Williams College Law Journal, Volume IV, Issue I

WILLIAMS COLLEGE LAW JOURNAL VOLUME IV, ISSUE I SPRING 2016

The WILLIAMS COLLEGE LAW JOURNAL is an interdisciplinary undergraduate publication comprised of student essays that is devoted to the scholarly discussion of legal subjects. The mission of this publication is to provide a place where undergraduate students can discuss and examine the law, its role, the effects of law and policy, and the relationships of law and justice, as well as their experiences preparing for law school, a legal education, or their involvement in a legal field.

We accept submissions covering a wide range of topics related to law, from any current undergraduate student around the nation, regardless of academic division, major, minor or year. If you are an alum, professor, or lawyer, you can also submit a short piece that is aimed at educating undergraduate students about careers, educations, or experiences in the legal field.

Essays can be submitted via email or our website http://www.williamscollegelawjournal.org/submit/ The Law Journal Committee would like to graciously acknowledge the following organizations for their generous support.

Williams College Law Society Williams College Council Williams College Dean’s Office Williams College Office of Student Life

Williams College Law Society Law Journal Committee c/o Office of Student Life 39 Chapin Hall Drive Williamstown, MA 01267

WilliamsCollegeLawJournal@gmail.com http://www.williamscollegelawjournal.org

COVER: Design by Gloria Joo i

WILLIAMS COLLEGE LAW JOURNAL Volume IV Issue I Spring 2016

iii 1

Letter from the Editor Changes in U.S. Abortion Laws Re-evaluating Glendon’s Analysis

Angela Chang 3

How the NSA has Endangered our System of Checks and Balances Drew Fishman

5

Interview with William P. Bowden, Jr. '66 Former Chief Counsel for the Office of the Comptroller of the Currency Henry Lu

7

Not How it Seems Media Distortion of the International Right Against Torture Arjun Ahuja

12

Congress’s Failure to Legalize Medical Cannabis John Martin

13

Interview with Elizabeth Andersen '87 Director of the American Bar Association's Rule of Law Initiative Henry Lu

15

The Environmental Movement and the Supreme Court Margaret Sutton

17

On Combatting Mischief and Mayhem Statutory Construction in the Jay, Ellsworth, and Marshall Courts During the Early Republican Period Habib Olapade

ii

LETTER FROM THE EDITOR Dear Reader, LAW JOURNAL EDITORIAL BOARD Acting Editor-in-Chief Henry Lu Managing Online Editors Jenny Wheeler Emily Saulnier Managing Print Editor Mason Wong Associate Editors Margaret Sutton Bum Shik Kim WILLIAMS COLLEGE LAW SOCIETY EXECUTIVE BOARD President Mary Beth Dato Secretary Marisol Sierra

I am pleased to present to you Volume IV of the Williams College Law Journal. In this issue, you will find a mix of academic articles by first-year, sophomore, junior, and senior students at Williams and other undergraduate institutions on topics ranging from abortion to cannabis to the NSA. You will also discover interviews with William P. Bowden, Jr. '66 and Elizabeth Andersen '87 about their successful careers in corporate and international law.

For making this journal possible, I would like to thank the Williams College Law Society, Office of Student Life, and College Council. I would also like to express my gratitude for the hard work of the journal’s editors and writers, as well as the contributions of our supportive staff advisors and alumni.

Finally, I want to thank you, the reader, for your interest in this journal. For students at Williams and beyond, it is my hope that this issue will help you develop a fuller picture of the legal industry and pique your interest in specific areas of law.

Sincerely, Henry Lu '19 Acting Editor-in-Chief

Treasurer John Martin Events Director Angela Chang Editor-in-Chief Robin Park Law Teams Director James Reed Sawyers The Williams College Law Journal is published at least twice a year. Previous editions of the Law Journal can be found online on our website. The contents of this volume represent the opinions of the authors and not necessarily those of the editors, the Journal, the Williams College Law Society, or Williams College.

All rights reserved. No parts of this publication may be reproduced or transmitted without the Law Society’s written consent.

iii

Changes in U.S. Abortion Laws Re-evaluating Glendon’s Analysis Angela Chang Williams College

In 1987, the same year she started teaching at Harvard Law School, Mary Ann Glendon published the book Abortion and Divorce in Western Law, offering a historical comparative analysis of Western abortion laws that builds off the idea that law is a window into a society’s culture. Glendon characterizes American abortion law as distinct in three respects: first, there is “less regulation of abortion in the interest of the fetus,” second, there is “less public support” for pregnant women to terminate the pregnancy or raise the child, and third, American courts “shut down the legislative process …on the abortion issue.”1 These three factors, according to Glendon, reflect aspects of our culture that contrast markedly with those of European nations.

Glendon distinguishes between American individualism and the community-based mindset of many European nations, comparing Roe v. Wade’s “emphasis on the individual woman,” and the West German court’s “emphasis on the interest that society as a whole has.”2 Glenden describes how many European societies support pregnant women: in Sweden, strong social welfare and child support systems encourage for women to bring pregnancies to term,3 while France funds 100% of abortions.4 In contrast, the 1973 Roe decision highlights the value Americans place on individual liberties: abortion became an issue “involving individual rights—either the right to life of the fetus or a woman’s right to privacy, choice, or control over her own body.”5 Glendon asserts that, “if we are to move from

abortion on demand to reimposition of restrictions on abortions in certain situations, we should review the entire complex of laws that bear on maternity and child-raising.”6 Glendon argues that the American insistence on “the right to be let alone” ultimately translates in practice into “the right to leave others alone,” which results in women desiring abortions and men unwilling to pay child support.7 To improve the effectiveness of abortion law, we must move away from strongly individualistic mindsets and instead consider society’s interest in supporting pregnant women, following European models.8 Roe placed restrictions on abortion regulation in the first and second trimesters that clearly favored the pregnant woman’s “fundamental rights” over those of her unborn child. Yet Glendon references surveys to that most Americans believe there is “an important difference between early and late stages of gestation and that the value of unborn life should be weighed along with competing claims and values.”9 Because Roe and its succeeding cases “have virtually closed down the state legislative process with respect to abortions prior to viability,”10 in order for “the United States to return to the point where compromise legislation could be threshed out in the state legislatures, we would need either a constitutional amendment to that effect, or… the Supreme Court’s reconsideration of its own rulings.”11 Glendon asserts that “it would not be necessary to overrule Roe”; the court could have authorized states …to work out legislation” that would consider “the abortion question in all its complexity.”12 Several cases in the three decades following Roe seem to fit her predictions. Planned Parenthood v.

Casey implemented a 24-hour waiting period, informed consent, and parental consent for minors, 13

1

Mary Ann Glendon, Abortion and Divorce in Western Law (Cambridge, MA: Harvard University Press, 1987), 2.

Ibid., 35.

3 Ibid., 23.

4 “France’s Free Abortion Law Takes Effect,” Huffington Post, accessed April 30, 2014, http://www.huffingtonpost.com/2013/04/02/france-free-abortion-law_n_2998962.html 5 Ibid., 39.

6 Glendon, Abortion and Divorce in Western, 53.

7 Ibid., 57.

8 Ibid., 53.

9 Ibid., 41-42.

10 Ibid., 34.

11 Ibid., 42.

12 Ibid., 42-43.

13 "PLANNED PARENTHOOD v. CASEY," The Oyez Project at IIT Chicago-Kent College of Law, accessed April 30, 2014, http://www.oyez.org/cases/1990-1999/1991/1991_91_744.

