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CREDIBLE COMMITMENTS AND THE AVOIDANCE OF WAR

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					CREDIBLE COMMITMENTS AND THE AVOIDANCE OF WAR: THE ROLE OF THE JUDICIARY IN EMERGING FEDERATIONS AND RE-EMERGING NATIONS

by Charles Anthony Smith University of California - San Diego

Abstract: Conventional wisdom holds that the role of the United States federal judiciary was under-specified and undefined until the John Marshall era. In contrast, I argue that prior to John Marshall, the Court had the specific institutional role of providing an administrative remedy to aggrieved nations to deprive those hostile nations of any excuse for belligerence. Original jurisdiction was designed primarily to remedy trade disputes. The independent judiciary made trade commitments more credible and self-help by the aggrieved less likely. By providing this administrative remedy and lowering the uncertainty associated with trading with revolutionaries, the framers claimed a seat for the nascent country at the table of nations. This institutional role for an independent judiciary also is found in more recent cases of emerging federations such as the European Union

INTRODUCTION AND OVERVIEW

Conventional wisdom holds that the framers of the Constitution were more concerned with the executive and legislative branches of government than the judicial branch. Indeed, as Supreme Court historian Julius Goebel, Jr. explains: The judiciary was subjected to much less critical working over than the other departments of government… it is difficult to divest oneself of the impression that…provision for a national judiciary was a matter of theoretical compulsion rather than of practical necessity. In other words, it was received more in deference to the maxim of separation than in response to clearly formulated ideas about the role of the national judicial system …1 This conception of the judiciary as an institution driven by the theoretical rather than by the purposive has flourished and expanded. The early Court is considered underdeveloped with little jurisdiction and no clear national role. It is considered underdefined with inadequate resources and subordinate courts. Marshall biographer Jean Edward Smith succinctly characterizes this view of the Court: During this period, the nature of the Court's authority was vague and its caseload was light. 2

In the main, judicial scholars claim the Court only became an important institution after the arrival of John Marshall and his assertion of judicial review.3 The pre-Marshall Court has been described as a "relatively feeble institution"4 and notable for its "lack of significance."5 In addition to a dearth of reported cases,6 the early Court also has been dismissed because of the initial difficulties in finding men willing to serve and even

1

Julius Goebel, Jr. History of the Supreme Court of the United States, vol. 1 (New York: The Macmillan Company, 1971) at 205-206.

2 3

Jean Edward Smith, John Marshall, Definer Of A Nation, (New York: Henry Holt & Co., 1996) at 2-3. Scott Douglas Gerber, ed. Seriatim, (New York and London: New York University Press, 1998), 2. 4 George Lee Haskins and Herbert A. Johnson, Foundations of Power: John Marshall, 1801-15 (New York: Macmillan, 1981), 7. 5 Bernard Schwartz, A History of the Supreme Court (New York: Oxford University Press, 1960), 33. 6 Gerber at 3.

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because of the absence of a separate building to house the Court.7 In an often quoted passage, Robert G. McCloskey makes the case with rhetorical flourish: It is hard for a student of judicial review to avoid the 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.8 Although most scholars have dismissed the importance of the early Court, there is a limited body of literature that considers its impact. Edward S. Corwin suggested that although the early Court had "fallen into something like obscurity" it nevertheless had prepared the way for much of John Marshall’s "most striking decisions."9 Unfortunately, throughout his distinguished career, Corwin never returned to or expanded this early insight. More recently, a small but growing group of scholars have given measured consideration to the pre-Marshall Court. Scott Douglas Gerber explains the purpose of Seriatim, a collection of essays regarding the members of the pre-Marshall Court, as in part "to dispel the myth that the early Court became significant only when Marshall arrived."10 William R. Casto, a contributor to Seriatim, argues in The Supreme Court in the Early Republic that the primary objective of the early Court was to "bolster and consolidate the new federal government."11 Casto argues:

Carl Brent Swisher, American Constitutional Development (Boston: Houghton Mifflin, 1943), 98-101; Fred Rodell, Nine Men, A Political History of the Supreme Court from 1790 to 1955 (New York: Random House, 1955), 3-72. (cited in Gerber at 3) 8 Robert G. McCloskey, revised by Sanford Levinson ,The American Supreme Court Second Edition (Chicago: University of Chicago Press, 1960, 1994), 19. 9 Edward S. Corwin, John Marshall and the Constitution: A Chronicle of the Supreme Court (New Haven: Yale University Press, 1919), 17-18. 10 Gerber at 20. 11 William R. Casto, The Supreme Court in the Early Republic,(Columbia, SC: University of South Carolina Press, 1995) 213.

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The Founders envisioned the federal courts as national security courts, and the Supreme Court’s first decade is largely a story of ...grappling with important issues affecting the nation’s security...in addition, the major recurring theme of the decade was the Justice’s on-going efforts to assist...in evolving a stable relationship with the European powers... 12

With Casto and Gerber, I reject the conventional wisdom of the irrelevance of the early Court. While Gerber’s focus is on the Justices as individuals and Casto’s primary focus is on the interactions of the early Court with the Washington and Adams administrations, I primarily focus on the institutional role of the Court. That is, I argue that a significant rationale for the jurisdiction and design of the Court was to establish a credible commitment to uphold trade agreements and resolve trade disputes with other nations. As an emerging nation, the United States faced a hostile world. Typically, justifications for war in this time period fell under the ambit of violations of the law of nations.13 Generally these disputes were tied to trade and, as a corollary, navigation of the oceans.14 Disputes between individuals and nations, also normally tied to trade, were common pretexts for war.15 This belligerent world was even more perilous for the new nation because of the absence of a standing army or a ready navy.16 Further, the Framers

12 13

Casto at 71. At this time, Great Britain’s long held and frequently asserted claim of sovereignty over the seas was giving way to a general right of navigation of all states. Lord Stowell in the case of Le Louis {1817} 2 Dods, 210, 243, ruled "all nations have an equal right to the unappropriated parts of the ocean for their navigation." 14 A. Pearce Higgins and C. John Colombos, The International Law of the Sea, second revised edition (London: Longman’s, Green and Co., 1951) at 506-508; Jefferson, Writings in Free Ships Make Free Goods Letter to the U.S. Minister to France (Robert R. Livingston) September 9, 1801, at 1090-1095; Thomas Jefferson Writings in Letter to John Jay August 23, 1785. At 818-820. 15 Note Washington’s admonition to individuals in The Proclamation of Neutrality (1793) that they will not receive the protection of the United States should they become embroiled in war by assisting one side or the other; see, 14 J. Cont. Cong. 635 (1776). 16 George Washington, First Annual Address January 8, 1790 in A Compilation of the Messages and Papers of the Presidents (New York: Bureau of National Literature, 1897) ed. James D. Richardson at 5758; Thomas Jefferson , Writings at 300-301.

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were suspicious of both England and France and anxious to avoid being embroiled in their persistent conflicts.17 The dispensation and ownership of the Spanish territories of Florida and Louisiana also were cause for concern.18 Indeed, foreign affairs and the threat of war became one of the "primary themes" of the campaign for ratification of the Constitution.19 Accordingly, one of the more difficult tasks facing the new Nation was to structure institutional mechanisms to deprive hostile nations of justifications for aggression. Because the country was formed through a rejection of royal rule and, thus unavoidably, the law of nations,20 it could not simply demand international recognition from the established nations that saw the revolution as a threat to the system as a whole. Specifically, the royal right of rule was considered a God-given prerogative by the monarchs. The law of nations rested on the mutual recognition of royal peers all divinely entitled to their posts. By throwing off royal rule through revolution and asserting the right to self-rule, the revolutionists called into question the very foundation of government in monarchical systems. Since the monarchies were both the subjects and objects of the law of nations - both creating and abiding by the law- a rejection of their

17

See ,e.g., The Proclamation of Neutrality(1793) By President George Washington. Great Britain was allied against France with Austria, Prussia, Sardinia, and the United Netherlands. 18 Thomas Jefferson, Writings in The Affair of Louisiana To The U.S. Minister To France (Robert R.Livingston) April 18, 1802. New York: Library of America, 1984) at 1104, et. seq.; Lance Banning, The Sacred Fire of Liberty James Madison and the Founding of the Federal Republic (Ithaca: Cornell University Press,1995), 18-19. See also, letter from John Jay to William Carmichael (27th January 1780) in Henry P. Johnson, ed. The Correspondence And Public Papers of John Jay (New York: G.P. Putnam’s Sons 1890) vol. 1:265-268. 19 Frederick W. Marks, III "Foreign Affairs: A Winning Issue in the Campaign for Ratification of the United States Constitution" in Political Science Quarterly, vol. 86, Issue 3 (Sep. 1971) 444-469,469. 20 I use the term "law of nations" throughout rather then "international law" because it is a more narrow construct. International law has come to mean a host of constraints and agreements well beyond the law of nations which is limited to the relations of nations. Moreover, the phrase "international law" was not coined until 1789 when Jeremy Bentham used it synonymously with the law of nations in reference to "the mutual transactions between sovereigns as such". For a thorough analysis of Bentham’s argument, see, Mark W. Janis, Jeremy Bentham and the Fashioning of "International Law", 78 Am. J. Int’l. L. 405 (1984)

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right to rule was inherently perceived as a rejection of the law of nations. That is, if the revolutionists did not recognize King George’s divine right of rule, the other monarchists had no reason to believe the revolutionists would recognize any other right of rule. Nations were to be ruled by kings not by mobs. The promises of a king to a peer were to be kept as the bond of one messenger of the divine to another. Without divinely justified royal rule, the revolutionists could not make a claim that they could be trusted as a peer. The new nation was faced with an economic necessity of engagement in the world economy. Yet, recognition from the monarchs of Europe did not automatically follow from the simple declaration of independence and a successful revolution. Moreover, by rejecting the royal right of rule, the revolutionists lost their claim to appeal to the system of grievance resolution constructed by the monarchs. Without a mechanism for grievance resolution, trade with the new country was risky and belligerence towards it was acceptable. Accordingly, in an effort to be recognized at the table of nations, the new nation was forced to construct mechanisms for the resolution of disputes before those disputes could lead to aggression. A primary purpose of the judiciary was to provide an avenue of administrative remedy both recognized and deemed legitimate by other nations so that aggrieved nations did not first turn to self-help. Without these avenues of grievance resolution, the new nation could not hope to be viewed by the international community as anything but a rogue state. Importantly, any claimed commitment would only serve as an acceptable path for remedies to the extent that the commitment was deemed credible by the actually or potentially aggrieved. Credibility is a critical aspect of any commitment because, in short,

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"a promise is not valuable unless its beneficiary believes that it will be kept."21 Paul Pierson has succinctly defined "credible commitments" as "the attempt of political actors to create arrangements that facilitate cooperation by lengthening time horizons."22 The simple concept is that a lengthened time horizon lowers the discount rates - or enhances the political relevance of - the future.23 Douglass North argues that the "major role of institutions in a society is to reduce uncertainty by establishing a stable...structure to human interaction."24 In other words, by reducing the costs of transacting and thereby extending the politically relevant time horizon, the potential for cooperation and exchange is enhanced. For North, the institutions in societies are "the underlying determinant of the long-run performance of economies."25 Accordingly, for both economic and security reasons, the framers sought to design an institutional vehicle to establish the credible commitment necessary for trade as well as the avoidance of belligerence. The establishment of the Court as this institutional vehicle of credible commitment was strategically compelling in two dimensions. First, the reduction of potential transaction costs enhanced the potential for trade. Second, the existence of the dispute resolution mechanism reduced the international acceptability of belligerence against the United States. Jack Knight has explained, "social institutions are conceived of as a product of the efforts of some to constrain the actions of others with whom they

21

Douglas G. Baird, Robert H. Gertner, & Randal C. Picker, Game Theory and the Law,(Cambridge: Harvard University Press 1994), 51. 22 Paul Pierson, "Increasing Returns, Path Dependence, and the Study of Politics" American Political Science Review Vol. 94, No. 2 June 2000: 261. 23 Ibid. 24 Douglass C. North, Institutions, Institutional Change And Economic Performance (Cambridge: Cambridge University Press 1990), 6. 25 Ibid. at 107.

