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The Constitution in the Supreme Court: The First Hundred Years, 1789-1888

The Constitution in the Supreme Court: The First Hundred Years, 1789-1888

by David P. Currie

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Currie's masterful synthesis of legal analysis and narrative history, gives us a sophisticated and much-needed evaluation of the Supreme Court's first hundred years.

"A thorough, systematic, and careful assessment. . . . As a reference work for constitutional teachers, it is a gold mine."—Charles A. Lofgren, Constitutional Commentary


Currie's masterful synthesis of legal analysis and narrative history, gives us a sophisticated and much-needed evaluation of the Supreme Court's first hundred years.

"A thorough, systematic, and careful assessment. . . . As a reference work for constitutional teachers, it is a gold mine."—Charles A. Lofgren, Constitutional Commentary

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University of Chicago Press
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The Constitution in the Supreme Court

The First Hundred Years 1789-1888

By David P. Currie

The University of Chicago Press

Copyright © 1985 The University of Chicago
All rights reserved.
ISBN: 978-0-226-22242-4


Outlines of Federal Jurisdiction

Because jurisdiction is a threshold issue in every federal case, the Court would settle in its first forty years many of the fundamental issues surrounding the federal judicial power. A significant start was made in the cases decided before Marshall. These decisions are the subject of this chapter; the remaining pre-Marshall decisions are considered in the next.


A. Hayburn's Case

In 1792, Congress authorized pensions for disabled war veterans. The statute required applicants to file proofs with "the circuit court," which, if it found the applicant eligible, was to certify its finding to "the Secretary at War." The Secretary in turn could place the name of the certified applicant on the pension list, or he could withhold the name and report the matter to Congress if he had "cause to suspect imposition or mistake."

William Hayburn filed for a pension under this statute, and the Circuit Court for the District of Pennsylvania refused to entertain his application. Although the judges apparently wrote no opinion, they took the unusual step of explaining their refusal in a letter to President Washington. Two other circuits also addressed their views to the President, though one conceded that no application was pending before it. All three courts concluded that the statute was unconstitutional because it attempted to subject court decisions to revision by the Secretary of War. Five Supreme Court Justices sitting on circuit joined in these declarations of unwillingness to carry out an act of Congress they deemed unconstitutional — eleven years before Marbury v. Madison.

Attorney General Edmund Randolph then asked the Supreme Court for a writ of mandamus compelling the circuit court to pass upon Hayburn's petition. An examination on the merits would have required the Court to decide whether the statute conferred either nonjudicial power on the courts or judicial power on the Secretary of War, and if so, whether negative implications should be drawn from the provision of article III stating that "the judicial Power ... shall be vested in ... Courts." But the Court never reached these questions. The Attorney General, having neglected to secure Hayburn as his client, announced that he was acting "without an application from any particular person, but with a view to procure the execution of an act of congress." Evidently on its own motion, the Court "declared, that they entertained great doubt" as to the right of the Attorney General "to proceed ex officio" The latter attempted to justify this manner of proceeding, "[b]ut the Court being divided in opinion on that question, the motion, made ex officio, was not allowed." The Attorney General then entered an appearance as counsel for Hayburn, but the case later was mooted by the adoption of a new statute providing "in another way, for the relief of the pensioners."

The Court seems to have taken for granted, as it since has held, that certain objections to subject matter jurisdiction might properly be raised by the Court on its own motion. Were it otherwise, jurisdictional limitations serving important institutional goals might be evaded by the agreement of parties with no incentive to enforce them. The point is not confined to constitutional limitations on jurisdiction, but it embraces them; it is an important part of the procedural framework for the enforcement of constitutional limitations. Dallas's report, however, does not indicate that the Justices stopped to explain that they had the power or duty to raise such issues, or whence it was derived.

Nor does the report reveal the Justices' reasons for concluding that the Attorney General lacked authority to proceed ex officio. Indeed, we must turn to the newspapers to find that the vote was 3–3,for Dallas reveals only that the Court was "divided." Remembering the future, we can surmise that three Justices may have concluded that the Court could decide only "Cases" and "Controversies" — the terms employed in article III; that there was no case or controversy unless the applicant for relief himself was injured by the disputed action; and that the analogy of the Government's acknowledged authority to prosecute crimes did not take the case outside this principle.

None of these conclusions is obvious, and it is by no means clear that the Justices meant to invoke what we now know as the constitutional dimension of the law of standing to sue. It is conceivable that they gave a narrow reading to section 35 of the Judiciary Act, which authorized the Attorney General only "to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned," or to section 13, which gave the Supreme Court mandamus jurisdiction only "in cases warranted by the principles and usages of law" — which in turn might have required an interested plaintiff. Either of these positions would have raised the further question whether, if the Attorney General's application was a case or controversy within article III, Congress had the power to deprive the Court of jurisdiction over it under its constitutional authority to make "Exceptions" to the Court's appellate jurisdiction.

