days as they understood themselves. We excuse our indulgence in this habit by presuming that, since "later is better" and we are more "modern" than they, we must know better how to evaluate what they did and what they experienced than they would even if they were alive today. But the concerns and beliefs of Americans in both the pre-Marshall and Marshall eras were very different from ours. If we really want to understand the Court in either of those eras, we must consider those concerns and beliefs.

Let us first look briefly at the actual work of the pre-Marshall Court. First, as Chief Justice Rehnquist noted in his recent lecture, the Court decided only sixty cases in the first decade of the new republic. Since courts are in the business of deciding cases, this means that the opportunities for the Court to assert itself as a coequal branch of the national government in the 1790s were severely limited.

Second, as noted by William R. Casto, during the 1790s the fledgling United States consisted of a handful of semisovereign states on the Atlantic seaboard. They were surrounded by hostile foreign powers with designs on territory in the New World. International affairs were the paramount concern. This was reflected in the distribution of cases decided by the Jay and Ellsworth Courts, nearly 60 percent of which involved national security concerns. After 1800, the center of gravity of the new nation began to shift to the West. The distribution of cases decided by the Court–as well as the focus of our law–began to shift as well. Since cases involving national security considerations in the 1790s mostly involved admiralty and maritime law, treaty construction, and the like, the early Court was necessarily preoccupied with an international law rooted in the common law of Western Europe (ius gentium), which was itself rooted in natural law (ius naturale). As we moved west, we became more insular and more isolated. Our law became increasingly domesticated and thus moved farther away from the internationalism and legal naturalism of the earlier period.

Third, we must remember that the Court in the 1790s was not a "constitutional" court in the sense in which the modern Supreme Court has become such a court. The present Court’s prestige is largely a result of its special connection with the Constitution. If it is not the Constitution’s "sole" or "ultimate" interpreter, it has certainly become its "main" interpreter. This intimate connection between the Court and the Constitution is, in turn, largely a result of the Court’s power to disregard or invalidate laws that it deems to be inconsistent with the Constitution. This authority we now call "constitutional judicial review."

In the 1790s this power–though it had been discussed and perhaps even exercised–was not well established in the sense of being fully reasoned and adequately integrated into the standing law. This was to be Marshall’s work. Thus, the pre-Marshall Court had no such intimate relation to the Constitution. There were few opportunities to establish such a relation. If the Court decided only a few cases generally, it decided even fewer constitutional ones. It was not perfectly clear in the beginning just how the Court would deal with the handful of constitutional cases that did arise. For a court to establish an intimate relation with any newly minted written instrument, there needs to be a settled legal theory that justifies the court’s deciding cases under that instrument in the first place and then supplies the interpretive principles that will guide the court’s decisions. Let us look very briefly at the handful of constitutional cases that were decided by the pre-Marshall Court.

Constitutional Cases Decided by the Pre-Marshall Court

In six cases decided by the pre-Marshall Court, national laws were challenged but upheld. In Penhallow v. Doane’s Administrators (1795), the Court affirmed a federal district court’s award of damages for failure to respect a 1783 decision of an appellate court that had been established by Congress in 1780 to render judgments in capture cases. The authority of Congress to empower this tribunal to review state court decrees had been challenged as "unconstitutional." In Hylton v. United States (1796), the Court upheld a federal tax on carriages against a challenge that the tax was "direct" and thus required apportionment "among the several States…according to their respective numbers." In separate opinions, several of the Justices explicitly asserted the Court’s power to invalidate unconstitutional laws. In Wiscart v. D’Auchy (1796), the Court upheld the authority of Congress to make "exceptions" to its appellate jurisdiction. In Hollingsworth v. Virginia (1798), the Court rejected the argument that congressional submission of the Eleventh Amendment was invalid because it had not been submitted to the President for approval. In Turner v. Bank of North America (1799) and Mossman v. Higginson (1800), the Court upheld a statute limiting the diversity jurisdiction of the federal circuit courts.

In two instances, national laws were challenged but not upheld by the Court. In the first of these, Hayburn’s Case (1792), five Justices on circuit refused to enforce act of Congress that authorized judges to perform administrative duties subject to review by the Secretary of War and by Congress. In United States v. Yale Todd, unreported at the time, the Court apparently held that payments awarded to Revolutionary War pensioners under the statute disregarded in Hayburn were invalid if awarded by judges acting in an administrative capacity. In the Correspondence of the Justices (1793), the Court refused to render an advisory opinion requested by the President and Secretary of State, holding that such an opinion would be "extrajudicial" and thus would violate the "lines of separation drawn by the Constitution between the three departments of the government."

In at least three cases, the Court either upheld or invalidated state laws against constitutional challenges or on constitutional grounds. In Calder v. Bull (1798), the Court upheld a Connecticut act ordering a new trial in a probate dispute, against the claim that the law was ex post facto. Again, several Justices asserted the Court’s power to disregard unconstitutional laws; and Justices Chase and Iredell engaged in an exchange of views concerning the proper basis for doing so. In Cooper v. Telfair (1800), the Court refused to set aside a Georgia statute on the ground of its alleged repugnancy to the state’s constitution. On the other hand, a state law was clearly invalidated on Supremacy Clause grounds in Ware v. Hylton (1796), where the Court held that a Virginia statute contravened the 1783 Treaty of Peace with Great Britain.

In the only other significant constitutional case of the decade, Chisholm v. Georgia (1793), the Court assumed original jurisdiction of an action brought by a citizen of South Carolina against the state of Georgia. The Court’s decision on the jurisdictional question was subsequently reversed by the adoption of the Eleventh Amendment; and the amendment was given a broad reading in Hollingsworth (1798), where the Court dismissed all pending suits filed against states by citizens of other states.

Discussion of the Cases

What may we conclude from this brief review of the pre-Marshall Court’s constitutional work? First, in Hayburn, Todd and the Correspondence of the Justices, the Court began to establish firm judicial authority in separation-of-powers cases, at least when the integrity of the judicial function was at stake. In these cases, the Court laid groundwork for Marbury v. Madison (1803), in which the Court would rule that Congress could not add to the Court’s original jurisdiction. Marbury was the only case in which the Marshall Court invalidated or disregarded an act of Congress.

Second, aside from Hayburn, Todd, and the Correspondence, each of which involved attempts by Congress or the President to get the Court to do things that all the Justices believed were outside the judicial function, the Court upheld national law in all the other challenges. The Marshall Court would do likewise in every such instance save that in Marbury.