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interact."26 While Knight was concerned with the interactions and establishment of institutions within a society, his analysis is no less compelling when considering the interactions and establishment of institutions among societies. In this case, the administrative remedy provided by the Court reduced the acceptability of belligerence among the members of the society of nations. I begin with a consideration of the law of nations at the time of the founding. This section addresses the nature and scope of the law of nations as well as its jurisprudential underpinnings including the law of the sea; trade laws; and the notion of legitimate wars among the members of the international community. I then turn to the juridical intent set forth first under The Articles of Confederation and then solidified in Article III of the United States Constitution. This recurrent juridical intent was the foundation for these institutional barriers to the excuses for war.27 The argument is supported further through a consideration of the Judiciary Act of 1789, the state ratification debates and selected writings of the Framers and early justices. Thereafter, I turn to a review of the cases and controversies confronted by the Supreme Court prior to John Marshall assuming the office of Chief Justice. Specifically, the case law shows the Court rarely dealt with any case or controversy that did not directly involve admiralty or trade disputes between states and other states, foreign nations or foreign individuals. These are the very types of disputes the judiciary was designed to address since they could have led to war.28 After the institutional and historical analysis of the United States judiciary, I briefly consider the role of the judiciary in the European Union. Specifically, while not a
26 27

Jack Knight, Institutions and Social Conflict,(Cambridge: Cambridge University Press, 1992), 19. Art. VI and VIII Articles of Confederation; Art. III Constitution of the United States

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duplicate, from a jurisdictional and institutional standpoint, the EU juridical system exhibits a striking resemblance to the early design of the United States described here. I then consider the cases of Chile, Egypt, and Mexico as each reformed its judiciary as it sought to re-enter the global economy. Thereafter, I address the cases of Argentina and Russia where the failure of judicial reform impaired re-entry to the global economy. From this comparative analysis, I draw conclusions about the institutional role of the judiciary in emerging federations and re-emerging nations. I then discuss some implications from the analysis and make suggestions for additional research

THE INSTITUTIONAL ROLE OF THE UNITED STATES JUDICIARY

The Law of Nations

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Imagine Virginia and New York in a battle over shipping lanes with foreign nations. Each could align with a different foreign sovereign who might then use the dispute as an excuse to invade under the auspices of assisting its state ally.

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A public war is undertaken justly in so far as judicial recourse is lacking…29 A private war is undertaken justly in so far as judicial recourse is lacking.
30

Hugo Grotius

Although the origins of many of the rules and principles of the law of nations can be traced to ancient Rome and Greece,31 the international legal system is generally considered to have emerged with the modern state.32 In short, since the system contemplates a regulation of relationships among states, there could be no system without states. Although the emergence of the nation-state began "over four hundred years" earlier, the origins of the international legal system can be linked to the 1625 publication of Grotius’ De Jure belli ac pacis (The Law of War and Peace) as well as the resolution of the Thirty Years’ War in 1648 (the Peace of Westphalia).33 Importantly, Grotius’ De Jure belli ac pacis is merely the most renowned one of three related publications. The other publications, Mare Liberum (Freedom of the Seas) and De Jure Praedae (The Law of Prize) specifically addressed freedom of navigation for purposes of trade and the appropriate right of maritime seizure during war.34 By the end of the 18th Century, the law of nations was little more than the "common consent of the nations."35 Sorel argues
29

Hugo Grotius, De Iure Praedae Commentarius; Commentary on the Law of Prize and Booty, A Translation of the Original Manuscript of 1604 , trans. Gwladys L.Williams , (New York: Oceana Publications, reprint 1964) at 103. 30 Ibid. at 95. 31 For example, the "concepts of nationality, of diplomatic immunity, of treaties, and of other portions of…international law find counterparts long before the dawn of the Christian era." Philip C. Jessup and Francis Deak, Neutrality Its History, Economics and Law vol. I (New York: Columbia University Press, 1935) at 3-4. 32 Ibid. 33 Ibid at 4; Jessup and Deak at 8-11. 34 Grotius, introduction by George A. Finch, at xiv-xvii. 35 Alfred Thayer Mahan, The Influence of Sea Power Upon the French Revolution and Empire, 2 vols. (1892) at 284.

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that this concept was ephemeral and could only be known "through the declamations of publicists and its violations by the Governments."36 The "common consent" of the nations was seldom reached. Few rules were universally accepted and none covered all contingencies.37 The European powers in general and Great Britain in particular perceived the revolutionary wars in the United States and France as abrogations of both the established regal rights of rule and the law of nations. 38 Lord Chancellor Eldon argued in the House of Lords: It is vain to refer to the law of nations for any authority on this subject, in the unprecedented circumstances in which this country is now placed. What usually passes by that name is merely a collection of the dicta of wise men who have devoted themselves to the subject in different ages, applied to the circumstances of the world at the period in which they wrote…but none having the least resemblance to the circumstances in which this country is now placed…39 Simply put, from the perspective of the European powers, the revolutionists recognized "no law but that of reason and the Rights of Man."40 By rejecting the royal right of rule, the revolutionists lost their claim to appeal to the system constructed by royal rulers for grievance resolution. That is, in response to the revolutionists' challenge to the system, those nations that abided by the law of nations were free to violate it regarding the revolutionists.41 The task of the founders was all the more complicated because of the uncertain parameters of the law of nations at the time. Indeed, arguably the only important dictates
36 37

Albert Sorel, L’Europe et la Revolucion francaise, 8 vols. (1885-1928) vol. VII at 65. W. Alison Phillips and Arthur H. Reede, Neutrality Its History, Economics and Law vol. II (New York: Columbia University Press, 1936) at 11. 38 Phillips and Reed, 1936 at 4-9. 39 Phillips and Reed at 11. 40 Ibid. at 10-11. 41 Ibid.

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of the law of nations certain at the time of the revolutions were the Doctrine of Neutrality and the corollary Laws of Prize. The doctrine of Neutrality holds that neutral states, those states not party to the conflict, are free to continue their normal trade with either or both belligerent states, those states party to the conflict.42 The laws of Prize dictate that a belligerent may seize only contraband, those items deemed helpful to the war effort, from a neutral.43 Despite these broadly accepted rules of the law of nations,44 from the revolution forward, England refused to grant immunity from search and seizure to neutral trade with France.45 Moreover, Jefferson took exception to the law of Prize and explained the misguided essence of the underlying jurisprudence in this way: We believe the practice of seizing what is called contraband of war, is an abusive practice, not founded in natural right. War between two nations cannot diminish the rights of the rest of the world remaining at peace. The doctrine that the rights of nations remaining quietly under the exercise of moral & social duties, are to give way to the convenience of those who prefer plundering & murdering one another is a monstrous doctrine; and ought to yield to the more rational law, that "the wrongs which two nations endeavor to inflict on each other must not infringe on the rights or conveniences of those remaining at peace"…And what is contraband by the law of nature? Either everything may aid and comfort an enemy or nothing. Either all commerce which would accommodate him is unlawful or none is…either all intercourse must cease between neutrals & belligerents or all be permitted… 46

As the United States continued to suffer the loss of goods and commerce Jefferson lamented: It would have been a source, fellow citizens, of much gratification, if our last communications from Europe had enabled me to inform you that the belligerent nations, whose disregard of neutral rights has been so
Colombos at 458-474. Phillips and Reed at 11. 44 Consider the First Armed Neutrality of 1780 initiated by Catherine the II and the Second Armed Neutrality in 1800 by Tsar Paul. 45 Colombos at 465. 46 Jefferson, Writings in Free Ships Make Free Goods Letter to the U.S. Minister to France (Robert R. Livingston) September 9, 1801 at 1092-1093.
43 42

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destructive to our commerce, had been awakened to the duty and true policy of revoking their unrighteous edicts… 47 Although the French and American revolutions were viewed as equally outrageous events by those countries under royal rule,48 the two revolutions took dramatically different paths with substantially different outcomes. A comparison of the role of the Supreme Court and the role of the French judiciary after post-revolution reforms quickly illuminates the difference. The French National Assembly, in the decree of August 16-24, 1790, directly prohibited judicial review of both legislative and administrative actions. 49 In contrast, in Article III of the Constitution, the Supreme Court was given specific jurisdiction over administrative actions including those involving other nations. From a jurisdictional standpoint, foreign powers were able to seek and receive redress for alleged violations of the law of nations in the Federal Judiciary in the United States while the French prohibition on administrative judicial review created a barrier to the resolution of these types of disputes. Thus, while the American revolutionists aimed to expand the time horizons of potential trading partners, the French revolutionists did not. The American effort to establish a venue for credible commitments was helped along by developments in the English judiciary. As Shapiro has pointed out, in England, "the core of what commentators choose to call judicial independence reached its tightest and most resistant condition in the eighteenth century."50

47 48

Jefferson, Writings at 543. Phillips and Reed, 1936 at 4-9. 49 Article 13 of Title II "Judicial functions are distinct and will always remain separate from administrative functions…" ; Gerhard Casper, The Judiciary Act of 1789 and Judicial Independence in Maeva Marcus ed. Origins of the Federal Judiciary, (New York: Oxford University Press, 1992) at 281-284.

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Judiciary Power Under the Articles of Confederation and the Constitution The capital and leading object of the constitution was to leave with the states all authorities which respected their own citizens only, and to transfer to the United States those which respected citizens of foreign or Other states: to make us several as to our selves, but one as to all others.51 - Thomas Jefferson The original error {was in} establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will.52 - Thomas Jefferson

The member states of the nascent United States confederated at the outset in order to secure independence and mutual security.53 However, within ten years the new nation experienced open rebellion in Massachusetts, heightened interstate rivalry, and a multiplicity of trade disputes.54 In response to these crises, the representatives of the member states convened in Philadelphia in May of 1787 for the purposes of amending the Articles of Confederation.55 Although the Continental Congress passed a resolution that called for the convention "for the sole and express purpose of revising the Articles of Confederation,"56 the delegates agreed upon a Constitution "which ended the Articles of Confederation by a tacit coup d’etat."57

Martin Shapiro, Courts, A Comparative And Political Analysis, (Chicago: University of Chicago Press, 1981) at 102. 51 Thomas Jefferson, Writings in Letter to Justice William Johnson, The Supreme Court and the Constitution, June 12, 1823 at 1475. 52 Thomas Jefferson, The Writings of Thomas Jefferson, in A Letter to John Wayles Eppes, ed. By Paul Leicester Ford, 10 vols., (New York: public domain 1807) 9:68. 53 Keith L. Dougherty, Collective Action under the Articles of Confederation, (Cambridge: Cambridge University Press, 2001) at 17. 54 George J. Lankevich, The Supreme Court In American Life v.1, The Federal Court, (Millwood, N.Y.: Associated Faculty Press, 1986) at 107. 55 Julius Goebel, Jr. History of the Supreme Court of the United States, vol. 1 (New York: The Macmillan Company, 1971) at 198. 56 Text in JCC,XXXII, 73-74; Farrand, Records, III, 13-14. 57 Lankevich at 107.

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The Convention of 1787 was called to order by Virginia Governor Edmund Randolph. Governor Randolph first observed that the Confederation had "fulfilled none of the objectives for which it was framed."58 He began with his view of the major defects in the Confederation. The first "imbecility"59 of the confederation was: It does not provide against foreign invasion. If a state acts against a foreign power contrary to the laws of nations or violates a treaty, it cannot punish that State, or compel its obedience to the treaty. It can only leave the offending state to the operations of the offended power. It therefore cannot prevent war. If the rights of an ambassador be invaded by any citizen it is only in a few States that any laws exist to punish the offender. A state may encroach on foreign possessions in its neighborhood and Congress cannot prevent it....60

His concern as to the inability of the Confederation to prevent war was compounded by the now well known inability to fund a war effort. This concern for national security also became a central issue in persuading the populace to support the new Constitution.61 Indeed, as McHenry has noted, 25 of the first 36 Federalist Papers concerned the lack of national security.62 The New York Journal supported the ratification of the Constitution largely because: Wars have been, and...will continue to be frequent. A war has generally happened among the European nations as often as once in twelve or fifteen years for a century past; and for more than a third of this period, the English, French, and Spaniards have been in a state of war. The territories of these nations border upon our country. England is at heart inimical to us; Spain is jealous...It would be

58

James McHenry, ed by Bernard C. Steiner. "Papers of Dr. James McHenry on the Federal Convention of 1787", in The American Historical Review, volume 11, issue 3 (April, 1906, 595-624) at 596. 59 Ibid. 60 Ibid. 61 Frederick W. Marks, III "Foreign Affairs: A Winning Issue in the Campaign for Ratification of the United States Constitution" in Political Science Quarterly, vol. 86, Issue 3 (Sep. 1971) 444-469. 62 Ibid. at 446. Military weakness was addressed in numbers 3,4,14,23-31,34,and 36. The possibility of foreign intervention and a dissolution of the Union was addressed in numbers 5-8 and 18-20. Commercial distress and foreign trade restrictions were discussed in numbers 11-12, 22, and, 23. Treaty enforcement was addressed in 22 and national honor regarding debts was addressed in 15.

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no strange thing if within ten years the injustice of England or Spain should force us into a war; it would be strange if it should not within fifteen or twenty years.63

The second defect discussed by Governor Randolph as he opened the convention was: 2. It does not secure harmony to the States. It cannot preserve the particular states against seditions within themselves or combinations against each other...No provision [exists] to prevent the States breaking out into war. One State may as it were underbid another by duties, and thus keep up a State of war...64

Although despised in practice, the Articles were loved in spirit. Thus, the new Constitution preserved much of the juridical sentiment of the Articles of Confederation. The Articles prohibited the member states from a variety of activities that could imperil the union. Among these prohibited activities were: Engaging in foreign relations of any sort, whether waging war or brokering peace through treaties; the resolution of cross-state disputes, whether arising from trade or territory; and any interference with tariffs or duties.65 The Articles gave exclusive jurisdiction over these issues to Congress.66 When the new Constitution was finalized, Article III provided the framework and parameters of the federal judiciary. As Shapiro has pointed out, the "basic social logic, or perceived legitimacy, of courts rests on the mutual consent of two persons in conflict to refer that conflict to a third for resolution."67 In an effort to create that "third person," tribunal power was taken from the Congress and deposited in an independent judicial branch. Although the new

63 64

New York Journal, Mar. 29, 1787 and quoted in Marks at 451. McHenry at 597. 65 See, generally, Art. VI and VIII Articles of Confederation 66 Art. VIII Articles of Confederation 67 Martin Shapiro, Courts, A Comparative And Political Analysis, (Chicago: University of Chicago Press, 1981) at 36.

