Office of the Preliminary Court

Reprinted from Law and Freedom

Academics often value brightness over well-being. Brightness is more attractive and exciting, even if wellness works the best for society. So, it is not at all surprising that when it comes to the primary court, almost all the attention is on Chief Justice John Marshall and Justice Joseph Story. Marshall not only wrote the most opinions but was also the pioneer of judicial soundbite. Not only did the story make the most creative use of the parable, but its encyclopedic knowledge gave birth to the first text of our basic law, Comments on the United States Constitution.

Inside Heir to Washington: Life of Bushrard Washington, Professor Gerard Maglioca has created a compelling and well-researched case, adding significantly to our understanding of the primary court that Bushrard Washington was the best of the primary judges. In this respect, of course, he bears a resemblance to his uncle George. Many framers were brighter than that, but no one had a definite verdict. As Thomas Jefferson admits, the first president never acted “in every situation, until every consideration weighed maturely.” His nephew, as described in the story, had the same characteristics: his “mind was not bright but strong; Not quick or anxious but prudent and inquisitive; Slow but not torpedo, steady, but not indomitable. “

Of course, the results of this recovery were not comparable to those of his uncle, but it is a value that no one in American history can match. As Akhil Reed Amar has argued brilliantly The words we created: Constitutional Conversation, 1760-1840, George was the man who not only won the war that made America a nation but also the constitution that it established. Yet, from the evidence in this book, Bouchard was the most faithful defender of that foundation among the early judges. He was dedicated to understanding the text as framed, and he resisted, as some of his other brilliant colleagues did not, the temptation to use the Constitution to create the best social policy in its own light.

Probably the best example of self-restraint in justice Ogden vs. Saunders, Which, despite the strictness of the treaty clause, is concerned about whether states could potentially change the treaty law through bankruptcy law. Article of the treaty prohibits any state from “violating the obligation of the treaty” by its terms. Washington has focused on the word “liability” that the treaty clause only protects past agreements and does not preclude future agreements. He further strengthened the argument by stating that at the time of enactment there were many laws governing future agreements. Framers can hardly hope that the clause will take them away. (This argument considers the expected applications of the clause and thus proves that the use of the expected applications was an original method of constitutional interpretation.) Claims that the clause prevents control of future contractual relations. As Maglioca acknowledges, their arguments are precursors to the freedom of argument of the treaty Lochanar. Washington correctly adopts a more legally grounded, less abstract view of the clause.

Washington adopted this consistent textual approach throughout his tenure. Another case that shows the difference of jurisprudence from his more famous colleagues Green vs. Biddle. There was the issue that the Kentucky Legislature could enact a law that would require absentee landlords to compensate tenants for any improvements made during their tenancy. At the first hearing in the Supreme Court, Story ruled in favor of some Virginia plaintiff landlords, but cursedly and only on unpleasant grounds, calling for “general principles of law” and “first principles of justice.” The decision was controversial and resulted in a rehearsal. In that rehearsal, Washington made the final decision on a much more precise and textual basis. Washington noted that when Virginia granted Kentucky independence from its own sovereignty and thus admitted it to the union, it entered into an agreement through which Kentucky pledged to respect existing property rights. This compact was an agreement within the terms of the contract, and thus Kentucky could not infringe on Virginia landowners’ property rights.

Another textualist opinion in Washington still resonates today. The single most famous case in the federal civil system Erie vs. Tompkins, Where the Supreme Court ruled in 1938 that federal courts have jurisdiction over diversity এটি that is, in cases where citizens of different states sue each other সিদ্ধান্ত state law should be applied instead of a federal common law in their decision-making. But many scholars argue that this view is contrary to the original settlement, largely because the opposite view – that federal courts can make their own national common law on diversity – was a matter of justice. Swift vs. Tyson. Before EriThis has been the law for over a century.

But Maglioca introduced the controversy by writing in Justice Washington’s opinion circuit. Golden vs. Prince. There, Washington says it is unconstitutional for federal judges to ignore state law on diversity.

