S0115.16 Thomas Jefferson and John Marshall

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THOMAS JEFFERSON AND JOHN MARSHALL: INTERPRETING THE CONSTITUTION ▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬ 2016 Seminar Material ▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬

S0115.16

New Jersey Institute for Continuing Legal Education

A Division of the State Bar Association NJICLE.com c

THOMAS JEFFERSON AND JOHN MARSHALL: INTERPRETING THE CONSTITUTION

Moderator Donald Scarinci, Esq. Scarinci Hollenbeck LLC (Lyndhurst) Speakers Steve Edenbo (Portraying Thomas Jefferson) American Historical Theater (Philadelphia, PA)

Doug Thomas (Portraying John Marshall) American Historical Theater (Philadelphia, PA)

In cooperation with the New Jersey State Bar Association Senior Lawyers Special Committee and the New Jersey State Bar Foundation S0115.16

© 2016 New Jersey State Bar Association. All rights reserved. Any copying of material herein, in whole or in part, and by any means without written permission is prohibited. Requests for such permission should be sent to NJICLE, a Division of the New Jersey State Bar Association, New Jersey Law Center, One Constitution Square, New Brunswick, New Jersey 08901-1520. Table of Contents Page

Thomas Jefferson and John Marshall: Interpreting the Constitution 1

Biographies of the Participants 3

Thomas Jefferson/Steven Edenbo 5 John Marshall/Doug Thomas 7 Donald Scarinci 9

Timeline of the Presidency of Thomas Jefferson and John Marshall 11

Relevant Constitutional Provisions 17

Annotations to the Constitution 19 Commerce Clause 19 Necessary & Proper Clause 23 Contract Clause 24 Judicial Review 26 Supremacy Clause 29

Relevant Decisions from 1800 to 1836 31

Talbot v. Seeman: The Power to Declare War 33 Supreme Court Review of the Affordable Care Act Began in 1803 35 Charming Betsy and the Law of Nations 37 Fletcher v. Peck and the Contract Clause 39 U.S. v. Hudson and Goodwin: Jurisdiction Over Criminal Matters 41 Livingston v. Van Ingen: NY Appeals Court Tackles Commerce Clause 42 Martin v. Hunter’s Lessee: The Supreme Court’s Authority Over State Courts 44 McCulloch v. Maryland: The Necessary and Proper Clause 46 Sturges v. Crowinshield: Constitutionality of State Bankruptcy Laws 48 Dartmouth College v. Woodward: The Contracts Clause 49 Cohen v. Virginia: U.S. Supreme Court Trumps State Courts 51 Johnson v. M’Hintosh: The Power to Grant Land 53 Corfield v. Coryell: The Privileges and Immunity Clause 55 Gibbons v. Ogden: The Commerce Clause 57 Osborn v. Bank of the United States Clarifies Reach of Federal Jurisdiction 59 Wayman v. Southard: The Limits of Non-Delegation 61 Brown v. Maryland: Import Taxes on Foreign Goods 63 Ogden v. Saunders: The Contracts Clause 65 Martin v. Mott: The President’s Power Under the Militia Clause 67 Weston v. City Council of Charleston: What is a “Suit?” 69

Willson v. Black Bird Creek Marsh Company: The Dormant Commerce Clause 70 Craig v. Missouri Interprets Prohibition of Bills of Credit Under Article I 72 Cherokee Nation v. Georgia: The Rights of Indian “Nations” 74 Worcester v. Georgia: Indian Sovereignty and the States 76 Barron ex rel. Tiernan v. Mayor of Baltimore: The Limits of the Bill of Rights 78

Biographies of Great Americans 79

Henry Baldwin 81 John Blair, Jr. 83 Samuel Chase 85 William Cushing 87 Gabriel Duvall 89 Oliver Ellsworth 91 James Iredell 93 John Jay 95 Thomas Johnson 97 William Johnson 99 Henry Brockholst Livingston 101 John Marshall 102 John McLean 104 Alfred Moore 106 William Paterson 108 John Rutledge 110 Joseph Story 112 Roger B. Taney 114 Smith Thompson 115 Thomas Todd 117 Robert Trimble 118 Bushrod Washington 119 James Moore Wayne 121 James Wilson 123

Thomas Jefferson and John Marshall: Interpreting the Constitution

Thomas Jefferson: portrayed by Steve Edenbo John Marshall: portrayed by Doug Thomas Moderated by: Donald Scarinci of Scarinci Hollenbeck LLC

Biographies of the Participants

Thomas Jefferson Portrayed by Steve Edenbo

Thomas Jefferson was born on April 13, 1743 in Shadwell, Virginia. In 1760 he attended the College of William and Mary and decided to study law. He was admitted to the Virginia bar in 1767. In 1768 Mr. Jefferson was elected to the Virginia House of Burgesses. He became one of Virginia’s delegates to the continental congress and worked with Mr. Adams to draft the declaration of independence. Virginia elected Mr. Jefferson as its second Governor in 1779 where he served two terms until 1781. Mr. Jefferson replaced Benjamin Franklin as the United States minister to France in 1785 and returned to America in 1789 to become Secretary of State under President George Washington. Mr. Jefferson served as Vice President of the United States in 1797 and he was elected President in 1800. He was re-elected in 1804. Thomas Jefferson is the author of “A Summary View of the Rights of British America” published in 1774. He also authored “notes on the State of Virginia” published in 1781.

While earning his BA from Dickinson College, Steve Edenbo’s focus was research and writing; however his theater experience included improvisation, and training in voice and singing. Mr. Edenbo was introduced to American Historical Theatre in 1999 by AHT Associate Producer Kim Hanley, He bases his interpretation of Thomas Jefferson on the insight that comes from years of reflection, for which he was awarded a Research Fellowship at Monticello in 2008 by the International Center for Jefferson Studies. Mr. Edenbo also has the honor of interpreting Thomas Jefferson at Philadelphia’s Declaration House, a re-creation by Independence National Historical Parks of the building in which Jefferson lived and wrote the Declaration of Independence. Mr. Edenbo is the only person invited to interpret Thomas Jefferson at this historic site.

Mr. Edenbo has interpreted Thomas Jefferson at venues that include Monticello; The National Archives, DC and NYC; Independence National Historical Park: Independence Hall, Declaration House, Congress Hall and City Tavern; The Smithsonian Institution; National Constitution Center; University of Virginia; Freedoms Foundation of Valley Forge; Carpenter’s Hall; Hamilton Grange National Memorial; Federal Hall National Memorial; the Philly Pops at Independence Hall; Texas A & M International University; Academy of Natural Sciences; and numerous middle and high schools and colleges, and at professional improvement seminars for Judges, Lawyers, and Educators at locations throughout the United States.

John Marshall Portrayed by Doug Thomas

John Marshall was born on September 24, 1755 in Germantown, Virginia. Marshall studied law at the College of William and Mary, and was admitted to the Virginia bar in 1780. That same year, Marshall launched his own law practice, specifically defending clients against pre-war British creditors. Over the years, Marshall held various political offices. In 1782, he joined the Virginia House of Delegates, where he represented Henrico County. A few years later, in 1788, Marshall served as a delegate of the Virginia Convention, where he lobbied for ratification of the U.S. Constitution. Once the ratification was complete, Marshall became a leader of Virginia’s Federalist Party, associating himself with the party and its platforms. In 1799, Marshall was elected to a seat in the House of Representatives, a position he held briefly before being appointed Secretary of State under President John Adams in 1800. In 1801, Marshall was appointed by President Adams to serve as Chief Justice of the United States Supreme Court, where he served until his death on July 6, 1835. During his tenure as Chief Justice, Marshall made a number of significant changes to the Supreme Court. One of these changes, which is still in effect today, was to eliminate the practice of justices submitting separate opinions. Marshall additionally cemented the Supreme Court’s authority for interpreting constitutional law, as well as its significance of a co-equal branch of government.

Doug Thomas is a professional actor with over two decades of performance experience. Local credits include The Philadelphia Shakespeare Festival, Vagabond Theatre and others. He has been immersed in historical interpretation for over 18 years. His quick wit and depth of knowledge, along with a keen understanding of theater, entertainment, and communication have made him a first rate interpreter of historical characters.

Characters in his repertoire include Meriwether Lewis, William Penn, John Marshall, John Paul Jones, Anthony Wayne, Patrick Henry, Francis Scott Key and a young Governor Livingston. He regularly performs at Independence Hall in Philadelphia and the National Archives in Washington D.C.

Donald Scarinci

Donald Scarinci is a partner at Scarinci Hollenbeck. He writes extensively about Constitutional Law and edits The Constitutional Law Reporter, www.ScarinciAttorney.com which has achieved national recognition as an educational and informational blog reporting on the decisions of the United States Supreme Court.

Mr. Scarinci’s practice focuses on representing public institutions and businesses that interact with government. He currently serves as Corporation Counsel to the City of Union City and the Town of West New York. Over the last two decades Mr. Scarinci has advised over 200 different public entities and served as Chief Counsel to the gubernatorial transition team of Governor Jim McGreevey and as legal counsel to the New Jersey State Assembly.

Mr. Scarinci has authored four book including, “David Brearley and the Making of the United States Constitution,” a historical biography about David Brearley, a signer of the Constitution from the State of New Jersey and the first Federal District Court Judge for the District of New Jersey (1789); and, “Redistricting and the Politics of Reform,” published in 2010.

Timeline: Jefferson v. Marshall 1743-1837

April 13, 1743: Thomas Jefferson is born in Shadwell, Virginia.

September 24, 1755: John Marshall is born in Germantown, Fauquier County, Virginia.

May 11, 1769: Jefferson is elected to the Virginia House of Burgesses. He becomes one of Virginia’s delegates to the continental congress, and works with John Adams to draft the declaration of independence.

June 1, 1779: Virginia elects Jefferson its second governor, where he serves two terms until 1781.

1782: Marshall begins serving in Virginia’s House of Delegates. He later became a leader of the Federalist Party in that state, and began his long-time political rivalry with Jefferson—who had then fallen out with the Virginia Federalists.

March 10, 1785: Jefferson replaces Benjamin Franklin as the United States minister to France.

April 30, 1789: George Washington is inaugurated as the first President of the United States in New York City, the nation’s capital. Jefferson returns to America to serve as his Secretary of State.

December 15, 1791: The states officially ratify the first ten amendments to the Constitution, also known as the Bill of Rights.

December 5, 1792: Washington is unanimously re-elected President of the United States by the Electoral College. John Adams is elected for a second term as Vice President.

December 31, 1793: Jefferson resigns as secretary of state. President Washington appoints Edmund Randolph as his successor.

September 19, 1796: President Washington releases what is now known as his “Farewell Address.” In this address, Washington summarizes his presidential tenure, cautions against political divisions, and advises future American leaders to minimize connections with foreign powers.

March 4, 1797: John Adams is inaugurated as the second President of the United States. Jefferson, the candidate with the second highest electoral votes, begins serving as Vice President.

September 27, 1798: Marshall declines his appointment by President Adams as Associate Justice of the Supreme Court of the United States.

March 4, 1799: Marshall is elected as a Federalist to the Sixth Congress, where he serves until his resignation on June 7, 1800.

May 13, 1800: Adams appoints Marshall as Secretary of State.

January 20, 1801: After losing his re-election bid to Jefferson, Adams appoints Marshall the fourth Chief Justice of the United States, a position he held until his death in 1835.

March 4, 1801: In a lengthy election process that required a tie breaking vote by Congress, Jefferson is inaugurated as the third President of the United States, with Aaron Burr serving as Vice President.

1801: In Talbot v. Seeman, the Supreme Court considers the circumstances under which salvage rights attach to a neutral vessel, captured by enemy forces and then recaptured by the U.S. Navy.

1803: Marbury v. Madison becomes a landmark case, establishing the practice of judicial review by federal courts over acts of the other two branches of government.

1804: The Supreme Court decides Murray v. Schooner Charming Betsy. Chief Justice Marshall stated that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.” This early Supreme Court decision creates authority for a rule of statutory construction, encouraging American Courts to interpret U.S. law consistent with international law where appropriate.

September 25, 1804: The Twelfth Amendment to the U.S. Constitution is ratified.

November 13, 1804: The fifth presidential election is held under the new Twelfth Amendment, and Jefferson is re-elected President of the United States. George Clinton, former Governor of New York, will serve as his Vice President.

December 22, 1807: President Jefferson signs the Embargo Act which effectively stops international trade.

January 1, 1808: The slave trade is ended.

February 8, 1809: Congress announces the results of the 1808 presidential election. Jefferson's secretary of state, Republican-Democrat James Madison, emerges victorious.

1810: The Supreme Court decides Fletcher v. Peck; the Marshall Court rules that an act of the Georgia State legislature that nullified a prior land grant they passed violated the Constitution. This was the first case in which the U.S. Supreme Court held that a state law violated the federal constitution.

April 16, 1810: Marshall overrules state legislation in Fletcher, finding attempts to rectify the Yazoo land fraud scheme a violation of contract rights.

April 1811: Construction of the first federally financed interstate road begins under Jefferson; it continues until much later under John Quincy Adams’ administration.

1812: In United States v. Hudson and Goodwin, the Supreme Court first considers whether the federal courts are authorized to hear criminal cases. The justices hold the Congress must confer jurisdiction by statute in order for the court to render a conviction.

1812: In Livingston v. Van Ingen, the New York Court for the Correction of Errors upholds a New York statute authorizing a monopoly on a steam boat transportation in New York waters.

1816: In Martin v. Hunter’s Lessee, the Supreme Court first asserts its authority to overrule a state court decision regarding an issue of federal law.

1819: In McCulloch v. Maryland, the Supreme Court holds that Congress has broad discretionary authority to implement the powers enumerated in the Constitution under the Necessary and Proper Clause. This is later regarded as one of Chief Justice Marshall’s most influential opinions.

1819: In Sturges v. Crowninshield, the Supreme Court considers whether a New York bankruptcy law, and its retroactive application, were constitutional. The justices conclude that federal power over bankruptcy is not exclusive.

1819: In Trustees of Dartmouth College v. Woodward, the Supreme Court holds that the U.S. Constitution’s Contracts Clause prohibits state legislatures from interfering with individual property rights. The court thereafter invalidates a statute enacted by the State of New Hampshire attempting to alter the charter of Dartmouth College and convert it to a public university.

1821: In Cohens v. Virginia, the Supreme Court establishes itself as the highest court in the country. The justices hold that the Court has appellate jurisdiction over state court criminal law decisions involving alleged Constitutional violations.

1823: In Johnson & Graham’s Lessee v. M’intsh, the Supreme Court addresses whether or not Native Americans have the power to give—and whether or not private individuals have the power to receive—title to land. The justices ultimately answer in the negative, citing the power of Congress to extinguish aboriginal title.

1823: In Corfield v. Coryell, Supreme Court Justice Bushrod Washington interprets the Privileges and Immunities Clause of Article 4, Section 2, and articulates a list of fundamental rights guaranteed by the U.S. Constitution.

1824: In Osborn v. Bank of the United States, the Supreme Court addresses Article III’s grant of judicial power over cases “arising under” federal law.

1824: In Gibbons v. Ogden, the Supreme Court holds that Congress has the authority to regulate any form of commerce that crosses state lines. Authored by Chief Justice Marshall, the opinion is considered the most influential regarding the Commerce Clause.

1825: In Wayman v. Southard, the Supreme Court first grapples with the doctrine of non-delegation, under which one branch of government can’t delegate its constitutionally authorized power to another. Chief Justice Marshall distinguishes between “important” subjects and mere details, which the court holds Congress may delegate to other branches.

March 4, 1825: John Quincy Adams is sworn in as the sixth president of the United States.

July 4, 1826: Thomas Jefferson and John Adams, founding fathers and former Presidents, both pass away.

1827: In Martin v. Mott, the Supreme Court addresses the Constitution’s Militia Clause. It holds that the President, as commander in chief, has the unilateral power to call up state militias for duty during times of war.

1827: In Brown v. Maryland, the Supreme Court holds that a Maryland law requiring importers of foreign goods to obtain a license violates the Constitution’s prohibition on import taxes, and undermines federal authority over interstate and foreign commerce.

1827: In Ogden v. Saunders, the Supreme Court holds that a New York bankruptcy law does not violate the Constitution’s Contracts Clause. The case is the only in which Chief Justice Marshall dissents.

1829: In Weston v. City Council of Charleston, the Supreme Court holds that a city ordinance taxing interest-bearing stock of the United States was unconstitutional, specifically finding that the tax burdened the enumerated power of Congress “to borrow money on the credit of the United States.”

1829: In Willson v. Black Bird Creek Marsh Company, the Supreme Court holds that a Delaware state law authorizing the building of a dam did not unconstitutionally usurp Congress’s powers under the Commerce Clause, because the federal government had not enacted legislation addressing the issue. The Court’s decision is the first to recognize the Dormant Commerce Clause of the U.S. Constitution.

March 4, 1829: Military hero and self-made man Andrew Jackson is sworn in as the seventh President of the United States.

1830: In Craig v. Missouri, the Supreme Court holds that a Missouri statute authorizing loan certificates issued by the state violates Article I, Section 10 of the Constitution, which prohibits states from issuing bills of credit.

May 26, 1830: Congress passes the Indian Removal Act, sanctioning the forcible relocation of Creek, Chickasaw, Cherokee, Choctaw, and Seminole tribes to land allotments west of the Mississippi river. From 1835 to 1838, Cherokee and Creek are forcibly removed from the Southeast onto reservations. Nearly one quarter die along what became known as the “Trail of Tears.”

1831: In Cherokee Nation v. Georgia, the Supreme Court holds that it lacks the authority to enforce the rights of Native American “nations” against the states.

July 4, 1831: The French government agrees to a treaty settling spoliation claims by the United States dating back to the Napoleonic Wars.

1832: In Worcester v. Georgia, the Supreme Court holds that the Cherokee Nation is sovereign, and that the federal government—and not the states—is authorized under the Constitution to deal with Indian nations.

July 10, 1832: Jackson vetoes a bill that would have extended the life of the Second Bank of the United States. It was one of the most definitive acts of his presidency.

November 24, 1832: A South Carolina state convention adopts the Ordinance of Nullification, a decree nullifying congressional acts involving duties and imposts on the importation of foreign commodities.

December 5, 1832: Running on the Democratic ticket, Jackson wins reelection to the presidency, amassing 219 electoral votes to Henry Clay’s 49.

December 10, 1832: Jackson issues the Nullification Proclamation, reaffirming his belief that states and municipalities are forbidden from nullifying federal laws.

1833: In Barron v. Mayor of Baltimore, the Supreme Court holds that the Bills of Rights places limits on the national government and not on state governments. In an opinion written by Chief Justice Marshall, the Court specifically found that the City of Baltimore was not bound by the Fifth Amendment’s requirement that private property shall not be taken for public use without just compensation.

March 1, 1833: Pressed by Jackson, Congress passes the Force Bill, authorizing Jackson’s use of the army to gain compliance for federal law in South Carolina.

March 2, 1833: Congress passes both the Compromise Tariff and the Force Bill; Jackson signs them both into law.

March 20, 1833: Jackson commissions Edmund Roberts as a “special agent” of the United States to negotiate commercial trade treaties abroad. Roberts's efforts result in the first treaties between the United States and a number of far eastern governments, including Siam (now Thailand).