In short, the reported disposition of this first constitutional controversy in the Supreme Court was inconclusive. We know the Court left the validity of executive revision of court decisions for another day, but we cannot say whether the three Justices who voted for this result did so on constitutional grounds. It is tempting to criticize the Court for not explaining what it was doing, yet even today the Court usually does not write opinions when it is evenly divided and cannot resolve the questions presented. Moreover, we cannot be certain that the Justices did not reveal their reasons at the time, for there was no official reporter of decisions until 1816, and until 1834, no requirement that opinions be filed. Indeed, a later reporter of decisions who attempted to make a complete collection of early opinions concluded that before 1800 the written opinion was the exception, not the rule. What got reported in the earliest days was what Alexander Dallas for his own purposes could gather and elected to divulge.

B. Chandler's Case and United States v.Todd

The 1793 statute that mooted Hayburn's Case did not end litigation over the earlier pension law. Some of the judges, despite their conclusion that they could not certify pension claims in their judicial capacity, had been willing to do so "in the capacity of commissioners." The 1793 act preserved "rights founded upon legal adjudications" under the prior law and directed the Secretary and the Attorney General "to take such measures as may be necessary to obtain an adjudication of the Supreme Court of the United States, on the validity of any such rights claimed under the act aforesaid, by the determination of certain persons styling themselves commissioners."

Once again proceeding ex officio, the Attorney General first asked the Supreme Court for a writ of mandamus directing the Secretary to place on the pension list a certified claimant who had not been paid. As he reported, however, "two of the judges ... expressed their disinclination," despite the new statute, "to hear a motion in behalf of a man who had not employed me for that purpose," and the motion prudently was withdrawn. Once again we cannot be sure the Justices' qualms were of constitutional dimension; the statutory reference to "such measures as may be necessary" may have meant finding a case that met preexisting jurisdictional requirements.

The standing problem was cured when a similar request was made by an attorney representing an unpaid certified claimant named John Chandler. Nevertheless the Court denied relief: "having considered the two acts of Congress" relating to pensions, it was "of opinion that a mandamus cannot issue to the Secretary of War for the purpose expressed." In Todd, the United States sued to recover money from a veteran already on the pension list, on the ground that the "commissioners" who had certified his claim had been without authority to pass upon the application. The Supreme Court held for the United States.

Thus, Todd clearly established, and Chandler may have held, that the judges had lacked power to sit as commissioners. Like Hayburn, both Chandler and Todd can be justified on constitutional grounds: arguably article III forbids judges to do nonjudicial tasks; arguably the processing of claims subject to executive revision was not judicial; and arguably it made no difference that the judges had removed their robes.

It is improper to conclude, however, as occasional commentators have done, that the Supreme Court in Chandler or Todd held the 1792 pension statute unconstitutional. As in Hayburn, no opinion was published in either case; indeed, not even the judgments were published. We therefore do not know the Court's reasons for holding against Chandler and Todd, and in both cases there was a plausible statutory basis for decision. Because the statute required application to "the circuit court," it appeared, as the North Carolina circuit judges suggested in Hayburn, to authorize judges to act only as a court, not as commissioners.

Both cases presented an additional constitutional problem. Neither Chandler nor Todd sought review of a lower court decision; each was filed as an original action in the Supreme Court. If the statutory authorization of "measures ... necessary to obtain an adjudication of the Supreme Court" purported to give the Court original jurisdiction, it was of doubtful constitutionality. Neither Chandler nor Todd was within those categories of cases over which article III specifies "the Supreme Court shall have original Jurisdiction," and Marbury v. Madison soon was to establish that Congress could not confer original jurisdiction in other cases. The dismissal of Chandler may have been on this ground. Chief Justice Taney, on the other hand, thought that by entertaining Todd the Court had held to the contrary. The failure of the Court to leave any significant traces of its reasoning makes it equally plausible to surmise that in both cases the Justices simply overlooked the problem.

We are left with two precedents that fail to reveal whether a constitutional question was decided and that were not even made available to the bar for such guidance as the unadorned results might afford. Chandler and Todd tell us nothing about the Constitution, but they say much about the early Court's attitude toward explanation and dissemination of its decisions. One cannot but wonder how many other possibly significant decisions may yet turn up in somebody's attic, and how many more may never be found. The chances may not be great, but Chandler and Todd are sobering admonitions for those who seek to know the complete history of constitutional adjudication.