Third, the Court began to establish judicial authority in Supremacy Clause cases, not flinching when called upon to assert the supremacy of a national treaty over a conflicting state law in Ware v. Hylton. Marshall would later do the same with respect to the supremacy of national law in cases like Gibbons v. Ogden and McCulloch v. Maryland.

Fourth, the Court began to lay a foundation for the important doctrine of "political questions," first suggesting the doctrine in its refusal to decide whether a treaty had been broken in Ware v. Hylton. The political questions doctrine would later be suggested again in Marbury, especially in Marshall’s distinction between the "ministerial" and "discretionary" acts of executive officers.

Fifth, the Court began to establish the presumption of constitutionality when reviewing challenged laws. This launched an approach that would turn out to be one of the most important in subsequent constitutional litigation.

Sixth, the Court strengthened the initial authority of written constitutionalism in its repeated assertions of the Constitution’s basis in natural justice and the social compact. Since we now tend to take the written Constitution for granted, it is wise to remember that, in the decade before Marshall, such an attitude would have been impossible. No written constitution designed to govern an entire nation had ever existed. Thus the mere "writtenness" of the Constitution would not have seemed as integral to its existence and meaning in the 1790s as it does to us today.

Constitutionalism Ancient and Modern

To see more clearly just how the problems facing the pre-Marshall Court might have looked, a brief digression on the nature of constitutionalism is in order. The first thing to note is that constitutionalism is universal for rational beings; everybody has one. That is because all individuals–just like all polities–have to govern themselves in some way or another. Some do it well, some do it badly; but all must do it–if only by default. For example, we are all familiar with individuals who try hard to govern their passions and appetites by reason; and we are equally familiar with individuals who allow themselves to be driven by those same desires, aversions, appetites, and emotions. We frequently refer to these different types as possessing or exhibiting distinctive "constitutions."

The earliest–and still one of the best–systematic excursions into constitutional theory was provided by Plato in books 8 and 9 of the Republic. In this section of his great work, Plato classifies different types of constitutional regimes: aristocracies, timocracies, oligarchies, democracies, and tyrannies. Alongside each of these regime types, Plato provides a corresponding analysis of a prototypical individual that best characterizes each type. Indeed, the whole purpose of Plato’s study of political constitutions is to cause his readers to see more clearly the individual constitutions that these regimes rest upon and require for their support. A tyrannical regime produces or encourages the development of tyrannical or authoritarian characters in society by promoting the values that would tend to support such a regime. A democratic regime produces or encourages the development of democratic or libertarian characters in society, again by promoting the values that would tend to support that kind of regime. And so on through all the other types. The point is that all political constitutions are, in the end, founded upon individual constitutions. Even under anarchy–a type of "regime" that Plato did not discuss but that Thomas Hobbes later did, calling it the "state of nature"–individuals are presumed to have chosen the default position of being ruled by their own desires and aversions, rather than by institutions designed to advance common interests, however these interests are defined.

The key point is this: all individuals and all societies have constitutions, but individuals never write them down. Societies never really wrote them down either until the American Founders did it in 1787. This is the situation in which the Justices of the Supreme Court found themselves during the Court’s first decade. What they knew of political constitutionalism was exactly what we know now about individual constitutionalism. Political constitutions are universal, yet no one had ever written one down–certainly not on the scale of a nation-state.

They knew mainly British constitutionalism, which involved a set of customs, conventions, and traditions that had been somewhat effective in controlling arbitrary exertions of power by kings and parliaments on the other side of the Atlantic. It had not been as effective on this side. The Founders knew that the English successes were not unmixed even on the English side; they were stained with the blood of men like Thomas Becket and Thomas More. The Founders also realized that trying to control a government by a set of unwritten traditions would be very different than trying to control a government by a set of written instructions. A written document begs for interpretation in a way that a set of unwritten traditions does not even allow. The Justices had been given a twenty-page document. That document established a new sovereign national government that included their very offices. It vested in that sovereign government brand new powers. And, as James Madison had taught in the Federalist, it obliged that sovereign government to control itself!

The unprecedented task confronting the Court in its first decade was that of interpreting this new written constitution so as not to disturb the settled, existing framework of the law. How was the Court to accomplish this? Would the Constitution be treated as a legal document, subject to the same interpretive rules that govern statutes, contracts, wills, and the like? If not, then how would the instrument be made effective in its object of controlling the government? On the other hand, if the Constitution was to be subject to traditional rules of interpretation or construction, a task naturally performed by courts, then how would that other objective–to enable the government to control the governed–be fully assured? Might not the courts overreach and possibly impair the ability of the other branches of government to exercise their powers effectively?

The solution was finally reached by the Marshall Court in its establishment of judicial review in Marbury v. Madison and its subsequent development in other cases. This solution effectively allowed the government to control the governed via an expansive reading of national power. At the same time, it allowed the Constitution to control the government in a limited range of important cases touching upon the rights of individuals, the separation of powers, and the judicial function. But this solution had to be developed; and the pre-Marshall Court did its part, largely by serving as a jurisprudential conduit for the interpretive principles that would later guide Marshall and his colleagues in their successful effort to "legalize" the Constitution. The pre-Marshall Court, steeped in the law of nations, natural law, and common law, drew heavily from all these sources in its constitutional opinions. These opinions emphasized the intimate relation between the Constitution and other sources in the legal tradition. In doing so, the pre-Marshall Court paved the way for the more definite and elaborate constitutional resolutions of the Marshall Court, "vouchsafing" the written constitution by embedding it in an ongoing constitutional tradition.

Classical Legal Naturalism and the Interpretive Tradition

In order to understand more fully the continuity between the pre-Marshall and Marshall Courts, it is necessary to attend more closely to the jurisprudential world view that both Courts shared. This worldview has often been referred to as the Declaratory Theory of Law, but it is really a tradition, not a theory. The tradition has ancient roots but was given its modern formulation by seventeenth- and eighteenth-century jurists such as Hugo Grotius, Samuel Pufendorf, Emmerich de Vattel, and William Blackstone. The tradition contrasts sharply with later ideologies such as skepticism, positivism, and utilitarianism, all of which came into prominence in the United States only after the Civil War. I prefer to call this tradition a "natural law" or "naturalistic interpretive tradition," because its proponents viewed natural law not simply as a collection of universally valid substantive moral principles grounded in human nature, but also as an interpretive approach. Antebellum constitutional jurisprudence was based on this tradition. According to Carl M. Dibble, this model disappeared from the American scene and from American law writing after the Civil War. It has since been largely ignored by contemporary legal historians and commentators. This disappearance has had an enormous impact on our contemporary understanding of the early Supreme Court.