March 28, 1834: Jackson issues an order for the Treasury Department to withdrawal federal deposits from the Bank of the United States and place them in state banks.

December 1834: Jackson announces he will terminate the national debt, freeing the United States of foreign and domestic obligations beyond the reserves of the Treasury.

July 6, 1835: John Marshall passes away in Philadelphia, Pennsylvania.

March 2, 1836: In Washington, D.C., the delegates of the people of Texas officially and unanimously declare their independence. 16

July 11, 1836: Jackson, along with Treasury Secretary Levi Woodbury, introduces the Specie Circular, revealing that the government will accept only gold and silver for land payments.

March 1837: Jackson recognizes the independence of Texas but declines to address annexation in light of threats by Mexico and its concerns about security.

March 4, 1837: Martin Van Buren is sworn in as the eighth President of the United States. His inaugural address serves largely as a commemoration of his predecessor, President Andrew Jackson. 17

Relevant Constitutional Provisions

ANNOTATIONS TO THE CONSTITUTION

Commerce Clause:

Article I, Section 8, Clause III

“The Congress shall have Power. . . To regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes. . .”

As James Madison stated, “[T]he powers delegated by the proposed Constitution to the federal government are few and defined.” One of these so-called ‘enumerated powers’ is found in the Commerce Clause. The clause itself includes a few distinct powers, giving Congress the ability “[t]o regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” However, as the authority to legislate regarding international commerce or commerce with Native Americans has not been of great controversy, when speaking about the Commerce Clause, it is almost always understood to mean simply the following words: “To regulate commerce…among the several states. The problem, though, has been the lack of clarity surrounding the terms in the clause. What, exactly, is “commerce”? What does commercial activity “among the several states” actually mean?

Some Justices have viewed these terms in their narrowest senses. For example, Justice Thomas has said that “[a]t the time the original Constitution was ratified, “commerce” consisted of selling, buying, and bartering, as well as transporting for these purposes.” To Justice Thomas, the Commerce Clause only governs these specific actions, as well as only when those actions explicitly reach across state lines. However, generally, the Commerce Clause has been given a more expansive interpretation. In the all-important case of Gibbons v. Ogden (1824), the Court took up the case of those challenging a New York law that gave a monopoly to certain individuals for the operation of steamboats within the state. The challengers were attempted to secure their own license for a steamboat route between New York and New Jersey, pursuant to a federal law that allowed such licenses to be given. The Court could have narrowly interpreted the Commerce Clause. The Court could have held that “commerce” did not include navigation along water routes; and the Court could have held that “among the several states” did not include intrastate waterways – or even routes between one state and another where one state was regulating its own territory. However, the Court did not give the clause a narrow interpretation. Instead, in an opinion written by Justice Marshall, the Court held that “commerce” includes “commercial intercourse” and any

actions that may fall under that broad category, and the Court also held that “among the several states” means “intermingled with.” The Court was emphatic that “[a] thing which is among others, is intermingled with them. Commerce among the States, cannot stop at the external boundary line of each State, but may be introduced into the interior.” Gibbons, therefore, stood for the proposition that the Commerce Clause was not as narrow of a power as it could be. Moreover, along with the Supremacy Clause, this meant that Congress could override any state statutes regulating the same commercial issue as the federal government (see also Dormant Commerce Clause). Jurisprudence surrounding the Commerce Clause has developed since the days of Gibbons. It has gone through periods where it was given a more or less narrow interpretation. But today, it is generally understood to certainly allow Congress to regulate channels of interstate commerce (like roads, railroads, air routes, and rivers), instrumentalities of interstate commerce (like cars, trains, planes, and boats), and persons of interstate commerce (like drivers, conductors, and pilots). Finally, the Commerce Clause also grants Congress the power to regulate intrastate (meaning, within a single state) commerce, provided the commercial action in question substantially affects interstate commerce. It is this last piece that has been, and continues to be, the subject of the most debate. When measuring the substantiality of interstate commerce, the Court will look to a number of factors, including whether or not the activity in question can be labeled “economic,” whether there are Congressional findings on the issue that lend to the argument that this activity has some impact on interstate commerce, whether considering the activity to be economic in nature is attenuated and only the result of a piling on of inferences, and whether the issue is a traditional state or federal concern. What follows are three crucial cases that impact the modern understanding of the Commerce Clause.

Important Cases in Commerce Clause Jurisprudence In Heart of Atlanta Motel v. United States (1964), the Court again turned to a subject that it had dealt with in the past: whether Congress could pass laws restricting the ability of private individuals, running private businesses, to discriminate on the basis of race. In this case, a hotel that was near major interstate roadways – and whose patrons came mostly from out of state – prohibited African Americans from staying in its guest rooms. This, however, was in direct contradiction with the 1964 Civil Rights Act, which did not allow such action. The hotel argued that Congress could not force it to accept clients it did not want to accept, noting that the Equal Protection Clause (here, of the 5th Amendment), only applied to government actors. While the Court accepted the argument that the Reconstruction Amendments (13, 14, and 15) did not give Congress the authority to regulate such action, it still sided against the hotel, using the Commerce Clause. The Court held that, given the nature of hotels, especially those like the Heart of Atlanta Motel, restricting the availability of rooms for African American travelers would have

a detrimental effect on interstate commerce. Therefore, the hotel could not defy the Civil Rights Act, and had to accept patrons irrespective of race. One of the most important cases from recent decades was United States v. Lopez (1995), in which, for the first time in modern history, the Court did not allow Congress to make a particular law using its Commerce Clause powers. In Lopez, Congress had passed a law outlawing guns within certain distances of schools. The Court, however, did not accept the government’s argument that such a regulation involved interstate commerce. Though individual states–not being bound to particular powers given to them in the U.S. Constitution–may pass such laws, Congress may not. Although that statute, as it was written, was held unconstitutional by the Court, Congress amended the law to only affect guns that have “moved in or that otherwise affect[s] interstate or foreign commerce.”

While this may appear merely to be semantic change to appease the Supreme Court, this new version of the law has been upheld numerous times in the lower courts, and never challenged in the Supreme Court. While Lopez has been used by the Court in subsequent cases to further restrict Congress’ power under the Commerce Clause, the Court has not consistently invalidated Congressional acts under the Commerce Clause since. For example, in the contentious case of Gonzales v. Raich (2005), the Court upheld a federal law prohibiting the production of marijuana (even where allowed by particular states under medical marijuana statutes), accepting the government’s argument that the regulation of marijuana affected interstate commerce in that such a law affects the national marijuana market.

The Commerce Clause and the Affordable Care Act This background, then, formed the foundation for the much of the debate surrounding the Patient Protection and Affordable Care Act of 2010, or as it more often known, Obamacare. This Congressional statute changed healthcare law in the United States in several important ways; but the most controversial provision of the bill, in both popular and legal circles, was the so-called “Individual Mandate.” This section of the law required those without health insurance, but with the means to purchase health insurance, to either do so or pay a certain amount of money. This act was challenged in court; and the government, among other arguments, asserted that Congress had the ability to pass this law under the powers given to it under the Commerce Clause. The argument was that the cost of health insurance was high and increasing. According to the government, this cost was in large measure due to people who choose to not purchase insurance. Invariably, many of these individuals get sick and have no recourse but to seek medical care in emergency rooms, where costs can be relatively high. Moreover, without insurance, many of these patients are stuck with ER bills they can’t pay–meaning hospitals are stuck with bills that aren’t being paid. Therefore, to cover these

losses, hospitals are forced to raise prices for everyone, driving up the cost of healthcare for all, even those that have purchased insurance. This argument, that the inaction of not purchasing health insurance could be regulated by Congress, was rejected by the Supreme Court in National Federation of Independent Business v. Sebelius (2012). There, Chief Justice John Roberts, writing for the majority, did not accept the assertion that the Commerce Clause afforded the federal government the power to regulate inactivity. According to the Chief Justice, “The power to regulate commerce presupposes the existence of commercial activity to be regulated”—essentially stating that not doing something could not be prohibited by Congress. However, the law was still mostly upheld (including the Individual Mandate) under Congress’ Taxing and Spending Power, also one of the enumerated powers in Article I, Section 8.

Necessary & Proper Clause:

Article I, Section 8, Clause 18

“The Congress shall have Power. . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

The final provision of Article I, Section 8 is known as the Necessary and Proper Clause. This clause gives Congress the ability “[T]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” In other words, Congress is given the authority to act to further any of its express powers, even if the particular action isn’t expressly delineated. Thus, this clause theoretically authorizes implied powers, provided that the actions Congress takes can be generally grounded in some other constitutional provision. While this clause is written into the text of the Constitution, it was expounded on by the Supreme Court in McCulloch v. Maryland (1819), which is still today considered to be of extreme importance in understanding the meaning of the Necessary and Proper Clause. In McCulloch, the Court dealt with the federal government’s establishment of a national bank. The state of Maryland sued the government, alleging that, because the Constitution did not expressly grant Congress the authority to set up a bank, it did not have such an ability. Therefore, argued Maryland, the bank was unconstitutional. The Court, however, disagreed. It looked to the Necessary and Proper Clause to assert that Congress’ authority is not limited to the express provisions. There was some flexibility in the text, argued Chief Justice Marshall, writing for the Court. It is here that the Chief Justice wrote the words that are still regularly cited in court cases and academic treatises alike: “In considering this question, then, we must never forget, that it is a constitution we are expounding.” More technically, the Court held that, although the Necessary and Proper Clause could be read narrowly (only authorizing whatever is absolutely necessary to uphold the other provisions of the Constitution), the Court interpreted the clause broadly: provided Congress’ goal could legitimately be said to relate to some express provision, the Necessary and Proper Clause permitted action to achieve that goal. The Court considered the establishment of a bank as legitimately relating to Congress’ express authority to tax and regulate commerce.

Contract Clause:

“No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s [sic] inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress. No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”

Article I, Section 10 Article I, Section 10 of the Constitution places limits on the laws a state may pass. In each of Section 10’s three clauses, the Constitution prohibits a number of seemingly unrelated things. However, they are all theoretically linked by the notion that, with the ratification of the Constitution, states gave up a portion of their sovereignty. States are not countries. Therefore, they may not legislate like they are countries.

In the first clause, among other prohibitions, states are forbidden from making treaties, creating money, and holding people accountable for crimes committed before those acts were made crimes. However, the provision in this clause that has been the source of the most study is the segment that prohibits a state from making a “Law impairing the Obligation of Contracts.” In fact, this entire clause has been known as the “Contract Clause” because of the importance of that provision. Simply, it prohibits states from making laws that interfere with contracts that have already been created. In the early years of the country, this provision was considered sacrosanct. For example, in Fletcher v. Peck (1810), the Georgia legislature sought to void land contracts that it had made in a previous session after learning that the original contracts were issued in exchange for bribes. However, the Supreme Court held this action unconstitutional. Once a contract is made, the Contract Clause prohibits interference by the government. However, the clause has since been watered down in the modern era. In Home Building & Loan Association v. Blaisdell (1934), the Court examined a Minnesota law that prohibited banks from foreclosing on homeowners in default. Conceptually, this was an interference with a contract–the exact type of law that the unqualified Contract Clause appears to prohibit. However, the Court

considered this an insubstantial enough interference for a significant enough purpose (this was during the Great Depression, after all) and did not hold the law unconstitutional. Thus, today, the Court generally holds that a state may interfere with a contract given sufficient justification. It is no longer deemed a black and white issue.

Judicial Review:

Article III, Section I

“The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.”

Judicial Review, a power exercised by the judicial branch, and the Supreme Court in particular, is ubiquitous in the colloquial understanding of the job of the Court. People associate the Supreme Court with its ability to declare a law made by the states or by Congress unconstitutional. It can therefore be surprising to learn that this power cannot be found in any textual provision of the Constitution. In fact, this power is inferred from two disparate provisions, Article III, where the Court is given the power to decide cases “arising under this Constitution, and from Article IV, which states that the Constitution is the “supreme law of the land.” The Constitution is supreme; it trumps legislation, so to speak. The Court decides cases regarding the Constitution. Therefore, the Court decides if and when a piece of legislation is constitutional. This idea may appear almost obvious from the above-mentioned provisions. However, it took a Supreme Court case, Marbury v. Madison (1803), to cement its place as a foundational element of the U.S. judicial system. There were, however, stirrings of this power before Marbury. In Hylton v. United States (1796), the Court examined the constitutionality of a Congressional act relating to taxes. As it happened, the Court decided that the act was, in fact, constitutional. So it did not have to exercise the extreme measure of declaring the tax unconstitutional. However, this set the state for Marbury, where such a measure was taken.

Marbury v. Madison Marbury v. Madison is notable not just for its lasting impact on the Court’s jurisprudence and the notion of separation of powers. It is also notable for the story and intrigue behind the case itself. In the election of 1800, or the Revolution of 1800, as it has come to be known, Thomas Jefferson defeated incumbent John Adams to become the third President of the United States. However, there was a “lame-duck” period of time after the election and before President Adams was to step down. During this period, President Adams used the power of his office to appoint dozens of judges to vacant seats (many of which, incidentally, President Adams had helped create through the signing of a new law adding more lower federal courts). The process by which judges were appointed was such that the President would appoint them, the Senate would approve them, and the names would then have to be delivered to the Secretary of State. In the short period of time

between the election and the beginning of the new presidency, however, there simply was not enough time for this process to be completed for all the judges. While they were appointed and approved, then-Secretary of State John Marshall (who was also, somewhat unbelievably, Chief Justice of the Supreme Court) just could not complete his part in time. President Jefferson took over the office, and with him came a new Secretary of State, James Madison (who, aside from eventually becoming the fourth President, helped to author much of the U.S. Constitution). Secretary of State Madison (and a brief predecessor working as acting-Secretary), then, refused to continue the appointment process for Adams’ appointees, under orders from President Jefferson. One of those appointees, William Marbury, petitioned the Supreme Court for what is called a “writ of mandamus,” basically a court proceeding used to decide such an issue. Marbury claimed that Jefferson and Madison had no such right not to deliver the remaining appointments. Chief Justice Marshall, then, found himself to be at the center of a delicate political issue. He was, after all, the former Secretary of State under President Adams. If he so emphatically sided with Marbury, he could be accused of being bias or partial, or possibly even corrupt. But if he sided with Madison, he could be seen as turning his back on the political ideologies that he had long aligned himself with. Chief Justice Marshall, however, had a way out, one that was unique – and one that did more than simply sidestep the issue at hand. First, the Court found that, indeed, Marbury did have a legal right to the post he was appointed to by President Adams. However, and this was a monumental qualification, the United States Supreme Court did not have the power to compel the appointment through this writ of mandamus. As it happened, the power of the Court to issue writs of mandamus was not included in the Constitution. It was instead part of a law, the Judiciary Act of 1789. This statute gave original jurisdiction to the Court to issue such writs. Original jurisdiction means that a person can appeal directly to a court, without having to first go through another process. This is in contrast with appellate jurisdiction, in which a court can only rule on some matter after another court has ruled on the issue and the party has appealed to the higher court to reconsider the ruling. Per Article III, Section 2, the Court only has original jurisdiction,”[i]n all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party.” For every other case, the Court only has appellate jurisdiction. A party must first work its way through the lower courts before the Supreme Court can rule on the case. As far as the Constitution was concerned, Marbury may have very well had a right to his post, but the Court could not make any decisions on the matter in the process by which Marbury had gone about the case.

In other words, the Congressional statute, the Judiciary Act of 1789, and a provision in the Constitution, Article III, Section 2, were in direct conflict. Chief Justice Marshall applied the notion of Judicial Review to render the Judiciary Act unconstitutional. According to the Chief Justice, the Supremacy Clause lifted up the Constitution above any legislation, and Article III granted the Court the power to decide a conflict between the Constitution and legislation, and interpret the Constitution accordingly.

William Marbury never did get his post. But Marbury v. Madison lives on.

Judicial Review and the United States While Marbury cemented the Court’s authority to exercise Judicial Review over federal legislation (though that authority would not again be exercised until Dred Scott v. Sandford (1857)), it took a few more years for the Court to assert its power over state statutes and courts as well. In Fletcher v. Peck (1810), the Court invalidated the Georgia legislature’s voiding of certain previously made contracts. The Court held this to be a violation of the Contract Clause in Article I, Section 10. Shortly thereafter, in Martin v. Hunter’s Lessee (1816), the Court both invalidated a Virginia law and overruled the Virginia Supreme Court’s opinion on the issue. Virginia had passed a law permitting the confiscation of land belonging to British loyalists (during the Revolutionary War). This law was challenged in an earlier case in the U.S. Supreme Court, and the Court held that the law was unconstitutional. The Virginia Supreme Court, however, charged with implementing that decision, refused to comply, holding the U.S. Supreme Court to have no power over state court actions. The case then returned to the U.S. Supreme Court which insisted on, and fomented, its supremacy over state legislative and judicial action.

Supremacy Clause:

Article VI, Clause 2

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing [sic] in the Constitution or Laws of any State to the Contrary notwithstanding.”

The second clause of Article VI of the Constitution, the so-called “Supremacy Clause,” is perhaps the most significant. Its meaning is simple: where the Constitution or valid federal laws conflict with state constitutions or state laws, the Constitution and the federal laws win. They preempt. They are ‘supreme.’ From early on, this clause has been used to supersede state laws. For example, in Ware v. Hylton (1796), the Court examined a conflict between the Treaty of Paris, made by the federal government, and a Virginia law. The Court held that Virginia could not nullify debts that the Treaty of Paris guaranteed. The Supremacy Clause meant that the federal enactment overrode the Virginia law to the contrary. More famously, in McCulloch v. Maryland (1819), the Court held that the Supremacy Clause meant that it was unconstitutional for the state of Maryland to tax a federally created bank. The bank was within the power of the federal government to create. A state could not exercise authority over the bank. That would thwart the meaning and intention of the Supremacy Clause. Though the Court has further defined the clause and when a federal law preempts a state law, the central holding of Ware and McCulloch remains in effect. Indeed, in the recent case of American Insurance Association v. Garamendi (2003), the Court held that a California law was unconstitutional under the Supremacy Clause. California had passed a law in efforts to help Holocaust survivors collect reparations payments from German companies. The law required any insurance company in business during and before World War II to make much of its client information public. The Court, however, held that federal laws governing reparations, and the United States’ relationship to modern Germany in general, preempted the state law. When the federal government legislates in one area, and a state government does the same, the Supremacy Clause works to make the federal law preempt the state law.