2

Volume IV, Issue I

1

Changes in U.S. Abortion Laws while introducing the concept of an “undue burden” in determining the validity of abortion regulations.14 In Stenberg v. Carhart (2000), the Supreme Court ruled unconstitutional a Nebraska law which banned partial-birth abortion on the basis that it created an “undue burden” and did not provide an exception for maintaining the health of the woman.15 In Gonzales v.

Carhart (2007), the Supreme Court determined that the Partial-Birth Abortion Ban Act of 2003 did not impose an undue burden in limiting only one method of abortion.

More recent U.S. trends, however, point to the opposite direction. Between 2011- 2013, more abortion restrictions were enacted than “in the entire previous decade.”16 “More than 54 abortion providers have shut down or ended their abortion services in the past three years” since the “heavy wave of legislative attacks on providers began in 2010.”17 In 2000, 13 states had abortion restrictions which designated them as “hostile” towards abortion. This number increased to 27 states by 2013, while the number of states considered to be in the “middle ground” decreased.

This trend fits with Glendon’s assertion that “compromise legislation would of course be displeasing to many,” reflecting the “winner-takesall” mentality that is prevalent in American thought,18 a problem aggravated “by the fact that the extreme position of the Supreme Court in abortion cases represents the views of only a minority of Americans.” However, Glendon claims that many pro-life supporters are realizing that compromise legislation has a more “realistic chance of being adopted and accepted” and is the “lesser of evils,”19 when in reality, recent years have seen an increase in support for more extreme views on either side.

“Between 2011- 2013, more abortion restrictions were enacted than “in the entire previous decade.”

Although most of Glendon’s analysis still holds true, the issue of abortion is far from definitively decided. American law is distinct in its rights-minded approach to legislation, despite increased consideration for the fetus. As pro-life and pro-choice activists push for competing legislation, changing attitudes may lead to significant changes in abortion law in the future. Hopefully these changes will incorporate some of the important aspects Glendon observed in her comparative analysis of European abortion law, including better social welfare and child support systems, and perhaps some compromise can be reached.

14

Ibid.

"STENBERG v. CARHART," The Oyez Project at IIT Chicago-Kent College of Law, accessed April 28, 2014, http://www.oyez.org/cases/1990-1999/1999/1999_99_830.

16 Elizabeth Nash, Rachel Benson Gold, Andrea Rowan, Gwendolyn Rathbun, Yana Vierboom, “Laws Affecting Reproductive Health and Rights: 2013 State Policy Review,” Guttmacher Institute, accessed April 30, 2014, http://www.guttmacher.org/statecenter/updates/2013/statetrends42013.html.

17 “Anti-Abortion Laws Take Dramatic Toll on Clinics Nationwide,” Huffington Post, accessed April 30, 2014, http://www.huffingtonpost.com/2013/08/26/abortion-clinic-closures_n_3804529.html.

18 Glendon, Abortion and Divorce in Western, 45.

19 Ibid., 46-47.

15

Williams College Law Journal

2

How the NSA has Endangered our System of Checks and Balances Drew Fishman Williams College

As widespread surveillance and data collection increase in scale, privacy is not the only factor that is compromised. Although ostensibly for the cause of more effectively countering threats of terrorism, many of the expansive programs launched by the NSA have been decried as abusive and redundant by legislators and officials alike. The only safeguard against NSA overreach is the reputedly lax FISA Court. Therefore, the NSA is effectively able to conduct its operations as it pleases through loosely interpreting Congress’s legislation and going through a justice system of its own. To the extent that some of these programs have the potential to go beyond legislative intent, are executed in a liberal and extraneous manner, and circumvent the traditional judicial process, they greatly damage our foundation of checks and balances.

The primary acts in question are Section 215 of the PATRIOT Act and the National Security Letters.

As Laura Donahue mentions in the Harvard Journal of Law and Public Policy, the NSA took advantage of the word “relevant” in Section 215 to establish for itself a database of telephone metadata that includes the call records of every American using one of the major phone companies. 1 Their justification was that all metadata is relevant in the effort to counter terrorism. As Donahue points out, this interpretation was deeply flawed; it ignored any effective limits on the NSA’s authority, and in doing so far exceeded the legislators’ intended contours for the organization.

The National Security Letters, on the other hand, were warrantless requests on individuals and entities for their records. As Sanchez notes, these records didn’t even need to be relevant to a terrorist

investigation.2 The Inspector-General even has noted that these letters had in fact been widely abused.

These two programs by the NSA clearly posed many issues in practice to the citizenry of the United States and shed light on the future potential of the NSA. One point that Donahue references is that the implementation of programs like the metadata collection program based on Section 215 had gone entirely against the intent of the legislators. This was an issue because in a traditional system of checks and balances, the legislative branch is supposed to be able to warrant and monitor the actions of the executive.

However, as noted by Bendix and Quirk, Congress has failed to comprehend the very privacy bills that it is passing.3 While there are established sunset periods in effect in order to promote continued discussion and debate on the legislation, they have ultimately failed to produce any debate both due to the secrecy of these programs and the lack of expertise of the legislators.

This occurred in both 2009 and 2011. However, that is not to say that all congressmen have been so ignorant and negligent in regards to these programs.

“Congress has failed to comprehend the very privacy bills that it is passing.”

Some, like Udall and Wydall have tried to warn fellow congressmen and the American people about how these programs have many unintended facets that should be up for debate. As mentioned by Donahue, even the lead congressmen behind the Patriot Act have denounced its execution. All this being said, it would be difficult to argue the existence of any sort of legislative control over the workings of the NSA.

Laura K. Donohue, “Bulk Metadata Collection: Statutory and Constitutional Considerations,” Harvard Journal of Law and Public Policy, Vol. 37, No. 3 (2014), pp. 759-900.

2 Julian Sanchez, “Leashing the Surveillance State: How to Reform Patriot Act Surveillance Authorities,” CATO Policy Analysis (May 16, 2011), pp. 1-25.

3 William Bendix and Paul J. Quirk, “Secrecy and Negligence: How Congress Lost Control of Domestic Surveillance,” Brookings Institute, Issues in Governance Studies (March 2015), pp. 1-19.

1

Volume IV, Issue I

3

How the NSA has Endangered our System of Checks and Balances On the flip side of the coin, the legislative branch is also supposed to be able to limit the actions of the executive. However, through liberal interpretations of the fine print and blatant disregards of standard procedure, this has not occurred. This largely goes back to the bulk metadata collection that had occurred in spite of Section 215. This section actually only advocated for targeted collection of relevant data, not a broad pileup of all metadata available. By interpreting the word relevant in such a blatantly fallacious way, the NSA had ignored the limits that Congress intended to place on its actions.

Additionally, through the mandate of minimization procedures, Congress also intended to preserve the privacy of innocent Americans in these searches. In keeping a database of all call logs and only minimizing slightly in programs like PRISM, this clearly wasn’t being executed in an ideal way.

Perhaps the most egregious affront to the system of checks and balances is how the NSA has managed to work its way around the judicial branch. While in theory the FISA courts were established to take the role of neutral, disinterested magistrates checking the reach of the NSA, in practice they have kept an extremely loose hand in limiting the affairs of the NSA. Essentially, they have given the NSA the ability to violate the privacy of others without a warrant. Only a minuscule fraction of orders sent to the FISA Courts for approval are modified in any way.