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administrative set up contemplated independence for the judiciary, the focus of juridical concern remained the same. The new Constitution provided: Article III Section 1. 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… Section 2. 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, or 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. In all Cases affecting Ambassadors, or other Public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original jurisdiction…68

In short, the newly constituted judiciary maintained the juridical focus on a limited number of issues. Generally, the disputes over which original jurisdiction was granted involved those controversies among states and those controversies between states and foreign individuals and powers.

The Judiciary Act of 1789

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Art. III Constitution of the United States.

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The framework for the court established by the Constitution was filled out by the Judiciary Act of 1789. John Jay, the first Chief Justice, said this in describing both the juridical intent and structure of the Court to a Grand Jury in April of 1790: ...we were responsible to others for the observance of the Law of Nations; and as our national Concerns were to be regulated by national Laws national Tribunals became necessary for the Interpretation & Execution of them both...The Manner establishing it, with Powers neither too extensive, nor too limited; rendering it properly independent, and yet properly amenable, involved Questions of no little Intricacy...69

The Judiciary Act of 1789 contained a variety of jurisdictional provisions as well as the mechanism for the establishment of inferior courts. While virtually every aspect of the Act was controversial, even its opponents agreed that the federal courts should have jurisdiction over admiralty cases.70 There can be little doubt that the Act is an embodiment of the ongoing resolution of political disputes between the strategic actors who sought to impact the institutions they designed. It seems equally true the Act did not discard but rather refined the early intent as expressed in the Constitution. For example, The Alien Torts Claim Act vests jurisdiction in the federal courts for claims of tort by aliens.71 In general, the most important sections of the Judiciary Act were sections 22 and 25. Section 22 established the lower courts and set forth the basis for appeal from district court decisions. Section 25 specifically provided for exclusive federal jurisdiction over cases that challenged treaties, federal statutes or other exercises of federal power. By depriving the states of the power to resolve disputes between aliens and citizens, the Act
"John Jay’s Charge to the Grand Jury of the Circuit Court for the District of New York," April 12, 1790, in Maeva Marcus, ed. The Documentary History of the Supreme Court of hte Unites States, 1789-1800, 2:27-28 70 Gerhard Casper at 293. 71 The Judiciary Act of 1789, ch. 20, sec. 9, 1 stat. 73. Torts are civil actions for damage, injury, or a wrongful act done willfully, negligently, or in circumstances involving strict liability, but not involving
69

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maintained the federal prerogative for the adjudication of issues that could lead to aggression on the part of another nation. The federal courts could ensure that hostile nations could not invade the land or attack the trade routes and ships under the auspices of protecting the rights of their own citizens without breaching the prohibition of unjustified belligerence that underpinned the law of nations. The State Ratification Debates The ratification debates regarding the judiciary further illuminate the institutional role of the Court from the perspective of those who created it. While some states, notably Delaware, New Jersey, and Georgia, kept perfunctory records aimed more at accounting for attendance than content, others such as Pennsylvania, Connecticut, Virginia, and Massachusetts kept more thorough accounts.72 During the Virginia debates, John Marshall is reported as taking the following position: Suppose, says he, in such a suit, a foreign state is cast, will she be bound by the decision? If foreign states brought a suit against the Commonwealth of Virginia, would she not be barred from the claim if the Federal Judiciary thought it unjust? The previous consent of the parties is necessary. And, as the federal judiciary will decide, each party will acquiesce. It will be the means of preventing disputes with foreign nations.73

William R. Davee, also during the Virginia debates, argued as follows: It is another principle which I imagine will not be controverted, that the general judiciary ought to be competent to the decisions of all questions which involve the general welfare or the peace of the union. It was necessary that treaties should operate as law upon individuals. They ought
breach of contract, for which a civil suit can be brought. The American Heritage Dictionary of the English Language, Fourth Edition (New York: Houghton Mifflin Co., 2000) 72 see, generally Jensen, vols. I and II. Delaware, Pennsylvania, New Jersey, and Georgia ratified the Constitution in 1787; Connecticut, Massachusetts, Maryland, South Carolina, and New Hampshire ratified the Constitution in 1788 and reached the nine-state minimum requirement to it into effect. Virginia and New York subsequently ratified it in 1788. North Carolina ratified in 1789 and Rhode Island ratified it in 1790. My research re the state conventions is ongoing. 73 Debate on the Constitution Part I, 1993 at p. 722.

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to be binding upon us the moment they are made. They involve in their nature, not only our own rights, but those of foreigners. If the rights of foreigners were left to be ultimately decided by thirteen distinct judiciaries, there would be unjust and contradictory decisions. If our courts of justice did not decide in favor of foreign citizens and subjects, when they ought, it might involve the whole union in a war.74

James Madison explained: The general policy [behind the original jurisdiction of the judiciary] ...is to prevent all occasions of having disputes with foreign powers, to prevent disputes between different state ...As our intercourse with foreign nations will be affected by decisions of this kind, they ought to be uniform. This can only be done by giving the federal judiciary exclusive jurisdiction. Controversies affecting the interests of the United States ought to be determined by their own judiciary, and not be left to partial, local tribunals.75

Edward Randolph reiterated Madison’s argument by suggesting the Court’s purpose was: ...to perpetuate harmony between us and foreign powers. The general government having the superintendency of the general safety, ought to be the judges of how the United States can be most efficiently secured and guarded against controversies with foreign nations. I presume therefore that the treaties and cases affecting ambassadors and other public ministers, and consuls, and all those concerning foreigners, will not be considered as improper subjects for the federal judiciary. Harmony between the states is no less necessary than harmony between foreign states and the United States. Disputes between them ought, therefore, to be decided by the federal judiciary...Cases of admiralty and maritime jurisdiction cannot with out propriety, be vested in particular state courts. As our national tranquility and reputation, and intercourse with foreign nations may be affected by admiralty decisions; as they ought therefore to be uniform; as there can be no uniformity in thirteen distinct, independent jurisdictions, - this jurisdiction ought to be in the federal judiciary...76

Madison succinctly put his concern for trade with foreign interests this way: We well know, sir, that foreigners cannot get justice done them in these [state] courts, and this has prevented many wealthy gentlemen from
74 75

Ibid. at 894. The Documentary History of the Ratification Debates, at 1409. 76 Ibid. at 1451-1452.

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trading or residing among us, there are also many public debtors, who have escaped from justice for want of such a method as has been pointed out in the plan on the table.77

When James Wilson addressed the ratification convention in Pennsylvania, he argued: ...the judicial power extends to all cases arising under treaties made or which shall be made by the United States...it is highly proper that this regulation should be made; for the truth is, I am sorry to say it, that in order to prevent payment of British Debts, and from other causes, our treaties have been violated and violated too by the express laws of several states in the union. ...the Minister of the United States [John Adams] made a demand of Lord Carmarthen of a surrender of the western posts, he told the minister, with truth and justice, "The treaty under which you claim these possessions has not performed on your part. Until that is done, those possessions will not be delivered up." This clause sir [the Article establishing the Judiciary] will show the world that we make good faith of treaties a constitutional part of the character of the United States...for the judges of the United States will be enabled to carry them into effect...78

Moreover, Wilson, when discussing the clause granting original jurisdiction to the Court over disputes involving ambassadors, made the following observations: ...It was thought proper to give citizens of foreign states full opportunity of obtaining justice in the general courts, and their they have it by the appellate jurisdictions; therefore in order to restore credit with those foreign states, that part of the article is necessary. I believe the alteration that will take place in their [foreigners] minds, when they learn the operation of this clause, will be a great and important advantage to our country, nor is it anything but justice; they ought to have the same security against the state laws that may be made, that the citizens have, because regulations ought to be equally just in the one case as in the other. Further, it is necessary to preserve peace with foreign nations. Let us suppose the case, that a wicked law is made in some one of the states, enabling a debtor to pay his creditor with the fourth, fifth, or sixth part of the real value of the debt, and this creditor, a foreigner, complains to his prince or sovereign, of the injustice that has been done him. What can that prince or sovereign do? Bound by the inclination as well as the duty to redress the wrong his subject sustains from the hand of the perfidy, he cannot apply to the particular guilty state because he knows that ...it is declared that no
77 78

Ibid. at 1452. Ibid. at 517.

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state shall enter into treaties. He must therefore apply to the United States. The United States must be accountable. My subject has received a flagrant injury; do me justice, or I will do myself justice.79

Oliver Ellsworth, later Chief Justice, during the Connecticut debates reported his concerns regarding the absence of an avenue of redress for foreign powers. He argued: Another ill consequence of this want of energy [or power in the Confederation system] is that treaties are not performed. The Treaty of Peace with Great Britain was a very favorable one for us. But it did not happen perfectly to please some of the states, and they would not comply with it. The consequence is Britain charges us with the breach and refuses to deliver up the forts [western posts]...80 The delegates to the Massachusetts ratification convention were also concerned about trade and commerce with foreign nations and the Confederation’s inability to establish credible commitments with those actual and potential trading partners. Rufus King made this observation: But it is not only our coastal trade, our whole commerce is going to ruin. Congress has not had the power to make even a trade law, which shall confine the importation of foreign goods to the ships of the producing or consuming country. If we had such a law, we should not look to England for the goods of other nations; nor would British vessels be the carriers of American produce from our sister states...Our sister states are willing we should receive these benefits and that they should be secured by national laws; but until that is done, their private merchants will, no doubt, for the sake of long credit, ...prefer the ships of foreigners...81

This institutional role for the federal courts was not only intended but was actually implemented. The implementation as described is established by the cases and controversies considered by the system before John Marshall’s tenure as chief justice

79 80

Ibid. at 520. Ibid, at 544. 81 Ibid. at 1288.

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began in 1801.82 This is the watershed date because of Marshall’s expansion of the role of the Court in both the legal and political realm.83 Thereafter, the Court under Marshall was concerned with a host of issues previously considered beyond its scope of inquiry.84 In particular, many of Marshall’s opinions dealt with "recalcitrant state governments" and the protection of private property.85 A discussion of specific cases is followed by an empirical analysis of all the cases docketed or decided prior to 1801.

Cases and Controversies A circumstance which crowns the defects of the confederation, remains yet to be mentioned -the want of a judiciary power. Laws are a dead letter without courts to expound and define their true meaning and operation. The treaties of the United States to have any force at all, must be considered as part of the law of the land…The treaties of the United States, …are liable to the infractions of thirteen different Legislatures, and as many different courts of final jurisdiction…The faith, the reputation, the peace of the whole union, are thus continually at the mercy of prejudices, the passions, and the interests of every member of which it is composed. Is it possible that foreign nations can either respect or confide in such a government…? -The Federalists - No. 22 December 14, 178786

Some cases will be used to illustrate the procedural limits of the Court while others will be used to illustrate the substantive areas of greatest concern. Although a few cases, such as The Hayburn Case,87 were never properly reported, most of the cases and

82

Thomas Jefferson wrote of Marshall "This practice of Justice Marshall, of travelling out of his case to prescribe what the law would be in a moot case not before the court, is very irregular and very censurable" Writings at 1474. 83 Jean Edward Smith at 2-4. 84 Ibid. at 3. 85 Ibid. 86 George Lankevich at 124. 87 2 Dallas 409; 13 Howard 52 (1791).