Relevant Decisions from 1800-1836 In chronological order

Talbot v. Seeman: The Power to Declare War In Talbot v. Seeman, 5 U.S. 1 (1801), the U.S. Supreme Court considered the circumstances under which salvage rights attach to a neutral vessel, captured by enemy forces, and then recaptured by the United States Navy. The Court’s decision, which was authored by Chief Justice John Marshall, also addressed Congress’ power to declare war. The Facts of Talbot v. Seeman Silas Talbot, Esq., on behalf of himself and the officers and crew of the Constitution, a U.S. vessel, brought a libel for salvage against the ship Amelia, the property of merchant citizens of Hamburg. The vessel was recaptured on the high seas by the Constitution on September 15, 1799, after being captured nine days prior by a French corvette, while on her voyage from Calcutta to Hamburg. The captors placed a prize master and men on board of the Amelia, and ordered her to St. Domingo. On her re-capture, by Captain Talbot, she was sent to New York. The district court allowed salvage to the libellants, and the circuit court reversed the decree. The vessel’s owner, Hans Frederick Seeman, maintained that Captain Talbot had no right to interfere with the Amelia because she was a neutral vessel and not liable to condemnation by the laws of nations. Seeman further argued that salvage is only due when a benefit has been conferred, and here none was received. The Legal Background The question before the Supreme Court was whether Talbot was entitled to salvage. Salvage is the compensation paid to persons by whose voluntary assistance a ship at sea or her cargo or both have been saved in whole or in part from impending sea peril or in recovering such property from actual peril or loss, as in cases of shipwreck, derelict, or recapture. The three required elements of a salvage claim are: 1. A marine peril; 2. Service voluntarily rendered when not required as an existing duty or from a special contract; 3. Success in whole or in part, or that the service rendered contributed to such success. The taking must also be lawful. As explained by Chief Justice Marshall: On a recapture, therefore, made by a neutral power, no claim for salvage can arise, because the act of retaking is a hostile act, not justified by the situation of the nation to which the vessel making the recapture belongs, in relation to that from the possession of which such recaptured vessel was taken.

The Court’s Decision The U.S. Supreme Court held that the recapture was lawful and ordered salvage be paid to Talbot. Chief Justice John Marshall authored the Court’s opinion, which for the first time was labeled “The Opinion of the Court,” thereby officially ending the practice of the justices all writing separate opinions. The Court first addressed whether the recapture was legal, given that the Amelia was owned by citizens of Hamburg, which was not involved in the Franco-American Naval Conflict of 1798- 1800. The Court also addressed the situation between the United States and France at the date of the recapture, given that no official war was declared. With regard to the war powers granted by the Constitution, Chief Justice Marshall stated: The whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this inquiry. It is not denied, nor in the course of the argument has it been denied, that congress may authorize general hostilities, in which case the general laws of war apply to our situation; or partial hostilities, in which case the laws of war, so far as they actually apply to our situation. In this case, the Court found that Congress had authorized the military seizure of French ships. The Court further concluded that because the Amelia was an armed vessel commanded and manned by Frenchmen, there was probable cause to bring her in for adjudication. Accordingly, the recapture was lawful. The Court further held that Captain Talbot and his men had saved the vessel from the French and, therefore, should be paid salvage in the amount of one sixth of the vessel’s value. “The captured vessel was of such description that the law by which she was to be tried, condemned her as good prize to the captor, the Chief Justice explained. “Her danger then was real and imminent. The service rendered her was an essential service, and the court is therefore of opinion that the recaptor is entitled to salvage.”

Supreme Court Review of the Affordable Care Act Began in 1803 Americans who support and oppose “Obamacare” now find themselves without elected Congressmen to lobby and without the media to influence public opinion. The fate of the Affordable Care Act is now in the hands of nine people elected by no one and appointed for life to the job. This leaves some Americans wondering why the United States Supreme Court has this extraordinary power to affirm or set aside this hard fought victory of Barak Obama’s first term presidency. Common law legal systems, like the American legal system, are based on precedent. The rule of law determined by the highest court in the land based upon one set of facts must be followed by another court if that same set of facts exists at another place or time. In 1803, the United States Supreme Court considered the facts of Marbury v. Madison, 5 U.S. 137, and decided that the Supreme Court has the power to invalidate acts of Congress if they determine those acts to be in conflict with the Constitution of the United States. This legal doctrine is known as “judicial review.” The Facts of the Case The case was brought by William Marbury, who had been appointed by President John Adams as Justice of the Peace in the District of Columbia during the hotly contested Presidential election of 1800. Although Marbury’s commission was approved, it was not delivered before Adams’ term in office ended. When Thomas Jefferson took office, he ordered James Madison, his Secretary of State, not to deliver the commissions signed by his predecessor. Marbury subsequently petitioned the Supreme Court to force Madison’s hand through a writ of mandamus, a legal order compelling him to act. In deciding the case, the Supreme Court focused on three specific questions: 1. Has the applicant a right to the commission he demands? 2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? 3. If they do afford him a remedy, is it a mandamus issuing from this court? The Supreme Court’s Decision The Supreme Court easily answered the first two questions. It first found that Marbury had been properly appointed in accordance with the procedures established by law. Since his commission was approved by the Senate, signed by the President, and sealed by the Secretary of State, the Court concluded, “To withhold the commission, therefore, is an act deemed by the Court not warranted by law, but violative of a vested legal right.” 36

The Court further concluded that Marbury was entitled to a legal remedy. As noted in the opinion, “The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.” While the Court agreed that a mandamus was the proper remedy, it ultimately concluded that it was not authorized to grant it. Its reasoning would form the foundation of the doctrine of judicial review. The justices held that the Judiciary Act of 1789, on which Marbury relied to bring his petition to the High Court, was unconstitutional. The Court invalidated the law because it extended the Court’s original jurisdiction (the power to bring cases directly to the Supreme Court) beyond the scope of the Constitution. Under Article III, original jurisdiction is only given to cases “affecting ambassadors, other public ministers and consuls” and to cases “in which the state shall be party.” In plain terms, the Supreme Court determined that Congress had overstepped its authority in passing the law, and it was the Court’s duty, as the protector of the Constitution, to strike it down. As Chief Justice John Marshall wrote: It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each. So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. The Implications the Case As I mentioned at the beginning of this post, this decision forms the basis for petitioners to challenge the constitutionality of our laws before the Supreme Court, including the health care law being debated today. In addition to establishing judicial review, the Marbury decision elevated the power of the Supreme Court and started its gradual rise to an equal branch of the federal government.

Charming Betsy and the Law of Nations In Murray v. Schooner Charming Betsy 6 U.S.64, 2 L.Ed.208 (1804), Chief Justice John Marshall stated that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.” This early Supreme Court decision creates authority for a rule of statutory construction encouraging American Courts to interpret U.S. law consistent with international law where appropriate. The Facts in Charming Betsy The Charming Betsey, an American merchant vessel, set sail from Baltimore on April 10, 1800, under the name of The Jane. Upon arrival in St. Thomas, the vessel was sold to Jared Shattuck, who was born in the United States and moved to St. Thomas as a child. He later worked as a merchant, married there, and, in 1797, took an oath of allegiance to Denmark. Jared Shattuck put a cargo on board of the schooner, calling her The Charming Betsey. In Guadeloupe, the vessel was captured by a French privateer and taken as a prize. The American frigate Constellation subsequently recaptured the ship. Its commander, Captain Murray, sold the cargo and brought the vessel to the United States. There, Shattuck was charged with violating a U.S. law prohibiting commercial intercourse between the United States and France. The Non- intercourse Act prohibited trade “between any person or persons resident within the United States or under their protection, and any person or persons resident within the territories of the French Republic, or any of the dependencies thereof.” The consul of Denmark claimed that vessel and the cargo were the bona fide property of a Danish subject. The trial court and Circuit Court agreed, ordering that the vessel be restored and the proceeds of the cargo paid to Shattuck. The Court’s Decision in Charming Betsy The U.S. Supreme Court concluded that the recapture was illegal. It specifically held that “the Charming Betsy with her cargo, being at the time of her recapture the bona fide property of a Danish burgher, is not forfeitable in consequence of her being employed in carrying on trade and commerce with a French island.” In reaching its decision, the Court held that federal statutes should be interpreted in harmony with international law, which discouraged the capture of neutral nations and their citizens in a declared war. As Chief Justice Marshall explained: “An act of Congress ought never to be construed to violate the law of nations if any other possible construction remains, and consequently can never be 38

construed to violate neutral rights or to affect neutral commerce further than is warranted by the law of nations as understood in this country.” While Chief Justice Marshall did not cite any specific legal authority in support of the holding, it continues to influence international law more than two centuries later. The cannon of statutory interpretation is referred to as the Charming Betsy cannon.

Fletcher v. Peck and the Contract Clause In Fletcher v. Peck, 10 U.S. 87 (1810), the Marshall Court ruled that an act of the Georgia State legislature that nullified a prior land grant they passed violated the U.S. Constitution. It was the first case in which the U. S. Supreme Court held that a state law violated the federal Constitution. The Facts of the Case The case stems from a property dispute over the Yazoo lands, Native American territory claimed by the State of Georgia. In 1795, the Georgia legislature divided the property into four tracts and sold it to four companies. It was later revealed that the lawmakers who had approved the Yazoo Land Act of 1795 were paid bribes for their votes. After the next election, the new legislature passed a bill repealing the Yazoo Land Act and invalidating the transactions. The defendant in the case, John Peck, acquired land that was granted under the Yazoo Land Act. Several years later, he sold the land to Robert Fletcher, attesting that he held clear title to the property. Fletcher later filed suit for breach of contract, alleging that since the original sale of the land had been declared null and void, Peck lacked the authority to sell the land. The Legal Background Article I, section 10, clause 1 of the U.S. Constitution (also known as the “Contracts Clause”) states: No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. The specific section of the Constitution was enacted to prohibit state governments from giving preferential treatment to wealthy and influential citizens through legislation, a practice that was common at the time. The Court’s Decision In a unanimous decision, the Supreme Court held that the law repealing the Yazoo Land Act was unconstitutional because the Georgia legislature lacked the authority to invalidate a binding legal contract, even if it had been tainted by bribery. Given that this was the first time the Court struck down a state law, Chief Justice John Marshall treaded carefully. He wrote: 40

It is not intended to speak with disrespect of the legislature of Georgia, or of its acts. Far from it. The question is a general question, and is treated as one. For although such powerful objections to a legislative grant, as are alleged against this, may not again exist, yet the principle, on which alone this rescinding act is to be supported, may be applied to every case to which it shall be the will of any legislature to apply it. The principle is this; that a legislature may, by its own act, devest the vested estate of any man whatever, for reasons which shall, by itself, be deemed sufficient. In reaching its decision, the Court made a clear distinction between laws enacted by the state legislature and contracts executed by the same body. On the one hand, lawmakers are free to undue laws passed by their predecessors. “One legislature is competent to repeal any act which a former legislature was competent to pass; and that one legislature cannot abridge the powers of a succeeding legislature,” Chief Justice Marshall explained. However, when the law is a contract by nature on which other parties have come to rely, the legislature does not have the same authority. Citing the Contracts Clause’s prohibition against passing laws that impair the obligation of contracts, the Court expressly held that states are cannot use their legislative power to nullify contracts or grants made by prior legislative acts. In so ruling, the Court reasoned that the provision applies equally to contracts to which the state is a party. Chief Justice Marshall wrote: “Is the clause to be considered as inhibiting the state from impairing the obligation of contracts between two individuals, but as excluding from that inhibition contracts made with itself? The words themselves contain no such distinction. They are general, and are applicable to contracts of every description.” In light of the above, the Court concluded: It is, then, the unanimous opinion of the court, that, in this case, the estate having passed into the hands of a purchaser for a valuable consideration, without notice, the state of Georgia was restrained, either by general principles which are common to our free institutions, or by the particular provisions of the constitution of the United States, from passing a law whereby the estate of the plaintiff in the premises so purchased could be constitutionally and legally impaired and rendered null and void.

U.S. v Hudson and Goodwin: Jurisdiction over Criminal Matters In United States v Hudson and Goodwin, 11 U.S. 32 (1812), the U.S. Supreme Court first considered whether the federal courts were authorized to hear criminal cases. The justices held that Congress must confer jurisdiction by statute in order for the court to render a conviction. The Facts of the Case Defendants Barzillai Hudson and George Goodwin were indicted for libel after accusing the President of the United States and Congress of secretly voting to give Napoleon Bonaparte $2 million to make a treaty with Spain. The Circuit Court was split on the question of whether it could exercise common law jurisdiction over criminal libel cases. The Court’s Decision The Court concluded that the Circuit Courts of the United States cannot exercise a common law jurisdiction in criminal cases. As Justice William Johnson noted, the authority of the U.S. Supreme Court is set forth in Article 3, Section 2 of the U.S. Constitution, while the jurisdiction of the lower federal courts must be established by statute. Justice Johnson further explained: The course of reasoning which leads to this conclusion is simple, obvious, and admits of but little illustration. The powers of the general Government are made up of concessions from the several states–what ever is not expressly given to the former, the latter expressly reserve. The judicial power of the United States is a constituent part of those concessions–that power is to be exercised by Courts organized for the purpose, and brought into existence by an effort of the legislative power of the Union. Of all the Courts which the United States may, under their general powers, constitute, one only, the Supreme Court, possesses jurisdiction derived immediately from the Constitution, and of which the legislative power cannot deprive it. All other Courts created by the general Government possess no jurisdiction but what is given them by the power that creates them, and can be vested with none but what the power ceded to the general Government will authorize them to confer. Since the jurisdiction of the courts is limited, the Court held that “[t]he legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the Court that shall have jurisdiction of the offence.”

Livingston v. Van Ingen: NY Appeals Court Tackles Commerce Clause In Livingston v. Van Ingen, 9 Johns. R. 507 N.Y. 1812, the New York Court for the Correction of Errors upheld a New York statute authorizing a monopoly on steam boat transportation in New York waters. The appeals court decision, which was later nullified by the U.S. Supreme Court’s holding in Gibbons v. Ogden, highlights the tensions that existed between state and federal regulation as the new nation grew its economy. The Facts of the Case In 1808, the state of New York passed a law granting Robert R. Livingston and Robert Fulton the exclusive right to navigate the waters of the State with steamboats, which were a relatively new form of transportation. Under the statute, all steamboats operating in New York waters were required to obtain a license from Livingston and Fulton. If a license was not obtained, the vessels were subject to forfeiture. James Van Ingen co-owned two steamboats, the Hope and the Perseverance, which provided ferry service on the Hudson River. When Livingston and Fulton discovered that Van Ingen did not secure a license, they filed suit, seeking to prohibit the operation of the steamboats in violation of the New York law. However, the court refused to grant an injunction. Livingston and Fulton appealed to the New York Court for the Correction of Errors. Legal Background The case centered on how to interpret Article 1, Section 8, Clause 3 of the U.S. Constitution, otherwise known as the Commerce Clause. It states that Congress is specifically empowered “to regulate Commerce with foreign Nations, and among several States, and with the Indian Tribes.” More simply put, the Commerce Clause gives Congress exclusive authority over commercial activities among the states and with foreign countries and Indian tribes. Under this framework, the individual states can only regulate intrastate commerce that takes place exclusively within their borders. The Court’s Decision The New York appeals court overturned the decision, finding that the “exclusive right to navigate the waters of this state by boats propelled by fire or steam, is constitutional.” It ordered the lower court to grant the injunction in favor of Livingston and Fulton. As was customary at the time, Justices Yates, Thompson and Kent all authored individual opinions. Justice Kent’s is most frequently cited for his discussion of the distinction between “internal” and “external” commerce. He explained his reasoning as follows: 43

[T]he states are under no other constitutional restriction, and are, consequently, left in possession of a vast field of commercial regulation; all the internal commerce of the state by land and water remains entirely, and I may say exclusively, within the scope of its original sovereignty. The congressional power relates to external not to internal commerce, and it is confined to the regulation of that commerce. The decision of the New York appeals court did not resolve the Commerce Clause controversy or the battle over the steamboat monopoly. More than a decade later, the U.S. Supreme Court decided Gibbons v. Ogden. In the landmark case, the Court invalidated the New York statute authorizing the monopoly. More importantly, the Court held that the Constitution authorizes Congress to regulate any form of commerce that crosses state lines.

Martin v. Hunter’s Lessee: The Supreme Court’s Authority Over State Courts In Martin v. Hunter’s Lessee, 14 U.S. 304 (1816), the U.S. Supreme Court first asserted its authority to overrule a state court decision regarding an issue of federal law. The Court’s landmark decision was rooted in the Court’s appellate jurisdiction conferred under Article III of the U.S. Constitution, as well as the Supremacy Clause. The Facts of the Case The dispute revolved around the ownership of land in Virginia known as the Northern Neck Proprietary, which was originally owned by Lord Fairfax. The state of Virginia seized the land from Fairfax, a British loyalist, during the Revolutionary War and transferred a portion of it to David Hunter. Pursuant to a treaty to end the war, the United States agreed to protect land owned by British loyalists like Fairfax. Thomas Martin, who inherited the land from Fairfax, filed suit in a Virginia state court to eject Hunter from his tract of land. The Virginia court ruled in favor of Martin, but the Virginia Court of Appeals reversed. On appeal to the U.S. Supreme Court, the justices held that Martin was the legal property owner under the treaty executed with Britain. Nonetheless, the Virginia Court of Appeals refused to obey the Supreme Court’s ruling. It held: The court is unanimously of opinion, that the appellate power of the supreme court of the United States does not extend to this court, under a sound construction of the constitution of the United States; that so much of the 25th section of the act of congress to establish the judicial courts of the United States, as extends the appellate jurisdiction of the supreme court to this court, is not in pursuance of the constitution of the United States; that the writ of error, in this cause, was improvidently allowed under the authority of that act; that the proceedings thereon in the supreme court were, coram non judice, in relation to this court, and that obedience to its mandate be declined by the court. The Legal Background The Supreme Court’s jurisdiction is set forth in Article III of the Constitution. Pursuant to Section 1, “The judicial power of the United States shall be vested in one Supreme Court, and in such other inferior courts as the congress may, from time to time, ordain and establish.” Article III, Section 2, further states: The judicial power shall extend to all cases in law or equity, arising under this constitution, the laws of the United States, and the treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty 45

and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state, claiming lands under the grants of different states; and between a state or the citizens thereof, and foreign states, citizens, or subjects. Finally, Article III establishes that “in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the supreme court shall have original jurisdiction. In all the other cases before mentioned the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the congress shall make.” The Court’s Decision The Supreme Court overturned the Virginia Supreme Court’s decision, holding that the Court has appellate jurisdiction over state court cases involving issues of federal law. Justice Joseph Story authored the decision for a unanimous court. The Court’s decision cited both the text and the spirit of the Constitution. Justice Story explained: On the whole, the court are of opinion, that the appellate power of the United States does extend to cases pending in the state courts; and that the 25th section of the judiciary act, which authorizes the exercise of this jurisdiction in the specified cases, by a writ of error, is supported by the letter and spirit of the constitution. We find no clause in that instrument which limits this power; and we dare not interpose a limitation where the people have not been disposed to create one. The Court’s decision rejected the notion that state and federal judiciary were equal with respect to issues of federal law, concluding that the interests of uniformity and federal supremacy supported the Supreme Court’s authority to overrule state courts on questions of constitutional law. In so ruling, the Court’s decision in Martin v. Hunter’s Lessee further solidified the U.S. Supreme Court’s position as the highest court in the country.