“The most egregious affront to the system of checks and balances is how the NSA has managed to work its way around the judicial branch . . .”

Traditionally it has been required that a warrant be set on a specific location or entity. Even though the NSA theoretically needs a warrant from a FISA court to obtain information from its database, it still possesses all of the contents of the database and as explained above can easily obtain a warrant from a FISA court. This shows how the check that the judiciary is meant to have on the executive branch has withered away as new measures have been adopted by the NSA to counter terrorism.

This is article is not meant to debate whether these actions by the NSA are right or wrong. The success of these policies is still widely debatable and centered on both theory and fact. Rather, this paper is meant to argue that past actions of the NSA and its current framework are detrimental to the United States’s traditional system of checks and balances.

While the recently passed FREEDOM Act is a step in the right direction, its effectiveness can only be speculated upon. Regardless of the merits of secretive action by the NSA, its very existence does invariably put pressure on the US’s traditional system of checks and balances.

Williams College Law Journal

4

A Career in Corporate Law Interview with William P. Bowden, Jr. '66 Henry Lu Williams College

William P. Bowden, Jr. '66 is a former Chief Counsel for the U.S. Treasury Department's Office of the Comptroller of the Currency. After he graduated from Williams College, Bowden received his JD from Columbia Law School and went on to pursue a career in corporate law. In this interview, Bowden describes his career journey and offers helpful advice to students based on his wealth of experience.

Could you tell our readers about your background and career?

My parents and grandparents were teachers and ministers on one side and lawyers and judges on the other. I grew up as one of four kids on a teacher’s salary, so the greater financial security of the legal profession was appealing. My grandfather had been a Supreme Court justice in New Jersey, but died the same year I was born, and my lawyer uncles had small firm practices in New Jersey, so my overall knowledge of the law was very limited. When I started thinking about a career in law, I spoke with a number of lawyers in my home town about the kind of practices they had. That’s something I suggest anyone interested in the law should do.

My wife and I were married during law school, so both of us felt we needed to work during school to help support ourselves. I worked part-time during law school for a small firm in New York whose partners had helped found the ACLU and had won some of the most fascinating civil rights lawsuits I had studied in law school. Working there helped me understand what small firm practice in NY was like. Then in the summer after my second year, I worked for a large Wall Street firm, then and now one of the best firms in the country. After law school I went to work for that firm as an associate.

The firm I worked for specialized in major litigation and corporate law and also had small groups working in real estate, trusts and estates and tax.

Although I worked on a number of litigation matters, including some pro bono civil and criminal cases through an office set up by a number of Wall Street firms for the Legal Aid Society, I ultimately opted for a career in corporate law.

After about five years of that, I decided that I was more interested in being involved with my clients on an ongoing rather than a transactional basis, so I left to become general counsel of a Fortune 500 company based in Houston. It was wonderful, but my wife and I decided we would rather raise our family in New York, so I went back to the law firm and used it as a base for an in-house career in the New York area.

Most of my later legal career was spent in increasingly senior positions for a number of major commercial banks, investment banks and a major insurance brokerage firm.

I ended up working for the federal government largely by accident. When President Reagan and Vice President Bush were elected, a number of young professionals I had met in Houston began being appointed to senior posts in the government. I got a call from a Houston friend who had just been appointed Comptroller of the Currency in the Treasury Department, asking me to be his general counsel. In the then 140 years of the office (which was created during the Civil War), no OCC general counsel had ever worked in a bank, and the push for regulatory reform was obviously one which would be easier to accomplish with people who knew something about the industry they regulated!

I initially declined, was later offered a similar position as general counsel of the FDIC, which I also declined, and finally accepted the OCC position originally offered when it as offered again toward the end of the Bush Administration (when the person who had taken the job when I first declined it moved back into the private sector). I stayed in that position for a little over four years, during both the Bush and Clinton Administrations, and enjoyed it thoroughly. I came away with a much healthier respect for the dedicated people who make the government work than I had previously had.

After my time in government, I returned to the private sector, where I again worked for major financial institutions and a global insurance brokerage firm. During that time, I worked mostly on corporate governance, litigation, mergers, acquisitions and major financial transactions. I ended my career as a financial consultant to financial institutions in trouble with government regulators and public prosecutors.

Volume IV, Issue I

5

A Career in Corporate Law What were some of the challenges you faced as you worked in corporate law?

In a law firm, the learning curve is steep and everyone works long hours. At the end of eight years or so, firms typically make a small number of associates partners in the firm. Others move on to other positions, generally very good ones because of the training and reputation of the firm. Although I enjoyed the work and didn’t mind the long hours, it wasn’t easy to balance my career and raising a young family during those years.

In addition, both law firms and corporations have their own kinds of internal politics, which are either fun or a chore depending on the situation. Generally speaking, though, well-trained, well-positioned lawyers do well in both contexts.

Of course, corporate politics generally mean that the higher up the ladder one climbs, the more one is dependent on his relationship with senior management. And of course the needs of both kinds of law firms and corporations continue to change, which leads to career instability. It’s probably axiomatic that most of your peers who go into law will end up with a number of employers over the course of a 30, 40-year career. In my case, the number of employers includes two law firms, four major commercial banks, a major investment bank, an international insurance brokerage organization and a large, well-regarded consulting firm.

What did you find were some keys to your career advancement?

Which personal characteristics make people successful in law?

Here’s where I’d come back to Williams. The training that students get at a place like Williams to think, to express themselves in writing and orally and to become engaged are the keys to everything. I would urge everyone at Williams to talk more in class; students just don’t understand how important that is to success in later life. Being able to speak and write well persuades people that you’re intelligent.

I would also say that dealing with people well is very important. I started out as a what-do-you-know lawyer, not a who-do-you-know type of lawyer and really didn’t learn the importance of getting on well with people to a successful practice until later in my career.

There’s a growing shift with fewer students going to law school directly from college and more taking a gap year in between.

Would you recommend taking a gap year? What kinds of things would you suggest students do in that time?

It very much depends on the person. Gap years weren’t as prevalent when I was a student as they are now. I felt it was a luxury I couldn’t afford. If one goes off and does something interesting, like the Peace Corps or Vista, or learns to live in a different part of the world, or does research in an area of interest, a gap year can be productive. On the other hand, if one is ready for law school, I wouldn’t necessarily advise it. The gap year experience that relates most directly to law is to be a paralegal in a large firm, but most of the work is grunt work and the only way it becomes relevant to a later legal career is to have a mentor who actually connects the dots, and in my experience that doesn’t happen very often.

Williams College Law Journal

6

Not How it Seems Media Distortion of the International Right Against Torture Arjun Ahuja University of Southern California

Introduction With the pictures, testimonies, and accusations regarding Guantanamo Bay and Abu Ghraib over the past several years, the issue of torture has been a prevalent topic in recent American political discourse.

The topic regained attention in 2008 when President Obama announced that closing Guantanamo Bay would be one of his first priorities. However, over six years later, this has remained an unfulfilled promise.

Customary and codified international law, as well as the laws of other nations, have deemed the actions that have occurred in such detention camps illegal.

Yet torture continues to be a part of American foreign policy, and the public remains divided on an issue that is decided almost everywhere else in the first world. This phenomenon may in part be due to the media representation, or rather misrepresentation, of torture and other violations of human rights in American shows, movies, and other forms of media.