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controversies before the Court were well documented.88 Still, even many of those cases that were not fully reported were sufficiently documented to inform this discussion. The first case entered on the docket of the Supreme Court involved a dispute between two Dutch bankers and the state of Maryland. The case of Nicholas and Jacob Vanstaphorst v. State of Maryland89 was initiated when Maryland failed to repay a loan it had negotiated with the Van Staphorsts after the war.90 Although the bankers negotiated a settlement with representatives of the state, the Maryland legislature objected to the agreement.91 The Van Staphorsts tried to settle the debt with Maryland for over seven years before ultimately resorting to the new federal court system. The attorney for the Van Staphorsts sought an order -"commission" in the parlance of the time- for discovery92 for the purposes of taking the depositions of certain witnesses who were citizens of Holland.93 While Maryland did not object to the discovery, the Court refused to allow the depositions until the "commissioners" were named.94 Once the commissioners, those who would represent the Van Staphorsts and Maryland at the depositions, had been identified, the Court ordered that the depositions proceed and that at least one commissioner
Lankevich at 147; see, e.g., Maeva Marcus, ed. The Documentary History of the Supreme Court of the United States vol. 1-4,(New York: Columbia University Press (1992). 89 Marcus, The Documentary History of the Supreme Court vol. 1 at 191. Note also, the Van Straphorst name was collapsed into one word by court clerk John Tucker. 90 For details of the contract, see Van Berekel, Peter J. Minister (Philadelphia) correspondence to Gov. of Maryland, dated December, 27, 1784, Maryland State Archives, 987-5-1 MdHR 4623-63, location: 1/6/3/19 91 For a general discussion of the Van Straphorst case, see Bogel, Thomas C., "A Point of History: Judicial Federalism and the First Case Before the U.S. Supreme Court" in State-Federal Judicial Observer no. 13:3 (Sept. 1996) 92 Discovery is the process in litigation whereby contending parties discover what evidence the other side intends to rely upon in presenting their case. 93 For an in depth consideration of the role of Dutch investment bankers, especially the Holland Land Company, see Evans, Paul D. The Holland Land Company. (Buffalo, NY: The Buffalo Historical Society,. 1924)
88

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representing each party attend the depositions. Importantly, the representatives of the parties were ordered to certify the depositions and were put on notice that the depositions "shall be read and received as evidence on the trial."95 The commissioners were all Dutch attorneys.96 As the case moved along procedurally, anti-federalists in the Maryland legislature began to complain about the implication of the Court establishing clear jurisdiction over the states.97 Indeed, this concern led the state legislature to authorize a settlement of the suit and the Van Staphorsts dismissed the case after payment.98 The Dutch banking community heavily invested across the new country.99 The Van Staphorst case sent a significant signal to the balance of the investment community as well as the Van Staphorsts themselves. First, the Court took jurisdiction. This step alone signaled that the Court was willing at a minimum to consider enforcing the contracts for debt between the states and foreign interests. Second, the Court conveyed its impartiality by declining to order discovery until the commissioners were identified. The impartiality of the process was underscored by the Court’s acceptance, for the purpose of discovery, of Dutch attorneys as officers of the Court. As the Maryland legislature made clear and given the protracted attempt by the Van Staphorsts to resolve the dispute amicably, there can be no question that the settlement came about as a result of the consideration by the Court of the dispute. Thus, the Court established itself at the outset as a venue wherein the foreign investor could seek restitution if aggrieved - even when wronged by a state. The simple existence of an administrative avenue through which to seek redress extends the time horizon of the creditor. That is, by establishing that
94 95

Marcus, The Documentary History of the Supreme Court vol. 1 at 192. Ibid. at 196. 96 Ibid. 97 Bogle.

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creditors could seek redress without the need to turn to self-help, the Court made extending credit to the states a less risky venture for investors. While the Van Staphorsts and Maryland were choosing their commissioners for discovery and ultimately negotiating a settlement, the Court heard or considered the following cases: U.S. v. Eleanor McDonald; West v. Barnes; and Oswald, Holt v. New York; and In re Hayburn.100 Shortly after the Van Staphorst settlement, Chisholm v. Georgia was filed.101 In U.S. v. Eleanor McDonald, the defendant was accused of stealing eleven gold doubloons from a vessel in the Delaware River captained by Henry Williams.102 McDonald was charged under portions of the Judiciary Act of 1790 that made larceny on the high seas an act against the United States as well as against the victim of the larceny.103 The Court’s involvement was limited to setting a special session of the Circuit Court in Philadelphia so as to avoid any substantial delay of Captain William’s scheduled departure. Simply put, the Court ordered an expedited trial expressly in order to avoid the unnecessary interference with trade and delay in shipping out that the normal process would have entailed. In West v. Barnes, a simple commercial dispute, the Court unanimously declined to accept the efforts by some of the defendants to remove the case from a state Court in Rhode Island to the federal courts. At this first opportunity, the Court signaled that it was

98 99

Marcus, The Documentary History of the Supreme Court vol. 1 at 201. see, generally, Evans. 100 Marcus, The Documentary History of the Supreme Court vol. 1 at 199-201. Kingsley v. Jenkins was filed but continued without hearing or action by consent of the parties. 101 Marcus, The Documentary History of the Supreme Court vol. 1 at 205. 102 Ibid. at 194. 103 See section 9 and section 16 of the Act, enacted as Stat. 1:76-77,116.

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not an institution designed or willing to resolve all types of disputes.104 Rather, it had a limited function and it would not engage in general dispute resolution. In Oswald, Holt v. New York, the estate of a Pennsylvania printer, John Holt, sued the state of New York for money owed for printing services.105 Although the Court ordered New York to respond, New York had declined to recognize the Court’s jurisdiction based upon a sovereign immunity claim.106 A series of procedural questions delayed any adjudication of Oswald by the Court until after it decided that states could be sued by individuals in Chisholm v. Georgia. Hayburn addressed an attempt by Congress to expand the role of the Court by imposing extrajudicial duties on the Justices.107 Perhaps surprisingly to those who believe Marbury v. Madison was the first instance of the Court invalidating an Act of Congress, the Court struck down as unconstitutional the congressional mandate that the justices become pension commissioners.108 The Court held that "neither the Legislature nor the Executive branches can constitutionally assign to the judicial (branch) any duties, but such are properly judicial, and to be performed in a judicial manner."109 The case is noteworthy here because it indicates the Justices believed their roles were limited in scope and could not be expanded by the other branches. In 1798 the Court again addressed the question of judicial review in Calder v. Bull where it held that conflicts

104 105

Marcus, The Documentary History of the Supreme Court vol. 1 at 195. Ibid. at 198, 200. 106 Bogle. Also, for a discussion of the ongoing issue of state sovereign immunity, see Christopher Shortell, "Immunity Federalism and State Power" presented at APSA annual meeting, Philadelphia, PA (2003). 107 George Lankevich at 147-152. 108 Ibid. 109 Ibid.

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between state constitutions and state laws do not fall within the jurisdiction of the federal judiciary.110 Chisholm v. Georgia111 addressed enforcing the jurisdiction of the Court as written in the Constitution.112 Two citizens of South Carolina sued Georgia for debt the legislature incurred during the Revolution.113 Georgia refused to recognize jurisdiction based on its claim of sovereign immunity. The Court ruled Georgia could be sued under Chief Justice Jay’s rationale that the language of the constitution conveyed jurisdiction to the Court.114 Justice Wilson concurred and explained his position as: This is a case of uncommon magnitude. One of the parties to it is a State; certainly respectable, claiming to be sovereign. The question to be determined, is, whether this State, so respectable, and whose claim soars so high, is amenable to the jurisdiction of the supreme court of the United States? This question, important in itself, will depend on others, more important still; and may, perhaps be ultimately resolved into one, no less radical than this - "do the people of the United States form a nation?"115 At roughly the same time as Chisholm, Grayson et al v. Virginia (later recaptioned Levi Hollingsworth et al v. Virginia) was filed.116 Grayson was brought on behalf of the shareholders of the Indiana Company for their losses arising out of the nullification by the state of Virginia of the Company’s title to a large tract of land that Virginia claimed was inside its western-most boundary. Although the Court issued a

For a discussion of the judicial review before Marbury v. Madison see, Melvin I. Urofsky and Finkelman, Paul. A March of Liberty, A Constitutional History of the United States vol. 1(New York: Oxford University Press: 2002) at 160-162. 111 2 Dallas 419 (1793). The case directly led to the adoption of the 11th Amendment. For a discussion of the issues regarding sovereign immunity and this case, see Christopher Shortell, "The Political Circumstances Surrounding Chisholm v. Georgia", working paper (2001).
112 113

110

Lankevich at 158-165. Ibid. 114 Ibid. 115 Ibid at 162. Wilson also pointed out that the term sovereign is wholly absent from the Constitution. 116 Goebel at 724. The case was re-captioned after counsel for the plaintiffs determined that Grayson was deceased and had been a Virginia resident. Thus, his inclusion as a named plaintiff could not proceed in the first place and in the second place would have destroyed diversity of citizenship.

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subpoena ordering Virginia Governor Henry Lee and Virginia Attorney General Harry Innes to appear in the Supreme Court, neither obeyed.117 Controversy regarding whether the states were subject to the Court’s jurisdiction erupted over Chisholm and Grayson/Levi Hollingsworth. Former Virginia Governor and then United States Attorney General Edmund Randolph was the plaintiffs’ counsel in Grayson/Levi Hollingsworth. He argued that indeed states were subject to the jurisdiction of the Court in part because adjudication through a court was preferable to the risk of the states going to war with each other.118 Randolph had made this same "harmony between the states" argument at the Virginia ratifying convention.119 Shortly after Chisholm and Grayson/Levi Hollingsworth, the Court heard Brailsford v. Georgia.120 Brailsford concerned the rights of, among others, a British subject, residing in Great Britain to repayment of debt. While the facts are tangled by the procedural maneuvers of the parties, an explanation of the rationale is instructive here: We are also of the opinion that the debts due to Brailsford, a British subject residing in Great Britain, were by the statute of Georgia subjected, not to confiscation but only to sequestration; and therefore, that his right to recover them, revived at the peace, both by the law of nations and the treaty of peace.121

Brailsford commits the Court to upholding treaties, enforcing contracts even with foreigners, and giving the dignity of enforcement to the law of nations.

117 118

Ibid. at 725. Ibid. at 728. Goebel, at 726, suggests the aggressive litigation in Grayson was in part to be attributed to the contingency fee arrangement between Randolph and the plaintiffs. 119 Elliott, Debates, vol. III 570-71. 120 3 Dallas 1 (1794). 121 Lankevich at 178.

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Next, Glass v. The Sloop Betsey122 involved a boat, The Sloop Betsey, that was owned by Swedes and Americans. It was captured on the high seas and condemned as prize by the French consul in Maryland. The Court couched the controversy as: "whether any foreign nation had a right without the positive stipulations of a treaty, to establish in this country an admiralty jurisdiction for taking cognizance of prizes captured on the high seas by its subjects or citizens from its enemies?"123 The Court ruled: …no foreign power can of right institute or erect any court of judicature of any kind, within the jurisdiction of the United States, but such only as may be warranted by and be in pursuance of treaties, it is therefore decreed and adjudged that the admiralty jurisdiction, which has been exercised in the United States by the consuls of France, not being so warranted, is not of right.124 Charles Warren claimed "No decision of the Court ever did more to vindicate our international rights, to establish respect among nations for the sovereignty of this country, and keep the United States out of international complications." 125 These cases show that the early Court primarily concerned itself with cases involving disputes with foreign nationals or countries, admiralty law, disputes involving states, and issues regarding treaties.126 Other cases that support this argument include but are not limited to: Penhollow v. Doanes’s Administrator, 3 Dallas 54 (1795) (upholding the decree of a prize court established under the Articles of Confederation); Talbot v. Jansen, 3 Dallas 133 (1795) (capture of a Dutch ship by two Americans who unsuccessfully sought to avoid U.S. neutrality by renouncing citizenship); Ware v. Hylton, 3 Dallas 282 (1796) (The Treaty of Paris overrides state law); United States v. La

122 123

3 Dallas 6 (1794). Lankevich at 172. 124 Ibid. at 173. 125 Charles Warren, The Supreme Court in United States History, (Beard Books;1925, 1999 ed.). 126 see, generally, Marcus, The Documentary History of the Supreme Court vol. 1

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Vengeance 3 Dallas 297 (1796) (admiralty law jurisdiction extends to inland waters and Great Lakes);Moodie v. The Ship Phoebe Anne, 3 Dallas 319 (1796) (French privateer could make repairs in U.S. port to British ship captured as prize). Indeed, most cases decided by the Court prior to John Marshall’s tenure as Chief Justice in some way enhanced trade either by protecting the integrity of contracts especially with foreigners or foreign powers, or by reducing the potential for conflict among the states or between the states and foreign powers. Those few cases, such as Hayburn, that did not fall into one of those two categories jealously guarded against the expansion of the role or duties of the Court. A total of ninety-one cases were docketed or adjudicated prior to John Marshall’s ascension to the position of Chief Justice in 1801. 127 Only twelve of those cases were original jurisdiction cases and each named a state as a party. All others were appellate jurisdiction cases as set forth in the Judiciary Act of 1789.128 The following table provides a jurisdictional analysis of every appellate case docketed or adjudicated by the Supreme Court prior to John Marshall’s ascension to the position of Chief Justice in 1801.
129

127

The data referred to here as well as in the charts that follow were compiled from Goebel, pp. 795-813; volumes 2-5 of United States Reports (2,3,4 Dallas; 5 Cranch); Anne Ashmore Dates of Supreme Court Decisions United States Reports, volumes 2-107, August Term 1791-October Term 1882 (Library of The Supreme Court of the United States, June 1997); and Marcus and Perry, vol. 1, part 1. pp 175-531. Note that an additional eight cases were filed but not resolved prior to 1801. These eight cases were comprised of three additional admiralty cases, four additional diversity:foreign cases, and one additional diversity:state case. 128 While British Consul Benjamin Moody perhaps could have pursued twelve additional cases under the auspices of original jurisdiction, each case was an admiralty case. As such, specific appellate jurisdiction was granted under the Judiciary Act of 1789. 129 All but one of the cases were appealed to the Court under the auspices of section 22 (appeals from district courts) or section 25 (treaty, federal law etc.) of the Judiciary Act of 1789. Original jurisdiction cases were rare and facially support the theory here as original jurisdiction operated for disputes involving ambassadors, other foreign dignitaries and states as parties.