McCulloch v. Maryland: The Necessary and Proper Clause In McCulloch v. Maryland, the U.S. Supreme Court held that Congress has broad discretionary authority to implement the powers enumerated in the Constitution under the Necessary and Proper Clause. McCulloch v. Maryland, 17 U.S. 316 (1819) is regarded as one of Chief Justice John Marshall’s most influential opinions. The Facts of the Case In 1816, Congress passed legislation establishing the Second Bank of the United States. Because it was a depository of federal funds and authorized to issue notes, many states viewed the national bank as unfair competition and questioned its constitutionality. When state banks began to fail during the depression of 1818, the State of Maryland passed a law that imposed taxes on all banks not chartered in the state. The Second National Bank was the only one. When the Baltimore branch of the Second National Bank refused to pay the taxes, the state of Maryland filed a suit against James W. McCulloch, the bank’s cashier. In the lawsuit that followed, he argued that the tax was unconstitutional. Maryland’s highest court ruled that the tax was valid, and McCulloch appealed to the U.S. Supreme Court. The issues before the justices were whether Congress had the power to establish a bank and whether the Maryland tax law violated the U.S. Constitution. The Legal Background McCulloch v. Maryland required the Supreme Court to interpret two essential clauses of the U.S. Constitution. The Necessary and Proper Clause set forth in Article 1, Section 8, states: The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. The Supremacy Clause, which is found in Article 6, Clause 2, states: This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding. The Court’s Decision 47

In a decision that continues to resonate today, the unanimous Court held that the Congress was authorized to establish the Bank of the United States and that the Maryland tax was unconstitutional. Chief Justice John Marshall authored the Court’s opinion. The Necessary and Proper Clause With regard to the authority of Congress, the Court recognized the legislative branch’s broad discretionary power to implement the powers enumerated in the Constitution, noting that there was nothing in the Constitution that excluded incidental or implied powers. As Chief Marshall eloquently explained, “Let the ends be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adopted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” The Court further held that since the authority to create a bank was related to the enumerated powers to regulate interstate commerce, collect taxes, and borrow money, the act was deemed constitutional. Chief Justice Marshall wrote: Although, among the enumerated powers of Government, we do not find the word ‘bank’ or ‘incorporation,’ we find the great powers, to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation are entrusted [sic] to its Government. The Supremacy Clause The Court next turned to Maryland’s ability to tax the bank, ultimately finding that its actions violated the Supremacy Clause of Article VI of the Constitution. As Chief Justice Marshall explained, “The Government of the Union, though limited in its powers, is supreme within its sphere of action, and its laws, when made in pursuance of the Constitution, form the supreme law of the land.” Because “the power to tax is the power to destroy,” the Court held that the state of Maryland had impermissibly interfered with the law of the land. As he further stated, “The States have no power, by taxation or otherwise, to retard, impede, burthen, or in any manner control the operations of the constitutional laws enacted by Congress to carry into effect the powers vested in the national Government.” Finally, Chief Justice Marshall confirmed the inferior status of the states in relation to the federal government, an issue that had been questioned by lawyers for the state of Maryland. He wrote, “The Government of the Union then (whatever may be the influence of this fact on the case) is, emphatically and truly, a Government of the people. In form and in substance, it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.”

Sturges v Crowninshield: Constitutionality of State Bankruptcy Laws In Sturges v Crowninshield, 17 U.S. (4 Wheat.) 122 (1819), the U.S. Supreme Court considered whether a New York bankruptcy law, and its retroactive application, were constitutional. The justices concluded that federal power over bankruptcy was not exclusive. However, they struck down the retroactive aspect of the law as violating the Constitution’s Contracts Clause. The Facts of Sturges v Crowninshield In 1811, the State of New York enacted a statute that freed debtors from imprisonment for debt and discharged their debt if they assigned their property for the benefit of their creditors. The law contained a provision stating that it applied to debts contracted before the statute was enacted. The Supreme Court was asked to determine two constitutional questions. The first was whether “any State has authority to pass a bankrupt law, or whether the power is exclusively vested in the congress of the United States.” Pursuant to Article I, Section 8 of the Constitution, “The congress shall have power…to establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States.” The second issue was whether the New York bankruptcy law impaired the obligation of contracts, within the meaning of the constitution of the United States. Pursuant to Article I, Section 10 of the U.S. Constitution, the states may not pass any law “impairing the Obligation of Contracts.” The Court’s Decision in Sturges v Crowninshield While the Court held that New York was authorized to enact a bankruptcy law, it nonetheless found the statute unconstitutional under the Contracts Clause. Chief Justice John Marshall wrote the Court’s opinion, which is largely viewed as a compromise between the Republicans and Federalists on the Court. As Chief Justice Marshall explained: The constitution does not grant to the States the power of passing bankrupt laws, or any other power; but finds them in possession of it, and may either prohibit its future exercise entirely, or restrain it so far as national policy may require. It has so far restrained it as to prohibit the passage of any law impairing the obligation of contracts. Although, then, the States may, until that power shall be exercised by congress, pass laws concerning bankrupts, yet they cannot constitutionally introduce into such laws a clause which discharges the obligations the bankrupt has entered into. 49

Dartmouth College v. Woodward: The Contracts Clause In Dartmouth College v. Woodward, 17 U.S. 518 (1819), the U.S. Supreme Court held that the U.S. Constitution’s Contracts Clause prohibited state legislatures from interfering with individual property rights. Accordingly, the Court invalidated a statute enacted by the State of New Hampshire seeking to alter the charter of Dartmouth College and convert it to a public university. The Facts of the Case In 1769 the British Crown granted a charter to Dartmouth College, which set forth the purpose of the school, established a governance structure, and transferred land to the college. In 1816 the State Legislature of New Hampshire sought to alter the charter without the consent of the college’s board of trustees, with the ultimate goal of converting the private college into a public university. The legislative changes increased the number of trustees, authorized the state governor to appoint trustees, created a new state board with the power to veto trustee decisions, and seized the college’s book of records, corporate seal, and other corporate property. The trustees of the College filed suit, alleging that the actions of the New Hampshire legislature were unconstitutional. The Legal Background When they ratified the Constitution, the states surrendered a portion of their sovereignty in favor of the federal government. Pursuant to Article I, Section 10: No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility… Of the many limitations placed on the states, the “Contracts Clause” has received the most attention. In basic terms, it prohibits states from making laws that interfere with contracts that have already been created. The Court’s Decision By a vote of 6-1, the Supreme Court sided with Dartmouth College. Chief Justice John Marshall wrote on behalf of the majority, holding: The charter granted by the British Crown to the trustees of Dartmouth College, in New Hampshire, in the year 1769, is a contract within the meaning of that clause of the Constitution 50

of the United States, art. 1, s. 10, which declares that no state shall make any law impairing the obligation of contracts. In reaching its decision, the majority clarified that the Contracts Clause applied to individual property rights and not to “the political relations between the government and its citizens”. “The provision of the Constitution never has been understood to embrace other contracts than those which respect property, or some object of value, and confer rights which may be asserted in a court of justice,” Chief Justice Marshall further explained. Applying this reasoning, the Court further held that the state could not interfere with the college’s corporate charter because it constituted a contract between private parties. “That a corporation is established for purposes of general charity, or for education generally does not, per se, make it a public corporation, liable to the control of the legislature,” the majority concluded. Accordingly, it struck down the New Hampshire law as unconstitutional.

Cohens v. Virginia: U.S. Supreme Court Trumps State Courts In Cohens v. Virginia, 19 U.S. 264 (1821), the U.S. Supreme Court established itself as the highest court in the county. The justices expressly held that the Court had appellate jurisdiction over state court criminal law decisions involving alleged Constitutional violations. The Facts of the Case In 1812, Congress authorized the establishment of a National Lottery to raise funds for the District of Columbia. Neighboring Virginia, which operated its own state lotteries, enacted a law prohibiting the sale of out-of-state lottery tickets. Mendes J. Cohen and Philip J. Cohen were convicted of selling National Lottery tickets in Norfolk, Virginia, in violation of the state law. In their defense, the Cohen brothers argued that the sale was authorized under the federal law governing the National Lottery. After state courts rejected the argument, the Cohens appealed to the U.S. Supreme Court. On appeal, the State of Virginia argued that the U.S. Supreme Court did not have jurisdiction to consider the case. Virginia maintained that the Supreme Court was not authorized to hear cases in which a state is a party or criminal decisions issued by state courts. Legal Background Article III, Section 2 of the Constitution states: The judicial Power shall extend to all cases in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;– between a State and Citizens of another State,–between Citizens of different States,–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. The Majority Decision The Supreme Court unanimously held that it had jurisdiction to review the case and ultimately upheld the conviction. Chief Justice John Marshall wrote on behalf of the Court. With regard to the nature of the parties, the Court found it was irrelevant to its appellate jurisdiction. “We think a case arising under the Constitution or laws of the United States is 52

cognizable in the Courts of the Union whoever may be the parties to that case,” Chief Justice Marshall wrote. The justices also affirmed that the Constitution granted the Court appellate jurisdiction over all cases arising under the Constitution or laws of the United States, even those cases decided by state courts. Under an alternative conclusion, the Court noted, the “Constitution, laws, and treaties may receive as many constructions as there are States.” In support of its decision, the Court cited the plain language of Article III as well as the Framers’ intent. “There is certainly nothing in the circumstances under which our Constitution was formed, nothing in the history of the times, which would justify the opinion that the confidence reposed in the States was so implicit as to leave in them and their tribunals the power of resisting or defeating, in the form of law, the legitimate measures of the Union.” The decision also solidified the supremacy of federal law under the Supremacy Clause of Article VI. As Chief Justice Marshall explained: “The Constitution and laws of a State, so far as they are repugnant to the Constitution and laws of the United States, are absolutely void. These States are constituent parts of the United States. They are members of one great empire — for some purposes sovereign, for some purposes subordinate.”

Johnson v. M’Intosh: The Power to Grant Land In Johnson v. M’Intosh, 21 U.S. 543 (1823), the U.S. Supreme Court addressed whether Native Americans had the power to give, and of private individuals to receive, title to land. The justices ultimately answered in the negative, citing the power of Congress to extinguish aboriginal title. The Facts of the Case The case involved two competing claims to land located in the Northwest Territory, formally part of the colony of Virginia. Thomas Johnson purchased land from Piankeshaw Native American tribes in 1773 and 1775. Johnson’s descendants, who had inherited the land, filed an ejectment action against the defendant, William M’Intosh, who had obtained the same land from the federal government. The District Court sided with M’Intosh, holding that M’Intosh’s title was superior because Congress granted it. The plaintiffs subsequently appealed to the Supreme Court. The Court’s Decision The Court affirmed the lower court’s decision, holding that “the plaintiffs do not exhibit a title which can be sustained in the Courts of the United States.” Chief Justice John Marshall authored the Court’s opinion. In explaining the Court’s decision, the Chief Justice provided a thorough history of the discovery and settlement of the Americas. He specifically highlighted the importance of the discovery rule under which the conquering nation holds title to land to the exclusion of all others. Justice Marshall’s opinion further detailed the rights of the land’s original occupants, stating: [T]he rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it. Thus, following the American Revolution and the treaties that followed, the federal government obtained the “exclusive right…to extinguish [the Indians’] title, and to grant the soil.” The Court further held that the “power to grant land must negative the existence of any right which may 54

conflict with, and control it. An absolute title to lands cannot exist, at the same time, in different persons, or in different governments.”

Corfield v. Coryell: The Privileges and Immunities Clause In Corfield v. Coryell, 6 F. Cas. 546 (1823), Supreme Court Justice Bushrod Washington interprets the Privileges and Immunities Clause of Article 4, Section 2 and articulates a list of fundamental rights guaranteed by the U.S. Constitution. Although he authored the opinion while sitting as a circuit judge, this early reference to fundamental rights not expressly stated in the Constitution foreshadows Twentieth Century Constitutional law. What is even more interesting about Corfield is that Justice Washington had no problem applying the Article 4, Section 2 Privileges and Immunities Clause to the states. A decade later, Justice Marshall’s opinion in Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833) holds that the Bill of rights does not apply to the states. Under Marshall’s reasoning, the articles, including the privileges and immunities clause, do not apply to the states either although Corfield was never reversed. Even after the Civil war amendments to the Constitution, when the Court had the opportunity to interpret the Privileges and immunities Clause of the 14th Amendment, the Supreme Court did not use either the Article 4, Section 2 Privileges and Immunities clause or the 14th Amendment Privileges and Immunities clause. Instead the Court chose to use the 14th Amendment Due Process clause to find fundamental rights not expressly enumerated in the constitution and make them applicable to the states. The Facts of the Case Mr. Corfield, a citizen of Delaware, challenged the validity of a New Jersey statute which prohibited “any person who is not, at the time, an actual inhabitant and resident in this State” from raking or gathering “clams, oysters or shells” in any of the waters of the State, or on board any vessel “not wholly owned by some person, inhabitant of and actually residing in this State…” Corfield argued that the New Jersey law violated the U.S. Constitution’s “Privileges and Immunities Clause.” Article IV, Section 2 of the Constitution specifically states that “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” The Court’s Decision As stated by Justice Washington, the central issue in the case was how to define the “privileges and immunities of citizens in the several States.” In the court’s opinion, the protection afforded by the Constitution extends only to fundamental rights. “We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; 56

and which have, at all times, been enjoyed by the citizens of the several States which compose this Union,” Justice Washington’s opinion explains. While Justice Washington acknowledged that it would be too tedious to list all of the fundamental rights, he provided the following list: Protection by the Government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the Government must justly prescribe for the general good of the whole. The right of a citizen of one State to pass through, or to reside in any other State, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefits of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the State… With regard to specific issues of the case, the court held that the State of New Jersey was not required to grant “co-tenancy in the common property of the State, to the citizens of all the other States.” Accordingly, it found the state statute was constitutional. In highlighting the boundaries of the Privileges and Immunities Clause, Justice Washington wrote: [W]e cannot accede to the proposition . . . that, under this provision of the Constitution, the citizens of the several States are permitted to participate in all the rights which belong exclusively to the citizens of any particular State, merely upon the ground that they are enjoyed by those citizens; much less, that in regulating the use of the common property of the citizens of such State, the legislature is bound to extend to the citizens of all other States the same advantages as are secured to their own citizens.

Gibbons v. Ogden: The Commerce Clause In Gibbons v. Ogden, 22 U.S. 1 (1824), the U.S. Supreme Court first held that Congress has the authority to regulate any form of commerce that crosses state lines. The opinion, authored by Chief Justice John Marshall, is considered the most influential regarding the Commerce Clause. The Facts of the Case The state of New York passed a law granting Robert R. Livingston and Robert Fulton the exclusive right to navigate the waters of the State with steamboats. Through an assignment, Aaron Ogden received the exclusive license to operate his steamboats in the waters between Elizabethtown, among other places in New Jersey, and the City of New York. Ogden sought an injunction against Thomas Gibbons, who operated a steamboat along the same routes between New York and New Jersey. Gibbons possessed a coastal license granted under federal legislation, and his attorney, Daniel Webster, argued that Congress had exclusive authority to regulate interstate commerce under the U.S. Constitution. However, a New York court found Ogden and ordered Gibbons to cease operating his steamships. After the New York Supreme Court affirmed the decision, Gibbons appealed to the U.S. Supreme Court. The Legal Background Pursuant to Article 1, Section 8, Clause 3, of the Constitution, Congress is specifically empowered “to regulate Commerce with foreign Nations, and among several States, and with the Indian Tribes.” In basic terms, the Commerce Clause gives Congress exclusive authority over trade activities among the states and with foreign countries and Indian tribes. Meanwhile, states are free to regulate intrastate commerce that takes place exclusively within its borders. The Founding Fathers included the Commerce Clause in the Constitution to level the playing field between states with lucrative trading ports and those that were landlocked. The Court’s Decision The Supreme Court held that the New York law was unconstitutional as violating the Supremacy Clause, which establishes the U.S. Constitution and federal law as the “supreme law of the land.” According to the Court, the New York law was “in collision with the acts of Congress regulating the coasting trade, which, being made in pursuance of the Constitution, are supreme, and the State laws must yield to that supremacy, even though enacted in pursuance of powers acknowledged to remain in the States”. 58

In reaching its decision, the Supreme Court first interpreted the breadth and reach of the Commerce Clause. With regard to the definition of “commerce,” Chief Justice Marshall clarified that it extended to the regulations of navigation. “The power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself and may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution,” he wrote. Accordingly, “The power of Congress, then, comprehends navigation, within the limits of every State in the Union; so far as that navigation may be, in any manner, connected with ‘commerce with foreign nations, or among the several States.’” The Court also clarified the meaning of the phrase “commerce among the several States,” concluding that the word “among” should be interpreted as “intermingled with.” Accordingly, the Court held that Congress’ power to regulate interstate commerce does not “stop at the external boundary line of each State, but may be introduced into the interior.” The Court also addressed the power of Congress, concluding that its authority to regulate commerce is plenary. As Chief Justice Marshall explained: If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations and among the several states is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States. Taken together, Chief Justice Marshall’s broad interpretation of the Commerce Clause cemented Congress’ significant power to regulate all things impacting commercial activity that crosses state lines. Today, this integral clause of the U.S. Constitution serves as the basis for legislation governing everything from air quality standards to employee wages.

Osborn v Bank of the United States Clarifies Reach of Federal Jurisdiction In Osborn v Bank of the United States, 22 US. (9 Wheat.) 738 (1824), the U.S. Supreme Court addressed Article III’s grant of judicial power over cases “arising under” federal law. In his opinion, Chief Justice John Marshall broadly interpreted the power of Congress to confer jurisdiction to the federal courts. The Facts of the Case In violation of the Supreme Court’s prior decision in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), which held that the states may not tax national banks, Ohio imposed a state tax on the Bank of the United States. The Bank sought a temporary injunction in a federal circuit court to prevent Ohio’s state auditor from collecting. Although the court granted the injunction, the Ohio auditor, Ralph Osborn, ignored the order and seized $120,475 from the Bank by force. The circuit court ordered the state officials to return the money. They appealed to the United States Supreme Court, arguing that the federal court lacked jurisdiction over the suit. Article III of the Constitution states: “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.” The Court’s Decision By a vote of 6-1, the Supreme Court upheld the circuit court’s ruling. “A State cannot tax the Bank of the United States, and any attempt on the part of its agents and officers to enforce the collection of such tax against the property of the Bank may be restrained by injunction from the circuit court,” Chief Justice John Marshall wrote. With regard to whether the circuit court had jurisdiction over the suit, the Court broadly interpreted Congressional power to confer jurisdiction. It found there was nothing in the Constitution to prevent Congress from giving inferior courts original jurisdiction over matters to which the Supreme Court’s appellate jurisdiction extends. Further Observations from the Court The Court further held that a case arises under federal law for the purposed of Article III whenever federal law “forms an ingredient of an original cause.” As the Chief Justice further explained: 60

We think, then that when a question to which the judicial power of the Union is extended by the Constitution forms an ingredient of the original cause, it is in the power of Congress to give the circuit courts jurisdiction of that cause, although other questions of fact or of law may be involved in it. The Court also addressed the sovereign immunity protections of the Eleventh Amendment. It held that Eleventh Amendment only applies to suits in which the state is a named party. Although Osborn was acting in his official capacity, the Court held that he was not entitled to immunity from suit.

