Seriatim

Front matter

SEE AMC cae SERIATIM

THE SUPREME COURT BEFORE

JOHN MARSHALL

Preface

Introduction: The Supreme Court before John Marshall Scott Douglas Gerber

“Honour, Justice, and Interest”: John Jay’s Republican Politics and Statesmanship on the Federal Bench

John Rutledge: Distinction and Declension James Haw

Deconstructing William Cushing Scott Douglas Gerber

James Wilson: Democratic Theorist and Supreme Court Justice Mark D. Hall

John Blair: “A Safe and Conscientious Judge”

Wythe Holt

James Iredell: Revolutionist, Constitutionalist, Jurist

William Paterson: Small States’ Nationalist Daniel A. Degnan, S.J.

The Verdict on Samuel Chase and His “Apologist”

viii Contents

10 Oliver Ellsworth: “I have sought the felicity and glory of your Administration”

William R. Casto

Heir Apparent: Bushrod Washington and Federal Justice in the Early Republic James R. Stoner, Jr.

Editor’s Note Contributors Index

About the Editor

351 353 355 362

Preface

The Founders of the American regime were truly remarkable men. George Washington, John Adams, Thomas Jefferson, James Madison, Alexander Hamilton, John Marshall—these are the familiar names of men who established a form of government that today serves as a model for much of the world. There were other great men of the Founding, men who are not as well known but who, nevertheless, made major contributions to America’s form of government. This volume of essays examines ten of these men; individuals who served on the U.S. Supreme Court before John Marshall, and who have suffered undeserved obscurity as a result.

This book grew out of two of my intellectual passions: the first, in the history of the American Founding; the second, in an interdisciplinary approach to scholarship. Although much has been written about the American Founding, little has been done to examine the history of the early judiciary, particularly as it existed before John Marshall. With respect to interdisciplinary scholarship, my time spent in the academy has convinced me that, unfortunately, most scholars prefer a traditional single-discipline approach. The contributors to the present collection hold otherwise. We believe it is more fruitful to examine American history from a variety of perspectives.

In the spirit of interdisciplinary scholarship, each contributor was given free rein on how to approach her or his particular justice. Each was asked, however, to provide a brief biographical sketch of the justice and, more importantly, to analyze the contributions he made to American law and politics in general and to the Supreme Court in particular. These relatively unknown justices, as shall be seen, contributed a great deal.

It is hoped that this focus on the justices who served before John Marshall will help correct the impression that the Supreme Court apix x Preface peared full-blown with Marshall like Athena from the forehead of Zeus. Certainly it should explode the myth that the concept of judicial review began with Marbury v. Madison (1803), which, though well known to be false, continues to be perpetuated by innumerable nodding scholars. Indeed, this volume is exploratory in nature and, it is hoped, will provoke scholars to research the early Court more carefully than they have in the past.

All but two of the essays were written specifically for this collection. Sandra VanBurkleo’s essay about John Jay and Dan Degnan’s essay about William Paterson first appeared in somewhat different form in the Journal of the Early Republic and the Seton Hall Law Review, respectively. Permission to reprint them is gratefully acknowledged.

Mark Hall, a friend and classmate from graduate school, was the only contributor I knew before this project began. Mark had written his dissertation—since published as a book—on James Wilson’s legal and political philosophy, so Mark was an obvious choice to write the Wilson chapter. I then identified, with Mark’s help, the leading authorities on the other justices to be considered and I wrote to these authorities to ask if they would be willing to write an essay about their particular justice. All agreed.” None of the prospective authors knew who I was when I requested this substantial commitment from them. Consequently, I credit my 100 percent success rate to a shared enthusiasm for the subject of this volume. The essays reflect this enthusiasm. I thank each of the contributors for his or her fine work, and for the kindness and patience they all have shown me on this, and other, matters. Grateful acknowledgment is made to the Earhart Foundation, to Florida Coastal School of Law, and to the University of Toledo Federalist Society and the Stranahan National Issues Forum for their support of this project. I also want to thank the administration and staff of the Social Philosophy and Policy Center (especially Mary Doilsaver) for their assistance in helping this volume see the light of day, and my editor and friend Niko Pfund, the direc-

*No one now living had written anything of substance on two of the justices I wanted to include, William Cushing and Bushrod Washington. I asked political theorist Jim Stoner, author of a fine book on the influence of the common law on the Founding, if he would be willing to write on one of the two. Jim picked Washington. I was “left with” Cushing. (Why I place quotation marks around “left with” is made clear in my Cushing essay.)