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TABLE 1 APPELLATE CASES DOCKETED AND ADJUDICATED PRIOR TO 1801
Jurisdiction Type Admiralty Diversity: states Diversity: foreign US Plaintiff Sec. 25 State Removals TOTAL Docketed Cases 32 22 9 9 7 79 Adjudicated Cases 29 16 7 2 7 61 Percent of Total Docketed 41 28 11 11 9 Percent of Total Adjudicated 48 26 11 3 11

"Jurisdiction" is the legal basis for the authority of the Court to hear the any particular case. "Docketed Cases" are those cases placed on the Court’s schedule - the "docket". "Adjudicated Cases" are those that culminated in an opinion by the Court that dispensed with the case in some fashion. Some cases were docketed but not adjudicated because the parties reached a settlement or the plaintiffs chose to abandon their claim for some reason.130 "Admiralty" jurisdiction arose because of some dispute involving the law of the seas. "Diversity: states" jurisdiction arose because of disputes between citizens of different states. "Diversity: foreign" jurisdiction arose because of disputes between foreign nationals or countries and U.S. citizens. Every "Admiralty" cases involved at least one other foreign country or citizen and the "Diversity: foreign" cases involved foreign countries or citizens with some non-admiralty grievance. "U.S. Plaintiff"cases,
130

Plaintiffs might abandon claims because of the death of a principal, the costs of pursuing the claim, or discovery undermined the ability to prevail. While I am not concerned here with why the claims were abandoned, this may be fertile ground for the development of future research. Of the eighteen cases docketed but not adjudicated, one case simply disappeared from the docket and may have been settled, nine

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where the United States is the plaintiff, were suits on customs bonds, an assumpsit for Continental Loan Certificates, and one case for a debt on a statute.131 "Sec. 25 State Removals" were those cases removed to the Court under the authority of section 25 of the Judiciary Act of 1789 which conveyed jurisdiction to the Court when the validity of a treaty, federal statute, or other federal authority was questioned.132 Of the thirty-two admiralty cases docketed, twenty-three involved attempts to receive restitution for a ship illegally seized as prize. Of the twenty-nine admiralty cases adjudicated, twenty-two resolved those prize cases. British libellants133 accounted for fifteen of the twenty-nine adjudicated cases. Spanish libellants accounted for four of them. Two cases involved Dutch libellants. One case was prosecuted on behalf of citizens of both Sweden and the United States and one case was on behalf of a libellant from the United States. The remaining seven adjudicated cases were comprised of: two cases
were non-prossed, three were discontinued by settlement, five had the writ of error quashed for a variety of reasons. 131 The Carriage Tax Statute, Act of June 5, 1794, 1 U.S. Stats. 373, the case is Hylton v. United States 3 Dallas 171 (1796). 132 Section 25 of the Judiciary Act of 1789 states: SEC . 25. And be it further enacted, That a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favour of such their validity, or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commission, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error, the citation being signed by the chief justice, or judge or chancellor of the court rendering or passing the judgment or decree complained of, or by a justice of the Supreme Court of the United States, in the same manner and under the same regulations, and the writ shall have the same effect, as if the judgment or decree complained of had been rendered or passed in a circuit court, and the proceeding upon the reversal shall also be the same, except that the Supreme Court, instead of remanding the cause for a final decision as before provided, may at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution. But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before mentioned questions of validity or construction of the said constitution, treaties, statutes, commissions, or authorities in dispute.

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seeking to enforce a judgement of the Court of Appeals in cases of capture; three cases for condemnation under navigation laws; and, two cases of salvage from the oceans. Thus, the admiralty cases can be substantively categorized as follows:

TABLE 2 JURISDICTION TYPE FOR ADMIRALTY CASES
Admiralty Jurisdiction Type Libel For Illegal Prize Seizure Enforce Ct.of App. Capture Cases Condemnation Under Navigation Bottomry Bond Salvage Total Admiralty Dispositions Total Dispositions Admiralty Percentage of Total Docketed 23 2 4 1 2 32 79 41 Adjudicated 22 2 3 0 2 29 61 48

The empirical explication of the bases of jurisdiction and the analysis of the variety of admiralty cases suggest that trade was the paramount concern of the Court. Moreover, these data also suggest that the Court was the recognized venue for resolution of these matters. English, Spanish, or Dutch citizens would be unlikely to pursue claims in the Court if there was no chance of prevailing. In other words, since foreign litigants sought relief in the Court they must have had a reasonable expectation relief could be granted. However, the theory set forth here is supported by more than simply the evidence of the categorical jurisdiction. As shown below, an analysis of the economic
133

A libellant is the claimant or plaintiff in an admiralty based action. see, Marcus and Perry, vol.i, part I

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basis of the cases docketed and adjudicated by the Court further reveals the prominence of trade and contracts in the business of the Court. TABLE 3 ECONOMIC BASIS OF LITIGATION
Admiralty Prize (ship and cargo) Condemnation/Fines (ships, cargo, imported goods) Salvage and Bottomry Bonds Total Admiralty Non-Admiralty Contracts (goods, customs bonds, and credit) Land (land grants, title, contracts re land, estate) Civil Fines Total Non-Admiralty Total All Cases Docketed 35 8 1 44 79 26 5 1 32 61 Docketed 25 4 3 32 Adjudicated 24 3 2 29

Twenty-two of the cases included a reliance by the defendant on a treaty as a defense to either the substantive merits or the jurisdictional grounds of the action and in nine cases the plaintiff relied upon a treaty for some element of the case. The treaties included the Treaty of Paris, the French Treaty, the Jay Treaty, and the Dutch Treaty of Amity and Commerce.134 The Court affirmed forty-one cases on the merits and reversed twelve cases on the merits and eight cases on jurisdictional grounds.135

p.593. 134 There may be other cases that rely upon some treaty. These were the only cases from which reliance on a treaty could be discerned from the pleadings. The Treaty of Paris was negotiated in 1763, The French Treaty was negotiated in 1778; the Jay Treaty was negotiated in 1794. Although the Dutch Treaty of Amity

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When considered in toto, the cases enhanced trade either by protecting the integrity of contracts - especially with foreigners or foreign powers, or by reducing the potential for conflict among the states or between the states and foreign powers. Whether the Court was interpreting a treaty or simply assessing the claims of damages arising out of the seizure of ships and goods, the aggregate posture of the institutional law of the land was that contracts could be trusted and all were allowed to make their claims. Given the ability of foreign interests to prosecute claims and prevail in that prosecution, the Court provided an administrative remedy to settle grievances that was significantly less costly than belligerence. Correspondence, Speeches, and Publications The argument made here is supported by more than just the empirical persuasion of the case law or the institutional intent derived from the debates and documents which implemented the system. In addition, a consideration of various letters, speeches, and publications of the first Supreme Court Chief Justice, John Jay, as well other notables of the time such as Washington, Jefferson and Adams, strengthens this assessment. For example, in a series of letters from George Washington to John Jay in 1779, Washington expresses his consternation arising from the damage to the trade and credit of the new country caused by the ongoing war with Britain.136 In April of 1779, Washington wrote to Jay: Will Congress suffer the Bermudian vessels, which are said to have arrived ...to exchange their salt for flour...? Indulging them with a supply of provisions at this time will be injurious to us in two respects: it will
and Commerce was negotiated over many years and not ratified until 1782, the first draft of it was negotiated in 1778 and the draft treaty was acted upon by the parties as binding until ratified. 135 This reversal number includes one case that was affirmed in part. 136 Henry P. Johnson, ed. The Correspondence And Public Papers of John Jay (New York: G.P. Putnam’s Sons 1890) vol. 1:207-211

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deprive us of what we really need in stead for ourselves, and will contribute to the support of that swarm of privateers which resort to Bermuda, from whence they infest our coast, and in a manner annihilate our trade...In the last place though first in importance, I shall ask, is there any thing doing, or that can be done, to restore the credit of our currency? The depreciation of it is got to so alarming a point that a wagon-load of money will scarcely purchase a wagon-load of provisions.137

Jay responded to Washington and expressed his concern that the committee system in the Continental Congress would perpetually inhibit the growth of maritime trade: While the maritime affairs of the continent continue under the direction of a committee, they will be exposed to all the consequences of want of system, attention and knowledge. The marine committee consists of a delegate from each state; it fluctuates;...few members have time or inclination to attend to them...The commercial committee was equally useless. A proposition was made to appoint a commercial agent for the states under certain regulations. Opposition was made. The ostensible objections were various. The true reason was its interfering with a certain commercial agent in Europe and his connections... There is as much intrigue in this state-house as in the Vatican, but as little secrecy as in a boarding-school...The state of our currency is really serious. When or by what means the progress of depreciation will be prevented is uncertain.138 Indeed, to find proof of the early concern with trade and international acceptance of American contracts, there is no need to go beyond the Circular-Letter From Congress To Their Constituents which was authored by John Jay at the request of Congress on September 8, 1779.139 As President of the Continental Congress, Jay wrote the letter to accompany a series of resolutions passed to address the growing economic crisis.140 When considering the possibility of American defaults on foreign contracts and loans, Jay opined: A bankrupt, faithless republic would be a novelty in the political world, and appear among reputable nations like a common prostitute among
137 138

Ibid. at 206-207. Ibid at 210. 139 Ibid. at 218-236. 140 Ibid.

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chaste and respectable matrons. The pride of America revolts from the idea...We are convinced that the efforts and arts of our enemies will not be wanting to draw us into this contemptible situation. Impelled by malice and the suggestions of chagrin and disappointment at not being able to bend our necks to their yoke, they will endeavor to force or seduce us to commit this unpardonable sin, in order to subject us to the punishment due to it, and that we may henceforth be a reproach and a byword among the nations. Apprized of these consequences, knowing the value of national character, and impressed with a due sense of the immutable laws of justice and honour, it is impossible that America should think without horror of such an execrable deed.141...Let it never be said, that America had no sooner become independent than she became insolvent, or that her infant glories and growing fame were obscured and tarnished by broken contracts and violated faith in the very hour when all the nations of the earth were admiring and almost adoring the splendour of her rising.142

Shortly after the Circular-Letter From Congress To Their Constituents was published, Jay left Congress to represent the American States at the court of Madrid.143 His instructions from Congress expressly directed him to "obtain a treaty of alliance and of amity and commerce..."144 The concern for commerce was coupled with a concern for credibility in commerce as well. Jay wrote to Franklin: American credit suffers exceedingly in this place [Spain] from reports that our loan office bills payable in France have not been duly honored but have been delayed payment under various pretexts...145 Indeed, the purpose of Jay’s mission to Spain was to secure trade relations with Spain and solidify trade with France. 146 Once the Constitution was embraced by the Continental Congress, many prominent citizens began to jockey for the office of Chief Justice and it was hardly

141 142

Ibid. at 232-233. Ibid. 235-236. 143 Ibid. at 247. 144 Ibid. at 249. 145 Ibid. at 254-255 146 See, for example, Jay’s letters to Count de Vergennes and to Don Joseph Galvez (27th Jan 1780) Ibid. at 256-263.

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considered the undesirable post described by modern scholars.147 For example, the Philadelphia newspaper, the Independent Chronicle, opined in its July 12, 1788 edition that "... the great American Fabius148 ...will undoubtedly be President -General...Mr. Adams will undoubtedly be Chief Justice of the Federal Judiciary."149 In part, the basis for assuming Adams was to be named Chief Justice was his post from 1778-1788 as American representative in France, Holland, and England as well as his role in negotiating the treaty of Paris in 1783.150 The Massachusetts Gazette confirmed the rumors of the appointment of Adams but suggested native sons of Massachusetts William Cushing and Francis Dana should also be considered.151 Cushing was Chief Justice of the Massachusetts Supreme Court and Dana had been a diplomat to France and Russia.152 Friends of James Wilson, one of the leaders of the fight for ratification of the constitution in Pennsylvania, tried to persuade Washington to appoint Wilson Chief Justice.153 Indeed, Wilson himself formally applied to Washington for the job on April 21, 1789.154 Many other prominent citizens were mentioned for or sought the job of Chief Justice, including Aedanus Burke of South Carolina, Edmund Pendelton of Virginia, and William S. Johnson of Connecticut.155

147 148

This fact is overlooked by those who discount the role of the court prior to the John Marshall era.. George Washington 149 Marcus, Documentary History vol.1 part 2; p.601. 150 Ibid. at 602. None the less, some evidence exists that Adams did not want the post of Chief Justice as he saw it as a less desirable stepping stone to the presidency. See, letter from John Brown Cutting to Thomas Jefferson 5 October 1788 and letter of Abigail Smith to John Quincy Adams. Ibid. at 603-604. 151 Ibid. at 602-603.. 152 Ibid. 153 See, Federal Gazette 21 February 1789, 9 March 1789; letter Benjamin Rush to Tench Cox 26 February 1789; letter of Freerick Muhlenberg to Benjamin Rush 21 March 1789. Marcus, vol. 1, part 2, pp. 605-615. 154 Ibid. at 606. 155 Ibid. at 612

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Ultimately, the list of potential candidates for Chief Justice was whittled to two men - James Wilson and John Jay.156 Arthur Lee, physician and one time diplomat to England and France, wrote "...Wilson is an avowed candidate for the Chief Justice ship Jay is the whispered one..."157 John Jay received his commission of office for the Chief Justice of the Supreme Court from George Washington on October 5, 1789.158 Jay’s first public elaboration of his view of the role of the Court was in his Charge To Grand Juries By Chief Justice Jay which was read to grand juries in New York, Connecticut, Massachusetts, and New Hampshire during April and May of 1790.159 He opined in part: The most perfect constitutions, the best governments, and the wisest laws are vain, unless well administered and well obeyed...You will recollect that the laws of nations make part of the law of this and every civilized nation. They consist of those rules for regulating the conduct of nations toward each other which, resulting from right reason, receive their obligations from that principle and from general assent and practice. To this head also belong those rules or laws which by agreement become established between particular nations, and of this kind are treaties, conventions, and the like compacts; as in private life a fair and legal contract ...cannot be annulled nor altered by either without the consent of the other...We are now a nation and it equally becomes us to perform our duties as to assert our rights.160

Before the Justices of the newly formed Court embarked on their first tour of duty on the Circuits, George Washington wished them well and asserted: I have always been persuaded that the stability and success of the national government, and consequently the happiness of the people of the United States, would depend in a considerable degree on the interpretation and execution of its laws. In my opinion, therefore, it is important that the

156 157

See letter, Arthur Lee to Francis Lightfoot Lee 9 May 1789, Marcus at 617. Ibid. 158 letter from Washington to Jay, transmitting commission. Johnston at 378 159 Ibid. at 387-395. 160 Ibid. at 393-5. See also p.14 supra and note 60.