The declaratory theory of law and the naturalistic interpretive tradition formed the horizon within which the pre-Marshall and Marshall Courts understood the judicial function and its limitations. The theory originates in the belief that the substance of the law pre-exists its "declaration" by courts or other authoritative interpreters. It ascribes to the law an underlying essence or unity–a "ratio legis," or "reason of the law"–that transcends any and all particular applications. According to Lord Coke, "legal rules are many but legal reason is one." Blackstone, too, adopts this conception of the law’s unity, holding that lex non scripta–the unwritten law–is knowable by the application of reason to legal experience; and that precedents found to be "absurd" or "unjust" are not merely "bad law"– they were never "law" at all. Blackstone also clearly distinguishes between laws "declaratory of natural rights and duties" and laws "determinative of things indifferent," adding that for acts mala in se (acts that are "wrong in themselves"), the municipal or positive law adds nothing to the obligation stemming from natural or divine law.

Presupposing the intelligible reality of the objects of legal experience, the "reason of the law" renders legal experience normative. Without this objectivity, in which judges "discover" the law rather than "make" it, law becomes merely an instrument of power. If the law has an underlying essence, a core of truth that must be discovered and declared by courts and other authoritative interpreters, then there must be rules of interpretation that are designed to assist in the ascertainment of this underlying essence. The jurists who expounded the naturalistic interpretive tradition that characterized judicial decision-making in the pre-Marshall and Marshall eras formulated a number of such rules for construing written instruments. These rules were premised on the belief that interpreters should explore the intention of the lawgiver–in the words of Blackstone–"by signs the most natural and probable." In one of Blackstone’s formulations, these signs include: (1) the words–in their customary, usual, general, or popular use; (2) the context–allowing comparison of words with other words in the same law or in similar laws, if that is required for clarity; (3) the subject matter–allowing consideration of what the law is about; (4) the effects and consequences–allowing "a little" deviation from literal understanding if "absurdity" is produced by that understanding; and (5) the reason and spirit–the cause, object, or "end" of the law.

It is important to note here that these rules are classical in origin and appear to have been agreed to by all the commentators comprising the naturalistic interpretive tradition. In the five-part formulation just noted, Blackstone relies upon Pufendorf, canon law, Cicero, and the Twelve Tables of Roman Law. A brief look at the formulations of Grotius and Vattel reveal a similar pattern. In a formulation almost identical to Blackstone’s, Grotius says that "The measure of correct interpretation is the inference of intent from the most probable indications." After characterizing the interpretive process as one of discovery aimed at detecting the designs of the lawgiver in a trail of probable indications, Grotius then lists these indications: (1) the words–understood in their natural sense; (2) the implications–considering whether contradictions are produced by using the natural sense; (3) the subject matter, the effect, and the connection–from which conjectures may be derived as to meaning.

Vattel regarded the rules of interpretation as fully derivable from the natural law and the morality implied by it. Noting the moral motive in legal interpretation, he bases the necessity of legal interpretation on the need to frustrate "the views of him who acts with duplicity," and announces several maxims "calculated to repress fraud, and to prevent the effect of its artifices." He then articulates a bundle of interpretive principles that includes all those mentioned by Blackstone and Grotius, with some additions: (1) the words in their customary use; (2) suitability to the subject matter; (3) avoidance of absurd conclusions, whether physical or moral; (4) consideration of the context of the discourse; (5) the need to harmonize the law and to avoid readings that would render portions of it surplusage; (6) the reason of the law–its motive, object, or end; and (7) adherence to the intention of the lawgiver in preference to his words, since good faith adheres to the intention, whereas fraud "insists on the terms."

Summarizing the formulations of Blackstone, Grotius, and Vattel, we can say these things: (1) For all three commentators, the will, or intention, of the lawgiver is the law. (2) All assert that discernment of intent must begin from a consideration of the words used by the lawgiver to express the law. (3) All assert that general custom and common usage are the standards to be employed for resolving ambiguities in the meaning of the words used by the lawgiver. (4) All declare or strongly suggest that the context of that portion of the law being interpreted–its relation to other parts of the same law–is relevant for determination of its meaning; that is, that laws should be harmonized. (5) All emphasize that the object, end, or purpose of the law–the "mischief" that it was enacted to overcome–is crucial for determining its meaning. (6) All allow consideration of effects or consequences of the law only when its terms, as commonly understood, would yield an absurdity in its application.

Let me expound a bit further on the jurisprudential worldview captured in these six principles. First, legal interpretation is conceived as a process of discovery. Second, the method of discovery consists in looking for signs. Third, the signs looked for are signs of conscious purpose. Fourth, the conscious purposes are the designs of lawgivers, revealed either in words or in acts from which meanings reasonably may be inferred. Fifth, the conscious lawgiving purposes that are discovered by interpreters are constrained or limited purposes embedded within a pre-existent corpus juris (body of law) and must be harmonized with the discoveries of other authoritative interpreters of the legal tradition. This harmony must exist with respect both to the internal structure of the law and to its external moral, or equitable, basis. In sum, the law is explicitly conservative, rational, just, and real, a set of conscious purposes revealed by a trail of authoritative signs reflecting more or less successful attempts by lawgivers to capture an essential legal reality that finds its source beyond the law.

Demise of the Naturalistic Interpretive Tradition

It goes without saying that we no longer see the legal world in the way just described. This is due largely to the onset and acceptance of several ideologies that were essentially unknown in the time of the Marshall and pre-Marshall Courts.

The first of these modern ideologies is legal positivism. Although the roots of positivism in the law are certainly much older, its formulation as a comprehensive theory was accomplished by the English philosopher John Austin in the 1830s and became generally acceptable in the United States only in the late nineteenth and early twentieth centuries. Although Austin formulated his analysis as a jurisprudence of positive law, without denying the existence or importance of other categories of legal experience such as divine or natural law, his philosophical descendants have tended to advance legal positivism as a hardened ideological position, denying legal status to any rules except those "posited" as commands of a temporal sovereign with power to visit evil upon disobedient subjects. Under this approach, law is no longer conceived as a quest for social order rooted in human nature, in which courts must discover the "reason of the law" and then "declare" it when deciding cases. The declaratory theory at the heart of the naturalistic interpretive tradition of the early Supreme Court gives way to the positivist idea of the judge as a "lawmaker."