Preface xi tor of New York University Press, for being so supportive of it. Finally, I would like to thank George Athan Billias, a great early American historian and an even better human being. The academy would be a better place—the kind of place it is supposed to be—if there were more people in it like “Mr. B.” I am proud to call him my mentor.

S. D.G.

Hampton, Virginia

Chapter 1 rr

Introduction The Supreme Court before John Marshall

The Pre-Marshall Court in the American Mind

Students of judicial institutions in recent years have come to appreciate more than ever that to understand any court we must understand its origins.! Nowhere is this more correct than in the case of the Supreme Court because the origins of that institution are so closely identified with one justice—John Marshall. This holds true no matter what one thinks of Marshall. For those who hold Marshall in high esteem—and most scholars today do exactly that—the study of the Court prior to 1801 makes more plain the stamp Marshall placed on the institution. For those who view Marshall less heroically—as do several contributors in this volume—studying the pre-Marshall Court reveals what the institution might have been like had Marshall not accepted the nomination to be chief justice.

Jumping ahead two centuries to the present—and some three hundred fifty pages to the end of this book—an examination of the Supreme Court before John Marshall reveals much of interest to students of the institution. Marshallphiles will note, for example, the absence of the institutional voice Marshall’s leadership was able to

I thank Mark Hall for his contributions to this essay; Todd Ellinwood for his research assistance; and George Billias, Bill Casto, Chuck Hobson, Wythe Holt, Steve Presser, Jim Stoner, and Sandra VanBurkleo for their suggestions for making it better. An earlier version was presented at the 1996 meeting of the Northeastern Political Science Association. I thank the participants on the “Elements of Judicial Culture” panel—John Brigham, Nancy Kassop, Jeffrey Morris, Suzanne Samuels, and Grier Stephenson—for their enthusiasm about this project.

provide—an institutional voice that has been absent for much of the twentieth century as well.2 Those who view Marshall less heroically will find in these pages, by contrast, that, among other things, judicial review—the Court’s most important power in the American system of constitutional government—was understood by the early justices, was argued for by them, and was practiced by them.

The conventional wisdom is, of course, that the Supreme Court became an important institution only after Marshall’s arrival and the opinion rendered in Marbury v. Madison (1803). It is not exactly accurate to say that the pre-Marshall Court has been completely ignored by students of the judicial process, but most scholars on the subject stress the Court’s lack of significance. Bernard Schwartz, for instance, concludes in A History of the Supreme Court (1993) that “the outstanding aspect of the Court’s work during its first decade was its relative unimportance.”> Similarly, George Lee Haskins and Herbert A. Johnson comment in their 1981 volume in the Holmes Devise History of the Supreme Court that the Court was a “relatively feeble institution during the 1790s, too unimportant to interest the talents of two men who declined President Adams’ offer of the position of Chief Justice, it... acquired in... a few years’ time, and largely under the guiding hand of John Marshall, more power than even the framers of the Constitution may have anticipated.”* There is also the following observation by Robert G. McCloskey in The American Supreme Court (1960), arguably the most important book ever written about the Court:

It is hard for a student of judicial review to avoid feeling that American constitutional history from 1789 to 1801 was marking time. The great shadow of John Marshall, who became Chief Justice in the latter year, falls across our understanding of that first decade; and it has therefore the quality of a play’s opening moments with minor characters exchanging trivialities while they and the audience await the appearance of the star.’

There are countless other examples of the pre-Marshall Court being trivialized by law professors, historians, and political scientists.° Invariably, scholars point out that Robert H. Harrison never served as an associate justice after he was confirmed, and that William Cushing declined elevation from associate to chief justice. Similarly, Charles C. Pinckney, Edward Rutledge, Alexander Hamilton, and Patrick Henry—-significant statesmen in the 1790s—refused to be appointed to the Court, and several men who were appointed resigned to accept other positions. Most notable among the latter group, John Rutledge left the Court after two years to become chief justice of the South Carolina Court of Common Pleas, and John Jay, who spent part of his Supreme Court tenure serving as minister to Great Britain, resigned from the Court to become governor of New York, and later refused reappointment to the Court.