This paper will first outline the right against torture as explicitly detailed in international law. It will then discuss the misrepresentation of violations of this right in American popular media, particularly film and television, and provide analysis of how this has influenced the public’s perception of such issues.

A brief analysis of other issues in addition to torture that are misrepresented will be offered, followed by a policy proposal for mitigating this effect.

While the right against torture is well-established in customary international law, American media, through the avenues of movies and television shows such as Zero Dark Thirty and 24, have played on the idea of American Exceptionalism and duty to portray torture as both effective and justified, which has shaped American public perceptions on the issue.

Other rights such as the right to trial and the right against genocide have also been distorted in American film. While there might be some policies that are able to mitigate this effect, this is largely a cultural problem that is difficult for policy to solve.

“The right to trial and the right against genocide have also been distorted in American film.”

Status of Torture in International Law In order to understand the full scope of torture and inhumane treatment, it is necessary to first turn to codifications of customary international law. A summary of various conventions, covenants, and declarations demonstrates the clarity of international law on the issue of torture. To begin with, Article 5 of the Universal Declaration of Human Rights states, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”1 This declaration, written and voted on in 1948, was widely supported by the General Assembly with 48 countries in favor (including the United States) and only a handful of countries abstaining from or failing to vote. Interestingly, none of these countries maintained an abstention due to Article 5. Other countries have voted in favor after the initial vote.

The International Covenant on Civil and Political Rights, which was adopted in 1966 and went into force ten years later, had a similar genesis to the Universal Declaration of Human Rights. It reiterates Article 5 of the Declaration with its own Article 7, stating, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”2 The Covenant included this last clause regarding involuntary medical and scientific experiment in response to WWII. The right against torture in this Covenant is not able to be derogated.

The United States has also ratified this Covenant.

While several countries made reservations about the Covenant, none of these reservations were in relation to Article 7 on torture. The fact that no countries abstained from voting on the Universal Declaration of Human Rights nor have reservations about the International Covenant on Civil and Political Rights based on the articles on torture supports the notion that the right against torture is a universal idea deeply embedded in customary international law and human morality.

Both of these documents are cited at the beginning of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted in 1984 and entering into effect in 1987.3 The United Nations Convention Against Torture provides several important pieces of information regarding the right

1 UN

General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (V).

General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations.

3 UN General Assembly. United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 1984. United Nations.

2 UN

Volume IV, Issue I

7

Not How it Seems against torture—first is a definition. While the Universal Declaration and the International Covenant have outlined a prohibition against torture, but have not provided a clear definition for torture, the United Nations Convention Against Torture has done so. The United Nations Convention is divided into three parts with the first part outlining a definition of torture.

Article 1 defines torture as, “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person…” Article 1 adds that it might be done for the purpose of eliciting a confession or information, intimidation, punishment, or some type of discrimination. The scope of the right against torture is further outlined in Article 2, which states that countries cannot have any exception to this rule, and in Article 3, which states that countries cannot “refoul” a person to another country where they believe a person might be tortured. Article 4 attaches criminal liability to torturers, Article 8 designates it as an extraditable offense, and Article 5 declares universal jurisdiction to try torture. Other rights include the right of victims to obtain compensation and the inadmissibility of information obtained through torture in a court. Part two of the United Nations Convention Against Torture creates the Committee Against Torture in Article 17 and allows it to investigate accusations of torture in Article 20. The Convention makes it easy to see that the scope of the individual right against torture is broad, explicit, and taken seriously in international law.

International case law further bolsters the right against torture. One well-known case is Filartiga v.

Peña-Irala, which was heard in the United States Second Circuit Court of Appeals. In Filartiga, Joelito Filartiga, son of Joel Filartiga, was captured by Paraguayan police (including Peña-Irala) in Paraguay and tortured to death for his father’s political activities and involvements. After unsuccessfully attempting to press charges against the police in their native Paraguay, Joelito’s family learned that PeñaIrala was in the United States and filed civil charges.

To determine whether the Filartiga family was entitled to compensation, the Court had to decide whether torture was an act that was in such clear violation of the law of nations that it required private action.4 The Court used the Nuremberg ideal as well as a wide variety of international documents including conventions and declarations, reasoning that a right against torture is so fundamental in international law that issuing private enforcement would harm the United States’ credibility. While not

placing criminal liability on Peña-Irala, the case was important because it showed that U.S. courts could be instruments of private justice for human rights violations even for foreigners, and established the right against torture as a right that is important in United States domestic law because it is a part of international law.

While the United Nations Convention Against Torture set out a general definition of torturous acts, the case Public Committee Against Torture v. Israel is important because it provided some specific interrogation tactics that were deemed unusable. In this case, the petitioners were alleged terrorists from Hamas and other Palestinian groups who were accused of carrying out various attacks in Israel. They were interrogated by Israel’s General Security Service, which used means such as shaking, sleep deprivation, forcing the petitioners in uncomfortable positions, playing loud music, and having them in tight handcuffs. The Supreme Court of Israel ruled that torture is not a method of interrogation allowed, but acknowledged a “necessity defense” for interrogators accused of torturous acts.5 This ruling is paradoxical, as it is possible for torturers to always invoke this excuse. However, the ruling still established that specific tactics are not to be used, even in Israel where terrorist attacks are a significant threat.

Distortion and Misrepresentation of Torture in American Media The movie Zero Dark Thirty and the TV show 24 are examples that illustrate the extent to which the media has misrepresented the right against torture.

The 2013 film Zero Dark Thirty bases itself on the “true” story of the search for and killing of Osama bin Laden. The movie follows Maya, a CIA officer stationed at the American embassy in Pakistan, and her hunt for a man using the name “Abu Ahmed,” who is supposedly close to bin Laden. The story progresses with Maya’s search for and discovery of Ahmed, which leads the Americans to the compound where bin Laden is found and killed.6 Maya and other US officials use torture, including waterboarding, sexual humiliation, and other tactics to extract information from prisoners, among them Ammar al-Baluchi, whom they claim is tied to the 9/11 hijackers. Maya obtains her initial lead about Abu Ahmed from al-Baluchi, which begins the main part of the storyline. The CIA’s actions are blatantly in violation of international law.

In fact, at one point in the movie, Maya and other

4 Filartiga

v. Peña-Irala. Harvard Law 1. United States Court of Appeals for the Second Circuit. June 1980, 2-3.

Public Committee on Torture v. State of Israel. Yale Law 4. Supreme Court of Israel. May 1999, 4-19.

6 Zero Dark Thirty. Dir. Kathryn Bigelow. Perf. Jessica Chastain. Columbia Pictures, 2012.

5

Williams College Law Journal

8

Arjun Ahuja characters become afraid the new administration will prosecute intelligence officials involved in torture.

There are disturbing subtleties throughout the movie, particularly regarding the notion that information obtained from torture is reliable. The film leaves the impression that intelligence from torture was crucial to the finding and killing of bin Laden.7 For example, Maya tricks al-Baluchi into giving her information about Abu Ahmed after he has just been tortured and is starving and mentally beaten down.

Another example is with Abu Faraj, who is another stepping stone to geting to Abu Ahmed. Abu Faraj is tortured by Maya, but he claims he does not know the name Abu Ahmed. Maya concludes that his silence in fact proves the importance of Abu Ahmed, and in the film she is right, which further perpetuates the myth that torture yields important and correct information.