The onset of legal positivism ultimately led to the demise of the declaratory theory and the naturalistic interpretive tradition that supported it. The interpretive approaches of the great jurisprudential exponents of the modern law of nations and modern natural law were all formulated in order to aid courts in the discovery of "reason of the law." If judges are lawmakers, then the judicial process is a process of creation or invention; and there is no longer any need for courts to follow a highly structured complex of rules designed to spur recovery of nonobvious meanings in written legal instruments.

In the twentieth century, the underlying interpretive logic of legal positivism has worked itself out in two different and somewhat conflicting directions. One of these strands is found in the linguistic philosophy of postmodern deconstructionism, which denies that written texts have any meaning at all save that which interpreters read into them. This view has been influential in contemporary debates over the appropriate way to interpret the Constitution, among other things. The other strand has taken the form of legal pragmatism, or "instrumentalism," arguably the dominant view of law throughout most of the twentieth century. Eric Voegelin describes a sophisticated variant of this strand of "analytical legal positivism" in his critique of the "pure theory" of his teacher Hans Kelsen, in which

the lawmaking process acquires the monopoly of the title "law."…Kelsen’s hierarchy culminates in a hypothetical basic norm that orders the members of society to behave in conformity with the norms deriving ultimately from the Constitution. The power structure articulated in the constitution is the origin of the legal order.…The law and the state, then…are two aspects of the same normative reality.…Whatever power establishes itself effectively in a society is the law-making power…whatever rules it makes are the law. The classic questions of true and untrue, of just and unjust order do not belong in the science of law or, for that matter, in any science at all.

The second of the modern ideologies, closely related to legal positivism and strongly complementing it, is mechanistic materialism, which came to prominence in the Gilded Age. Materialism is the view that all is matter and that everything explicable must be explained by physical causes. It is an ancient worldview, but its modern formulation originated in the philosophy of Thomas Hobbes in the mid-seventeenth century. According to David M. Rosenthal, in Hobbes’ view

[a]ll objects of whatever sort are no more than complex collections of moving particles, and all their properties are more or less complicated motions of these component particles. Hobbes urged that sensations of living things are no more than motions in the sense organs caused by some chain of movements initiated by the object perceived. Mental events of other kinds, such as thoughts and memories, were regarded by Hobbes in a similar fashion. The relations of cause and effect that mental events have to other events are to be explained on the same mechanical principles that govern all movements of adjacent bodies.

Whatever their influence two centuries later, Hobbes’s views were anathematized by the English legal profession; and their influence on the English legal system is arguably invisible prior to the Judicatory Reform Acts of 1873 and 1875. The reception of Hobbesian ideas on this side of the Atlantic was even less favorable. Early American common lawyers, trained largely (and often solely) by the reading and rereading of Blackstone’s Commentaries, shared the view of their English counterparts that the basis of law was immemorial custom: cumulative tradition developed and refined by habitual exercise, discoverable by the use of reason, and pointing to a more comprehensive legal reality that transcends particular societies and legal cultures. In short, both the English common lawyers and the American Founders they influenced so strongly were inveterate legal immaterialists.

All this changed with the publication of Charles Darwin’s Origin of Species in 1859. Modern historians have largely ignored the profound relation between Darwin and Hobbes. Yet it was Darwin that made good Hobbes’s promise of a mechanistic political science by specifying the mechanism of natural selection accompanied by random variation to account for the rise and development of biological organisms. Much as Hobbes had tried to account for the movements of the human psyche by positing a random motion of particles in the brain, Darwin tried to account for biological diversity by positing undirected natural physical processes as the basis for evolutionary change. Since human beings are biological organisms, it is but a short step from the evolution of individual organisms to the evolution of human societies–Hobbes’s primary concern.

The price of this move to materialism, a price that would be paid by later generations, was the rejection of teleology. This rejection further entails a fundamental change in our view of human nature and human society. Human beings are no longer seen as creatures imprinted with the image of a creator. We are no longer beings possessing a "nature" or an "inclination" to seek and to know the author of our being. We are no longer beings who act in accordance with behavioral precepts or virtues that are implied by the existence and action of that author. We have no "final cause," no telos, end, or purpose. Instead, human beings are regarded as "products" of an unguided developmental process that is material in origin and thus essentially mundane, and law is regarded as a semicoherent train of commands articulating the largely unconscious or half-conscious drives of dominant ruling passions and material interests.

The implications of such a view for social organization and legal institutions were immediate and devastating. For example, in American law, biological Darwinism was soon complemented by an embellishment known as "social Darwinism," a worldview that regards society as an organized competitive struggle for economic survival. Those most "fit" for the struggle both cause and reap the benefits of their unrestrained economic activity, while those "less fit" flounder or perish. In the late nineteenth and early twentieth centuries, the Supreme Court’s flirtation with this theory caused the temporary uprooting of much of the constitutional jurisprudence of the early Supreme Court–a jurisprudence that had been firmly supported by common-law and natural-law foundations–substituting in its place a truncated "natural law" that is perhaps best described as a "law of the jungle."

The third of the modern ideologies is the Progressive revision of American constitutional history, accomplished in the early decades of the twentieth century. The Progressive historians–looking to the future, not to the past, in their writing of history–devalued and distorted much of the Court’s early history, as well as much of the history of the Founding itself. The Founders were recast by the Progressives as a dominant socioeconomic elite bent on safeguarding wealth and social position. The early Supreme Court, consisting entirely of Federalists, was to be the judicial organ of this dominant class–the institution that would construct and develop legal safeguards for its members and their property.

Along with this new view of the Constitution and the early Court came a new view of John Marshall and of his most famous decision as well. Responding to assertions by leaders of the American bar and business communities that had claimed Marshall’s authority to support Gilded Age doctrines such as dual federalism and substantive economic due process, legal progressives revised the history of Marbury v. Madison (1803), claiming that Marshall had, in Marbury, illegitimately appropriated the power of judicial review so that he could use that power to protect the property interests of the wealthy against depredation by the states. According to this reinterpreted Marbury, a clever Chief Justice outfoxed President Thomas Jefferson in a high-stakes political game, winning constitutional supremacy for his beleaguered third branch of government.