After noting the difficulty of staffing the early Supreme Court, scholars usually mention in passing a few cases, such as Hayburn’s Case (1792), Chisholm v. Georgia (1793), Ware v. Hylton (1796), Hylton v. United States (1796), and Calder v. Bull (1798), and then hurry on to discuss related Marshall Court opinions. While some may hesitate for a moment to address Chisholm v. Georgia, those who do typically emphasize that this decision was overturned in 1798 by the Eleventh Amendment. Finally, many scholars cite the absence of a separate Supreme Court building as evidence that the early Court lacked prestige.’

There have been scholars, of course, who recognized that the early Court has been neglected. Edward S. Corwin, for one, in his 1919 book about John Marshall, wrote:

The pioneer work of the [pre-Marshall] Supreme Court in constitutional interpretation has, for all but special students, fallen into something like obscurity owing to the luster of Marshall’s achievements and to his habit of deciding cases without much reference to precedent. But these early labors are by no means insignificant, especially since they pointed the way to some of Marshall’s most striking decisions.®

Unfortunately, Corwin failed in his long and distinguished career to fill this gap in the literature.

A few scholars have begun to challenge the idea that the Supreme Court became important only when John Marshall arrived. The multivolume ongoing project documenting the activity of the early Court edited by Maeva Marcus and others, and Marcus’s edited collection of essays on the Judiciary Act of 1789, have been of great assistance in this regard.’ Also worth noting is William R. Casto’s The Supreme Court in the Early Republic: The Chief Justiceships of John Jay and Oliver Ellsworth (1995). Casto, who contributes an essay about Oliver Ellsworth in this volume, makes an important contribution with his book by presenting a compelling theory as to why the pre-Marshall Court is often viewed negatively. As he puts it:

Society in the late twentieth century—particularly political society—is usually viewed primarily in terms of conflicts of values and interests. . . .The abiding theme of the early Supreme Court, however, was precisely to the contrary. The Court sought to support the political branches of the new federal government, not to oppose them.!?

According to Casto, “Though the justices occasionally resorted to constitutional interpretation, their primary objective was to bolster and consolidate the new federal government.” The label of “mediocrity” attached to the pre-Marshall Court, he concludes, “is probably due to the direct conflict between the modern judicial paradigm of conflict and the early Court’s paradigm of support.” 1!

Insights from Biography

Although a few scholars have begun to pay attention to the pre-Marshall Court,!? much work remains to be done. One fruitful approach is to examine the contributions pre-Marshall Court justices made as individuals to American law and politics. After all, one does not need to subscribe to the psychological and sociological tenets of legal realism to recognize that any court, including the Supreme Court, is first and foremost composed of individuals.!* The biographical approach to the pre-Marshall Court is particularly appropriate, given that most of that Court’s business took place while the justices were riding circuit. Seriatim: The Supreme Court before John Marshall was designed with a multiple biographical methodology in mind.

The ten pre—-Marshall Court justices (this number excludes the largely unknown Thomas Johnson and Alfred Moore) are worthy of study because of their impressive credentials and active involvement in America’s founding. Of the ten, three signed the Declaration of Independence, six were members of the Federal Convention of 1787, and six were prominent members of their state ratifying conventions. Besides these credentials, seven served in the Continental Congress, eight had held prior judicial posts, and all served in state governments in some capacity. Two, Oliver Ellsworth and William Paterson, cowrote the Judiciary Act of 1789, which helped to shape the institution of the Court.

As the first president, George Washington had the unique opportunity to nominate an entire Supreme Court. He took this responsibility seriously and regarded “the due administration of Justice as the strongest cement of good government.” Consequently, he sought “the fittest characters to expound the laws and dispense justice.” 14

In his classic study of the political history of the appointment process, Henry J. Abraham identifies seven criteria employed by Washington to choose Supreme Court justices:

(1) support and advocacy of the Constitution; (2) distinguished service in the Revolution; (3) active participation in the political life of state or nation; (4) prior judicial experience on lower tribunals; (5) either a “favorable reputation with his fellows” or personal ties with Washington himself; (6) geographic suitability; (7) love of country.!5

The result was a number of impressive appointees. The nation’s first Court was composed of John Jay of New York, John Rutledge of South Carolina, William Cushing of Massachusetts, James Wilson of Pennsylvania, John Blair of Virginia, and Robert H. Harrison of Maryland. The original six justices never met together as the Court, however. On his way to the inaugural session, Harrison fell ill, so ill in fact that he resigned his post without ever having sat on the Court. While Harrison’s resignation is sometimes used as evidence to indicate that the early Court lacked prestige, it should be noted that his death two months later indicates the severity of his sickness. Harrison was replaced by James Iredell of North Carolina.