Again Washington seems to me to be right in his conclusion. The supremacy clause of the constitution only displaces state law through rules, treaties and the constitution. Federal general law is not one of them. But until Maglioca’s opinion is restored, Washington has little credit for this insight, and Swift In the early republics, federal law was mistaken for the only gospel.

One of Maglioca’s main themes was that Washington had far more influence in the martial law than his signed opinion. He argued that martial law was about teamwork. Judges lived and dined together and kept a high premium for coming to a consensus to strengthen the new court against political adversity. According to Maglioca, Marshall, as the chief, and as the storyteller, as the most wise, was often the spokesman, but their opinions reflected considerable input from their brethren. For example, Maglokia shows that Story In has an opinion Terret v. Taylor Washington echoed the language of a memo before coming to court. There he denied the Virginia law which sought to occupy the land of the Episcopal Church. The story follows his argument without giving any credit to Washington.

Maglioca’s work here raises historically important questions about the early court. What is the opinion of Marshall and the storyteller, who wrote the lion’s share (and almost all the important ones), the two drafts themselves? Maglioca says we will never know because we only have the final published opinion and no draft. Here I do not agree. Because of Maglioca’s excellent research, I believe that the National Institute for the Humanities, or any other qualified body, should fund the textual analysis of the views of the Martial Court. Such computers can usually tell which parts of a co-author have written literature and historical texts, for example, including anonymously published federalist papers, they should be able to do the same for the Supreme Court’s preliminary opinion.

Judicial biographers typically face a problem: the qualities that qualify one as a lawyer-an instinct for caution, a life given to the mind instead of action, and the possibility of avoiding personal controversy তৈরি create a life free of exciting events. Washington originally adapted to this pattern, but fortunately for the interest of Bushroad’s biographer, a very significant truth prevailed in his personal life as well: he was George’s nephew and heir.

When young, Bushrod is always shown the hints and calls of the great man. Even after George’s death and his promotion to Bushroad Court, most of his personal life lived in his shadow. He has to decide on George’s papers. He has inherited Mount Vernon and is already becoming a national temple. He must figure out how to live there. One can understand that being the nephew of the father of the nation was a heavy burden.

In an important work, he fell far short of George’s heroic legacy. At a considerable price for his property, George sent his own slaves and even paid for their maintenance. It was the ultimate selfless act through which he wanted to send one last message to his country. Bouchard was president of the American Colonization Society, which was dedicated to freeing slaves, even if it insisted on paying their way to Africa. Yet Bouchard not only failed to free his own slaves in his death, but also tore down slave families during his lifetime, for which he deserved reprimand from some in his own kingdom.

Maglioca recounts these tragic events, but he may explore further the changing social context that may explain, though not excuse, Bushrod’s deviation from the actions of the most famous ancestor that he had in mind every day. One difference is that Washington, like many framers, felt that slavery was doomed. But shortly before Washington’s death, cotton genes were invented and slaves began to become more valuable. Ironically, banning their imports has already made slaves more valuable in the United States. Towards the end of Bushroad’s life, it was rare to follow his uncle’s good example and it cost a lot more. This probably did not discourage George, but although he was a Washington, much less famous, Bushrad did not weigh much in the national significance of each of his works. Based on the evidence in this biography, it leaves a big mark on what was a great service to the nation.

Maglioca himself has rendered great academic services to bring to life a personality who was originally forgotten but for his famous title and to show his contemporary relevance to some of our own important legal debates.

John O. McGuinness

John O.  McGuinness

John O. McGuinness is George C. of Constitutional Law at Northwestern University. Dix is ​​a professor and a contributing editor Law and freedom. His book To accelerate democracy Published by Princeton University Press in 2012. McGuinness is also the co-author of Mike Rapaport Originality and good constitution Published by Harvard University Press in 2013.

He is a graduate of Harvard College, Balliol College, Oxford and Harvard Law School. He has published views in leading journals, including Harvard, Chicago and Stanford Law Review and Yale Law Journal, and Opinion Journals, including National Affairs and National Review.

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