Wayman v Southard: The Limits of Non-delegation In Wayman v Southard, 23 U.S. 10 Wheat. 1 1 (1825), the U.S. Supreme Court first grappled with the doctrine of non-delegation, under which one branch of government can’t delegate its constitutionally authorized power to another. In the decision, Chief Justice John Marshall distinguished between “important” subjects and mere details, which the Court held Congress may delegate to other branches. The Facts of the Case The case involved the Process Act of 1792, which was one of several federal statutes that authorized the federal courts to establish rules of practice, provided such rules were not repugnant to the laws of the United States. The specific provision at issue stated: [T]hat the forms of writs, executions, and other process, except their style, and the forms and modes of proceeding in suits in those of common law, shall be the same as are now used in the said Courts respectively, in pursuance of the act entitled, “an act to regulate processes in the Courts of the United States,” except so far as may have been provided for by the act to establish the judicial Courts of the United States; subject, however, to such alterations and additions as the said Courts respectively shall, in their discretion, deem expedient, or to such regulations as the Supreme Court of the United States shall think proper, from time to time, by rule, to prescribe to any Circuit or District Court concerning the same. As described in the Court’s opinion, “the defendants contend, that this clause, if extended beyond the mere regulation of practice in the court, would be a delegation of legislative authority which congress can never be supposed to intend, and has not the power to make.” The Court’s Decision The Supreme Court held that the statute did not constitute an impermissible delegation of Congress’ power. In so ruling, the Court held that while Congress holds the legislative power, it may authorize the executive or the judicial branches to fill in the details of such laws. “The line has not exactly been drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details,” Chief Justice Marshall acknowledged. 62

In reaching its decision, the Court noted that Congress had expressly enabled the courts to regulate their practice by other laws, such as the Judiciary act of 1789. It provided “that all the said courts shall have power…to make and establish all necessary rules for the orderly conducting business in the said courts, provided such rules are not repugnant to the laws of the United States.” The Chief Justice also highlighted that “Congress has not, in fact, delegated this authority to the Court. The several Process Acts passed by Congress, regulate the forms only.” He added: Every Court has, like every other public political body, the power necessary and proper to provide for the orderly conduct of its business. This may be compared to the separate power which each house of Congress has to determine the rules of its proceedings, and to punish contempts. This is altogether different from the general legislative power, which Congress cannot delegate, and never has attempted to delegate, to either house, separately, or to the executive and judicial departments of the government.

Brown v Maryland: Import Taxes on Foreign Goods In Brown v Maryland, 12 Wheat. 419 (1827), the U.S. Supreme Court held that a Maryland law requiring importers of foreign goods to obtain a license violated the Constitution’s prohibition on import taxes and undermined federal authority over interstate and foreign commerce. The decision established the “original package doctrine,” under which state taxes could not be imposed on foreign goods or their importer so long as the goods had not yet been sold and were still in their original packages. The Facts of the Case Importers of foreign goods challenged a Maryland state law that required all individuals who sold such goods to obtain a license for the cost of $50. They argued that the tax violated Article I, section 10 of the Constitution, which prohibits states from laying “any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws.” They also argued that the law was also regnant to the Constitution’s Commerce Clause, which declares that Congress shall have power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” The Court’s Decision By a vote of 6-1, the Court agreed. It held that the Maryland law violated Article I’s ban on import taxes, as well as interfered with federal authority over interstate and foreign commerce. Chief Justice John Marshall authored the majority opinion: “If the State of Maryland had the power to lay such a restraint on the importation and sale of foreign goods, every other State must have the same power; and the consequence would be, that this power of taxation would directly interfere, both with the power of regulating commerce, and with the taxing power of Congress,” the Chief Justice wrote. The Original Package Doctrine Marshall also addressed the point of time when the prohibition on import taxes ceases, and the power of the state to tax commences. His explanation became known as the original package doctrine. He wrote: It is sufficient for the present to say, generally, that when the importer has so acted upon the thing imported that it has become incorporated and mixed up with the mass of property in the country, it has, perhaps, lost its distinctive character as an import, and has become subject to the taxing power of the state; but while remaining the property of the importer, in his warehouse, in 64

the original form or package in which it was imported, a tax upon it is too plainly a duty on imports to escape the prohibition in the constitution. The Court noted that the justices “suppose the principles laid down in this case, to apply equally to importations from a sister State.” However, in Woodruff v. Parham, 8 Wall. 123 (U.S. 1868), the Supreme Court later held that states had the right to tax imports from another state once they ceased to be part of interstate commerce, even if they are in their original packages.

Ogden v Saunders: The Contracts Clause In Ogden v Saunders, 25 U.S. 213 (1827), the U.S. Supreme Court held that a New York bankruptcy law did not violate the Constitution’s Contracts Clause. The case is also most remembered as the only decision from which Chief Justice John Marshall dissented. The Obligation of Contracts Clause Article I, Section 10 provides that “No State shall . . . pass any . . . law impairing the Obligation of Contracts.” The Framers included the provision to deter state “debtor relief” laws that they believed were immoral and worsened economic instability. The Facts of the Case Saunders, a citizen of Kentucky, demanded payment in accordance with a contract. Ogden, a citizen of Louisiana, was living in New York when the contract was signed. In defense of the suit, Ogden claimed bankruptcy under a New York bankruptcy law enacted in 1801. Saunders was represented by Daniel Webster, who argued that Constitution’s bar on states from impairing the obligations of contracts applied equally to past and future contracts. The Majority Opinion The Supreme Court ruled in favor of Ogden. According to the majority, the New York bankruptcy law did not violate the Obligation of Contracts Clause. In reaching its decision, the majority concluded that Contracts Clause prohibited states from enacting laws affecting contracts already signed. Accordingly, the obligation of a contract made after the enactment of a state bankruptcy law is subject to its provisions because the bankruptcy statute becomes part of all subsequent contracts. Chief Justice Marshall’s Dissent Chief Justice John Marshall authored a dissenting opinion, which was joined by Justices Gabriel Duvall and Joseph Story. The dissenters argued that Congress had exclusive power to pass bankruptcy laws. With regard to whether state laws become part of contracts signed, Chief Justice Marshall maintained that “contracts derive their obligation from the act of the parties, not from the grant of government.” In his dissenting opinion, the Chief Justice also summarized his beliefs on how the Constitution should be interpreted, writing: 66

To say that the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its framers; — is to repeat what has been already said more at large, and is all that can be necessary.

Martin v. Mott: The President’s Power under the Militia Clause In Martin v. Mott, 25 U.S. 19 (1827), the U.S. Supreme Court addressed the Constitution’s Militia Clause. It held that the President, as commander in chief, has the unilateral power to call up state militias for duty during times of war. The Facts of the Case Pursuant to Article 1, Section 8, Clause 15 of the U.S. Constitution, Congress shall have the power: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress. In pursuance of this authority, Congress passed the Act of 1795, which delegated most of its power to call up militias to the president. It provided: [T]hat whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the president of the United States to call forth such number of the militia of the state or states most convenient to the place of danger, or scene of action, as he may judge necessary to repel such invasion, and to issue his order for that purpose to such officer or officers of the militia as he shall think proper. In 1794, President George Washington relied on the Militia Clause to call up state militias to put down the “Whiskey Rebellion.” Mott refused to enter military service and was subject to court martial. Mott was fined $96 for disobedience. When he refused to pay, the court seized his goods. After New York’s highest court sided with Mott, the Supreme Court was asked to hear the case. The Court’s Decision The Supreme Court unanimously held that the president had the sole authority to determine when the militia should be called out. Justice Story authored the Court’s opinion. In reaching its decision, the Court acknowledged that military power should not be exercised lightly. “A free people are naturally jealous of the exercise of military power; and the power to call the militia into actual service, is certainly felt to be one of no ordinary magnitude,” Justice Story wrote. “But it is not a power which can be executed without a correspondent responsibility. 68

It is, in its terms, a limited power, confined to cases of actual invasion, or of imminent danger of invasion.” With regard to who has the power to determine whether an exigency has arisen, the Court concluded that the authority lies exclusively with the president and cannot be questioned by individual officers. As the opinion explained: We are all of opinion, that the authority to decide whether the exigency has arisen, belongs exclusively to the president, and that his decision is conclusive upon all other persons. We think that this construction necessarily results from the nature of the power itself, and from the manifest object contemplated by the act of congress. The power itself is to be exercised upon sudden emergencies, upon great occasions of state, and under circumstances which may be vital to the existence of the Union. A prompt and unhesitating obedience to orders is indispensable to the complete attainment of the object. The service is a military service, and the command, of a military nature; and in such cases, every delay, and every obstacle to an efficient and immediate compliance, necessarily tend to jeopardize the public interests. The Court further noted that Constitution established that the president is “the commander-in- chief of the militia, when called into the actual service of the United States,” and that the president’s duty it is to “take care that the laws be faithfully executed.” Accordingly, the justices further reasoned: He is necessarily constituted the judge of the existence of the exigency, in the first instance, and is bound to act according to his belief of the facts. If he does so act, and decides to call forth the militia, his orders for this purpose are in strict conformity with the provisions of the law; and it would seem to follow as a necessary consequence, that every act done by a subordinate officer, in obedience to such orders, is equally justifiable. The law contemplates that, under such circumstances, orders shall be given to carry the power into effect; and it cannot, therefore, be a correct inference, that any other person has a just right to disobey them. The law does not provide for any appeal from the judgment of the president, or for any right in subordinate officers to review his decision, and in effect defeat it.

Weston v City Council of Charleston: What is a “Suit?” In Weston v City Council of Charleston, 27 U.S. 449 (1829), the Supreme Court held that a city ordinance taxing interest-bearing stock of the United States was unconstitutional. The Court specifically found that the tax burdened the enumerated power of Congress “to borrow money on the credit of the United States.” The Facts of the Case In 1823, the City Council of Charleston enacted an ordinance imposing a tax on six and seven percent stock of the United States. Several owners of United States stock filed suit against the City Council of Charleston, seeking to restrain them from levying the tax. They argued that a tax on the stock of the United States violated the U.S. Constitution. A South Carolina court held that the ordinance as not repugnant to the Constitution and the plaintiffs appealed to the U.S. Supreme Court. The Court’s Decision The Supreme Court struck down the tax. “A tax imposed by a law of any state of the United States or under the authority of such a law on stock issued for loans made to the United States is unconstitutional,” the Court held. Chief Justice John Marshall wrote on behalf of the Court. He explained: It is not the want of original power in an independent sovereign state to prohibit loans to a foreign government which restrains the state legislature from direct opposition to those made by the United States. The restraint is imposed by our Constitution. The American people have conferred the power of borrowing money on the government, and by making that government supreme, have shielded its action in the exercise of that power, from the action of the local governments. The grant of the power and the declaration of supremacy is a declaration that no such distraining or controlling power shall be exercised. In its decision, the Court also addressed the power of the Supreme Court to revise the judgments of state tribunals under the Judiciary Act. “The term ‘suit’ is certainly a very comprehensive one, and is understood to apply to any proceeding in a court of justice, by which an individual pursues that remedy in a court of justice, which the law affords him,” The Chief Justice explained. “[I]f a right is litigated between parties in a court of justice, the proceeding by which the decision of the court is sought, is a suit.”

Willson v Black Bird Creek Marsh Company: The Dormant Commerce Clause In Willson v Black Bird Creek Marsh Company, 27 U.S. (2 Pet.) 245 (1829), the U.S. Supreme Court held that a Delaware state law authorizing the building of a dam did not unconstitutionally usurp Congress’s powers under the Commerce Clause because the federal government had not enacted legislation addressing the issue. The Court’s decision was the first to recognize the Dormant Commerce Clause of the U.S. Constitution. The Facts of the Case The state of Delaware passed a law authorizing the Blackbird Creek Marsh Company to construct a dam spanning the Blackbird Creek. Wilson, the licensed owner of a sloop, broke through a dam. The Blackbird Creek Marsh Company filed suit against Wilson for trespass. After being ordered to pay damages, Wilson appealed to the U.S. Supreme Court. He alleged that the state law authorizing the building of the dam violated the Constitution’s Commerce Clause. The “Dormant” Commerce Clause Article 1, Section 8, Clause 3 of the U.S. Constitution grants Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” The U.S. Supreme has interpreted Article 1’s Commerce Clause to grant Congress the power to regulate interstate commerce, as well as to restrain the regulatory power of the States. The so- called “dormant” Commerce Clause refers to the prohibition against states enacting laws that discriminate against or excessively burden interstate commerce. The Court’s Decision The U.S. Supreme Court unanimously upheld the lower court decision in an opinion authored by Chief Justice John Marshall. In confirming the state’s authority to build the dam, the Chief Justice characterized it as “an affair between the government of Delaware and its citizens.” The Court further found that because Congress had not taken any actions with which the Delaware law could conflict, the Commerce Clause was not violated. As Chief Justice Marshall explained: If Congress had passed any act in execution of the power to regulate commerce the object of which was to control State legislation over these small navigable creeks into which the tide ebbs and flows, and which abound throughout the lower country of the middle and southern States, we should feel not much difficulty in saying that a State law coming in conflict with such act would be void. But Congress has passed no such act. 71

The Chief Justice went on to establish the foundation for Dormant Commerce Clause jurisprudence, writing: We do not think that the Act empowering the Black Bird Creek Marsh Company to place a dam across the creek can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant State, or as being in conflict with any law passed on the subject.

Craig v Missouri Interprets Prohibition of Bills of Credit under Article I In Craig v Missouri, 29 U.S. 410 (1830), the U.S. Supreme Court held that a Missouri statute authorizing loan certificates issued by the state violated Article I, section 10 of the Constitution, which prohibits states from issuing bills of credit. The Facts of the Case Section 10 of Article I of the Constitution states that “no State shall . . . emit bills of credit; [or] make anything but gold and silver coin a tender in payment of debts.” However, prior to Craig v. Missouri, the Supreme Court had not interpreted the meaning of the term “bills of credit.” The State of Missouri issued certain interest bearing certificates, not declared legal tender, but receivable at the treasury of any of the loan offices of the State in discharge of taxes or payment of debts due to the State. Certain property of the State was pledged to their redemption, and the governor was authorized to negotiate a loan of silver or gold for the same purpose. These certificates could be loaned to citizens of the States upon real estate or personal security. The Court’s Decision By a vote of 4-3, the Supreme Court struck down the state statute, concluding that the certificates were illegally emitted as bills of credit. Chief Justice John Marshall wrote on behalf of the majority. As he explained: In its enlarged, and perhaps its literal sense, the term ‘bill of credit’ may comprehend any instrument by which a State engages to pay money at a future day; thus including a certificate given for money borrowed. But the language of the Constitution itself, and the mischief to be prevented, which we know from the history of our country, equally limit the interpretation of the terms. The word ’emit’ is never employed in describing those contracts by which a State binds itself to pay money at a future day for services actually received, or for money borrowed for present use; nor are instruments executed for such purposes, in common language, denominated ‘bills of credit.’ To ’emit bills of credit’ conveys to the mind the idea of issuing paper intended to circulate through the community for its ordinary purposes, as money, which paper is redeemable at a future day. The Supreme Court reversed course seven years later. In Briscoe v. Bank of Kentucky , 36 U.S. 257 (1837), the Court upheld a currency scheme in which a state bank issued notes payable on demand to the bearer that served as a circulating medium. “To constitute a bill of credit within the Constitution, it must be issued by a State, on the faith of the State, and be designed to 73

circulate as money. It must be a paper which circulates on the credit of the State, and is so received and used in the ordinary business of life,” the Court held. “The individuals or committee who issue the bill must have the power to bind the State: they must act as agents, and of course do not incur any personal responsibility, nor impart, as individuals, any credit to the paper. These are the leading characteristics of a bill of credit, which a State cannot emit.”

Cherokee Nation v Georgia: The Rights of Indian “Nations”

In Cherokee Nation v Georgia, 30 U.S. (5 Peters) 1 (1831), members of the Cherokee Nation sought to enjoin the state of Georgia from seizing their land. However, the U.S. Supreme Court held that it lacked the authority to enforce the rights of Native American “nations” against the states. The Facts of the Case In 1828, the state of Georgia enacted several laws depriving Cherokee Indians of their rights under state law as a means of forcing their removal from tribal lands. The Cherokee Nation opposed the laws, arguing that they violated treaties that the Cherokees had negotiated as an independent “nation” within the United States. After negotiations with the federal government broke down, the Cherokee Nation sought an injunction to restrain the state of Georgia from executing the laws. The Court’s Decision The Supreme Court held that it did not have jurisdiction to decide the case. Chief Justice John Marshall delivered the opinion of the Court. In his opinion, the Chief Justice sympathized with the issues raised by the Cherokee Nation, writing: A people once numerous, powerful, and truly independent, found by our ancestors in the quiet and uncontrolled possession of an ample domain, gradually sinking beneath our superior policy, our arts, and our arms, have yielded their lands by successive treaties, each of which contains a solemn guarantee of the residue, until they retain no more of their formerly extensive territory than is deemed necessary to their comfortable subsistence. To preserve this remnant the present application is made. Nonetheless, the justices concluded that their hands were tied under Article III, Section 2 the Constitution, which gives the Court original jurisdiction over “controversies between a state or the citizens thereof, and foreign states, citizens, or subjects.” According to the Court, the Cherokees did not constitute a “foreign state” in the sense of the Constitution. “An Indian tribe or nation within the United States is not a foreign state in the sense of the Constitution, and cannot maintain an action in the courts of the United States,” the Court held. In further explaining the majority’s reasoning, the Chief Justice wrote: 75

“Foreign nations” is a general term, the application of which to Indian tribes, when used in the American Constitution, is at best extremely questionable. In one article in which a power is given to be exercised in regard to foreign nations generally, and to the Indian tribes particularly, they are mentioned as separate in terms clearly contradistinguishing them from each other. We perceive plainly that the Constitution in this article does not comprehend Indian tribes in the general term foreign nations; not, we presume, because a tribe may not be a nation but because it is not foreign to the United States. When, afterward, the term foreign state is introduced, we cannot impute to the Convention the intention to desert its former meaning and to comprehend Indian tribes within it, unless the context force that construction on us. We find nothing in the context and nothing in the subject of the article which leads to it.

Worcester v Georgia: Indian Sovereignty and the States

In Worcester v Georgia, 31 U.S. 515 (1832), the U.S. Supreme Court held that the Cherokee Nation was sovereign. It also ruled that the federal government — and not the states — was authorized under the Constitution to deal with Indian nations. The Facts of the Case In September 1831, Samuel A. Worcester was indicted under a Georgia law that prohibited non-Native Americans from “residing within the limits of the Cherokee nation without a license” and “without having taken the oath to support and defend the constitution and laws of the state of Georgia.” In his defense, Worcester maintained that the Georgia statute violated the U.S. Constitution, treaties executed between the United States and the Cherokee nation, and a federal law that regulated trade and intercourse with the Indian tribes. After being convicted and sentenced to “hard labor in the penitentiary for four years,” Worcester appealed to the U.S. Supreme Court. The Court’s Decision The U.S. Supreme Court struck down the Georgia law. “The act of the State of Georgia under which the plaintiff in error was prosecuted is consequently void, and the judgment a nullity,” the Court held. As Chief Justice John Marshall explained in the Court’s opinion, the Georgia law violated the U.S. Constitution. “The acts of the Legislature of Georgia interfere forcibly with the relations established between the United States and the Cherokee Nation, the regulation of which, according to the settled principles of our Constitution, is committed exclusively to the Government of the Union,” he wrote. The justices also held that the Georgia law directly conflicted with treaties executed by the federal government and the laws enacted by Congress to enforce them. As the Chief Justice noted: They are in direct hostility with treaties, repeated in a succession of years, which mark out the boundary that separates the Cherokee country from Georgia; guaranty to them all the land within their boundary; solemnly pledge the faith of the United States to restrain their citizens from trespassing on it; and recognise the preexisting power of the Nation to govern itself. They are in equal hostility with the acts of Congress for regulating this intercourse and giving effect to the treaties. 77

Regarding the importance of the decision, Justice Story later wrote to his wife: “Thanks be to God, the Court can wash their hands clean of the iniquity of oppressing the Indians and disregarding their rights.”