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Judicial system should not only be independent in its operations, but as perfect as possible in its formation.161 As is clear from their words, before the Constitution was adopted and as the Judiciary was staffed, Washington, Jay, and many of the other founders maintained a concern with trade and foreign relations. Even after Jay assumed the role of Chief Justice, he continued to be an integral part of the ongoing dialogue regarding trade, commerce, security and foreign relations.162 In November of 1790, Jay wrote to Alexander Hamilton regarding a variety of trade policies to be implemented by Congress: I have heard it suggested that a revenue officer should be stationed on the communication with Canada. The facility of introducing valuable goods by that route is obvious. The national government gains ground in these countries, and I hope care will be taken to cherish the national spirit which is prevailing in them. The deviation from contract touching interest does not please universally...163 Perhaps nothing so exemplifies John Jay’s concern with trade and foreign relations as his draft of the Proclamation of Neutrality. The proclamation issued by Washington on April 22, 1793, while consistent in tone and spirit, was less specific and more brief than Jay’s.164 The Jay draft asserted: ...whereas a new form of government has taken place and actually exists in France, that event is to be regarded as the act of the nation until that presumption shall be destroyed by fact...although the misfortunes, to whatever cause they may be imputed, which the late King of France and others have suffered in the course of that revolution, or which that nation may yet experience, are to be regretted by the friends of humanity, and particularly by the people of America to whom both that king and that nation have done essential services, yet it is no less the duty than the

161 162

Ibid. at 396. 3 April 1790 letter from Washington to the Chief Justice and the Associate Justices. See, for example, letter from Alexander Hamilton to Jay (November 1790)(regarding impact on commerce should the United States default on foreign loans "This is the first symptom of a spirit which must either be killed or will kill the Constitution of the United States") Johnston at 404-405. See also, letter from Jay to George Washington (13 November 1790)(regarding among other things concern over the ship timber industry). Ibid. 163 Ibid. at 410-411. 164 Ibid. at 474-477.

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interest of the United States strictly to observe that conduct towards all nations which the law of nations prescribes. And whereas war actually exists between France on the one side and Austria, Prussia, Great Britain, and the United Netherlands on the other, ...it is our duty by a conduct strictly neutral and inoffensive to cultivate and preserve peace...165 Both the Jay draft and the proclamation ultimately issued by Washington advised the citizenry to avoid provoking, through private acts, any of the belligerent powers.166 Jay’s Grand Jury charge in 1793 in Richmond Virginia included the following: The Constitution, the statutes of Congress, the laws of nations, and treaties constitutionally made compose the law of the United States. You will perceive that the object is twofold: To regulate the conduct of the citizens relative to our own nation and people, and relative to foreign nations and their subjects. To the first class belong those statutes which respect trades, navigation and finance ...Among the most important are those which respect the revenue...Justice and policy unite in declaring that debts fairly contracted should be honestly paid. On this basis only can public credit be erected and supported; and they either want wisdom or virtue or both who regard fraud and chicane as a justifiable or useful instrument of policy. The man or nation who eludes payment of debts ceases to be worthy of further credit, and generally meets with deserts in the entire loss of it and the resulting evil from that loss...The success of loans will always depend on our credit; and our credit will always be in proportion to our resources, to our integrity, and to our punctuality.167

As Washington’s Secretary of State, in 1793 Thomas Jefferson wrote to the Court: The war which has taken place among the powers of Europe produces frequent transactions within our ports and limits, on which questions arise of considerable difficulty, and of greater importance to the peace of the United States. These questions depend for their solution on the construction of treaties, on the laws of nature and nations, and on the laws of the land ...The President ...would be much relieved if he found himself free to refer questions of this description to...the Supreme Court of the United States whose knowledge of the subject would secure us against

165 166

Ibid. Ibid. 167 Ibid. at 479.

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errors dangerous to the peace of the United States, and their authority insure the respect of all parties. 168 Taken as a whole, the cases and controversies and the views of the founders indicate the pre-Marshall Court was not the mere theoretically driven but unimportant institution as is now popularly accepted. Rather, because trade was key to survival of the economy, upholding trade agreements and the concomitant commercial contracts was critical to the survival of the country. Moreover, hostile nations that might have used trade as an excuse for belligerence were held at bay through the provision of the administrative avenue for grievance provided by the Court. Not only was a perfect remedy available, but the failure to avail oneself of the provided remedy was a breach of the law of nations. Implications, Limitations, And Future Research The most obvious implication of this research is that the early Court has been grossly underestimated in both form and function. The disregard with which most scholars consider the early Court is no doubt largely an outcome of both the length of John Marshall’s tenure as well as the impact of his decisions. However, bringing John Jay back to the debate brings as well a marked departure from much of the traditional debate regarding the proper role of the Court. The issue of constitutional interpretation has remained near the surface of political debate at least since John Marshall and Thomas Jefferson clashed.169 The modern debate has a variety of labels but is frequently referred to as a debate between "originalists" and

168

Ibid. at 486-487. This letter preceded and apparently referred to the British debt case involving the Treaty of Virginia. 169 James F. Simon. What kind of nation: Thomas Jefferson, John Marshall, and the epic struggle to create a United States (New York : Simon & Schuster, 2002).

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"non-originalists". In brief, "originalists" are committed to a theory of constitutional interpretation that relies on an understanding of the original intent of the framers.170 "Non-originalists" are committed to a theory of constitutional interpretation that relies on jurisprudence expanding and adapting to a changing society. If the argument presented here is correct, the "originalists" may need to shift their argument from one based on the original intent of the framers but rather to one based on the original intent of John Marshall. That is, if the major institutional purposes of the Court were to advance trade, inhibit foreign belligerence, and secure trust in our contracts, then even the originalists go far beyond the intent of the framers. Rather, the "originalists" embrace a consideration of the Constitution and the Court more akin to that of John Marshall than his predecessors. Thus, the question is not whether the Constitution grows and adapts to a changing society, but rather, if the originalists’ claim is to persevere, the question is when does the Constitution stop growing and adapting to a changing society. In other words, the "originalists" claim as to the proper manner of interpretive effort by the Court entirely overlooks this early role of the Court. Accordingly, their analytical starting point is the jurisprudence of John Marshall. As Marshall steered the Court both philosophically and practically to a divergent path from his predecessors, the "originalists" are placed in the bind of adopting as a starting point a new interpretive approach driven by a changed world. Specifically, by the time Marshall became Chief Justice in 1801, trade and nation were substantially more secure than during the Court’s

170

No doubt this concise description does violence to both the originalists and the non-originalists. For a thorough and eloquent treatment of the debate, see Keith E. Whittington, Constitutional Interpretation, Textual Meaning, Original Intent & Judicial Review (Lawrence, Kansas: University Press of Kansas) 1999.

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first decade. Indeed, in the same year, Thomas Jefferson began his First Annual Message, or State of the Union Address, with this observation171: It is a circumstance of sincere gratification to me that on meeting the great council of our nation I am able to announce to them in grounds of reasonable certainty that the wars and troubles which have for so many years afflicted our sister nations have at length come to an end, and that the communications of peace and commerce are once more opening among them. Whilst we devoutly return thanks to the beneficent Being who has been pleased to breathe into them the spirit of conciliation and forgiveness, we are bound with peculiar gratitude to be thankful to Him that our own peace has been preserved through so perilous a season, and ourselves permitted quietly to cultivate the earth and to practice and improve those arts which tend to increase our comforts. The assurances, indeed, of friendly disposition received from all powers with whom we have principal relations had inspired a confidence that our peace with them would not have been disturbed. But a cessation of irregularities which had affected the commerce of neutral nations and of the irritations and injuries produced by them cannot but add to this confidence, and strengthens at the same time the hope that wrongs committed on unoffending friends under a pressure of circumstances will now be reviewed with candor, and will be considered as founding just claims of retribution for the past and new assurances for the future.

The limitations of the argument are driven by the inability to definitively prove the claim. Like many issues regarding the Court, at best a persuasive argument can be made with continued room for debate. Additional research regarding the flow of trade over this period may shed light on the efficacy of the Court’s efforts to encourage trade. For now, a comparative consideration of the European Union can inform the logic of the argument.

171

Richardson, Messages and Papers of the Presidents, vol. 1 at 314. 44

SECTION II The European Union In the preceding sections, I have made the argument that the judicial arm of the fledgling United States served as an avenue for redress for aggrieved parties that might otherwise threaten the union. This administrative avenue for conflict resolution helped the new country avoid belligerence with existing nations and establish a modicum of credibility regarding its commercial interactions with those nations. The court also resolved disputes among states and foreign powers and among the states themselves all for the purposes of ensuring the continuance of the union. While unification of the colonies was successful on the second attempt,172 persistent efforts to unify Europe were unsuccessful. The European Union quickens once disputes that threaten it are channeled into an acceptable dispute resolution structure and the agreements made by its members become credible through the capacity for enforcement. The judiciary is the mechanism through which the members are bound by more than words alone. Thus, European unification only begins practically to be possible after the creation of a judicial structure to act as a nexus between peace and prosperity. Unification: Antecedents and Beginnings The modern European unification movement can be traced to Pierre Dubois, a French attorney, who wrote Treatise on the Way to Shorten Wars in 1306. Dubois suggested a Council should be formed to act as an overseer of the monarchs and cities of Europe with a panel of judges to arbitrate disputes among the governed.173 The purpose

172 173

See, generally, Dougherty, Collective Action Under The Articles of Confederation. As cited in Damian Chalmers, European Union Law: Law and EU Government 1-6 (Aldershot, Brookfield: Ashgate Dartmouth Publishing, 1996) at 3-5.

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of Dubois’ Council and the judicial panel was to avoid belligerence.174 In 1465 King Podebrand of Bohemia proposed a Council of Kings and Princes in an effort to secure his kingdom against the Turkish threat without aligning with the Papacy.175 Henry IV of France developed his Grand Design to inhibit Habsburg influence across Europe.176 Both William Penn and John Bellers proposed formal unification of Europe. Penn advocated a European Parliament designed to prevent war and promote justice.177 Inspired by the Swiss cantonal plan, Bellers urged a division of Europe into 100 cantons that would each contribute to a standing army and a European Senate.178 Breaking from these early consociational models, in 1814, Saint-Simon published his "Plan for the Reorganization of the European Society" which urged a parliamentary style system at both the state and regional level.179 After the first World War, a PanEuropean movement gained a following based upon the premises that a unified Europe was necessary to prevent the resurgence of belligerence among the states of Europe and only a unified Europe could compete commercially with the United States.180 The Czech Count Coudenhove-Kalergi was the most prominent of the Pan-European advocates.181 The 1929 Briand Memorandum, wherein France proposed a European Federal Union marked the first state sponsored legislative attempt at unification.182 The Roman Empire, Napoleon, and Hitler each failed to unify Europe through conquest and the plans that sought unification through legislation were not any more
174 175

Ibid. Ibid. 176 Ibid. 177 An Essay Towards the Present and Future Peace of Europe (1693) as cited in Stephen et al at 2. 178 Chalmers at 3. 179 Ibid. 180 Paul B. Stephan, Francesco Parisis, Ben Depoorter, The Law And Economics Of The European Union,(Newark: Matthew Bender & Co., 2003) at 5 181 Ibid.