In blatant contrast to the United Nations Convention Against Torture, neither Maya nor any of the other CIA officials are held criminally liable for their actions. Portraying U.S. government torture in a tacitly accepting way and acknowledging that no criminal charges were ever filed shows the extent of America’s conception of its own exceptionalism.

The show 24, although based on complete fiction, serves some of the same functions as Zero Dark Thirty in its tacit approval and justification for torture. The show, which ran from 2001-2010, centers around Jack Bauer, a Counter Terrorist Unit agent who prevents terrorist attacks.8 The show repeatedly uses the “ticking time bomb” scenario, in which an attack is imminent and Bauer must use any means necessary to get the information he needs to prevent it, leading him to use torture. At one point, Bauer uses pliers to pull the skin of a detainee, cuts him with a knife, uses a stinging liquid, burns him with a blow torch, and finally disembowels him—all in one scene.9 Nonetheless, Bauer is depicted as the hero, which creates the idea that torture is justifiable, presumably under a utilitarian conception.10 Effects of Misrepresentations on the Public While the effect of such media on the public is difficult prove, there are some interesting data and anecdotes that can begin this discussion. In addition,

the popularity of such media provides some suggestions about their effects on public perception.

The fact that Zero Dark Thirty and 24 have been so popular supports the idea that such media depictions desensitize people, such that they see it as entertaining and not disturbing. 24 won “Best Drama Series” at the 2003 Golden Globes Awards and “Outstanding Drama Series” at the 2006 Primetime Emmy Awards, among other accolades and nominations. Zero Dark Thirty was nominated for five different Academy Awards at the 2013 Academy Awards, including best motion picture. Both pieces have received positive reviews from critics and audiences alike. Viewers’ comments of such media are remarkably telling about the negative effects of these depictions of torture. One article from a blog critic in May of 2013 is titled, “Torture Scenes on TV are Worse than Icky—They’re Boring,” which is indicative of the desensitization factor of torture on television. Equally disturbing in a very different way are some other comments about the torture scenes in 24 specifically. Fans of the show wrote extensively online in response to the aforementioned scene with Jack Bauer, describing it as the, “Best show ever,” and admitting that this scene made them beg to bring the series back the following year. Millions of fans took to Twitter after the airing of this episode to “proclai(m) Bauer God.”11 There is evidence that the torture scenes in 24 have influenced American psyches. Brigadier General Patrick Finnegan of the United States Army convened a meeting with the producers of 24 in 2006 because it was clear to him that the, “immoral and illegal behavior endorsed by the show had already had a negative effect on real American soldiers in training.”12 24 featured a torture scene an average of 1.8 times per show.13 It is logical that this constant barrage of torture on the screen will desensitize people to the issue and its openness and pervasiveness on television makes it seem acceptable.3 Poll data by scholars at Reed College from 2001-2009 shows that “opposition to torture has declined in the past few years,” with an equalization of those for and against in 2007 and an increase of those in favor since then.15 While it would be difficult

7 Del

Rosso, Jared (2013). Film Review: Torture in Zero Dark Thirty. Humanity and Society 37, 349.

Clucas, Rob, 24 and Torture. Torture: Moral Absolutes and Ambiguities, B.Clucas, G.Johnstone & T.Ward, eds., Nomos: Baden-Baden, (2009). 1-28.

9 Surnow, Joel, and Robert Cochran. "Episode 21." 24. Fox. 10 May 2010. Television.

10 Shue, Henry. "Torture in dreamland: disposing of the ticking bomb." Case W. Res. J. Int'l L. 37 (2005), 431.

11 Woliver, Robbie. "Jack Bauer's Six Degrees of Torture: Sickest Episode of '24' Yet." Examiner.com. Examiner, 10 May 2010. Web. 21 Oct. 2014.

12 Clucas, 13.

13 Ibid, 5.

14 Flynn, Michael, and Fabiola F. Salek. Screening Torture Media Representations of State Terror and Political Domination.

New York: Columbia UP, 2012.

15 Gronke, Paul, Darius Rejali, Dustin Drenguis, James Hicks, Peter Miller and Bryan Nakayama (2010). U.S. Public Opinion on Torture, 2001–2009. PS: Political Science & Politics, 43, 437.

8

Volume IV, Issue I

9

Not How it Seems to tie this trend directly to the years that 24 was run, the timing of the shift in public opinion does coincide remarkably well with when films like 24 started being criticized for their depictions of torture.

Relating to both the film and the show is that the vast majority of respondents to polls regarding whether or not they are opposed to torture elaborated in subsequent questions that their belief was only in the case of a terrorist threat. This is of course exactly the justification given for torture in films such as Zero Dark Thirty and 24. While it is always difficult to prove causation, it is important to note that these forms of mass media affect culture and public opinions on torture.

Other International Guarantees Subject to Misrepresentation There are certainly other rights protected by international law that are subject to media distortion and misrepresentation. The right to a trial, like torture, is made explicit in the Universal Declaration of Human Rights in Article 11, which includes the presumption of innocence.16 However, in the media mentioned above, the detainees are never given a trial. The films legitimize these actions, first because the notion that torture can lead important information presupposes the idea of holding someone without trial, and second, because it promotes the teleological explanation that violating one person’s rights is a small price to pay for saving lives.17 The right against genocide has similarly been distorted in the media, both historically and more recently. An example is the American western film, which depicts Indians as savages hunted in similar ways to animals. A quintessential depiction is shown in the movie, The Searchers (1956).18 In it, John Wayne plays a veteran searching for his niece abducted by the Comanche tribe. The Comanche are depicted in such a way that their brutality and behavior fit the stereotype of them and justify their genocides. One movie critic expressed this sentiment explicitly, claiming that he thought, “Ford was trying…to depict racism that justified genocide.”19 Policies to Minimize Distortion While there may be policies that will have some effectiveness in mitigating pervasive media distortion of international human rights, this is largely a problem unsolvable by policy.

One potential policy on the domestic level would be for an independent governing body to review media such as television and film and require a disclaimer at the beginning of a film to disclose that the depictions of torture, for example, in the piece do not reflect the reality of torture’s efficacy or validity as a means of interrogation and are overwhelmingly factually incorrect. Such a policy would be a minimal infringement on the right to free speech. The body that governs such a review organization would have to be non-governmental, so as to prevent governments from overstepping their bounds and preventing the media from being free and independent. At the international legal level, such a policy seems almost impossible to implement as it is difficult enough to enforce the actual violations of international human rights, let alone their depictions in the media. At most, an agreement between nations might be made to institute such a policy at their respective domestic levels.

Ultimately, it is difficult to use policy to mitigate a problem such as media misrepresentation. First, as mentioned previously, there is a fine line between reviewing what is or what is not factually correct, and overstepping boundaries into limiting free speech.

Societies tend to hold rights in a hierarchy and most would agree that the right to free speech is more important than protecting citizens from wrongful depictions of international human rights. Second, history and commentary on current events are much less objective narratives of occurrences than they are subjective interpretations. While some issues like whether torture produces accurate information may be relatively clear cut, many instances are not so black and white, and “facts” differ depending on who one asks. Thus, it would be difficult to pick the body that would govern such a disclaimer requirement as opinions would differ and interpretations of the facts may be inherently biased by personal views or experiences. This leads into the final reason, which is that it seems very plausible for even a nongovernmental body to be corrupted or influenced by government or other special interests into designating material as factually incorrect when the material in question may be subject to interpretation. Thus, overall, policies to limit media distortion are difficult.