In 1791 the Supreme Court lost a second member, John Rutledge, who resigned to become chief justice of the South Carolina Court of Common Pleas. After South Carolinians Charles C. Pinckney and Edward Rutledge had both declined, Washington offered the position to Thomas Johnson of Maryland. Although Johnson accepted, he resigned within two years. William Paterson of New Jersey was then named to succeed Johnson.

Chief Justice John Jay was next to leave the Court, resigning in 1795 after being elected governor of New York. Washington’s decision to replace Jay with John Rutledge—who had expressed a desire to return to the Supreme Court as chief justice—led to an embarrassing series of events. Rutledge’s was a recess appointment, and during the recess he attacked the Jay Treaty with such vitriol that his confirmation by the Senate was unlikely at best. Indeed, the Federalist-controlled Senate considered Rutledge’s assault on the treaty tantamount to treason and rejected his appointment by a vote of 10 to 14. Washington turned to Patrick Henry to fill the center chair, but Henry declined the nomination. William Cushing was then nominated and confirmed as the nation’s third chief justice. About a week later, Cushing, citing advanced age and ill health, resigned his promotion and returned to his position as the Court’s senior associate justice. Finally, in 1796 Oliver Ellsworth of Connecticut became chief justice, a post he held for a full four years.

The year 1796 was also when John Blair’s resignation from the Court became effective. Washington offered Blair’s seat to Samuel Chase of Maryland, the converted Antifederalist, who accepted. Two years later James Wilson died in office, becoming the first justice to do so. After John Marshall had declined an invitation to serve as an associate justice, Wilson’s seat was filled by his former law student, Bushrod Washington of Virginia.

James Iredell died the following year and was replaced by Alfred Moore, a fellow North Carolinian. Moore served four years on the Court but with little distinction. Finally, in 1800, in a letter sent from France where he was serving as a special envoy, Chief Justice Oliver Ellsworth resigned from the Court. John Adams quickly nominated John Jay, who was confirmed by the Senate. Jay refused to serve, however. The chief justiceship then fell to Adams’s secretary of state, John Marshall of Virginia, who has since acquired the reputation as the “greatest” Supreme Court justice in American history.'®

The difficulty Washington, and to a lesser extent Adams, had in staffing the Supreme Court is stressed by those who dismiss the significance of the pre-Marshall Court. At a minimum, this perspective ignores the hardships faced by the early justices, such as illness and circuit riding.!” More substantially, it overlooks the important contributions to American law and politics made by the early justices, both on circuit, where most of their judicial business was conducted, and before they arrived at the highest court in the land, where their respective efforts in the founding of the American regime were tremendous.

Scholars have long appreciated the value of studying individual Founders when trying to discern the character of the early American republic. The scores of volumes and papers projects on John Adams, Alexander Hamilton, Thomas Jefferson, James Madison, John Marshall, and George Washington, among others, all testify to this fact. In a real sense, Seriatim picks up where Stephen B. Presser left off. Presser, who contributes an essay about Samuel Chase to the present collection, demonstrated in his provocative book, The Original Misunderstanding: The English, the Americans and the Dialectic of Federalist Jurisprudence (1991), the value of examining the individual pre—-Marshall Court justices—in Presser’s case, Chase—for dispelling the myth of Marshall’s apotheosis.'* This said, the point of Seriatim is not that Marshall was not a force in American law and politics. There is, after all, a difference between revisionism and fiction. Rather, Seriatim is designed to put an end to the claim to unequivocal domination by Marshall on early American jurisprudence.

Jobn Marshall’s Apotheosis

Recently, I reviewed for the Journal of American History two new biographies of John Marshall. Both books, Charles F. Hobson’s The Great Chief Justice: John Marshall and the Rule of Law (1996) and Jean Edward Smith’s John Marshall: Definer of a Nation (1996), are welcome additions to scholarship and I say so in my joint review.?° Unfortunately, however, both books perpetuate the myth that Marshall is “The Father of the Court” and “The Jurist Who Started It All.” To make the point more directly, these two books were twice reviewed together prior to my joint review, and the quoted titles to these reviews demonstrate dramatically the impression the books leave on readers.?! Gordon S. Wood is the author of the review titled “The Father of the Court.”? If one of the greatest living early American historians can default to clichés about the early Supreme Court, then clearly more work needs to be done on the origins of the Court. Given the supposition that John Marshall is unduly credited with almost everything significant to spring from the early Supreme Court, the question that must be asked is this: Why is Marshall glorified? The answer to this question is not as clear as one might think. Hobson, editor of The Papers of John Marshall, wrote the following response to a query from me in which I speculated that Marshall’s apotheosis was the handiwork of Albert J. Beveridge’s politically inspired biography of 1916-1919:

Marshall’s greatness was recognized long before Beveridge. At his death in 1835 he had a reputation as a great statesman, if not always free from controversy. John Adams in 1825 wrote to Marshall that it was “the pride of my life that I have given to this nation a Chief Justice equal to Coke or Hale, Holt or Mansfield.” John Quincy Adams entered these words in his diary, a few days after Marshall died: “John Marshall . . . was one of the most eminent men that this country has ever produced.” Marshall’s colleague, Joseph Story, delivered a memorable eulogy of the chief justice that wonderfully captures the essence of Marshall’s greatness. Now, it is true that post-Civil War nationalism enhanced Marshall’s standing and that Beveridge wrote in that context—attempting to make Marshall into a symbolic hero of Am[erican] nationalism, like Lincoln. Hope this helps.?3

Help it does. There is, however, a difference between being a great politician and a great judge.” Other scholars offer a far more partisanoriented account of Marshall’s deification than Hobson does. R. Kent Newmyer, the dean of judicial biographers, answers the question as follows:

The process of glorification was launched with Allan Magruder’s worshipful biography in 1890; it gained momentum with the Marshall Day celebration of 1901 (the outcome of which was a three-volume collection of encomiums compiled by John F Dillon); and it culminated with Albert Beveridge’s The Life of John Marshall (4 vols., 1916-1919) and Charles Warren’s The Supreme Court in United States History (2 vols., 1922). With prodigious documentation Beveridge unabashedly celebrated the victory of light (conservative nationalism) over darkness (Jeffersonian states’ rights agrarianism). And, by sheer force of emphasis and pervasive romanticism, his work raised Marshall above the Court, depicting him as the epic hero of American nationalism. Warren’s history was more scholarly, more bal-

*It is difficult to deny that Marshall was a great politician. Only a great politician could do what Marshall did in Marbury: Announce that the Jefferson administration was wrong to withhold the judicial commissions in question and that courts could issue writs to compel public officials to do their prescribed duty—but that the Supreme Court had no power to issue such writs in the case at bar because the portion of the Judiciary Act of 1789 that gave the Court the power to do so was unconstitutional. In short, a showdown with the Jefferson administration was avoided, but Marshall still was able to “reaffirm” the Court’s power of judicial review.

anced, and more generous in spreading the glory to include Marshall’s colleagues but showed the same preference for conservative nationalism.74

Finally, Presser emphasizes—in his typically provocative fashion— more recent events: The need for “liberal” academics to use Marshall’s “supposed greatness” to “legitimize” the rash of post-1937 “liberal” Supreme Court decisions. Presser explains:

“Liberal” court critics since the early 1920s and 1930s had argued that the Supreme Court’s job was to accommodate the Constitution to the changing economic and social needs of the country. It seems more than coincidental that at about the time the courts were frustrating implementation of New Deal legislation, scholars began lavishly to praise John Marshall for his famous decisions. . . . Similarly, when liberal academics praised the Warren Court’s expansive interpretations of the Bill of Rights and the Fourteenth Amendment to protect the victims of educational, political, and economic discrimination, more volumes appeared apotheosizing Marshall.?5

Whatever one’s position regarding the pedigree of John Marshall’s apotheosis, as far as the conventional wisdom is concerned, Marshall still casts a long shadow—an eclipse—across the history of the early Supreme Court. Nowhere is this more apparent than in the debate over the origins of judicial review in America.

The “Myth” of Marbury v. Madison (1803)

Scholars have appreciated for some time that Marbury v. Madison was not sewn from whole cloth.”® From Sir Edward Coke’s opinion in Dr. Bonham’s Case (1610), to James Otis’s speech against the Writs of Assistance (1761), to a series of pre-federal Constitution state-court cases,*” to Federalist no. 78, there exist a host of pre- Marbury precedents for judicial review. More to the point, the essays that constitute Seriatim reveal that virtually every member of the pre-Marshall Court played an important role in establishing the

* Marshall himself acknowledged as much. See Marbury v. Madison, 5 U.S. (1 Cr.) 137, 176 (1803). Moreover, President Jefferson, who came to resent Marbury, was not taken aback by the judicial-review aspects of the decision. (Jefferson believed that the Court, as well as the president and Congress, had the right to pass on the constitutionality of matters before it.) Rather, he resented Marshall’s obiter dictum that Marbury was entitled to his judicial commission.