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successful.183 Throughout the 1940s, reaction to the nationalism many blamed for the belligerence of World War II spurred several proposals such as The Ventotene Manifesto that called for a Federal Europe.184 The Council of Europe of 1949 sought to promote legal and cultural cooperation among its members but failed to address economic issues in any meaningful way and did not have any regulatory authority.185 French Foreign Minister Robert Schuman issued a dual pronged call for substantial movement towards elimination of the divisions in Europe that led to war in May of 1950.186 The Schuman Declaration advanced proposals that European countries should take individually without the need for additional transnational structures, but also advocated significant movement towards a unified Europe through a transnational structure.187 Schuman argued: World peace cannot be safeguarded without the making of constructive efforts proportionate to the dangers which threaten it. The contribution which an organized and living Europe can bring to civilization is indispensable to the maintenance of peaceful relations. In taking upon herself for more than 20 years the role of champion of a united Europe, France has always had as the essential aim the service of peace. A united Europe was not achieved, and we had war. Europe will not be made all at once, or according to a single, general plan. It will be built through concrete achievements, which first create a de facto solidarity. The gathering of the nations of Europe requires the elimination of the age-old opposition of France and the Federal Republic of Germany. The first concern of any action taken must be these two countries. With this aim in view, the French Government proposes to take action immediately on one limited but decisive point. The French Government proposes to place Franco-German production of coal and steel under a common "High Authority" within the framework of an
182 183

Ibid. Ibid. at 1. 184 Ventotene was the island where Mussolini’s opponents were imprisoned. The Ventotene Manifesto was drafted by the Italian dissidents Spinelli and Rossi. see, Chalmers. 185 Walter Lipges & Wilifred Loth (eds.). Documents On The History Of European Integration, Volume 4 (Berlin, New York: Walter De Gruyter,Inc, 1991) excerpted and translated at 35-36. The Council of Europe was originally comprised of Belgium, Denmark, France, Ireland, Italy, Luxembourg, the Netherlands, Norway, Sweden, and the United Kingdom. 186 Robert Schuman. "The Schuman Declaration" in Documents on European Union, edited and translated by A.G. Harryvan and J. van der Harst (New York: St. Martin’s Press, 1997) at 61-63 187 Ibid.

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organization open to the participation of other countries of Europe. The pooling of coal and steel production will immediately provide for the setting-up of common bases for economic development as a first step in the federation of Europe, and it will change the destinies of those regions which have long been devoted to the manufacture of munitions of war, of which they have been the most constant victims. The solidarity in production thus established will make it plain that any war between France and the Federal Republic of Germany becomes not merely unthinkable, but materially impossible...In this way there will be realized, simply and speedily, that fusion of interests which is indispensable to the establishment of a common economic system; and that will be the leaven from which may grow a wider and deeper community between countries long opposed to one another by sanguinary divisions...By pooling basic production and by setting a new High Authority whose decisions will be binding [in] France, the Federal Republic of Germany, and other member countries, these proposals will build the first concrete foundation of the European Federation which is indispensable to the preservation of peace.188

Institutions and Structure The Schuman Declaration led to the establishment of the European Court of Justice (ECJ) by way of the Court established through the European Community Treaty (ECT) and the European Coal and Steel Community (ECSC) in 1951. The ECT established the general tasks of the European Community as: ...establishing a common market and an economic and monetary union...to promote throughout the Community a harmonious, balanced, and sustainable development of economic activities, a high level of employment and of social protection, equality between men and women, sustainable and non-inflationary growth, a high degree of competitiveness and convergence of economic performance, a high level of protection and improvement of the quality of the environment, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States.189

The general objectives of the European Community contemplated by the ECT included the following specific activities:

188 189

Ibid. Part One, Article 2 General Tasks of the European Community, European Community Treaty, ed. Frank Emmert, European Union Law Documents, (The Hague, London, Brussels: Kluwer Law International, 1999) at 29.

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For the purposes set out in Article 2 [General Tasks] the activities of the Community shall include, as provided for in this Treaty ... (a) the prohibition, as between Member States of customs duties and qualitative restrictions on the import and export of goods, and all other measures having equivalent effect; (b) a common commercial policy; (c) an internal market characterized by the abolition, as between Member States of obstacles to the free movement of goods, persons, services, and capital; ... (h) the approximation of the laws of the Member States to the extent reqired for the functioning of the common market; ... (k) the strengthening of economic and social cohesion... (s) the association of the overseas countries and territories in order to increase trade and promote jointly economic and social development; ... (u) measures in the spheres of energy, civil protection and tourism.190

The role of the Court was succinctly identified: "The Court of Justice shall ensure that in the application and interpretation of this Treaty, the law is observed."191 This broad mandate is given structure and substance through the specific jurisdictional grants given to the Court. The jurisdiction of the Court runs along four broad channels. First, the Commission, or the office of the prosecutor, as well as any Member State may initiate proceedings for failure by a member State to fulfill an obligation that arises under community law. The Commission is the most frequent source of initiated actions. Second, a Member State, the Commission, or the Parliament may initiate proceedings for a judicial annulment, in whole or in part, of any specific piece of Community legislation that conflicts with the core EC agreements. Even individuals may bring an action for annulment if the law in question directly and individually affects them. Thus, the actions of the Community institutions are under direct review from the judiciary. Third, the Court may also review the failure to act by any Community institution. Members, the

190 191

Ibid. Ibid. at 93.

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Commission, or individuals can initiate these actions. Fourth, the Court has jurisdiction for non-contractual liability for damages caused by Community institutions or servants in the performance of their official duties. Any damaged party may initiate these actions.192 The newly established institution became the arbiter for disputes arising under the subsequent Economic European Community (EEC) and European Atomic Energy Community (EURATOM) through the Treaties of Rome (1957).193 Over time, the Court devoted ever more time and energy to disputes arising under the EEC.194 Dehousse reports that by the end of 1995, the ECJ issued 4024 judgements arising under the EEC; 359 judgements arising under the ECSC; and, 19 arising under EURATOM.195 It is noteworthy that the Court arose out of a series of treaties - the embodiment of the law of nations, and then transformed into a constitutional tribunal.196 Moreover, the treaty that has been the source of the majority of the Court’s activities, the EEC, deals exclusively with trade.197 European unification only begins practically to be possible once a judicial structure is created to act as a nexus between peace and prosperity. This mechanism for dispute resolution that binds the states of Europe allowed for the development of the credible commitments necessary to create the economic interdependence that inhibits belligerence. The similarities and differences between the

www.curia.eu.int/en/actu/news Renaud Dehousse, The European Court of Justice, The Politics of Judicial Integration (New York: St. Martin’s Press, 1994) at 5. 194 Ibid. 195 Ibid. 196 Eric Stein, "Lawyers, Judges, and the Making of a Transnational Constitution," in American Journal of International Law 75(1981) at 1-27. 197 The EEC was established in 1958 to reduce tariff barriers and promote trade among the western European signatories. Among those party to the treaty are Belgium, Luxembourg, the Netherlands, France, Italy, and West Germany. The United Kingdom, Ireland, and Denmark signed on in 1973, Greece in 1981, Spain and Portugal in 1986, and Austria, Finland, and Sweden in 1995. See, David McKay, Designing Europe Comparative Lessons from the Federal Experience (Oxford: Oxford University Press, 2001) at 127-142.
193

192

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ECJ and the early United States system are instructive as the modern approach resembles an evolved version of the early one. In particular, the jurisdictional focus on trade and dispute resolution among states/members and between states/members and non-affiliated nations are similar. Walter Hallstein, a lawyer and professor of law, served the Federal Republic of Germany as an undersecretary of state and was the leader of the German delegation to the Schuman Plan Conference.198 Hallstein was the first president of the European Commission and served in that post for ten years beginning in 1958. In an address given at the Fletcher School of Law and Diplomacy in 1962, Hallstein described the ECJ as: ...a Community Supreme Court whose word is law on all matters of interpretation of the treaties which make up the Community’s Constitution. Like the European Parliament, it is common to the ECSC, Euratom, and the EEC. Its seven Judges are chosen for their acknowledged pre-eminence. Its function represents in some ways a blend of international and civil law, since it can settle both disputes between member states and actions involving any legal person within the Community. Its verdicts are directly enforceable by the domestic authorities of member states. It is perhaps superfluous to add that in the nine years since the Court began handing down decisions - most of them so far on coal and steel questions, but some already within the EEC - there has not been a single case of defiance of Court orders.199 The original jurisdiction of the Supreme Court is parroted in the jurisdiction granted to the ECJ. The ECJ has jurisdiction over matters assigned to it by treaties. Its duties are to apply those treaties and any enactment contemplated by the treaties to particular enumerated disputes. It has a wide range of compulsory or mandatory jurisdiction. Member nations can only subvert this jurisdiction through exit from the European Union and exit cannot be done unilaterally.

198

In this post he developed "the Hallstein Doctrine" which claimed that only the Federal Republic of Germany represented the entire nation. 199 Walter Hallstein, United Europe Challenge and Opportunity, (Cambridge: Harvard University Press, 1962) at 27.

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The ECJ’s institutional ability to give advisory opinions and its capacity to engage the highest tribunal of the member nations in a dialogue regarding the national law are two of the more substantial differences.200 Where, despite the firm intent of some of the framers, John Jay declined to give advisory opinions, the ECJ has specific authorization to issue advisory opinions. Moreover, while the Supreme Court generally does not engage in a dialogue with the state Supreme Courts,201 the ECJ regularly engages the member state high courts in dialogue regarding the limits or meanings of law. The treaties that gave rise to the ECJ as well as the now expansive case law support a role for the court that is substantially similar to that of the early United States court as argued here.202 The focal areas of trade and dispute resolution among the member states and between the members and non-members are all directed towards the growth and perseverance of the new union.203 Like the early United States Supreme Court, the ECJ serves to consolidate the union by ensuring the flow of trade and the enforcement of bargains. As the Union expanded and states grew accustomed to the ECJ’s role, the caseload of the ECJ became unwieldy. Although the first decade saw a case load ranging from a low of 4 new cases in 1953 to a high of 47 new cases in 1959, in 1985 more than

For instance, Article 177 contemplates the ECJ seeking input on the member nation law from that member’s highest court. 201 For a lengthy treatment of one of the more notable exceptions to this rule, see Howard Gillman, The Votes That Counted, How The Supreme Court Decided The 2000 Presidential Election (Chicago: University of Chicago Press, 2001). 202 For example, Costa ECJ 6/64 (doctrine of supremacy); Simmenthal ECJ 92/78 (EC norms automatically render inapplicable any conflicting provision of national law); Van Gend en Loos ECJ 26/62 (treaty provisions are directly effective on members and their citizens); and Van Duyn ECJ 41/74 (EC directives are directly effective on members and their citizens). "Directly effective" means the EC may confer on individuals rights without the necessity of any ratification by member legislatures. The nations must respect these conferred rights and protect them in the national level judiciary. 203 See, for example, Jean Paul Jacque and J.H.H. Weiler, On The Road To European Union- A New Judicial Architecture: AN Agenda For The Intergovernmental Conference, 27 CML Rev. 185 (1990)

200

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430 new cases were filed.204 Accordingly, to help cope with this continually expanding caseload, the ECJ amended its rules of procedure to enable it to more quickly dispatch cases. More importantly, it requested that the Council establish an additional judicial body. In response to that request, in 1989 the Council created the Court of First Instance. The purpose of the Court of First Instance is described by the ECJ as follows: The aim of the creation of the Court of First Instance in 1989 was to strengthen the judicial safeguards available to individuals by introducing a second tier of judicial authority and enabling the Court of Justice to concentrate on its essential task, the uniform interpretation of Community law. 205

The critical distinction between the Court of First Instance and the ECJ is the jurisdictional focus in the Court of First Instance on actions brought by natural or legal persons against the Community institutions.206 While the primary litigant status is different, the subject matter of the disputes that are resolved in the Court of First Instance remains similar. In short, both natural and legal individuals may pursue actions based upon on commercial policy, trade-mark law, agriculture policy, state aid, competition, transportation, regional integration policy, and a variety of labor laws.207 Suits arising under these subject matters can take the form of seeking annulment of the acts of Community institutions. Individuals may also pursue suits for inaction or failure to act by Community institutions as well as for damages arising out of any action or inaction of a

204 205

chart 15, Court of Justice Tables and statistics, p. 171 www.curia.eu.int/instit/ www.cuira.eu.int/en/insit/presentationfr/unejuridction 206 Ibid. Note that "legal persons" refers to entities such as corporations or partnerships that are by law given many of the same rights natural persons have. Community institutions include Parliament, the Commission, etc. 207 Ibid.

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Community institution and contract disputes.208 Decisions of the Court of First Instance can be appealed to the ECJ although the points of appeal are limited to legal errors.209 The design of the system then, is a two tiered dispute resolution structure that is focused on commerce and trade. Indeed, even issues of social policy, such as pay equity between genders, are couched in terms of commerce and trade. An examination of the specifics of the emergent case law suggests that the EU judiciary has shaped the institutional system established the European Community treaties through the direct effect of Community law on Member States and by establishing the primacy of community law over municipal of state law.