What is required is more of a cultural change in television and film media to value truth rather than sensationalism, high ratings, and thrill.

16 UN

General Assembly, Universal Declaration of Human Rights.

Shue, 431.

18 The Searchers. Dir. John Ford. Perf. John Wayne. Warner Bros., 1956.

19 Ebert, Roger. "The Searchers." Rogerebert.com. Roger Ebert, 25 Nov. 2001. 28 Oct. 2014.

17

Williams College Law Journal

10

Arjun Ahuja Conclusion The right against torture is a human right explicitly laid out in international law. The Universal Declaration of Human Rights and International Covenant on Civil and Political Rights codify this right which was already a jus cogens norm. The scope of the right against torture has been delineated by the United Nations Convention Against Torture, as well as case law such as Filartiga v. Peña-Irala and Public Committee on Torture v. Israel.

“The right against torture is a human right explicitly laid out in international law.”

However, despite international law’s blatant stance on this right, film and television media have distorted the image of this right. Films like Zero Dark Thirty and shows like 24 have depicted the false notion that torture produced reliable results and that torture is justifiable under some circumstances.

The popularity of such media seem to have an effect on public perceptions of torture, especially considering the fact that they coincide temporally with the war on terror and the continuance of Guantanamo Bay. This effect is not only specific to the right against torture, it is also apparent with other issues such as the right to a trial and the right against genocide. While there are some policies at the domestic level that may help with this problem, it is largely an issue of culture that policy can do little to help. However, because this issue is more of a cultural problem, it is important for the topic of media distortions to be a major part of public discourse.

Because it is difficult to change the media, it might be more worthwhile to focus efforts on public education on issues such as torture in order to mitigate the problem of false public perceptions. Perhaps if more people are aware that the media distorts issues of international human rights so blatantly, demand for storylines like Zero Dark Thirty and 24 will decrease.

Volume IV, Issue I

11

Congress’s Failure to Legalize Medical Cannabis John Martin Williams College

Recent years have seen a surge in public support for the legalization of medical cannabis. A recently published Harris Poll finds that 81 percent of Americans favor legalizing marijuana for medical use. Even more notably, support for medical cannabis legalization exists across party lines. Nearly nine in ten Democrats and Independents are in favor of legalizing marijuana for medical treatment, while a large, albeit slimmer, majority of Republicans (69 percent) favor this policy.1Additionally, medical cannabis legalization would benefit a positively constructed target population: the sick.2 Medical marijuana has been clinically proven to be an effective treatment option for chemotherapy patients, epileptic children, and sufferers of chronic pain.3 Why then, has Congress failed to answer the nation’s calls to federally legalize the medical use of cannabis?

There are several potential explanations for Congress’s failure to legalize medical cannabis despite its widespread, bipartisan public approval and proven medical benefits. First, financially incentivized groups such as prison corporations, police unions, and alcohol companies are effectively opposing the policy. Because legalization would have no immediate negative effects on their interests, this hypothesis rests on the assumption that the aforementioned interest groups perceive medical cannabis as an incremental step towards full marijuana legalization. The opposition from pharmaceutical corporations, whose financial interests would be immediately negatively affected by legal medical cannabis, is another possible explanation.

Most likely, however, Congress’s failure to legalize medical cannabis results from issues related to federalism. Three particular federalism-related issues warrant attention. First, in today’s era of partisanship, the fact that all of the state legislatures to have legalized medical marijuana were majority-

Democratic allows us to presume that Democratic members of Congress do not push for legalization because they doubt their ability to persuade their Republican colleagues. Second, mixed results of legalization on the state level – especially in states like Minnesota, Massachusetts, New Jersey, and California – dampen legislators’ enthusiasm for pursuing this policy and bolster partisan arguments against it. Third, the trend of legalizing on the state level has created path dependence by allowing Republican members to enact policies of non-intervention under the guise of states’ rights, making actual legalization unlikely. These federalism-related hypotheses offer better explanations for Congress’s failure to legalize medical marijuana than the theory regarding financially-motivated concentrated interest groups.

Attributing Congress’s failure to legalize medical marijuana has profound implications that reach beyond this policy area. Most importantly, it serves as a telling reminder of the factors that activists must consider when advocating for policy. While introducing a policy on the state level may grant an immediate victory, such a strategy has the potential to prove damaging down the line.

Although medical cannabis advocates who achieved state-level legalizations may have made short term and local strides, their strategy may have reduced the likelihood of medical marijuana becoming federally legal in the long term. This presents a distressing dilemma: on the one hand, medication has been made available to more people, but on the other hand, some people may now be permanently excluded from receiving it. In the case of policies that should eventually be nationwide in their reach, activists should avoid a state-level approach if there are viable alternatives. If, however, no such alternatives are present, incremental change may be better than no change. Such is the case with medical cannabis; members of Congress provided no indication that they intended to legalize anytime soon.

In this case, some patients’ ability to legally access medication is preferable to universal inaccessibility.

1“Increasing

Percentages of Americans are Ready for Legal Marijuana,” The Harris Poll. 7 May 2015, http://www.theharrispoll.com/health-and-life/Americans-Ready-for-LegalMarijuana.html.

2 Schneider, Anne and Ingram, Helen, “Social Construction of Target Populations:Implications for Politics and Policy,” 88 American Political Science Review 2 (June, 1993), pp. 334-347.

3 Robson, Philip, “Therapeutic aspects of cannabis and cannabinoids,” The British Journal of Psychiatry, February 2001, http://bjp.rcpsych.org/content/178/2/107.short.

Williams College Law Journal

12

Insights in International Humanitarian Law Interview with Elizabeth Andersen '87 Henry Lu Williams College

Elizabeth Andersen '87 is Director of the American Bar Association's Rule of Law Initiative.

Andersen previously served as Executive Director of the American Society of International Law and worked at Human Rights Watch. Andersen holds degrees from Princeton’s Woodrow Wilson School and Yale Law School. In this interview, she shares insights on a wide range of topics within the field of international humanitarian law (IHL).

IHL developed after WWII to address the kind of physical warfare characteristic of that time period.

Does the world need new 21st century IHL to match developments such as drones and cyberwarfare?

I don’t think it needs a whole new law, but I think there are certain aspects of the law that either need to be re-interpreted or elaborated to accommodate new realities and to understand how they apply in this context. I think there are some areas where we in fact need new law to regulate new technology.

Which particular areas?

There is some need for at least elaboration about how the laws of war apply in the use of drones in some contexts. There is a need for elaboration to the extent that conflict and capabilities will apply in space. Some aspects of robot technology may require new articulation of law or application of law to those technologies. Those are the principal areas.

Of course, physical warfare continues in the 21st century. Among others, Syrians are suffering from appalling war crimes. What is the IHL community doing about Syria?

There is a lot of effort right now to document the violations and to gather evidence in a manner that will enable it to eventually be used for accountability in the event of a resolution of the conflict. It’s not

clear exactly what that accountability process might be, but a lot of folks have focused on gathering evidence in a way that would be useful for that eventuality. There’s been some work, mostly among academics, to think about what a Syrian war crimes tribunal might look like, if a sort of hybrid nationalinternational process or a regional process could be used there. Today, of course, the International Criminal Court does not have jurisdiction. We cannot anticipate that it would have jurisdiction because Syria is not a state party and there’s been an unwillingness on the part of the Security Council to do a referral of the Syria situation, in particular because Russia would not support that.