Supreme Court’s power of judicial review—a power that is synonymous to this day with John Marshall’s most famous opinion.?® Indeed, many of the justices championed judicial review long before they were appointed to the Court. My essay on William Cushing, for example, suggests that even before independence was declared Cushing was charging grand juries in Massachusetts that courts had the authority to declare acts of Parliament unconstitutional, while Wythe Holt describes how John Blair participated in at least three early cases involving judicial review in Virginia. Furthermore, Willis Whichard points out that James Iredell articulated on several occasions before the Constitution went into effect perhaps the most sophisticated argument for judicial review offered during the Founding (an argument with which Marshall was almost certainly familiar).?° James Haw reveals that, despite fighting hard in the Federal Convention of 1787 to protect the power of state courts, John Rutledge both expected and supported federal judicial review, and William Casto demonstrates that Oliver Ellsworth endorsed the concept of judicial review at the Connecticut ratifying convention.

As sitting justices, the individuals who preceded John Marshall to the Supreme Court continued to advocate judicial review. The best-known examples of this are William Paterson’s jury charge in Van Horne’s Lessee v. Dorrance (1795) and Samuel Chase’s jury charge in the trial of James Callender (1800). As Daniel Degnan’s essay about Paterson and Presser’s about Chase suggest, these jury charges helped to pave the way for public acceptance of judicial review. Similarly, Mark Hall demonstrates in his James Wilson essay that Wilson presented the case for judicial review in his famous law lectures of 1790-1792—lectures that influenced generations of American lawyers. Students of the Court, moreover, are remiss if they fail to appreciate, as Father Degnan and Casto describe in their respective essays, that the Judiciary Act of 1789, which Paterson and Ellsworth cowrote when they were serving in the Senate, authorized federal courts to review decisions from the states’ highest courts if they involved certain federal questions.

The justices who composed the Supreme Court before John Marshall did more than simply advocate judicial review, they practiced it. Barely a year had passed since the establishment of the federal courts when Chief Justice John Jay and Associate Justice William Cushing, on circuit, declared several states’ laws unconstitutional. There is also

Ware v. Hylton (1796), in which Justices Chase, Cushing, Paterson, and Wilson, sitting together as the Supreme Court,” struck down a Virginia statute on the ground that it was inconsistent with a federal treaty and, hence, the supremacy clause of the Constitution.*! Moreover, James Stoner points out in his essay about Bushrod Washington that Washington, who was accused in a widely repeated remark of being little more than a double for Marshall—an accusation that Stoner rejects—asserted in Cooper v. Telfair (1800) that the Court possessed the power of judicial review.*?

The pre—Marshall Court justices exercised judicial review over federal law as well. As Holt’s and Hall’s essays describe, the first clear occasion in which this occurred was Hayburn’s Case (1792), wherein Justices James Wilson and John Blair, on circuit, declared the Invalid Pensioners Act of 1792 unconstitutional. The Court as a whole, in the then-unreported United States v. Yale Todd (1794), appears to have concurred with Wilson’s and Blair’s position.*? Perhaps most important, in Hylton v. United States (1796) the Court reviewed a congressional tax on carriages to determine whether the tax was constitutional. The Court concluded that it was, but the justices nevertheless recognized their power to declare otherwise. Indeed, Hall reports that when John Wickham, the counsel for the government, offered at the circuit level to address the issue of judicial review, Justice Wilson told him to sit down and be quiet because the issue had “come before each of the judges in their different circuits, and they all concurred in the opinion” that the Court could declare congressional statutes unconstitutional.

More examples of pre-Marbury incidents of judicial review could be discussed,** but it should be clear by now that the pre—Marshall Court justices understood the concept of judicial review, that they argued for it, and that they practiced it. There is also abundant evidence that Marshall was both fully aware of and substantially influenced by these early precedents. Presser suggests, for example, that Marshall was in the audience when Samuel Chase delivered his jury charge in the Callender trial, and that Marshall later adopted some of Chase’s language in his Marbury opinion. Similarly, Whichard advises that Marshall’s opinion in Marbury drew upon Iredell’s well-known writings on judicial review. Finally, I surmise in my essay about Cushing that Cushing and/or Paterson probably made Marshall aware of the early Court’s precedents on judicial review.