C. The Correspondence of the Justices

In July 1793, Secretary of State Thomas Jefferson wrote to the Justices on behalf of President Washington seeking their advice on a number of legal questions arising from the ongoing hostilities between England and France: whether, for example, existing treaties gave France the right "to fit out originally in and from the ports of the United States vessels armed for war," and whether the neutrality laws permitted France to establish prize courts in this country. Jefferson prefaced the specific inquiries with the general question "whether the public may, with propriety, be availed of [the Justices'] advice on these questions?"

The Justices answered the prefatory question in the negative and refused to give the President advice:

We have considered the previous question ... [regarding] the lines of separation drawn by the Constitution between the three departments of the government. These being in certain respects checks upon each other, and our being judges of a court in the last resort, are considerations which afford strong arguments against the propriety of our extrajudicially deciding the questions alluded to, especially as the power given by the Constitution to the President, of calling on the heads of departments for opinions, seems to have been purposely as well as expressly united to the executive departments.

This brief response has been an important precedent; with a few notable lapses, it generally has been understood ever since that the federal courts are not to give advisory opinions.

Today we are likely to explain that this rule is derived from article III, which defines the "judicial Power" to include specified categories of "Cases" and "Controversies. "This line of reasoning parallels the modern constitutional explanation of the Court's refusal to hear the Attorney General ex officio in Hayburn's Case. Both involve the same two less-than-obvious steps: that by permitting judges to decide cases and controversies, the Framers implicitly forbade them to do anything else, and that a request for an advisory opinion does not present a case or controversy.

Today we might shore up these conclusions by reference to the debates in the constitutional convention: One of the reasons given for rejecting judicial participation in the proposed Council of Revision was the danger that the judges might prejudge issues that later could be litigated before them, a danger equally apparent if the judges gave advisory opinions. Moreover, when James Madison objected to jurisdiction over cases arising under the Constitution on the ground that courts should expound the law only in cases of a judicial nature, he recorded in his notes of the debates that it was "generally supposed" that the power given in article III would be so limited as a matter of construction. The official journal of the convention, however, was withheld from public scrutiny until 1819, and Madison's notes were unavailable until after his death in 1836. Thus the Justices were deprived of a valuable aid to construction during the critical formative years.

The Justices may have intended to suggest the case-or-controversy argument in their response to Jefferson with their one-word reference to decisions made "extrajudicially." If so, they fell far short of the kind of explanation we have come to expect of major constitutional opinions. Moreover, a negative inference from article Ill's reference to "judicial Power" is one of no fewer than six constitutional arguments discernible within the two cryptic sentences of the Justices' response quoted above. In addition to characterizing the request as "extrajudicial," the Justices mentioned general structural principles both of separation of powers and of checks and balances. To readers of Marbury v. Madison, the "last resort" clause of the Justices' reply suggests that the Supreme Court, here resorted to in the first instance, has original jurisdiction under article III only if a state or a foreign diplomat is a party. The "last resort" reference also suggests the fear that to render advice the President was free to ignore would effectively permit him to review the actions of the tribunal that article III designated as "supreme." Finally, the letter suggested that requests for judicial advice might be precluded by negative inference from article II, which empowers the President to "require the Opinion, in writing, of the principal Officer in each of the executive Departments."

None of these six suggestions was spelled out in any detail, and the Justices stopped short of actually declaring that the Constitution forbade advisory opinions. "Separation" appears in a restatement of Jefferson's question, not in the answer. "Extrajudicially" seems to have been used for purposes of description rather than argument. Article II merely "seems" to limit the President to seeking executive advice. "Checks" and "last resort" were cited not as conclusive, but only as "considerations which afford strong arguments," and the arguments they were said to support were against the "propriety," not the constitutionality, of advisory opinions.

Should we lament that once again the Court failed in its obligation to provide an adequate explanation for its decision? I think not. No one had attempted to require the Justices to give advisory opinions; it was therefore entirely appropriate for them to decline on policy grounds to do so, without reaching out to decide the constitutional question. The same considerations that made the Justices reluctant to give the President substantive advice support their decision under these circumstances not to give a definitive answer to the question of their constitutional power to advise.


Excerpted from The Constitution in the Supreme Court by David P. Currie. Copyright © 1985 The University of Chicago. Excerpted by permission of The University of Chicago Press.
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Meet the Author

David P. Currie (1936–2007) was the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago. He is the author of four volumes in the Constitution in Congress series and the award-winning two-volume history The Constitution in the Supreme Court.

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