You worked for the Yugoslavia tribunal in its early days. If there were a Syria tribunal, how might it compare with the Yugoslavia tribunal?

The law has developed substantially over the last 20 years. The law applicable in the Syria context would be more elaborate than it was certainly in the early days of the Yugoslavia process. I think beyond that, of course there are questions of institutional design: if it’s a national process, a hybrid nationalinternational process, or a wholly U.N. international process would distinguish it from the Yugoslavia tribunal, and that really depends on how such a process is developed. Also, typically in these processes the procedure resonates with the national procedure, so there might be elements of criminal procedure in Syrian criminal procedure law that would be incorporated into the process, whereas in Yugoslavia the procedure and some of the rules of sentencing were resonant with that national process.

Syria is an egregious example of a wider culture of impunity found in many places around the world.

Are a significant proportion of war criminals being held responsible?

Well, if you just tally up the number of perpetrators of violations versus the number of those who are behind bars, then no not a significant

Volume IV, Issue I

13

Insights in International Humanitarian Law proportion are being held accountable. But if you think about say 25 years ago, certainly many more are being held accountable today than were then. That is having a ripple effect and slowly but surely developing a culture of accountability as opposed to a culture of impunity. We see evidence that leaders pay attention. They are aware of the possibility of being held accountable, and it affects conduct—not in every situation for sure, but increasingly we see it having an important deterrent effect.

The work you do certainly helps build that culture of accountability. Could you tell our readers what a day in the life of the Director of the ABA Rule of Law Initiative looks like?

Lots of meetings. Lots of early days in order to talk by phone to my colleagues overseas. Lots of meetings with colleagues to hear about the problems in the work they are doing and help them solve the problems. A lot of managing of people and money, but it’s management with a purpose, which I think makes a big difference for me personally and makes

the work really compelling. It draws a community of people who are committed to making a difference in the world. It’s really a pleasure to think about how I can support them, motivate them, mobilize them to do this work. In many ways, it’s like any other management job, but as I say, it is management with a purpose.

What advice might you give to Williams students who aspire to contribute in international humanitarian law and related fields?

Learn foreign languages. Get experience working overseas, get experience working on the ground and developing regional expertise and experience. I don’t think you have to go to law school; I think law school can be instrumental, but there are lots of other paths in this field. People can find a way to international human rights work through law but also through journalism and sociology. I think people should follow their passion and use that as the path to making a difference in the field.

Williams College Law Journal

14

The Environmental Movement and the Supreme Court Margaret Sutton Williams College

In April, Jonathan Cannon ’67 spoke at Williams on his recent book: Environment in the Balance: The Green Movement and the Supreme Court. Cannon emphasized the Court’s growing skepticism of the environmental movement, a skepticism that showed itself recently in the Court’s stay in West Virginia, et al. v. EPA. This action, along with others by the Court, placed a burden on federal efforts for environmental protection (in this case, on President Obama’s Clean Power Plan). Cannon offered up a suggestion for environmentalists: they should try harder to work within the capitalist system, rather than alienating themselves from it; they should advocate environmentalism less as a radical abandonment of American ways, but instead as a means to better them—whether in boosting our economy, expanding employment opportunity, or creating a more sustainable future. Cannon is right. In order to affect change, it would behoove environmental activists to work alongside, and not against, leaders and institutions.

Environmentalists have tried to look to the Supreme Court for answers, seeking their own Brown or Obergefell to ratchet up national support and policy action. That path has worked before—for the Civil Rights Movement and Gay Rights Movement, in particular—and perhaps it could work again. But the better route to go with the environmental movement is to look for a solution in the American people, not in nine justices. Such a movement’s success relies on reshaping individuals’ basic habits and ways—all areas that the law cannot (one would hope) ever touch. Law can only do so much. It may be able to regulate carbon emissions, halt pipeline construction, and preserve land masses—all which are effective, and necessary factors in dealing with the climate crisis. But the law isn’t enough. It can hardly shift individuals’ passions and spirits; it can’t inspire. Such inspiration comes from within and from each other. We are all capable of finding such inspiration and I have faith that we will. And, this inspiration, if coordinated, can actually change the law in a meaningful way.

People ought to move away from viewing the Supreme Court as an agent for immediate change.

The more we do so, the more we put pressure on justices to act politically and forfeit their role as interpreters of the law—a role we all have an interest

in safeguarding. It is everybody but the justices’ role to change the law. Their job in serving on the Court is to defend both the Constitution and statutory law, and, with them, the people’s expressed will; it is up to us, as our will changes, to pass laws that reflect this or amass enough energy to even amend the Constitution. As such, environmentalists should focus their energies on moving people rather than forcing people. To fulfill their goals, they rely on each of us—working in our respective jobs in our respective states—to consider our role in shaping the future.

Only through a concerted effort on the part of all of us can the sort of change we need to be affected.

We should take Cannon’s advice and see this as an opportunity. An opportunity for collaboration, for unity, even for peace. Not only could the quest for renewable energy fuel our capitalist system, but also it could bring us closer as Americans and among our global partners. Just imagine: rather than sending ground troops, we send environmental scientists; rather than spending on nuclear weapons, we spend on sustainability. We all have the same stake in the fate of our environment. Perhaps if international leaders recognized this shared interest, they would harness their energy to fight for sustainability rather than arms supremacy, credibility, or political support.

Unlike national security, unlike military alliances, unlike here is a cause that each of us—in every nation around the world—shares an equal interest in. And here is a cause that not only impacts each of us, but also relies on each of us contributing our individual energies. We all want to feel purposeful, that we’re here for something greater. That beyond our transient, seemingly minor lives, we leave some trace of ourselves, and, in doing so, are a lasting part of this world. Especially at Williams, there is an underlying pressure to succeed, to measure ourselves less on our own sense of fulfillment and more upon society’s perception of us. To sculpt our lives out of necessity and not out of passion. But here, in the environmental crisis, lies an opportunity that requires our investment, that requires us to fulfill at least part of the purpose we search for. Wherever we go, whatever we do, we have the chance to be inspired and to inspire others to take part in this movement--a movement that only survives so long as this passion in each of us is realized. Whether you admit it or not, you have a stake in the environment. It is the source of all we do—the books we read, the phones we use, the mountains we climb.

Volume IV, Issue I

15

The Environmental Movement and the Supreme Court It is simple, really: we should care about protecting it. You’ve been told this before. But, to me, caring does not necessarily mean devoting your career to the environmental movement, fighting in protests, or resenting a college administration for its policies. Rather, it means stepping outside each day, breathing in the air, maybe even smiling at the mountains as you walk to class, and remembering that your actions are both reliant on and integral to the world around you. We’re not perfect—we likely can’t and won’t pick up every piece of trash we see on the ground, eat only organic, vegan food, or bathe in the

Green River instead of taking showers. We’re not only used to everyday comforts, but also we’re busy people who have career goals and relationships and bad days and, well, we just can’t care about everything all the time. But we’re all capable of appreciating.

We’re all capable of taking such an appreciation with us as we go on to do whatever we may do with our lives—be it investment banking on Wall Street or sustainability practice. And I think that sometimes that is enough—to realize that, no matter how small you feel, you are powerful and you are needed.

