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Yearbook 1984 Supreme Court Historical Socie Ty YEARBOOK 1984 SUPREME COURT HISTORICAL SOCIE TY CHARLES EVANS HUGHES ELEVENTH CHIEF JUSTICE, 1930-194 1 YEARBOOK 1984 ,UPREME COURT HISTORICAL SOCIETY OFFICERS Chief Justice Warren E. Burger, Honorary Chairman Kenneth Rush, Chairman Linwood Holton, President BOARD OF EDITORS Stanley N. Katz Merlo Pusey Maeva Marcus Mary K. Bonsteel Tachau Jeffrey Morris William M. Wiecek MANAGING EDITOR David T. Pride I LLUSTRATIONS EDITOR Kathleen Shurtleff ACKNOWLEDGEMENT The Officers and Trustees of the Supreme Court Historical Society would like to thank the Charles Evans Hughes Foundation for its generous support of the publ ication of this Yearbook . YEARBOOK 1984 Supreme Court Historical Society In Memoriam: William F Swindler 5 Jeffrey Morris President George Washington and the First Supreme Court 7 George W Nordham Seditious Aliens and Native Seditionists 12 William F Swindler The Roots of Liberty of Contract Reconsidered: Major Premises in the Law of Employment, 20 1867-1937. Charles W McCurdy PORTFOLIO: Some Comments on Chief Justice Hughes 34 John Knox PORTFOLIO: The Hughes Biography: Some Personal Reflections 45 Merlo 1. Pusey Styles in Constitutional Theory 53 Robert H. Bork The "Imperial Judiciary" in Historical Perspective 61 William M. Wie cek The Supreme Court: A Co-Equal Branch of Government 90 David M. O'Brien De Minimis, or, Judicial Potpourri Toward 1987: Consequences of Independence 107 William F Swindler The Pentagon Papers Case and Other Recollections 112 Erwin N. Griswold The Court in Current Literature The Hardships of Supreme Court Service, 1790-1800 118 Maeva Marcus, James R. Perry, James M. Buchanan, Christine Joroon and Stephen Tull On Review: Recent Books About the Supreme Court, the Justices, and the Constitution 127 D. Grier Stephenson, Jr. ~~~~ 1M Copyright © 1984 , by the Supreme Court Historical Society III Second Street, N. E., Washington, D. C. 20002 ISBN 0-914785-00-1 The Supreme Court Historical Society BOARD OF TRUSTEES Chief Justice Warren E. Burger Honorary Chairman Kenneth Rush Linwood Holton Chairman President Alice L. O'Donnell First Vice President Vice Presidents Charles T. Duncan David Lloyd Kreeger Frank B. Gilbert Melvin M. Payne Virginia Warren Daly Peter A . Knowles Secretary Treasurer Trustees Ralph E. Becker Sol M. Linowitz Griffin B. Bell Wade H. McCree, Jr. Mrs. Hugo L. Black William Barnabas McHenry Vincent C. Burke, Jr. Richard A . Moore Gwendolyn D. Cafritz David A. Morse William T. Coleman, Jr. Dwight D. Opperman Patricia Collins Dwinnell E. Barrett Prettyman, Jr. William T. Gossett Merlo J. Pusey Erwin N. Griswold William P. Rogers Lita Annenberg Hazen Walter S. Rosenberry, III J. Roder ick Heller, III Fred Schwengel Joseph H. Hennage Bernard G. Segal Stanley N. Katz John C. Shepherd Bruce E. Kiernat Justin A. Stanley Earl W. Kintner Obert C. Tanner Francis R. Kirkham Cornelius B. Kennedy Executive Director In Memoriam: William E Swindler by Jeffrey Morris Bill Swindler was a warm human being, a blithe spirit, and a good companion, who brimmed over with enthusiasm for his protean interests and an ever-enlarging circle of friends. As a scholar, his range was extraordinary and his output prodigious. His background as a jour­ nalist equipped him to write with enormous speed, facility, and readability. His range of scholarship was remarkable - from Bracton and Glanville to the Supreme Court; from the fram­ ing of the American Constitution to contempo­ rary st.ate constitution making. That body of work has enduring scholarly value. The series he edited on state constitutions I is the standard reference. So is his two-volume history of the Supreme Court in the Twentieth Century. 2 Of his works he had a special affection for The Constitution and John Marshall, 3 not just for its subject matter, but because the book was a William F. Swindler (1914-1984) companion to a series of films made for televi­ sion .4 Thus, he could concurrently please schol­ pictorial research; and from his ability to work ars by making available for their home library well with printers and justices alike. His familiar­ documents such as the charter of the Second ity with the literature on the Supreme Court was Bank of the United States and lower court opin­ prodigious. He could call back memories of ions in McCulloch v. Maryland and Gibbons v. obscure broadsides from the mid-Nineteenth Ogden, while still providing a text , which was a Century and obscure pamphlets from the eras of superb short introduction to the great Chief Jus­ Fuller and White. A three decade gap in our ages tice, for the general pUblic . disappeared due to his warmth and enthusiasm. Bill rarely wrote "just for scholars." Not only The Supreme Court Historical Society was but did he have that gift of writing readable prose, one of many institutions to which Bill gave his but his enthusiasms were such that he could not time, his energy, and his ideas. There was his refrain from trying to