Constitutionalism in the Streets – Article by Gary D. Rowe

From Volume 78, Number 2 (January 2005)

This Article embarks on a reconstruction of constitutionalism in the early American Republic through a microhistorical case study of United States v. Peters, 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 Article 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 Article seeks to show, through a detailed analysis of the controversy that led to and followed the underexamined Peters decision, that such an analysis is incomplete because the role of the Court was unsettled and deeply contested in the early Republic. The Article 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 Chief Justice 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 Article suggests, to treat Chief Justice 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. Chief Justice Marshall was but one player among many in a tense standoff, 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.

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 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.



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