Marshall’s most prominent Progressive Era biographer summed up this version of Marbury v. Madison by calling Marshall’s actions "a coup as bold in design and as daring in execution as that by which the Constitution had been framed." The view suggested by this reading of Marbury, which I have elsewhere referred to as the "Marbury Myth," holds that the landmark decisions of the Marshall Court were founded–at bottom–upon an unwarranted usurpation of legislative authority by the Court, were "politically motivated," and essentially "unprecedented." In so holding, the Progressive historians contributed mightily to the devaluation of the pre-Marshall Court; since if Marshall’s contributions were "unprecedented," then they could hardly have been founded upon the decisions of an earlier era.

The fourth and final modern ideology that I shall mention is "behavioralism," a methodological orientation that has been the chief contribution of political science to misunderstanding of the early Supreme Court. The origins of behavioralism may be found in the call for a "value-free" social science in the late nineteenth century. Since the 1950s, it has been the dominant research paradigm in the social sciences. As currently practiced, behavioralism is a reductionist enterprise that attempts to understand human activity by observing, quantifying, and aggregating discrete instances of "behavior" without reference to the ends or purposes of such behavior. Ostensibly appropriating the methods and assumptions of the physical sciences in order to create a value-free social or political science, the behavioralist carves up sociopolitical reality and examines it in piecemeal fashion. Research is conducted in the blind hope that something important will "turn up" of its own accord.

The problem is that, in research as in other endeavors, things usually do not just turn up unless somebody is looking for them. When one is trying to understand the causes of human action, the things one looks for will most often be either conscious purposes or unconscious motives. The classical worldview, in virtually all its dimensions from Aristotle down through the ages, regards conscious ends or purposes to be the wellspring of human activity. In classical ethics and political science, human nature is oriented or inclined to the summum bonum–the moral and intellectual goods of the virtuous and contemplative life. In classical jurisprudence, law is conceived as a rule and measure, ordering and measuring the good society in such a way as to allow pursuit of the highest good by individuals.

Thus, classical jurisprudence is a teleological jurisprudence. But since behavioralists rule out teleology, they cannot really look to conscious purposes for orientation of the research enterprise. From this comes the incessant drive of public-law scholars in political science to discover unconscious motives to explain judicial behavior. In other words, court decisions are not really based on the reasoned jurisprudential doctrines announced in written judicial opinions; rather, these doctrines are merely a "cover" for personal preferences or predilections that are themselves the product of murky unconscious or semiconscious forces in the judicial psyche. If this approach is problematic when used to study the modern Supreme Court–which, after all, is at least a post-Freud, post-Marx, post-Weber, post-Beard Court–how much more problematic must it be when applied to an antebellum Court, the judges of which would have regarded the doctrines of all the above-mentioned luminaries as flatly absurd.

Reasons for Misunderstanding of the Early Supreme Court

General acceptance of positivism, materialism, progressivism, and behavioralism has affected a monumental change in American attitudes toward law and government during the last century. Our immersion in the jurisprudence that follows from these beliefs has taken us far from the constitutional jurisprudence of antebellum courts. If we believe that constitutions and laws are mere tools of powerful political or economic interests, then it will be hard not to read early Supreme Court opinions as if they were apologies for such interests. If we believe that laws are merely the "commands" of a sovereign, then we will think it either naive or disingenuous for Chief Justice Marshall to run on about the majestic generalities of the Constitution as if they could be thought about apart from the concerns of the moment. If we think that all is matter, then we will think that when Justices Paterson and Chase talk about the sanctity of private property, their "real" concern must have been the "property" and not the "sanctity." If we think of constitutional cases as political "games" rather than principled controversies, then we will have difficulty taking seriously the high-toned discussions in many of Marshall’s or Story’s opinions.

If we do not believe that objective truth exists, then it is not likely that we will end up believing that there is any such thing as "correct" constitutional interpretation. In the end, we will probably stop thinking about "interpretation" at all, and start thinking about "creativity." If we believe that novelty is the measure of creativity, then we will find a way to regard the opinions of the early Court as either "creative" or "anachronistic." If we think of the pre-Marshall Court’s opinions as "anachronistic," then we will inevitably think Marshall’s opinions "creative." If we think of Marshall’s opinions as "creative," then we will be compelled to think of the pre-Marshall Court’s opinions as "anachronistic." If we think that judges do not "discover" law but instead "make" it, then we will read the early Court’s opinions as legislation. Some will find that it legislated well. Others will find that it legislated badly. If we believe that judges make decisions based not on law but rather on the basis of nonlegal "preferences," then we will look for–and no doubt "find"–other, "baser" unconscious motives lurking between the lines of the early Court’s opinions.

What I am suggesting is this: We have seriously compromised our ability to understand the constitutional jurisprudence of the early Supreme Court by not paying sufficient attention to the interpretive tradition inherited by the early Court and the beliefs that supported that tradition. This means that we read the opinions of the early Court as exercises in judicial lawmaking, rather than as attempts to discover and declare a pre-existing constitutional consensus. We read these cases as if they had been decided by judges who believed that the normative force of law is derived solely from the command of a sovereign, rather than from a dictate of reason. We read the cases as if they had been decided by judges who believed that society was inevitably and continually "progressing" to a better state and that their role as judges was to help society get there as fast as possible. We read the cases as if they had been decided by judges who were monistic materialists and thus believed that the social good was quantitative in character and that economic motives determined the law of the Constitution. The judges of Marshall’s time believed none of these things.

The Pre-Marshall Court Revisited

I would like to close this essay with an example that illustrates one of the ways in which the pre-Marshall Court has been misunderstood through the application of contemporary jurisprudential perspectives. Though the Justices of the pre-Marshall Court were not afraid to confront constitutional issues and to exercise constitutional authority, they are often alleged by modern commentators to have been uncertain about the basis for this authority. For example, several Justices on the pre-Marshall Court asserted that they would invalidate a law on constitutional grounds only when the constitutional violation was "clear"–suggesting a "textual" basis for judicial review. On the other hand, some of the Justices asserted that laws violating "natural equity" or "natural justice" might also run afoul of the Constitution, suggesting an "extratextual" basis for judicial review. Let us look for a moment at these two approaches.