Barron ex rel. Tiernan v. Mayor of Baltimore: The Limits of the Bill of Rights In Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833), the U.S. Supreme Court held that the Bill of Rights placed limits on the national government and not on state governments. The Court, in an opinion written by Chief Justice John Marshall, specifically found that the City of Baltimore was not bound by the Fifth Amendment’s requirement that private property shall not be taken for public use without just compensation. The Facts of the Case The City of Baltimore diverted several streams during a construction project that involved grading and paving the city’s streets. As a result of the changed water flow, large masses of sand and earth were deposited in front of a commercial wharf owned by John Barron. The water became so shallow that it ceased to be useful for vessels, and Barron lost significant income. He filed suit against the City of Baltimore, seeking financial compensation for his losses under the Fifth Amendment. The Court’s Decision In a unanimous decision, the Court held that the first ten amendments, known as the Bill of Rights, “contain no expression indicating an intention to apply them to the State governments.” Accordingly, the justices concluded that the Court could not apply them to the case. In explaining the Court’s decision, Chief Justice Marshall highlighted that the text of the Bill of Rights does not state that it also restricts state governments. However, other provisions of the Constitution do address state activity, citing the following example: The third clause (of Section 9), for example, declares that “no bill of attainder or ex post facto law shall be passed.” No language can be more general; yet the demonstration is complete that it applies solely to the government of the United States… the succeeding section, the avowed purpose of which is to restrain state legislation… declares that “no state shall pass any bill of attainder or ex post facto law.” This provision, then, of the ninth section, however comprehensive its language, contains no restriction on state legislation. While the Court’s decision in Barron was never expressly overruled, the Supreme Court has relied on the Fourteenth Amendment’s Due Process Clause to apply many of the protections set forth in the Bill of Rights to the states, including the Takings Clause of the Fifth Amendment.

Biographies of Great Americans In alphabetical order

Henry Baldwin Henry Baldwin (1830-1844) served as a Democratic- Republican member of the United States Congress where he played a huge role in the Missouri Compromise before being elected to serve as an Associate Justice in the United States Supreme Court. Early Life Henry Baldwin was born on January 14, 1780, in New Haven, Connecticut. Baldwin attended Hopkins School for his primary education and went on to earn his Bachelor’s Degree from Yale University in 1797. Following graduation, Baldwin studied law in Pennsylvania and was admitted to the bar in 1798. He began a private practice in Pittsburgh shortly afterward.

Baldwin was elected to the United States Congress in 1816 as a member of the Democratic-Republican Party. In this post Baldwin was a strong supporter of tariff legislature and played a large role in the Missouri Compromise, which regulated slavery in the western territories. Baldwin served in Congress for six years, including one term as Chairman of the House Committee on Domestic Manufactures. He resigned in 1822 due to health concerns. Supreme Court Following his departure from Congress, Baldwin resumed his legal practice in Pennsylvania. He became a strong supporter of Andrew Jackson in the Presidential election of 1828. President Jackson nominated Baldwin to serve on the United States Supreme Court in 1830 to fill the vacant seat of Justice Bushrod Washington. Baldwin officially began his post on January 6, 1830. During the first year of his time on the Supreme Court, Justice Baldwin expressed his discontent with the Court’s extension of its powers. This caused him to nearly resign from his post in 1831. However, President Jackson convinced him to stay on the court, and Justice Baldwin went on to serve for another thirteen years. Justice Baldwin voiced his opinion on matters regarding slavery in several cases. In both Johnson v. Tompkins (1833) and Groves v. Slaughter (1841), Baldwin acknowledged that although slavery is not entirely in line with natural rights and justice, the court must respect the legal status of slavery. Justice Baldwin issued the lone dissent in the 1841 United States v. The Amistad case, in which the majority opinion ruled to free Africans aboard a Spanish vessel. In 1837 Justice Baldwin published an influential work titled A General View of the Origin and Nature of the Constitution and Government of the United States. In this work Baldwin expressed his support of the middle ground between states’ right and nationalism. 82

Death Justice Baldwin suffered from paralysis, among other health issues, in his later years. He served on the Supreme Court until his death on April 21, 1844, at the age of 64. Notable Cases Johnson v. Tompkins (1833) United States v. The Amistad (1841) Groves v. Slaughter (1841) 83

John Blair, Jr. John Blair Jr. (1789-1795) held an integral role in Virginia’s government before being appointed by George Washington to serve as an Associate Justice of the United States Supreme Court. Early Life John Blair, Jr. was born in Williamsburg, Virginia, in 1732 to a prominent Virginia family. Blair attended the College of William and Mary, earning his Bachelor’s Degree in 1754. He went on to study law for a year in London before returning to his home state to start his legal practice. Career Blair began his work in the public sector in 1766 after being elected to the Virginia House of Burgesses. In 1770, he became Clerk of the Royal

Governor’s Council, a post he held until 1775. When the Revolutionary War began, Blair became active in the government of Virginia, serving as delegate to the Virginia Convention of 1776 that drafted the state’s constitution. In the late 1770s, Blair held the positions of Chief Justice of the Virginia General Court, Chancellor of the High Court of Chancery, and member of the Virginia Court of Appeals. During the 1780s Blair served as a jurist administering laws in Virginia. His success in this position earned him the appointment as Thomas Jefferson’s successor on revising laws in the state of Virginia. Blair became one of only three Virginia delegates to sign the Constitution in 1787. Supreme Court President Washington nominated Blair to serve as Justice on the United States Supreme Court on September 24, 1789, and the Senate confirmed him two days later. Blair spent only five years serving on the Supreme Court, and on October 25, 1795, he resigned citing issues with poor health. During his time as Associate Justice, the Supreme Court only saw a few cases. Most notable of the cases was the 1793 Chisholm v. Georgia hearing. Justice Blair ruled in the majority against the state of Georgia, arguing that citizens ought to have the right to sue the federal court of another state. 84

Death Blair died in his hometown of Williamsburg, Virginia on August 31, 1800, at the age of sixty- eight. Notable Cases Hayburn’s Case (1792) Chisholm v. Georgia (1793) 85

Samuel Chase Samuel Chase (1796-1811) was a renown debater who served on the Maryland General Assembly for twenty years before being appointed by George Washington to serve as an Associate Justice in the United States Supreme Court. Early Life Samuel Chase was born on April 17, 1741, in Princess Anne, Maryland. In his early years Chase received a classical education from his father before studying law in Annapolis, Maryland. Chase was admitted to the bar in 1761 and began his practice in Annapolis. He married Anne Baldwin in the following year, and the couple went on to have seven children together. Early Career and Continental Congress

In 1764 Chase was elected to the Maryland General Assembly, where he served for twenty years. During this time Chase earned the reputation of being an intense debater and quick to start verbal arguments. It was perhaps this strong enthusiasm for debate that allowed for his selection to serve as Maryland delegate in both Continental Congresses of 1774 and 1776. Chase voted quickly for independence when it was purposed on July 2, 1776, and he became a signer of the Declaration of Independence. Although Chase was heavily involved almost all proceedings during his time on the Continental Congress, he was forced to leave this post in 1778 after being accused of using insider information on the flour market. Chase moved to Baltimore, Maryland in 1786, where he was appointed Chief Justice of the District Criminal Court. This period of Chase’s life was marked by controversy on a number of accounts and heavy debt due to investment in land. Supreme Court On January 26, 1796, President Washington appointed Chase as Associate Justice of the United States Supreme Court. In 1804, midway through his tenure on the Supreme Court, Justice Chase was impeached by the House of Representatives on the grounds of improper judicial behavior. This behavior included procedural errors, improper conduct, and indecent remarks. However, on March 1, 1805, the Senate voted to acquit Chase of all charges, allowing him to remain on the Court. Many historians now believe that Justice Chase’s impeachment was due to the rising tensions between the Jeffersonian Republican and Federalist parties. Under this theory, the Jeffersonian Republicans were seen as trying to rid the court of Federalists. In fact, some believe if Chase had been found guilty, further impeachments would have been made against other Federalist justices. 86

Despite the impeachment controversy, Justice Chase ruled over several important cases during his time on the Supreme Court. Most notable of these cases was Marbury v. Madison (1803), which resulted in the creation of judicial review, a system that is still in place today. Other notable cases during Chase’s tenure on the Supreme Court include Ware v. Hylton (1796) and Calder v. Bull (1798). In Ware v. Hylton, Chase argued that federal treaties superseded state laws that contradict them. In Calder v. Bull, Chase maintained that the government has no authority to interfere with individual rights. Death Chase served on the U.S. Supreme Court until his death of a heart attack in 1811. He died at the age of 70 in Washington, D.C. Notable Cases: Ware v. Hylton (1796) Calder v. Bull (1798) United States v. Worral (1798) Marbury v. Madison (1803) 87

William Cushing William Cushing (1789-1810) was nominated by George Washington to to become the first-ever Associate Justice to serve the United States Supreme Court. He was later nominated to serve as Chief Justice to which he declined. Early Life William Cushing was born in Scituate, Massachusetts, on March 1, 1732. His father and grandfather were both superior court judges. Cushing graduated from Harvard College in 1751 and was admitted to practice law in 1755. Legal Career Cushing worked in a private practice in his hometown for five years before moving to Lincoln County, Massachusetts (present day Maine) in 1760. He practiced law for the next twelve years before being appointed to fill his father’s recently vacated seat on the Superior Court of Massachusetts in 1772. Cushing would go on to become the court’s Chief Justice in 1777, a position he held until 1789. During his time as Massachusetts Chief Justice, Cushing played a major role in the 1783 court ruling that ended slavery in Massachusetts. Supreme Court After the Revolutionary War, President Washington nominated William Cushing to become the first associate justice of the United States Supreme Court. Cushing’s term began on September 26, 1789. Cushing served as a Justice until his death in 1810, becoming President Washington’s longest serving Supreme Court appointment. In 1796 President Washington nominated Cushing to be Chief Justice, but he declined. During his time on the Supreme Court, Justice Cushing’s views generally tended towards the views of the Federalist Party. However, because of his frequent travels and health problems, Cushing is only credited with nineteen decisions during his time on the Supreme Court. Cushing’s two most important decisions came in Chisholm v. Georgia (1793) and Ware v. Hylton (1796). In Chisholm v. Georgia, Cushing voted to allow citizens the right to sue the federal court of another state, a nationalist view in line with the Federalist Party. However, the Eleventh Amendment in 1795 almost immediately dismissed this ruling. In Ware v. Hylton, the court ruled that state laws violating international treaties are unconstitutional. Justice Cushing again held a nationalist opinion. 88

Death On September 13, 1810, Cushing died in his hometown of Scituate, Massachusetts, at the age of seventy-eight. Notable Cases Chisholm v. Georgia (1793) Ware v. Hylton (1796) 89

Gabriel Duvall Gabriel Duvall (1811-1835) served under multiple positions in the State of Maryland’s government before being nominated to serve as an Associate Justice to the United States Supreme Court. Early Life Gabriel Duvall was born on December 6, 1752, in Prince George’s County, Maryland. He served as a private the Maryland militia during the Revolutionary War in the mid 1770s. After his service, he returned to his hometown and worked as a clerk for Maryland Convention and the Maryland Council of Safety. Duvall was admitted to the bar in 1778 and maintained a private practice while participating in political affairs. Early Career In 1782 Duvall won election to the Maryland State Council, and from 1787 to 1794 he served in the House of Delegates. Duvall was nominated to represent Maryland in the Constitutional Convention in Philadelphia in 1787 but declined to participate. In 1794 Duvall was elected to the Maryland House of Representatives as a member of the Democratic-Republican Party. Two years later in 1796 he was nominated to the Maryland Supreme Court, where he served for the next six years. In 1802, President Jefferson appointed Duvall to serve as the U.S. Comptroller of the Treasury, legal advisor to the Secretary of the Treasury. Supreme Court President Madison nominated Duvall to the United States Supreme Court in 1811 to fill the vacant seat of Justice Samuel Chase. Although John Quincy Adams was Madison’s first choice to fill the seat, Adams declined in order to serve as a diplomat to Russia. Justice Duvall officially began his post on November 23, 1811 at the age of 59. The nomination of Justice Duvall came on the same day as Justice Story’s nomination, both of the Democratic-Republican Party. When the two Justices took oath, the majority of the court previously belonging to the Federalists turned to the Democratic-Republicans. As Justice, Duvall did not make a significant contribution to the court. He served primarily as an ally to Chief Justice John Marshall, only voting differently on two occasions. Justice Duvall only wrote seventeen opinions during his twenty-three years on the Court, all coming in minor commercial and maritime cases. One notable case from Duvall’s tenure on the Supreme Court came in the 1812 Queen and Child v. Hepburn case. In this case Justice Duvall supported black rights in regards to hearsay testimony. 90

Justice Duvall resigned from the Supreme Court on January 12, 1835 due to poor health and issues with deafness. Some historians claim one reason for his lack of contribution on the Court came from his impaired hearing. For many years, Duvall refrained from relinquishing his seat on the court because he feared the seat would be filled by an overly political appointment. When President Jackson offered to appoint fellow Marylander Roger B. Taney to take the seat, Duvall decided to finally resign. Death Duvall lived for another nine years following his retirement from the Supreme Court. He died near his hometown in Prince George’s County, Maryland on March 6, 1844 at the age of 91. Notable Cases Dartmouth College Case (1819) Queen and Child v. Hepburn (1812) Le Grand v. Darnall (1829) 91

Oliver Ellsworth Oliver Ellsworth was an American politician, attorney and revolutionary who helped draft the United States Constitution, and later went on to become the third Supreme Court Justice of the United States. He lived between 1745 and 1807, and made several contributions to the founding of the United States of America and the U.S. legal system. Early History Ellsworth was born on April 29, 1745, in Windsor, Connecticut. He attended Yale University in 1762 to study theology and transferred to the College of New Jersey (later to become Princeton) in 1764. Ellsworth soon focused his attention on law and was admitted to the bar in 1771. He began a reputable law practice soon after and become Connecticut’s state attorney for Hartford County and its representative at the Continental Congress in 1777. Work on the Constitution In 1787, Ellsworth attended the Constitutional Convention and created a resolution to an amendment that would change the word “national” to “United States,” and henceforth name the government the United States Government. In addition, he served on the Committee of Five that drafted the first copy of the Constitution. Ellsworth left the committee for business reasons, and therefore did not sign the final document. However, he wrote Letters of a Landholder to facilitate ratification of the Constitution and was a highly visible figure in Connecticut’s ratification convention. Ellsworth served as a senator in Connecticut between 1789 to 1796, during which time he pushed the Judiciary Act that created a hierarchical structure of state and federal courts. He also bolstered a measure admitting North Carolina into the Union and served on budget committees that considered Alexander Hamilton’s economic program and the First Bank of the United States. Supreme Court Justice Ellsworth was nominated by George Washington to become Chief Justice of the Supreme Court in 1796, and was unanimously confirmed by the Senate the following day. During his tenure, he ruled in Hollingsworth v. Virginia that the President had no authority to amend the U.S. Constitution and his signature was unnecessary for ratifying amendments. New York v. Connecticut was also the first case in which the Supreme Court exercised its original jurisdiction in disputes between two states. 92

The most important ruling of Wilson’s career as Justice came in Chisholm v. State of Georgia (1793). Wilson ruled in the majority, giving citizens the right to sue the federal court of another state. However, despite the Supreme Court’s ruling, the Eleventh Amendment passed two years later in 1795 reversed this ruling. Death and Legacy Justice Wilson died on August 21, 1798 after suffering a stroke at the age of 55. Wilson’s ideology throughout his professional career can certainly be categorized as revolutionary. Though he garnered much support during the Second Continental Congress and the Constitutional Convention, his opinions were not widely accepted in his later life. Notable Cases Hayburn’s Case (1792) Chisholm v. State of Georgia (1793) Hylton v. U.S. (1796) Ware v. Hylton (1796) 93

James Iredell James Iredell (1790-1799) gained prominence as a strong supporter of independence and the revolution against Great Britain before being nominated by George Washington to serve as an Associate Justice of the United States Supreme Court where he was one of the youngest Justices to serve (aged 38). Early Life James Iredell was born on October 5, 1751, in Lewes, England. After immigrating to the United States in 1767 at the age of 17, Iredell found work at a customs house in North Carolina. He began studying law at this time under future North Carolina governor Samuel Johnston, and he was licensed to practice in 1771. Iredell married Johnston sister Hannah in 1773, and the couple went on to have four children together. Revolutionary War and Early Career While practicing law in the early 1770s, Iredell gained prominence as a strong supporter of independence and the revolution against Great Britain. He published To the Inhabitants of Great Britain in 1774 at the age of 23, outlining his arguments against Parliamentary Supremacy. During the Revolutionary War, Iredell was heavily involved in the North Carolina state government. He was elected to a commission to draft and revise the state’s laws in 1776, and later became a judge of the superior court in 1778 and the state’s Attorney General in 1779. Powell became a strong supporter of the proposed Constitution at the 1987 Philadelphia Convention. He wrote extensively on his opinions for adopting a new government, which was later published as Iredell’s Revisal in 1791. Supreme Court President Washington nominated Iredell to the United States Supreme Court in 1790, and Justice Iredell officially began his post on May 12, 1790. At the age of 38, Iredell was the youngest of the original Supreme Court justices. Justice Iredell’s first Supreme Court hearing came in the 1791 West v. Barnes case, a minor case that was decided on procedural grounds. In the 1793 Chisholm v. Georgia case regarding the right for citizens of one state to sue another state in federal court, Iredell served as the only dissent. The majority ruled in favor of Chisholm, though the ruling was dismissed with the passing of the Eleventh Amendment in 1795. 94

Perhaps Iredell’s most important opinion came in the Calder v. Bull case of 1798. The Court’s decision was unanimous, holding that the ex post facto clause of the U.S. Constitution applies to criminal cases and not civil cases. Iredell’s opinion in this case went on to help establish the principle of judicial review, the approach that is still used today. Death The heavy travel burdens in the late 1790s caused Justice Iredell’s health to deteriorate. He died suddenly on October 20, 1799 in his home state of North Carolina at the young age of 48. Notable Cases West v. Barnes (1791) Chisholm v. Georgia (1793) Hylton v. United States (1796) Calder v. Bull (1798) 95