expand the audience for beloved Williamsburg. There was William and whatever was exciting him. One such vehicle Mary Law School, where John Marshall and was the Yearbook of the Supreme Court Histori­ Thomas Jefferson were educated, and in whose cal Society, which he edited from the beginning grand tradition, Bill was very much a part. And (1976), and for which we shared editorial chores there were people. Bill cared deeply and worked for five years . As an editor, Bill was a delight to for his students and for his friends . Always, he was work with . In that job he was, as in many others, convincing one of his friends to help out another a creator and booster, full of ideas for articles and friend or student. authors . The Yearbook benefited from his rich That enthusiasm for scholarship and that love range of acquaintances whom he could prevail for people was in some measure channeled into upon to contribute articles; from his mastery of the building of new institutions. The existence of 6 YEARBOOK 1984 the Yearbook of this Society and its first eight early years. With this, as with so much else, he issues are the result of Bill Swindler's efforts and left us a rich legacy to maintain. his love.5 He was in on its creation and guided its Footnotes 1 Sources and Documents of United Slates Constitu­ pp . 16-24. tions (Dobbs Ferry, N. Y.: Oceana Publications: 1st "Robin Hood, Congress and the Court," Yearbook ser., 1973-79 (10 voJ.); 2nd ser. , 1982- ) 1977 , pp. 39-42 . 2 Court and Constitution in the Twelllieth Century " The Trials of Aaron Burr," Yearbook 1978, pp. (Indianapolis: Bobbs- Merrill , 1969-74) (3 vol.). The 18-24. third volume is an analysis of the Constitution itself as "Justices in Academe," Yearbook 1979, pp . 31-39. interpreted by the Twentieth Century Court. "The Selling of the Constitution, Yearbook 1980 , 3 New York: Dodd Mead and Co. , 1978. pp . 49-55 . 4 "Equal Justice · Under Law" (produced by "Mr. Chisholm and the Eleventh Amendment, WQED, Pittsburgh in affiliation with the Judicial Yearbook 1981, pp . 14-18. Conference of the United States) . " Roscoe Conkling and the Fourteenth Amendment, S The following articles by Bill Swindler appeared in Yearbook 1983, pp. 46-52. the Yearbook: Bill also made contributions to "De Minimis, of Ju­ "Of Revolution, Law and Order," Yearbook 1976, dicial Potpourri," in every Yearbook from 1977 to 1983 . President George Washington and the First Supreme Court by George Washington Nordham I walk on unlrodden ground. There is scarcely any parI of my conducl which may nol hereafter be drawn inlo precedenl. 1 January 9, 1790 Those words by George Washington were written a few months after he had taken the oath of office as the first President of the United States. As his walk led toward the judicial branch of the federal government, the words had par­ ticular prophetic accuracy. This article explores some aspects of President Washington's relation­ ships with the judiciary and the first Supreme Court of the United States. But, first let us briefly identify relationships that Washington had with the law in general. George Washington wasn't a lawyer; he hadn't been formally educated in the law or even trained in it in anyone's law office. Yet, he developed As the first President, George Washington enjoyed more one of the finest legal minds, according to an opportunities to nominate justices than any of his succes­ analysis made by the chairman of the 1932 sors. George Washington Bicentennial Commission. 2 Before taking on the duties of President at age and levying taxes." 4 fifty-seven, Washington had spent considerable • Eight years as General and Commander in time dealing with legal matters, both in his many Chief during the war for independence, with public roles and in his wide variety of private ac­ prime responsibility to enforce the Articles of tivities. Although it is outside the scope of this War,5 to review courts-martial ,6 to help define article to discuss those experiences in details, the ways to handle captured enemy vessels in following brief summary will demonstrate the Admiralty or other courts,7 and to promote a extent of his involvement with the law: meaningful role for a Judge Advocate in the On the public side of his life were: military.8 • Seventeen years as an elected legisiator in the . On· the private side of his life were: Virginia House of Burgesses, including mem­ • At least thirty-five years dealing with wills , bership in three powerful committees: The trusts, estate administration, and guardian­ Committee of Propositions and Grievances; ships. He had the principal duty to administer The Committee on Privileges; and The Com­ the sizeable ($600,000 to $800,0(0) estate of mittee for Religion.3 his wife's first husband on her behalf as well as • Seven years as an appointee of Virginia's Gov­ on behalf of her two-year-old daughter and ernor to the posts of Justice of the Peace and four-year-old sonY George Washington also Judge of the County Court.
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