The "clear case" or "doubtful case" rule is a variation–in fact, a reversal–of William Blackstone’s Tenth Rule of Statutory Construction, which was itself a variation on Lord Coke’s famous suggestion in Dr. Bonham’s Case that courts might be entitled to disregard laws that violate natural justice, or "common right and reason." Blackstone, living under a regime of legislative supremacy, agreed–but only if the violation was unclear, so that the court would be in doubt as to the whether the legislature intended the violation or not. In other words, if Parliament clearly meant to violate natural justice, then no court could stand in the way.

Rejecting Blackstonian legislative supremacy, several Justices on the pre-Marshall Court reversed Blackstone’s rule, declaring instead that a court was entitled to disregard a statute only if the act "clearly" violated the Constitution. If the violation was "doubtful," then the court was obligated to enforce the act. While the rationale for this approach is obvious enough on the surface, its theoretical basis was shaky. The pre-Marshall Court never really explained why its vision of constitutional conflict should be regarded as "more clear" than that of Congress or the President. The approach would have to rest upon something like a general belief that courts can more accurately discern "clear" violations of the Constitution than other agencies of government can. While such a belief has since come to be widely held, it was not widely held in the late eighteenth century.

Ultimately, the "clear case" approach foundered upon the rock of unclarity and gave way to Marshall’s solution in Marbury v. Madison. According to Marshall’s Marbury opinion, the Court’s vision is not necessarily superior to that of others; it is just that the Constitution is law, and the Court must declare the law in order to decide cases. Marshall’s answer is based on the theory that a written constitution is subject to judicial interpretation just like any other law, and that since a constitution is a law of "superior obligation," a court is not merely entitled, but obliged, to enforce it.

The second approach suggested by the pre-Marshall Court in constitutional interpretation has sometimes misleadingly been called a "natural law" approach. Under this approach, the Court would be entitled to disregard not merely laws that clearly violate the written constitution, but also laws that contravened natural rights, or fundamental principles of the social compact, that are regarded as embodied in the constitutional text. Although some commentators have charged pre-Marshall Court Justices with engaging in this kind of extratextual judicial review, Matthew J. Franck has demonstrated persuasively that they really did not do so. What some Justices did do was insist that the Constitution was not merely an isolated text, but rather was fully grounded in a larger order of things that find ultimate expression in the phrase "rule of law." In the end, any suggestion of extratextual constitutional interpretation by Justices on the pre-Marshall Court–such as that by Justice Chase in Calder v. Bull, challenged for unclarity by Justice Iredell in that same case–was destined to give way to Marshall’s insistence that the Constitution itself would be the touchstone of American constitutional law.

In the late nineteenth century, this "natural law" approach again played a role in constitutional interpretation. However, by that time, the natural-law theories subscribed to by earlier generations had given way to a truncated form joined with other late-nineteenth century ideologies such as social Darwinism and mechanistic materialism. Consequently, we tend to misunderstand the early Court’s "natural law" talk precisely because we read it as if that Court viewed natural law in the manner of the late-nineteenth-century Court. We should remember that the natural-law tradition in which the early Court was steeped was one developed in the absence of written constitutional instruments. The onset of written constitutions created a problem concerning the basis for government accountability, interposing the written constitution between government and an already existing legal tradition.

Plato Revisited

For a moment, let us return to Plato’s constitutional anthropomorphism and do a little thought experiment. Remember that all individuals have constitutions, just like polities do. Suppose Congress gets fed up with all the groundless decisions that Americans seem to make. In an effort to force individuals to regularize and articulate their decision-making processes, Congress enacts a law requiring every American to make explicit their individual constitutions by writing them down–just like the Framers did for a whole society in 1787. Each of these individual constitutions would have to contain all the rules by which we make our everyday decisions. They can be no more than two pages long. They must be kept on file at the newly created Department of Constitutional Government in Washington. Imagine next that we were required to apply these documents via our internal judicial branch of self-government (our "judgment"), and that we had to write down each exercise of judicial authority in an "opinion" stating the reasons why we had interpreted our personal constitution the way we did in each instance. These opinions would have to be kept on file for possible use in lawsuits because the law would also provide that any injury resulting from failure to follow one’s constitution gives rise to a cause of action in tort.

Consider for a moment what might happen. As the lawsuits began to multiply, each of us would start experiencing tension between what we "wrote" in our original document and what we actually "meant" or "intended" when we wrote it. Once that tension was made explicit, we would immediately begin "interpreting" our constitution in accord with our "meanings" or "intentions" rather than "boxing ourselves in" with our words. We would begin to see our constitution as a set of intended meanings and then rightly begin to regard the words as indicators of those meanings, rather than as wooden formulae that confine the meanings. We would instinctively–and quite properly–feel that our "real" or "true" constitutions were what we meant, not merely what we said.

This is exactly the situation that the pre-Marshall Court was in. Its decisions and opinions become easily understandable if we attend to the fact that the Justices regarded the Constitution as an attempt to capture a "true" underlying set of meanings or principles that necessarily pre-exists its articulation in words, rather than as a wooden set of "made-up" formulas or rules. It becomes easier to understand the interplay of text, tradition, the common law, and natural justice in these opinions, as efforts to "find" or "discover" the "true" constitutional principle underlying the text. We have to remember that the Justices of the pre-Marshall Court believed that their job was to "find" and then "declare" the law. That law always pre-existed any written text, whether constitution, statute, will, or contract. This meant that the law was higher than judges and courts and that judges and courts might get it wrong.

When we look back at the opinions of the pre-Marshall Justices and find, for example, Justice Paterson threatening to invalidate a law because, in his opinion, that law violated the sanctity of contracts, natural equity, the common law, the state constitution, and the federal Constitution all at the same time, we are understandably frustrated. Being good legal positivists, and thus believing that when a court makes a constitutional decision it is making law, we ask: "Which is it?" We want to know the jurisprudential basis for the court’s constitutional decision in much the same way that we want to know the constitutional basis for the legislature’s decision to enact a statute.

But this question would not have made sense to the Justices on the old Court. They did not believe that the Court was making the law when it decided a case–even a constitutional case. They would not have been overly concerned with whether a particular decision was rooted in text, tradition, logic, or just plain common sense. For them, a judge was engaged in a process of discovering a law that already existed and was what it was, whether they liked it or not. The overriding concern would have been with getting it right, not following a particular methodology. If you are looking for a treasure buried on the ocean floor, you will not be overly concerned with whether you get to it via a U.S. Geological Survey map or one left drawn for posterity by Captain Hook or Peter Pan. What counts is that you get to it! Indeed, if you can find maps by the Survey, Captain Hook, and Peter Pan, and all agree on where the treasure is, you would probably not stop to argue with yourself about whose map-making methodology was better. Rather, you would conclude that they all must be pretty good because each confirmed the others. If you were called upon to justify your decision to sail to the other side of the planet in search of the treasure, you would surely not fail to mention this confluence of all three authorities.