John Jay John Jay lived from 1745 to 1829. He served in numerous capacities during the American Revolution and the early years of the new country, and heads the list of Chief Justices of the Supreme Court of the United States. Early Life and the Continental Congress Jay grew up in a somewhat wealthy family and was admitted to the New York bar in 1768. He opened his own practice three years later and became a delegate to the First Continental Congress in 1774. Following the approval of the Articles of Confederation after the war, Jay joined Alexander Hamilton in pushing for a stronger government in The Federalist Papers. He was later offered the position of Secretary of State by George Washington. After declining, he was approved as the first Chief Justice of the U.S. Supreme Court. The Supreme Court During Jay’s time as head of the Supreme Court, he heard four cases. The most influential of the group was Chisholm v Georgia, in which the court agreed with two South Carolina residents who claimed their land had been seized by the state of Georgia. Even though the actual ruling of the law was quickly overturned by the Eleventh Amendment, which upheld each state’s rights, the precedent of judicial review had been set. The Jay Treaty While he was still head of the Supreme Court, Jay was chosen as a messenger to England to negotiate a treaty between the two countries, which were locked in a tense disagreement over trade routes and other matters. The treaty was denounced by some when it was brought back to the U.S., but was ratified by the Senate in a close vote. Governor of New York 96

When he returned from England in 1795, Jay learned that he had been elected Governor of New York in his absence. He had previously run for the post unsuccessfully in 1792. He resigned from the Supreme Court and served as governor of his home state for six years. During that time he successfully passed a bill which gradually outlawed slavery in the state. He was re-nominated for the Supreme Court in 1800 by President John Adams and confirmed by the Senate. However, he later chose to decline the nomination. Jay also unsuccessfully ran for President in 1796 and 1800, and later retired in 1801. He passed away in 1829 due to palsy. Legacy John Jay’s legacy is very present in the modern era, in reflection of his contributions to the start of the country. The City University of New York officially named one of its colleges the John Jay College of Criminal Justice. His name is also found in many towns and high schools across the country, as well as mountains in Alaska and Vermont. 97

Thomas Johnson Thomas Johnson (1792-1793) was a representative of Maryland in the Continental Congress as well as governor of Maryland before being nominated by George Washington to serve as an Associate Justice in the United States Supreme Court. Early Life Thomas Johnson was born on November 4, 1732 in Calvert County, Maryland. He received his early education at home before studying law and being admitted to the bar in 1753. During the late 1750s and early 1760s Johnson served on various county courts and on the Maryland General Assembly. In 1766 Johnson married Anne Jennings, and the couple went on to have seven children together. Revolutionary Years In 1774 Johnson was selected to represent Maryland in the Continental Congress. At the convention Johnson was a strong proponent of electing George Washington to become the Commander-in-Chief of the Continental Army. He went on to become senior brigadier general of Maryland Militia, helping recruit troops for Washington. The state legislature elected Johnson as the first Governor of Maryland in 1777, where he was twice reelected. In the 1780s Johnson acted on a number of judicial posts in Maryland while also serving as member of the Maryland House of Delegates. In 1790 Johnson became Chief Justice of the Maryland general court. Supreme Court In 1791 President Washington nominated Johnson to become an Associate Justice of the United States Supreme Court, and he officially began his post on August 5 of that year. However, due to persistent health issues, Johnson was only able to serve on the court for less than a year, resigning on January 16, 1793. Johnson’s tenure on the Supreme Court marks the shortest of any Justice to date. Justice Johnson was involved in writing the first opinion of the Supreme Court in the 1792 Georgia v. Brailsford case, ruling that a state may sue in the Supreme Court. Death In 1795 Johnson declined President Washington’s offer to become Secretary of State. He lived in his home in Frederick, Maryland until his death on October 26, 1819 at the age of 86. 98

Notable Cases Georgia v. Brailsford (1792) 99

William Johnson William Johnson (1804-1834) served three terms in the South Carolina State House of Representatives before being appointed Associate Justice of the United States Supreme Court. He was the first Democratic-Republican to serve in the Court. Early Life William Johnson was born on December 27, 1771, near Charleston, South Carolina. Johnson earned high honors from Princeton University, graduating with a bachelor’s degree in 1790. Following graduation, he studied law at the office of Charles Cotesworth Pinckney and was admitted to the bar in 1793. Johnson married Sarah C. Bennett the following year.

Career As a Democratic-Republican, Johnson was elected to the South Carolina State House of Representatives in 1794. He served on the house for three terms, the last of which as Speaker of the House, until 1798. At that time, with the formation of the state’s superior court, Johnson was appointed as a Justice on the South Carolina Court of General Sessions and Common Pleas. Supreme Court President Jefferson nominated Johnson to be a Justice on the United States Supreme Court in 1804 to fill the seat of Alfred Moore. He became the first Democratic-Republic Justice on the Supreme Court when he officially began his post on May 7, 1804. During his time on the Supreme Court, Justice Johnson gained the reputation of voicing independent opinions from the rest of the court. Although Chief Justice John Marshall preferred all justices remain unified, Johnson often swayed from this precedent. Justice Johnson wrote nearly half of the total dissents during his thirty-year career on the Supreme Court. Johnson’s first controversy as Justice came in the 1808 Gilchrist v. Collector of Charleston case regarding embargos on maritime trade. Despite that fact that Johnson typically held views in line with Jefferson’s, Justice Johnson defied Presidential orders when he allowed an illegal ship to set sail in Charleston. Although he initially defended his actions, likely under the desire to assert his independence, Johnson went on to admit his wrongdoing five years later. Johnson became known for writing opinions that did not align with either the Federalists or the Democratic-Republicans, thus irritating members of both parties. The Federalists disliked his strict adherence to judicial authority, and the Democratic-Republicans bemoan about his commitment to states’ rights. Johnson believed that all government ought to serve the individual. 100

In the case of Ogden v. Saunders (1827), Chief Justice Marshall’s only dissent in a Constitutional decision, Johnson voted against Marshall and in favor of the majority opinion that a law passed before the execution of a future contract is a valid part of that contract. In his later years on the Supreme Court, Johnson’s opinions began to differ with those of his home state of South Carolina. His denunciation of the Nullification Crisis in South Carolina in the early 1830s eventually provoked him to relocate to Pennsylvania. Johnson claimed this move would allow him to remain independent in his thinking and refrain from being swayed by South Carolina majority opinion. Death Justice Johnson served on the Supreme Court until his death on August 4, 1834. He died at the age of 62 after sustaining injuries from jaw surgery. Notable Cases Gilchrist v. Collector of Charleston (1808) Gibbons v. Ogden (1824) Ogden v. Saunders (1827) Holmes v. United States (1832) 101

Henry Brockholst Livingston Henry Brockholst Livingston (1807-1823) served as a lieutenant colonel in the Revolutionary War as well as a member of the New York State Supreme Court before being appointed to serve as an Associate Justice to the United States Supreme Court. Early Life Henry Brockholst Livingston was born on November 25, 1757, in New York, New York. His father was served as Governor of New Jersey, and other members of the family were heavily involved in New York politics. Livingston earned his Bachelor’s Degree from Princeton University in 1774 with classmate James Madison.

Revolutionary War and Early Career During the Revolutionary War, Livingston served as a lieutenant colonel and was present in the siege of Fort Ticonderoga and the Battle of Saratoga. From 1779 to 1782 he lived in Spain and worked as a private secretary to his brother-in-law John Jay, then the U.S. Minister to Spain. Following the war, Livingston studied law and was admitted to the bar in 1783, when he began his private practice. Livingston was appointed to the New York Supreme Court in 1802, where he served for five years until 1807. He contributed greatly on this post, writing a total of 149 opinions. Most notable of these opinions came in the 1805 Pierson v. Post case, now regarded as an important case in American legal education. In this case, one man sued another over ownership of a dead fox. Livingston authored a dissent in the case, maintaining that pursuit of the fox ought to be considered sufficient for declaring possession. Supreme Court In 1807 President Jefferson nominated Livingston to serve as Justice on the United States Supreme Court to fill the vacant seat of the late Justice William Paterson. Livingston officially began his post on January 20, 1807. Although Livingston served on the Supreme Court for sixteen years until his death in 1823, he became known more as a silent observer than contributor, often following the lead of Chief Justice John Marshall. Justice Livingston did not write any major opinions in Supreme Court cases, but instead served to ease tensions among Justices during debates. Death Livingston died on March 18, 1823 in Washington, D.C. at the age of 65. 102

John Marshall John Marshall lived between 1755 – 1835 and is known for his significant contributions to the foundation of constitutional law and judicial power. During his tenure as Chief Justice of the U.S. Supreme Court, he ruled on many well-known cases that helped establish the court as a third and equal branch of government. Early Life John Marshall was born on September 24, 1755, in Germantown, Virginia. Because Marshall worked during his childhood, he had no formal education and was instead instructed by his father. His employer also granted him access to an impressive library on his estate, from which Marshall studied ancient Roman law and English literature. He joined the Continental Army during the Revolutionary War, and later enrolled in the College of William and Mary to study law. He was admitted to the bar in 1780.

Politics Between 1782 and 1789, Marshall held a seat in the Virginia House of Delegates. He held this position again between 1795 and 1796, after which he was elected by the Virginia General Assembly to serve as Council of State. In 1788, Marshall served as a delegate of the Virginia Convention, where he lobbied for ratification of the U.S. Constitution. After it was ratified, Marshall associated himself with the Federalist Party and its platforms. In 1799, Marshall was elected to the House of Representatives, and soon became the Secretary of State in 1800. Chief Justice of the Supreme Court Marshall served as U.S. Chief Justice from 1801 to 1835, during which time he saw six presidents take office. During his tenure, he made many changes to the Supreme Court, the first of which eliminated the practice of justices submitting separate opinions. As it is still done today, Marshall enacted a tradition of writing one unified court opinion. In addition, Marshall cemented the Supreme Court’s authority for interpreting constitutional law, as well as its significance of a co- equal branch of government. Marbury v. Madison was the first important case Marshall ruled on, in which the Supreme Court ruled an act of Congress to be unconstitutional and highlighted the doctrine of judicial review. Fletcher v. Park soon followed to become the first case in which a state law was ruled unconstitutional. In McCulloch v. Maryland, Marshall set a precedent that forbid states from taxing an arm of the federal government. 103

Marshall died in 1835 in Pennsylvania while receiving medical treatment, after serving as Chief Justice for 34 years. 104

John McLean John McLean (1829-1861) was elected to the U.S. House of Representatives, served as a judge for the Ohio Supreme Court and led an immense expansion of the Post Office in the western states before being nominated to serve as an Associate Justice to the United States Supreme Court. Early Life John McLean was born on March 11, 1785, in Morris County, New Jersey. After moving frequently in his early childhood, he eventually settled in the town of Ridgeville, Ohio in the late 1790s. The numerous relocations made receiving a formal education difficult, and as such McLean was forced to primarily educate himself. In 1803 McLean moved to Cincinnati, where he studied

law under leading Ohio attorney Arthur St. Clair Jr. McLean was admitted to the bar in 1807 and began a private practice. That same year, he founded the weekly Democratic-Republican newspaper The Western Star, which is still in publication today. Early Career McLean began his political career in 1812 when he was elected to the U.S. House of Representatives. He served for four years, at which time he was nominated to serve as a judge on the Ohio State Supreme Court. In 1822, President James Monroe appointed McLean as a commissioner of the Federal Land Office and the following year repositioned him Postmaster General. In this position, McLean led the immense expansion of the Post Office in the western states. Supreme Court In the late 1820s President Andrew Jackson offered McLean the positions of both Secretary of War and Secretary of the Navy, to which he declined. Instead, he accepted President Jackson’s offer to serve as Justice on the United States Supreme Court. McLean officially began his post on March 7, 1829, filling the vacant seat of Justice Robert Trimble. Justice McLean associated himself with nearly every political party at various times during his tenure on the Supreme Court. This theme is highlighted by the fact that he was considered as a presidential candidate a number of different times, for a number of different parties, during the next several decades. Justice McLean’s wrote his first major opinion on the Supreme Court in the 1834 Wheaton v. Peters case regarding copyright protection. McLean maintained that no post-publication common law copyright law exists in the U.S., for public works are in the public domain. In this 105

hearing, the Court also established that there could be no copyright can exist in the Court’s own judicial decisions. As a long-time opponent of slavery, Justice McLean voiced strong opinions in several slavery cases during his time on the Court. The most of significant of these opinions came in the 1857 Dred Scott v. Sandford hearing. In the minority opinion, McLean argued that a slave became free when his owner took him into a state in which slavery was not established as legal. Several years earlier, in the 1842 Prigg v. Pennsylvania case, McLean upheld the right of free states to protect runaway slaves from illegal capture. Death McLean became the last surviving member of the Monroe and Adams Cabinets. He died on April 4, 1861 in Cincinnati, Ohio, at the age of 76. Notable Cases Wheaton v. Peters (1834) Prigg v. Pennsylvania (1842) Dred Scott v. Sandford (1857) 106

Alfred Moore Alfred Moore (1800-1804) served as Attorney General for the state of North Carolina before being nominated by John Adams to serve as an Associate Justice in the United States Supreme Court. Early Life Alfred Moore was born on May 21, 1755, in New Hanover County, North Carolina. Moore received his early education in Boston before returning to North Carolina to study law under his father, a former colonial judge. Moore was admitted to the bar in 1775 but delayed starting his practice to join the war. From 1775 to 1782 Moore served in a number of ranks including officer of the First North Carolina Regiment.

Legal Career Following the war, Moore was elected to the North Carolina General Assembly. In 1782, Moore succeeded James Iredell, a future Supreme Court Justice, in the position of North Carolina Attorney General. Moore served as Attorney General until his resignation in 1791. Moore maintained that the General Assembly’s creation of solicitor general in 1790 infringed upon his duties. Quickly following his resignation as Attorney General, Moore was elected to the North Carolina House of Commons. Three years later in 1794 Moore ran as the Federalist candidate for the North Carolina United States Senate, but lost by only one vote. Moore then served as a Superior Court Judge from 1798 to 1799. Supreme Court Following the sudden death of Supreme Court Associate Justice James Iredell in late 1799, President Adams nominated Moore to fill the vacant seat. Moore accepted, and his tenure as U.S. Supreme Court Justice officially began on April 21, 1800. Due to poor health, Moore’s contribution as Supreme Court Justice was limited. He served on his post for only four years, and during that time only issued one opinion. That opinion came in the 1800 Bas v. Tingy case regarding a conflict with France. Justice Moore supported the majority opinion in the court that a partial, limited war had broken out with France. During the Marbury v. Madison (1803) hearing, undoubtedly the most important case during Moore’s tenure on the Supreme Court, Moore reportedly missed the arguments due to illness. Death Moore resigned from the Supreme Court on January 26, 1804, citing issues with deteriorating health. He died in Bladen County, North Carolina on October 15, 1810. 107

Notable Cases Bas v. Tingy (1800) Marbury v. Madison (1803) 108

William Paterson William Paterson (1793-1806) was heavily involved with the New Jersey government during the Revolutionary War and served as governor of the state before being nominated by George Washington to serve as an Associate Justice to the United States Supreme Court. Early Life William Patterson was born on December 24, 1745, in County Antrim, Ireland. Paterson immigrated to America with his family when he was two years old, first living in Delaware and later settling in Princeton, New Jersey. He entered the College of New Jersey (now Princeton University) at the age of fourteen, earning his B.A. and M.A. in 1763 and 1766, respectively. Following graduation Paterson studied law under prominent New Jersey lawyer Richard Stockton, and he was admitted to the bar in 1768. Early Career During the Revolutionary War, Paterson was heavily involved with the New Jersey state government. He acted as delegate to the state’s first three provincial congresses, where he recorded the New Jersey State Constitution as secretary in 1776. From 1776 to 1783 Paterson gained renown for serving as Attorney General of the state of New Jersey. In 1787 Paterson was chosen to represent New Jersey at the Constitutional Convention in Philadelphia. As a New Jersey delegate, Paterson promoted the New Jersey Plan (also known as the Paterson Plan), which asserted the rights of smaller states. Paterson was elected to the United States Senate in 1789, where he went on to play a large role in establishing the federal court system with the passing of the Judiciary Act of 1789. After serving only one year as a U.S. Senator, Paterson became Governor of New Jersey in 1790. During his time as Governor, Paterson worked to reorganize the legal system of the state. Supreme Court In 1793, only three years after being elected New Jersey Governor, Paterson was nominated by President Washington to serve as Justice of the United States Supreme Court. Paterson took the seat of Justice Thomas Johnson after his resignation, and Paterson officially began his post on March 4, 1793. Though the caseload was light in the early years of the Supreme Court, Justice Paterson presided over several important cases. Most notable of these cases was Marbury v. Madison (1803), 109

which now stands as a landmark case in United States law. Justice Paterson joined Chief Justice John Marshall in the case opinion that the Judiciary Act of 1789 was unconstitutional. This ruling went on to create the basis for judicial review and helped define the separation of powers based on the American Constitution. Other notable cases during Paterson’s tenure on the Supreme Court include VanHorne’s Lessee v. Dorrance (1795), Hylton v. United States (1796) and Calder v. Bull (1798). In VanHorne’s Lessee v. Dorrance, Justice Paterson ruled that a Pennsylvania state law was in violation of the state constitution. In Hylton v. United States, Paterson stated that the carriage tax was an excise tax and not a direct tax. Although they refrained from overruling the statute, this became the first case that questioned constitutionality of an act of Congress. In Calder v. Bull, Paterson joined the unanimous decision that the ex post facto clause applies to criminal, not civil cases. Death Paterson served on the U.S. Supreme Court until his death on September 9, 1806. He passed away at age 60 after suffering injuries from a coach accident suffered while travelling on circuit court duty in New Jersey. The town of Paterson, New Jersey and William Paterson University are named after him. Notable Cases VanHorne’s Lessee v. Dorrance (1795) Hylton v. United States (1796) Calder v. Bull (1798) Marbury v. Madison (1803) 110

John Rutledge John Rutledge lived between 1739 and 1800, and served as a politician, governor and judge during the formative years of the United States. Rutledge was both a witness and participant in the establishment and signing of both the Declaration of Independence and U.S. Constitution and eventually became the second Supreme Court Chief Justice to serve in the United States. Early History Rutledge was born in Charleston, South Carolina, in 1739 and took a strong interest in law from an early age. He later attended Inns of Court in England, where he won two cases in the English court system during his tenure as a student. Upon returning from England, Rutledge successfully practiced law, and become involved in pre-revolutionary politics in 1765 when he chaired a committee that urged the English House of Lords to reject the Stamp Act. Although the measure was unsuccessful, it served as Rutledge’s first act of political involvement. Political Office In 1774, Rutledge became a delegate to First Continental Congress and was elected as President of South Carolina in 1776. He resigned from this post in 1778 after refusing to sign a new state constitution that he believed would turn the state into a direct democracy and lead to chaos. He was elected to lead South Carolina again in 1779 after the state constitution was revised and changed the title from “President” to “Governor.” After his term ended in 1782, he was again elected to the Continental Congress until 1783. Supreme Court Justice President George Washington nominated Rutledge to be an Associate Justice in 1789, however he resigned the post in 1791 to become Chief Justice of the South Carolina Supreme Court until 1795. He was nominated again by Washington to become the country’s second Chief Justice of the United States in 1795, where he held a recess position for four months. However, the Senate refused to confirm him. During his short four-month tenure, he decided on two cases. In United States v. Peters, it was decided that the U.S. had no jurisdiction over crimes committed against Americans in 111

international waters. In Talbot v. Janson, the Court ruled that Americans who gain citizenship of another country or renounce state citizenship do not waive their U.S. citizenship status. Later Life After the Senate refused to confirm him, Rutledge retired from public life and died in 1800. In addition to setting a precedent over multiple citizenship that is still relevant today, Rutledge also served as a founding trustee at the College of Charleston. 112

