Constitutionalism in the Streets
This Article works at the border of constitutional history and constitutional law. It embarks on a reconstruction of constitutionalism in the early American Republic through a microhistorical case study, an analysis of the fascinating United States v. Peters (1809), the first Supreme Court decision to strike down a state law. In the last half century, the Supreme Court has repeatedly asserted that it is the “ultimate expositor of the constitutional text.” From Cooper v. Aaron to United States v. Morrison, the Court has invoked no less than the authority of Chief Justice John Marshall and his opinion in Marbury v. Madison to burnish its claim of judicial supremacy. Several legal scholars have recently come to question this assertion, arguing that judicial supremacy deviates from the path of the Founders and is of a more recent vintage. This essay both extends and questions the important project of these critics.
Both the Court and its scholarly critics rely heavily on what they take to be the Founders’ understanding of the proper role of the judiciary, and they have accordingly excavated the meaning of various Founding-era texts. This essay seeks to show, through a detailed analysis of the controversy that led to and followed the under-examined Peters decision, that such an analysis is incomplete because the role of the Court was unsettled and deeply contested in the early Republic. This paper uses archival, newspaper, and published sources in order to recount the remarkable travails of Gideon Olmsted, a sailor and American Revolutionary privateer, who spent over three decades attempting to collect money that a Continental Congress appellate court had awarded him in a suit against Pennsylvania in the late 1770s. Pennsylvania defied the court's judgment, and Olmsted took his case to the new federal court system in 1803, and ultimately to John Marshall's Supreme Court in 1809, in what became the Peters case. Pennsylvania refused to comply with the Supreme Court’s enforcement order, and an armed clash between federal and state forces in the streets of Philadelphia ensued.
It is a mistake, the paper suggests, to treat John Marshall’s nationalistic rhetoric in the Peters opinion as decisive (as the Court did in Cooper v. Aaron) without looking at the intense dispute and nuanced maneuvering outside the courtroom that surrounded Peters. John Marshall was but one player among many in a tense stand-off, and the Court was of but limited effect in settling a major, lingering controversy concerning the boundary between the federal and state governments -- a controversy that dated to the days of the Continental Congress and that had once helped make the original case for a national Constitution. To the extent the Court’s position ultimately prevailed, it did so only because Olmsted enjoyed broad support, both in public opinion and in the Executive Branch.
It follows from this examination of the Peters controversy that Marbury cannot bear the weight that the Court and its supporters have placed on it. The surprising events that surrounded the Court’s decision in Peters should tell us something about the difficulty of resolving Founding era constitutional disputes, given the competing models of federalism and divergent understandings of the Court's role that disputants invoked. Moreover, both sides of the controversy utilized a myriad of nonjudicial devices, including petitioning and appealing to other states, which were at least as important in the controversy's ultimate resolution as the Court's decision. The article thus makes the case for the importance of studying actual constitutional practice instead of simply focusing on court decisions and official legal texts. By calling attention to the seemingly foreign ways that constitutionalism operated in the early American Republic, it urges scholars to treat the period as one of uncertainty, experimentation, and contingency, rather than attempting to mine it for precedents and traditions that support or contradict contemporary practices.
Constitutional Law | Law and Society | Legal History
Date of this Version
Gary D. Rowe, "Constitutionalism in the Streets" (April 2, 2004). bepress Legal Series. bepress Legal Series.Working Paper 233.