So when we read Justice Paterson’s opinion in Van Horne’s Lessee v. Dorrance (1795), we should not be surprised or chagrined to find him appearing to have based a decision upon the express texts of both the U.S. and Pennsylvania constitutions, a "natural, inherent, and inalienable" right of "acquiring, possessing and protecting property," and "sacred principles of the social compact." In his view, if the law in question did not violate all of these, it probably did not violate any of them. This does not mean that Justice Paterson was "confused" about the basis of the Court’s authority. Neither was he engaging in "extratextual" judicial review, or basing his decision on "natural law." He was merely looking for the "true" sense of the law–a treasure that he knew to be out there somewhere; and he was using all the tools that were available to aid him in his search. If the federal and state constitutions, natural right, God, and the social compact all pointed in the same direction, then so much the better for Justice Paterson’s decision.


Justice Oliver Wendell Holmes once said that the study of history is not merely a duty but also a necessity. Nowhere is this observation more apropos than in the study of constitutional and legal history. Human beings and human institutions are essentially historical beings. Legal and constitutional development are, by nature, historical processes. We come to understand ourselves only through careful–and often painful–attention to our respective pasts. We can do it in no other way. The study of history is required for any form of human understanding. It might even be said that history is what makes or defines us as human. We are the beings that have a history because we are the only beings that have pasts that we try to understand by reasoned self-reflection. We are somehow able to transcend the moment and render the past intelligible. History has a transcendent character, according to which events, beliefs, and practices gain significance only as the result of reflective experiences that go beyond the mere happenings themselves to embrace their pattern and meaning. History is literally a triumph of "mind" over "matter."

Returning one last time to Plato’s constitutional anthropomorphism: Each of us as individuals, if we want to live well, must return to our individual pasts from time to time, suspending our beliefs in the present so as to remember what we believed in the past. We must do this in order to collect ourselves in the present and reset our paths to the future. This ability to "transcend" ourselves–to remember our pasts and remember how different we were, yet somehow remain the same and retain our identities–is what makes us "constitutional" beings that have "constitutional histories."

Just as our individual constitutions preserve our coherence and our identity across large stretches of time, so does the American Constitution preserve the identity and coherence of our Republic across even larger stretches of time. This means that when we do our constitutional history, we must do more than merely chronicle the events of bygone eras. We must try to understand what the people who lived in those eras actually believed, what their fundamental principles were. If we do not, we will invariably and inevitably interpret their events and experiences as if they believed what we believe, as if their fundamental principles were ours. We can hardly help believing what we believe; but we honor this great institution, the Supreme Court, more by suspending our beliefs when we do our history and telling the truth about our ancestors than by reading their history through the fog of our present concerns.

As was brought home to us in our most tragic disaster on September 11, 2001, we live in an age in which American institutions are under savage attack by persons who believe in resolving disagreements by violence, rather than by law. If we are to counter successfully the threat to civilized constitutional order posed by such persons, there is no better place to start than by telling and retelling the truth of American constitutionalism to ourselves and to the world. The story we tell must be the truth, the whole truth, and nothing but the truth.

During the bicentennial commemoration of the Marshall Court that is now upon us, we honor the legacy of that Court to which we owe so much not by idolizing it, thereby devaluing the Court and the tradition that preceded it, for that is not the truth. Rather, we honor the Marshall Court best by remembering–if only for a moment–that it built well upon the foundation of a great tradition that is part of the ongoing historic struggle to realize, in full, the rule of law.

1 John Jay, "Letter to John Adams," quoted in Leonard Baker, John Marshall: A Life in Law (New York: Macmillan, 1974), p. 352.

2 William H. Rehnquist, "The Supreme Court in the Nineteenth Century," Journal of Supreme Court History 27 (2002), p. 1.


3 William R. Casto, The Supreme Court in the Early Republic: The Chief Justiceships of John Jay and Oliver Ellsworth (Columbia: University of South Carolina Press, 1995), pp. 2—3.

4 Penhallow v. Doane’s Administrators, 3 Dall. 54 (1795).

5 Hylton v. United States, 3 Dall. 171 (1796).

6 Wiscart v. D’Auchy, 3 Dall. 321 (1796).

7 Hollingsworth v. Virginia, 3 Dall. 378 (1798).

8 Turner v. Bank of North America, 4 Dall. 9 (1799); Mossman v. Higginson, 4 Dall. 12 (1800).

9 Hayburn’s Case, 2 Dall. 409 (1792).

10 See United States v. Ferreira, 13 How. 40, at 52-53 (1851).

11 Correspondence of the Justices (August 8, 1793). See David P. Currie, "The Constitution in the Supreme Court, 1789-1801," University of Chicago Law Review 48 (1981): 819—885, p. 829.

12 Calder v. Bull, 3 Dall. 386 (1798).

13 Cooper v. Telfair, 4 Dall. 14 (1800).

14 Ware v. Hylton, 3 Dall. 198 (1796).

15 Chisholm v. Georgia, 2 Dall. 419 (1793).

16 Hollingsworth v. Virginia, 3 Dall. 378 (1798).

17 Marbury v. Madison, 1 Cranch 137 (1803).

18 Gibbons v. Ogden, 9 Wheat. 1 (1824); McCulloch v. Maryland, 4 Wheat. 316 (1819).

19 Marbury v. Madison, 1 Cranch 137 (1803).

20 Plato, The Republic, translated by G. M. A. Grube (Indianapolis: Hackett Publishing Co., 1981), reprinted in Readings in Classical Political Thought, edited by Peter J. Steinberger (Indianapolis: Hackett Publishing Co., 2000), pp. 166—317.

21 See Thomas Hobbes, "Leviathan, or, Matter, Form, and Power of a Commonwealth Ecclesiastical and Civil," in Great Books of the Western World, vol. 23, edited by Robert Maynard Hutchins (Chicago: Encyclopaedia Britannica, 1952), pp. 39—283, especially part I.

22 The Federalist, number 51, in Great Books of the Western World, volume 43, edited by Robert Maynard Hutchins (Chicago: Encyclopaedia Britannica, Inc., 1952), pp. 29—259, at p. 163.