Joseph Story Joseph Story (1812-1845) was one of the most prominent and successful authors during the 19th century while having served as an Associate Justice to the United States Supreme Court. Early Life Joseph Story was born on September 18, 1779, in Marblehead, Massachusetts. His father Elisha Story was a member of the Sons of Liberty who took part in the Boston Tea Party in 1773. Story graduated second in his class from Harvard University in 1798 and was a member of the Phi Beta Kappa Society. Following graduation, he studied law under Congressman and future Chief Justice of Massachusetts Samuel Sewall. Early Career After being admitted to the Bar in 1801 and working in a highly successful private practice for several years, Story began his political career. As a member of the Democratic-Republican Party, Story was elected to the Massachusetts House of Representatives in 1805, where he served for three years. Story was then elected to the U.S. Congress in 1808 and went on to become Speaker in 1811. Supreme Court In November 1811, President Madison nominated Story as Justice on the United States Supreme Court to fill the vacant seat of Justice William Cushing. At the age of thirty-two, Story became the youngest Justice of the U.S. Supreme Court, officially taking his post on November 18, 1811. Justice Story was heavily involved with nearly all court proceedings during his tenure on the Supreme Court. Although he generally aligned himself with the Federalist views of Chief Justice John Marshall, who served as the overall leader of the court, Story made a tremendous contribution to a large proportion of the decisions made. Story wrote his first major opinion in the 1816 Martin v. Hunter’s Lessee case. With the unanimous decision of the Court, Story maintained that the Supreme Court has appellate authority over state courts on all matters regarding federal law. This decision now serves as a fundamental principle in the function of the Supreme Court. During his later years on the Supreme Court, Story wrote two of the court’s most important decisions regarding slavery, United States v. The Amistad (1841) and Prigg v. Pennsylvania (1842). As an opponent of slavery, Story continually upheld his view that international slave trade should be forbidden, while domestic slavery should remain legal because of its protection in the Constitution. His decisions on both of these court cases reflect this opinion. 113

In United States v. The Amistad (1841), now regarded as a landmark case regarding slavery, a rebellion of Africans had occurred on a Spanish ship sailing in the Atlantic. Story maintained that because the Africans on board were illegally captured and imprisoned, they were in fact free men who had the right to return safely to Africa. In Prigg v. Pennsylvania (1842), Story upheld the Fugitive Slave Act of 1793, declaring that states could not prevent the recapture of slaves from other parts of the country. In Swift v. Tyson (1842), Story authored the opinion that civil litigation in federal court would use general common law instead of state law. This expanded federal court jurisdiction. Authorship Justice Story became one of the most prominent and successful authors of the early nineteenth century. His three-volume work published in 1833 titled Commentaries on the Constitution of the United States is considered a staple in American legal studies to this day. In 1829 Story became the Dane Professor of Law at Harvard University, where he was instrumental in the founding of the law school. This position allowed for the endowment to pay for the publication of numerous other commentaries including The Conflict of Laws (1834), Equity Pleadings (1838) and Bills of Exchange (1843), among others. Death Story served as a Supreme Court Justice until his death on September 10, 1845 at age 65. At the time of his death, many considered Story to be the greatest Jurist in the United States. Notable Cases: Martin v. Hunter’s Lessee (1816) United States v. The Amistad (1841) Prigg v. Pennsylvania (1842)

Swift v. Tyson (1842) 114

Roger B. Taney Roger B. Taney lived between 1777 and 1864, during which time he filled several high-ranking positions in government. He is remembered for delivering one of the most important Supreme Court rulings in the country’s early history. Early Life Roger Taney was born on March 17, 1777 in Maryland, and attained most of his early education from tutors. After graduating from Dickinson College with honors in 1795, Taney went on to become one of the state’s most knowledgeable legal minds. In addition to practicing law, Taney served as director to the State Bank Branch in Maryland from 1810 to 1815. Political Aspirations

Taney served as a Maryland state Senator between 1816 and 1821, after which he returned to private practice for a short while. In 1827, he served as the Attorney General of Maryland, but resigned his post in 1831 to first serve as acting U.S. Secretary of War and then later as President Andrew Jackson’s nominee for U.S. Attorney General. Following a recess appointment as Secretary of the Treasury in 1833, Taney had funds removed from the Second Bank of the United States, which resulted in its intended collapse and the rejection of his nomination by the U.S. Senate. He returned to Maryland to resume his private practice. Chief Justice of the Supreme Court Political disputes resulted in Taney’s nomination to be an Associate Justice of the Supreme Court to be rejected in January 1835. However, the sudden death of Chief Justice John Marshall at the end of the year paved the way for Taney’s nomination for that position. He was confirmed as Chief Justice in 1836. Taney is best recognized for his ruling in the Dred Scott v. Sanford case in 1857, which held that African American slaves, and their descendants, were not citizens of the United States or protected by the Constitution. Despite Taney’s personal opposition to slavery, the decision created sparked a great deal of controversy prior to the start of the Civil War. Following President Abraham Lincoln’s suspension of the writ of habeas corpus in some areas, Taney ruled as a Circuit Judge that this right lay with Congress, not the President. Last Years Taney’s decision in Dred Scott left him with few allies on both sides of the political spectrum, and the Civil War left him impoverished. His ill health gave way in 1864 after 28 years on the Supreme Court 115

Smith Thompson Smith Thompson (1823-1843) was deeply involved with the State of New York’s government for many years before being nominated to serve as an Associate Justice to the United States Supreme Court. Early Life Smith Thompson was born on January 17, 1768, in Amenia, New York. Thompson earned his Bachelor’s Degree from Princeton University in 1788. He began to study law following graduation under legal scholar James Kent and was admitted to the bar in 1792. As a member of the Democratic-Republican Party, Thompson went on to practice law in Poughkeepsie, New York for the next ten years.

Political Career In 1800, Thompson was elected to the New York State Assembly, and the following year he served as a delegate in the New York Constitutional Convention. In 1802 Thompson became a Justice on the New York Supreme Court, where he served under his former law mentor, Chief Justice James Kent. When Kent left the state Supreme Court to become Chancellor of New York in 1814, Thompson moved into the position of Chief Justice. During his 16 years on the New York Supreme Court, Thompson was a very active member, writing approximately 250 opinions. In 1819, President Monroe nominated Thompson as the 6th Secretary of the Navy. He served in this role for the next several years, while also campaigning for the 1824 Presidential Election. Andrew Jackson won the nomination over Thompson, however, as candidate for the Democratic- Republican Party. Supreme Court In 1823, President Monroe nominated Thomson to become an Associate Justice on the United States Supreme Court to fill the vacant seat of Justice Henry Brockholst Livingston. It was not until Thompson failed to earn the nomination for the 1824 Presidential Election that he reluctantly accepted the nomination to the Supreme Court. Thompson officially began his post on September 1, 1823. Several years later Thompson once again attempted to run for political office when he entered the 1828 election Gubernatorial Election in New York. He was defeated in this campaign and remained on the bench. 116

During his time on the Supreme Court, Thompson became known for frequently disagreeing with Federalist Chief Justice John Marshall. Thompson’s support of States’ rights did not align with the nationalist views of the Chief Justice, and the two voting differently in many occasions. Justice Thompson also served as a large supporter of minority interests. In the case of Worcester v. Georgia (1832), Thompson played a large role in upholding the majoring ruling that states have no criminal jurisdiction in Native American lands. This ruling formulated the basis for tribal sovereignty in the United States. Justice Thompson’s most notable case during his tenure on the Supreme Court came in the 1841 United States v. Amistad case regarding a rebellion of Africans aboard a Spanish ship. During the case, Justice Thompson maintained that no American court had jurisdiction over the criminal charges for those on board the ship, as the ship was a foreign vessel. In the Court decision, Thompson joined Justice Story’s majority opinion that the Africans on board were unlawfully kidnapped and thus must be rightfully returned to Africa. The United States v. Amistad case gained much traction for the abolitionist movement in the U.S. Death Justice Thompson served on the Supreme Court until his death on December 18, 1843 in Poughkeepsie, New York at the age of 75. Notable Cases Worcester v. Georgia (1832) Kendall v. United States (1838) United States v. The Amistad (1841) 117

Thomas Todd Thomas Todd (1807-1826) was heavily involved in several government positions for the State of Kentucky before being appointed to serve as an Associate Justice to the United States Supreme Court. Early Life Thomas Todd was born on January 23, 1765, in King and Queen County, Virginia. He had a tough childhood, losing both of his parents at an early age. At the age of sixteen Todd fought in the Revolutionary War. After returning home he attended Liberty Hall Academy, now Washington & Lee University, and earned his Bachelor’s Degree in 1783. After graduation, Todd worked as a tutor at Liberty Hall in exchange for room and board and the opportunity to study law. Early Career Todd’s early career was marked by significant involvement with the State of Kentucky. Beginning as the clerk at five constitutional conventions where Kentucky was seeking statehood, Todd went on to serve in a number of high-powered positions in the state. In the 1790s he worked as Secretary of the Kentucky State Legislature and member of the Kentucky House of Representatives. When the state’s superior court, the Kentucky Court of Appeals, was created in 1789, he became its Chief Clerk. In 1801 he was nominated to Justice of the court, and seven years later in 1806 he became Chief Justice. In the meantime, Todd maintained a private practice in Danville, Kentucky. Supreme Court In 1807, after Congress raised the number of seats on the Supreme Court to seven, President Jefferson nominated Todd to take one of the positions. Todd officially began his post as Associate Justice on the Supreme Court on March 3, 1807. Although Todd served on the Supreme Court for eighteen years, he did not write a single constitutional opinion and did not make a significant contribution to the court. He only voted against Chief Justice John Marshall on one occasion, which came in the more minor case of Finley v. Lynn. Death Thomas Todd served on the Supreme Court until his death on February 7, 1826 at the age of 61. 118

Robert Trimble Robert Trimble (1826-1828) was formerly a politician in the State of Kentucky before being appointed by John Adams to serve as an Associate Justice to the United States Supreme Court. Early Life Robert Trimble was born on November 17, 1776 in Berkeley County, Virginia, modern day West Virginia. After moving to Kentucky at a young age, Trimble struggled to find opportunities for an early education. He studied law in Ohio under former Attorney General of Kentucky George Nicholas and future Louisiana Senator James Brown. Trimble was licensed to practice law in 1803 and began his

practice in Kentucky. Early Career Later in 1803, Trimble was elected to the Kentucky State House of Representatives, where he served a single term. Disliking the life of a politician, Trimble resigned and later refused a nomination to serve in the U.S. Senate. In 1808 Trimble was selected to serve on the Kentucky Court of Appeals. Although he was later offered the position of Chief Justice of that court, he declined in favor of returning to his private practice for financial reasons. In the next two decades, Trimble served as a United States District Attorney and as a United States District Court Judge. Supreme Court In 1826, President John Quincy Adams nominated Trimble to the United States Supreme Court to fill the vacant seat of fellow Kentuckian Justice Thomas Todd. As President Adam’s only Supreme Court appointment, Justice Trimble officially began his post on May 9, 1826. Justice Trimble only served two years on the Supreme Court before his sudden death in 1828. During that time, Justice Trimble generally agreed with Chief Justice John Marshall on court matters. His one vote against Justice Marshall came in the 1827 Ogden v. Saunders case, which he concurred with Justice Bushrod Washington’s opinion that a law passed before the execution of a future contract is a valid part of that contract. Death At the age of 51, Justice Trimble died suddenly from a severe fever on August 25, 1828. Notable Cases Ogden v. Saunders (1827) 119

Bushrod Washington Bushrod Washington (1798-1829) was the nephew of George Washington, he fought in the Revolutionary War before eventually being nominated by John Adams to serve as an Associate Justice in the United States Supreme Court. Early Life The nephew of George Washington, Bushrod Washington was born on June 5, 1762, in Westmoreland County, Virginia. He attended the College of William & Mary, where he graduated in 1778 at age sixteen as one of the first members of Phi Beta Kappa. When the Revolutionary War began, Washington enlisted as a private soldier and was later present at the surrender of Cornwallis in Yorktown. Following the war, Washington studied law in Philadelphia and began his practice in Alexandria, Virginia. During this time he worked with James Wilson, a future Associate Justice of the Supreme Court. While working as a lawyer in Virginia in the late 1780s and early 1790s, Washington served two terms on the Virginia House of Delegates, the committee that ratified the constitution, from 1787 to 1791. Supreme Court When Justice James Wilson died in August 1798, President Adams first looked towards John Marshall to fill the vacant seat. However, Marshall denied the nomination and endorsed Washington. Adams officially appointed Washington on December 18, 1798, and Washington began his post as Associate Justice two days later. Although Justice Washington served over thirty years on the Supreme Court, he typically remained reserved in voicing his opinions. After John Marshall became Chief Justice in 1801, Washington was quick to follow his lead, only voting differently three times in the next thirty years. Washington only dissented twice during his time on the Supreme Court. One occasion Washington voted differently than Marshall was in the 1827 Ogden v. Saunders case regarding bankruptcy law in connection with the U.S. constitution. Washington authored the first part of the opinion, maintaining that a law passed before the execution of a future contract is a valid part of that contract. In the 1823 Corfield v. Coryell case regarding commerce laws for non-residents, Washington maintained that the Privileges and Immunities Clause guarantees people only the rights that are essential to citizenship. These rights, he argued, do not include granting all out-of-state residents the same rights as lawful state residents. 120

Death Justice Washington served on the Supreme Court until his death on November 26, 1829. He was buried in Mount Vernon with his wife Anna. Notable Cases Corfield v. Coryell (1823) Ogden v. Saunders (1827) 121

James Moore Wayne James Moore Wayne (1835-1867) served the State of Georgia’s government in multiple capacities before being elected to serve as an Associate Justice to the United States Supreme Court. Early Life James Moore Wayne was born in 1790 (exact date unknown) in Savannah, Georgia. After spending his childhood in Georgia, Wayne left his hometown to attend Princeton University, graduating in 1808. He returned to Savannah shortly afterward to study law. Wayne was admitted to the bar in 1810 and began a private practice shortly afterward. Early Career

During the War of 1812, Wayne volunteered as an officer in the Georgia cavalry. Over the next decade, Wayne served brief terms in a number of different positions in Georgia. He worked as a member of the George State House of Representatives from 1815 to 1817, Mayor of Savannah from 1817 to 1819, and a judge of the Savannah Court of Common Pleas from 1819 to 1822. During the years of 1822 to 1828, Wayne maintained his private practice while serving as a judge on Superior Court of Georgia. In 1829, following the election of President Andrew Jackson, Wayne was elected as a member of the Jacksonian Party to serve in the United States House of Representatives. Supreme Court In 1835 President Jackson nominated Wayne to the United States Supreme Court to fill the vacant seat of Justice William Johnson. Wayne resigned from his position on the U.S. House of Representatives and officially began his post on the Supreme Court on January 14, 1835. In Wayne’s early years as Justice, the Supreme Court went through a time of great transition. Chief Justice John Marshall’s death in July 1835 led to the appointment of Chief Justice Roger Taney, a strong supporter of Jacksonian Democracy. In addition, President Jackson’s six appointments to the Supreme Court during the 1930s radically changed the dynamic of the Court. During his tenure on the Supreme Court, Justice Wayne became known for his involvement in Admiralty Law, taxation, and legal issues regarding acquired land from foreign nations. In the case of Cooley v. Board of Port Wardens of Philadelphia (1852), Wayne issued a dissent, arguing that U.S. Congress ought to be the only entity with power to regulate interstate commerce. 122

Leading up to the Civil War, all Justices on the Supreme Court including Wayne dealt heavily with matters concerning slavery. In the case of Prigg v. Pennsylvania (1842), Justice Wayne supported the majority opinion, maintaining that only Congress may determine legal actions against runaway slaves. The most important case during Wayne’s time on the Supreme Court came in the 1857 Dred Scott v. Sandford hearing. During the case Wayne played a large role in the majority opinion that Congress had no power to interfere with slavery due to the Due Process Clause of the Fifth Amendment, thus upholding the legality of slavery. This decision ultimately fueled the dispute leading the Civil War. During the Civil War, Justice Wayne received much criticism for his decision to remain on the Supreme Court. Although he wished to serve the interests of his home state of Georgia, he did not support the legality of succession and became the only southern representative on the Supreme Court during this time period. Death In 1866, a year before Justice Wayne’s death, Congress passed the Judicial Circuits Act, effectively reducing the number of seats on the Supreme Court from ten to seven. Wayne’s vacant seat thus was not filled. Justice Wayne died on July 5, 1867 in Washington, D.C., from a severe fever. His thirty- two year tenure on the Supreme Court is among the longest in Court history. Notable Cases Prigg v. Pennsylvania (1842) Cooley v. Board of Port Wardens of Philadelphia (1852) Dred Scott v. Sandford (1857) 123

James Wilson James Wilson (1789-17980) was a prominent figure during the Revolutionary War as well as Declaration of Independence signer. Wilson was nominated by George Washington to serve as an Associate Justice of the United States Supreme Court. Early Life James Wilson was born on September 14, 1741, in the town of Carskerdo, Scotland near St. Andrew’s. Wilson received a scholarship to the University of St. Andrew’s at age fifteen, and he graduated in 1762. Wilson spent several years after graduation in Scotland before moving to Philadelphia, Pennsylvania in 1766. Wilson was admitted to the Pennsylvania Bar in 1767, establishing his own practice shortly thereafter. While practicing law in Pennsylvania in the following years for his largely successful firm, Wilson married Rachel Bird. The couple would go on to have six children together. Revolutionary War & Independence In 1774, Wilson published a document arguing that the British Parliament had no authority to pass laws governing the colonies. After distributing his work to the first continental congress, Wilson gained renowned for his strong and far-sighted beliefs, helping earn his election to the second continental congress the following year. Wilson voted for independence with the eventual support of his district, and he went on to sign the Declaration of Independence in 1776. Wilson worked in various endeavors in the following years, including as the Advocate General for France in America from 1779 to 1783 and as one of the directors of the Bank of North America in the early 1780s. Wilson served as a delegate at the Constitutional Convention in 1787, making a significant contribution in almost all hearings. Among his most notable contributions include the proposition of the Three-Fifths Compromise, in which three-fifths of Southern States’ slave population would count towards electoral votes. Wilson also advocated for a senators and the President to be elected through popular vote. Supreme Court Wilson began his term as Associate Justice of the United States Supreme Court on September 26, 1789 after being nominated by President Washington. During his tenure as Associate Justice, the Supreme Court heard only nine cases. Wilson’s previous success as a revolutionary leader did not translate well to the Supreme Court, as he did not live up to his expectations as an Associate Justice. 124

Later Life Ellsworth served as commissioner to France between 1799 and 1800 and left the Supreme Court while still overseas in 1800 due to illness. Upon his return in 1801, Ellsworth retired from public life. He served on the Connecticut Governor’s Council until his death is 1807.