CASE LAW In a series of decisions decided from 1963 through 1978, the ECJ solidified the principle that citizens of the Europe Community are entitled to rely upon the Treaties and Community regulations in proceedings before their national courts. The most important of these decisions are van Gend en Loos (1963), Costa v. ENEL (1964), and Simmenthal (1978).210 The ability of citizens to seek relief from national courts under the auspices of Community law combined with the primacy of Community law over national law make the law of the Community a tangible and credible legal regime for citizens and member states alike. The removal by the ECJ of hindrances and barriers to trade between Member States has been thorough, broad, and persistent. With respect to the free movement of

208 209

Ibid. Ibid. 210 These cases, including the subsequent Simmenthal cases, establish the principle that national legislation cannot override EC law. van Gend & Loos NV v. Inspector Invoerrechten en Accijnzen 26/62 (1963) ECJ; Costa v. ENEL: 6/64 (1964)ECJ; Simmenthal SpA v. EC Commission: 92/78 (1979), ECJ;

54

goods, after the Cassis de Dijon judgment in 1979, consumers are entitled to purchase any food product from any Member State.211 Even actions taken with no binding or direct commercial effect have been prohibited. For instance, in a case involving Ireland, the ECJ held that efforts such as a commercial ad campaign by a Member State to influence traders and consumers could subvert the aims of the Treaty and were thus prohibited.212 There, the Member State government’s widespread media campaign exhorting its citizens to "Buy Irish" was ruled a violation of free trade.213 In 1997, France was cited for failing to ensure its farmers did not obstruct the passage of agricultural goods across their lands.214 Any topic of dispute that involves the movement of goods, even those that seem to fall under some other regulatory framework, have been resolved by the ECJ in favor of enabling trade. For example, a Member State’s refusal to reimburse an insured citizen for the purchase price of prescription glasses on the grounds the purchase had been made in another Member State was overturned as an unjustified trade barrier.215 The free movement of capital across borders and the elimination of restrictions inhibiting the free movement of capital was firmly established through the Bordessa judgment in 1995.216 The Court in Bordessa held that citizens had the right to export coins, currency, and bank drafts without obtaining prior authorization from either the country of origin or the destination country217. The transfer of capital was generally the

211

The only proviso is that the product must be legally produced and marketed. Some restrictions based on serious health or environmental concerns would also be allowed. 212 EC Commission v. Ireland 249/81 (1982) 213 Ibid. also, see Lasok , K.P.E. and D. Lasok. Law and Institutions of the European Union 7th ed. (London: Buttesworths, 2001at 54) for a broad discussion which encompasses, among other things, the "Buy Irish" campaign. 214 EC Commission v.France: C-265/95 (1997) ECJ (involving the refusal to accept UK sheepmeat for processing) 215 Decker v. Caisse de Maladie des Employes Prives: C-120/95 (1998) ECJ 216 Bordessa ECR 1-361 (1995) 217 Ibid. Again, a citizen could be either a natural person or a legal entity.

55

subject of the now repealed EC Arts. 67-73. Gradual liberalization of the restrictions on capital movement occurred through secondary legislation and the case law of the ECJ.218 Currently, the degree of liberalization achieved through the case law and the secondary legislation has been incorporated into the TEU.219 Specifically, EC Art 56 disallows restrictions on capital movement or payments not only between Member States but also between Member States and third countries.220 The free flow of capital and goods across the borders is complemented by the free flow of labor.221 The ECJ furthered protections for the free movement of people through a variety of avenues. The right of free movement and all the rights that flow from free movement can be invoked in the Court through EC Art. 39.222 The ECJ became involved in the freedom of movement early on because the treaties are silent as to the definition of a "worker." In short, a worker is "a citizen of a Member State actually or potentially engaged in an economic activity for wages."223 Not only do salaried workers as well as their families have the express right to relocate to any Member State,224 but also any individual may exercise the right of establishment. Establishment is "the right of a person to enter a Member State and establish himself or herself there for the purposes of carrying on economic activities..."225 in some capacity other than as a salaried worker. Even the pursuit of employment skills is now juridically protected. For instance in Gravier v. City
218

see for example, the discussion in Association Eglise de Scientologie de Paris v. Prime Minister: C54/99 (2000). 219 EC Art 56 et. seq. (ex. Art 73b et. seq.); see also, OJ 1997, L43/25; OJ 1997 L84/22; OJ 1998 L166/45. 220 Ibid. 221 EC Arts. 39-42 (ex Arts. 48-51) as to salaried or hourly workers and EC Arts. 43-48 (ex Arts. 52-58) as to establishment. 222 EC Art. 39 (ex. Art 48). 223 Lasok at 492. 224 see, for example, Re Belgian Prostitute, Queen of the Netherlands in Council (1976); Meeusen v. Hoofddirektie van der Informatie Bekeer Groep (1999) ECR I-3289, para 13, and cases cited therein. See also, Lasok at 492-500. 225 Lasok at 515.

56

of Liege, the ECJ held that a French student enrolled to study strip cartoon art in a state run Belgium academy could not be forced to pay a higher tuition than Belgian citizens.226 The ECJ has gone to great lengths to protect the free flow of labor, capital, and goods across the borders of the Member States. Along with these tangible elements of trade, the Court has also been determined to protect the more intangible elements of trade. For instance, the deregulation of the airline industry dramatically furthered by the ECJ’s decision in the Nouvelles Frontieres case where the treaty rules which governed competition were held to apply to the airline industry.227 The Member State regulation of professionals has been allowed only where the health and safety of consumers is at issue. That is, the ECJ has confirmed the principle that the TEU directly prohibits discrimination based upon nationality. In Reyners v. Belgium the Court held that a Dutch attorney with all appropriate qualifications to practice law in Belgium could not be prohibited from practicing law in Belgium simply because Belgian law dictated lawyers must be Belgian nationals. 228 Three years later, a Belgian lawyer with a Belgian degree of doctor of laws earned a qualifying certificate for the profession of avocat from the Institute of Judicial Studies of the University of Paris II. The Paris Bar Council refused to allow him to register for practical training because he had not demonstrated that he had obtained a degree equivalent tot the French doctorate in law. The ECJ held this refusal to be indirect discrimination which was prohibited by EC Art 43 (ex Art 52).229 Similar rulings were

226 227

Gravier v. City of Liege 293/83 (1985). Commission v. France C-167/73 (1974). 228 2/74 (1974) 229 Thieffry v. Counseil de l’Ordre des Avocats de Paris 71/76 (1977)

57

issued regarding architects,230 insurance claims adjusters,231 as well as attorneys232, doctors and dentists with practices in more than one Member State. 233 In short, the case law has established that national measures may not impede the exercise of fundamental economic freedoms secured by the Treaty unless the following four conditions have been satisfied.234 Any such measure must: 1) apply in a non-discriminatory way; 2) be justified by imperative or mandatory requirements in the broad general interest of health and consumer welfare; 3) be appropriately designed to accomplish the goals or objectives of the measure; and, 4) be narrowly tailored to accomplish the goals or objectives of the measure. While anecdotally, the cases addressed above support the primary argument here, collectively, the case law is an overwhelming confirmation that the ECJ was established to facilitate trade. The first chart below shows the volume of cases filed in the ECJ from its inception in 1953 through 2002. This chart was compiled from data available in the EUI Database and excludes Applications for Interim Measures. These numbers represent the total number of cases without consideration of subsequent joinder. That is, each case represents one number even if at some later date, that case was joined with one or more other cases based on similarity of facts, parties, or issues. After taking consideration of joined cases and those cases not yet adjudicated, the ECJ issued 5455 judgments during this time frame.

230 231

Patrick v Ministere des Affairs Culturelles 11/77 (1977). Van Ameyde v UCL 90/76 (1977). 232 Ordre des Avocats au Barreau de Paris v. Klopp 107/83 (1988). 233 Commission v. France re Registration of Foreign Doctors 96/85 (1986).

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TABLE 4.1 NEW CASES IN THE EUROPEAN COURT OF JUSTICE (1952-2002)
Direct Actions References for a Preliminary Ruling 6 Appeals Total

19531962 19631972 19731982 19831992 19932002 Total

221

0

227

479

178

0

657

2351

893

0

3244

2222

1408

52

3682

1754

2349

448

4551

7027

4834

500

12,361

Direct Actions are those actions directly against a Member State or institution seeking the annulment of a law, based on the failure to act, seeking damages, based on the failure to fulfill Community obligations, or based upon arbitration clauses. References for Preliminary Rulings are those instances wherein the ECJ responds to a national court from a Member State and gives guidance regarding the interpretation or application of Community law. After adjudication by the Court of First Instance, appeals to the ECJ may be based only on points of law. That is, the ECJ does not revisit the factual determinations made by the Court of First instance. Despite the expansion from 227 cases

234

see generally, Lasok, pp. 520-524.

59

in its first decade of to 4551 in the last decade, the Court’s focus has not wavered from trade. Until the Court’s judgments in the Stauder case in 1969 and the Internationale Handelsgesellschaft case in 1970, individual rights were not considered primary to the Court’s activities.235 Accordingly, virtually all cases brought before the Court prior to 1970 involved trade. As addressed earlier, the expanding caseload and greater frequency of actions brought by individuals led to the creation of the Court of First Instance in 1989. Despite the two-tiered structure and the increased level of individual juridical activity, the emphasis remains on trade and commerce. The following two tables show the subject matter upon which actions were based in both the ECJ and the Court of First Instance. The various bases for jurisdiction of been categorized here as 1) Trade and Harmonization 2) Social Policy 3) Expansion and Institutions In both tables, the category of Trade and Harmonization entails actions based on the free movement of labor, goods, capital, or establishment; intellectual property; agriculture; customs, tariffs, competition, and customs unions; transportation and energy; the broad categories of industrial and commercial policy; and those categories which entail harmonization of law between Member States. Social Policy is a discreet category. The category of Expansion and Institutions includes the accession of new states and laws governing the Community Institutions. While a simple review of the categories of jurisdiction identified by the Court itself indicates the primacy of trade, an analysis of the recent caseload suggests trade is still of the utmost importance to the Court.

60

Table 4.2 shows the basis of action for all the new cases filed in the European Court of Justice from 1997 through 2002. The information was compiled from data drawn from the EUI Database. The table excludes Appeals and Applications for Interim Measures. These numbers represent the total number of cases without consideration of subsequent joinder. That is, each case represents one number even if at some later date, that case was joined with one or more other cases based on similarity of facts, parties, or issues.

TABLE 4.2 EUROPEAN COURT OF JUSTICE SUBJECT MATTER JURISDICTION OF NEW CASES 1997-2002
Trade and Harmonization 1997 399 Social Policy Expansion and Institutions 18 Total Percent Trade 90

26

443

1998

429

33

19

481

89

1999

496

33

12

541

92

2000

444

45

11

500

89

2001

457

32

14

503

91

2002

430

23

17

470

91

Total

2655

192

91

2938

90

235

see, Presentation A Court For Europe, www.cuira.eu.int/en/insit/presentationfr.; 11/70 (1970)

61

As is clear from Table 4.2, Trade issues account for roughly ninety percent of all the activity by the ECJ. It could be assumed that the strong skew towards trade is an artifact of the creation of the Court of First Instance - that is, since individuals are expected to go there first, few seeking relief for something other than a trade issue would be expected to turn to the ECJ. Such an assumption would be misguided. An analysis of the recent caseload indicates even the Court of First Instance is primarily concerned with trade. Table 4.3 shows the basis of action for all the new cases filed in the Court of First Instance from 1995 through 2002. The information was compiled from data drawn from the EUI Database. The table excludes Appeals and Applications for Interim Measures. These numbers represent the total number of cases without consideration of subsequent joinder. That is, each case represents one number even if at some later date, that case was joined with one or more other cases based on similarity of facts, parties, or issues. Trade issues account for ninety percent or more of the entire caseload of the Court of First Instance in every year other than the outlier year of 1997. The large number of actions regarding the accession of new Members during 1997 held strict trade issues to fifty percent.

62

TABLE 4.3 COURT OF FIRST INSTANCE SUBJECT MATTER JURISDICTION OF NEW CASES 1995-2002
Trade and Harmonization 1995 231 Social Policy Expansion and Institutions 8 Total Percent Trade 95

5

244

1996

199

8

13

220

90

1997

314

4

306

624

50

1998

202

10

3

215

94

1999

341

12

3

356

96

2000

351

7

29

387

91

2001

314

1

12

327

96

2002

372

3

18

393

95

.84

2324

50

392

2766

84

Compiled from the data drawn from the EUI Database, excludes Appeals and Applications for Interim Measures. These numbers represent the total number of cases without consideration of subsequent joinder.

63

CONCLUSION Taken as a whole, the enacting documents and cases and controversies indicate that the judiciary of the European Union was designed to and in fact has served as the nexus between peace and prosperity. Like the early Court of the United States, it is much more than a mere theoretically driven but unimportant institution. Rather, because trade was key to survival of the economy, upholding trade agreements and the concomitant commercial contracts was critical to the survival of the European Union itself. Moreover, belligerent Member States and non-affiliated nations that might have used trade disputes as an excuse for trade wars have been held at bay through the provision of the administrative avenue for grievance provided by the ECJ and the Court of First Instance. Not only is a full remedy available, but the failure to avail oneself of the provided remedy is a breach of treaty by Member States and a breach of the law of nations by non-affiliated nations. The role of the judiciary in emerging federations has been misunderstood and underestimated. The argument put forward here should put to rest the myth of an early United States Supreme Court mired in an accidental juridical system with little more than a theoretical purpose. An accurate understanding of the institutional design of the early Court and its important role in the preservation of the early Union has important implications not only for emerging federations such as the European Union, but also for the ongoing debate regarding proper constitutional interpretation.

64

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