23 Carl M. Dibble, "The Lost Tradition of Modern Legal Interpretation" (1994), unpublished essay prepared for delivery at the 1994 Annual Meeting of the American Political Science Association; on file with author.

24 James R. Stoner, Jr., Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism (Lawrence: University Press of Kansas, 1992), p. 54.

25 William Blackstone, Commentaries on the Laws of England, 4 vols. (Chicago: University of Chicago Press, 1979, first published 1769), vol. 1, p. 70.

26 Ibid., p. 54.

27 Christopher Wolfe, The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law (New York: Basic Books, 1986), p. 18.

28 Blackstone, Commentaries, vol. 1, pp. 59—61.

29 Hugo Grotius, De Juri Belli Ac Pacis Libri Tres [The Law of War and Peace in Three Books], translated by Francis W. Kelsey (Oxford: Clarendon Press, 1925), p. 409.

30 Ibid., pp. 409—411.

31 Emmerich de Vattel, The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, 4th ed. (1811), vol. 2, p. 244.

32 Ibid., pp. 248—262. For a fuller discussion of Vattel’s principles of interpretation, as well as those of Grotius, Blackstone, Coke, and Hale, see Robert Lowry Clinton, "Classical Legal Naturalism and the Politics of John Marshall’s Constitutional Jurisprudence," The John Marshall Law Review 33 (2000): 935—971, especially pp. 945—959.

33 See generally John Austin, Province of Jurisprudence Determined (London: John Murray, 1832). For a fuller discussion of Austin’s jurisprudence, in contrast with classical jurisprudence, see Robert Lowry Clinton, God and Man in the Law: The Foundations of Anglo-American Constitutionalism (Lawrence: University Press of Kansas, 1997), especially chapter 11.

34 Eric Voegelin, "The Nature of the Law and Related Legal Writings," in The Collected Works of Eric Voegelin (Baton Rouge: Louisiana State University Press, 1991), vol. 27, p. 28.

35 See generally Hobbes, Leviathan, especially part I.

36 David M. Rosenthal, ed., Materialism and the Mind-Body Problem (Indianapolis: Hackett Publishing Co., 1987), p. 8.

37 See, e.g., Sir Matthew Hale, "Reflections by the Lrd. Chiefe Justice Hale on Mr. Hobbes his Dialogue of the Lawe," reprinted in Sir William Holdsworth, A History of English Law, 3d ed., vol. 5, pp. 500-513 (London: Nethuen & Co., 1945) (reflecting contemporaneous views on Hobbes’ legal thought). On the Judicature Acts and their relation to the common law tradition, see generally Frederic William Maitland, The Forms of Action at Common Law: A Course of Lectures (Cambridge, UK: Cambridge University Press, 1936).

38 Charles Darwin, "The Origin of Species by Means of Natural Selection," in Great Books of the Western World, ed. Robert Maynard Hutchins (Chicago: Encyclopaedia Britannica, Inc., 1952), vol. 49, pp. 1—251.

39 See generally Charles A. Beard, An Economic Interpretation of the Constitution of the United States (New York: Macmillan, 1935); J. Allen Smith, The Spirit of American Government (Cambridge, MA: Belknap Press, Harvard University Press, 1965, first published 1907); Vernon L. Parrington, Main Currents in American Thought, 2 vols. (New York: Harcourt, Brace & Co., 1927).

40 See Robert Lowry Clinton, Marbury v. Madison and Judicial Review (Lawrence: University Press of Kansas, 1989), chapter 11.

41 See Robert Lowry Clinton, "Game Theory, Legal History, and the Origins of Judicial Review: A Revisionist Analysis of Marbury v. Madison," American Journal of Political Science 38 (1994): 285—302.

42 Albert J. Beveridge, The Life of John Marshall, 4 vols. (Boston: Houghton Mifflin Co., 1916), vol. 3, p. 142.

43 See Eric Voegelin, The New Science of Politics (Chicago: University of Chicago Press, 1952), especially pp. 1—26.

44 See Aristotle, Nicomachean Ethics, translated by D. P. Chase (Mineola, NY: Dover Publications, 1998); Thomas Aquinas, On Human Nature, edited by Thomas S. Hibbs (Indianapolis: Hackett Publishing Co., 1999).

45 See, e.g., Sylvia Snowiss, Judicial Review and the Law of the Constitution (New Haven, CT: Yale University Press, 1990).

46 Ibid., p. 60. See Hylton v. United States, 3 Dall. 171 (1796); Calder v. Bull, 3 Dall. 386 (1798); Cooper v. Telfair, 4 Dall. 14 (1800).

47 Ibid., p. 68. See Van Horne’s Lessee v. Dorrance, 2 Dall. 304 (1795).

48 Coke said that "[I]n many cases, the common law will control acts of parliament, and sometimes adjudge them to be utterly void: for when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such to be void." Dr. Bonham’s Case, 8 Coke’s Reports 107, at 118 (1610).

49 Blackstone’s language is this: "If an act of parliament gives a man power to try all causes, that arise within his manor of Dale; yet if a cause should arise in which he himself is party, the act is construed not to extend to that; because it is unreasonable that any man should determine his own quarrel. But if we could conceive it possible for the parliament to enact, that he should try as well his own causes as those of other persons; there is no court that has power to defeat the intent of the legislature, when couched in such evident and express words, as leave no doubt whether it was the intent of the legislature or no." Blackstone, Commentaries, vol. 1, p. 91.

50 See cases cited in note 47, above.

51 Marbury v. Madison, 1 Cranch 137, at 176-177 (1803).

52 See, e.g., Leonard W. Levy, Original Intent and the Framers’ Constitution (New York: Macmillan, 1998), especially pp. 130—132.

53 Matthew J. Franck, Against the Imperial Judiciary: The Supreme Court vs. the Sovereignty of the People (Lawrence: University Press of Kansas, 1996) (hereafter Imperial Judiciary), part II, especially chapter 6.

54 Calder v. Bull, 3 Dall. 386, at 387 (Chase, J.) (1798). See Franck, Imperial Judiciary, pp. 116—125.

55 Calder v. Bull, 3 Dall. 386, at 398 (Iredell, J.) (1798). See Franck, Imperial Judiciary, pp. 125—127.

56 Van Horne’s Lessee v. Dorrance, 2 Dall. 304, esp. at 307—316 (Paterson, J.) (1795). See also Franck, Imperial Judiciary, pp. 114—116