Williams College Law Journal

16

On Combating Mischief and Mayhem Statutory Construction in the Jay, Ellsworth, and Marshall Courts During the Early Republican Period Habib Olapade Stanford University

In September of 1887, the Church of the Holy Trinity on the northeast intersection of Madison Avenue and 42nd Street in New York City hired Edward Warren, a forty-eight year old Episcopalian Reverend from England, to be the church’s rector.1 The Church’s trustees selected Warren because several men of standing in the local community said that he had demonstrated “fine presence and pleasing manners” and was “an earnest and eloquent orator of remarkable executive ability” when they encountered him among a crowd of visiting English missionaries during Advent two years earlier.2 On October 2, 1887, Warren delivered his first sermon at Holy Trinity, which focused on the text of Acts 10:29: “Therefore came I unto you without gainsaying, as soon as I was sent for; I ask therefore, for what intent ye have sent for me?”3 The New York Times reported that the address made “a very favorable impression on the hearers [as Warren] spoke without manuscript, fluently, and earnestly, his voice filling the great room.”4 If the author of the Epistle to the Hebrews was wrong and “the word of God [was not] alive and active,” Warren knew how to breathe life into the scripture.5 Not everyone in the Big Apple was happy that Mr. Warren had come unto the city, however. John Stewart Kennedy, a well-financed private banker and president of the St. Andrews’s Society, a charity that supported Scottish emigrants in the United States, was among this group. In particular, Kennedy was livid that the U.S. Attorney’s Office in Manhattan

initially elected not to enforce the Alien Contract Labor Act of 1885 against the Church for contracting with Warren.6 The statute imposed a $1,000 fine on any person, company, partnership, or corporation that “assist[ed] or encourage[d] the importation or migration of any alien…into the United States…under contract…to perform labor or service of any kind in the United States” and only exempted “professional actors, artists, lecturers, singers, and domestic servants” from its scope.7 Prima facie, it would appear that Warren clearly fell within the statute’s purview because Holy Trinity had made a contract with him to serve as the Church’s rector while he was residing in England. From 1885 to 1887, though, Stephen A. Walker, the U.S. District Attorney in New York City, had only enforced the act against parties who had contracted for manual laborers such as factory workers.8 This disparate enforcement negatively affected the city’s Scottish communities prompting Kennedy to send the following message to Walker on September 25, 1887, “I have nothing…against Mr. Warren and feel that the enforcement of the law against him will be a great hardship.”9 Kennedy “nevertheless …[could] not see how an exception [could] be made in [Warren’s] favor, and…this law [could be] enforced against [his] countrymen.”10 Kennedy closed the letter by urging Walker to bring a “test case” by enforcing the “unreasonable law,” which he hoped would “lead to its total abrogation.”11 Walker agreed with Kennedy’s normative assessment of the Alien Contract Labor Act’s merits.12 Consequently, twenty-six days later, he filed an enforcement action against the Church in the

“The Church of the Holy Trinity,” accessed February 20, 2016 http://www.holytrinity-nyc.org/parish/. Carol Chomsky, “The Story of Holy Trinity Church v. United States: Spirit and History in Statutory Interpretation” in William N. Eskridge, Philip P. Frickey, and Elizabeth Garrett. Statutory Interpretation Stories (New York, NY: Thomson Reuters/Foundation Press, 2011) 2.

2 The Call Accepted, The New York Times, June 9, 1887, at 8.

3 The Holy Bible, King James Version (Cambridge Edition: 1769) 1029. Hereafter referred to as King James Bible.

4 Pleased With Their Rector, The New York Times, October 3, 1887, at 2.

5 King James Bible, 1145.

6 The Imported Minister, The New York Times, October 14, 1887, at 1. George Austin Morrison Jr., History of St. Andrew’s Society of the State of New York, 1756-1906 (1906), 123-130.

7 Alien Contract Labor Act of 1885, ch. 164 § 1, 23 Stat. 332 (amended 1887, 1888).

8 A “Coolie” Clergyman, The New York Times, September 25, 1887, at 4.

9 Importing a Rector, The New York Times, September 25, 1887, at 2.

10 Ibid.

11 Ibid.

12 Complaint at 3, Church of the Holy Trinity v. United States, 143 U.S. 457 (1892). Hereafter referred to as Church of the Holy Trinity.

1

Volume IV, Issue I

17

On Combating Mischief and Mayhem United States Circuit Court for the Southern District of New York.13 The Church demurred by asserting that Warren’s hiring was not prohibited by the Alien Contract Act because the word ‘labor’ in the statute, notwithstanding its broad sweep, only applied to manual laborers.14 Under this theory, because Warren’s work was “mental and spiritual” in nature it followed that the Church was not liable to pay the $1,000 fine.

Judge William J. Wallace ruled against the Church on the grounds that the Alien Contract Act was unambiguous and could not bear such a construction.15 Holy Trinity filed a writ of error in the United States Supreme Court as soon as the circuit court judgment was handed down on August 17, 1888.16 After examining the Alien Contract Labor Act’s legislative history, Justice David Brewer, writing for the Court, reversed the lower court ruling on the grounds that “a thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within the intention of its makers.”17 The result in Holy Trinity was typical for a successful collusive test case: the Church escaped its civil fine, Kennedy removed the Alien Contract

Labor Act from the United States Code, and Warren continued to preach the gospel.

In the common law system, though, most cases are like acorns on an oak tree. In their infancy they are scarcely visible. But with time, they fall off their branches and they either fail to germinate, or they take root and become an entirely separate plant with a life and trajectory of its own.18 To be sure, in a forest not all oak trees are created equal. Some trees are broad, others a slender, some are tall, others are short, some are so big that they take away resources from small trees and others bite the dust before their life has begun. In a similar vein, some cases announce rules that sweep broadly,19 other holdings are quite specific,20 some cases chip away at the logic of others,21 other cases reinforce the logical foundation of a rule,22 some cases are still good law after centuries have passed,23 others are reversed within a matter of months after they have been announced.24 128 years after it was announced, Holy Trinity has taken root and is now deeply engrained in American legal culture.25 The case has become a staple in legislation, statutory interpretation, and administrative law classes across the United States

13

Complaint at 3, Church of the Holy Trinity v. United States, 143 U.S. 457 (1892). Hereafter referred to as Church of the Holy Trinity.

14 Class Legislation, The New York Times, April 24, 1888, at 4.

15 United States v. Rector of the Church of the Holy Trinity, 36 F. 303, 305-06 (C.C.S.D.N.Y. 1888). !6 Writ of Error at 1, Church of the Holy Trinity.

17 Church of the Holy Trinity, at 2. It is worth noting that the legislative history Brewer cited at best only indicated that members of both houses of Congress were aware that the Alien Contract Labor Act was overbroad but, were unwilling to amend the bill for fear that the legislative session would expire before the completed version could be approved. The second half of Brewer’s opinion focused on the unjust results that would ensue if the Court accepted Judge Wallace’s reading of the statute and the negative effects that this interpretation could have on religious life in the nation. Brewer concluded that given the role of religion in American life, the 49th Congress could not have intended to pass a law that would prevent religious organizations from contracting with foreign ministers without saying so in clear terms. Brewer’s invocation of the clear statement rule in this context may have been influenced by his religious upbringing. He helped establish the First Congregational Church in Leavanworth, Kansas, served as the church’s bible class director and Sunday school superintendent. Michael J. Brodhead, David J. Brewer: The Life of a Supreme Court Justice, 1837-1910 (Carbondale: Southern Illinois University Press, 1994) 9, 168-187.

18 For more on the similarity between the common law’s evolution and other biological processes, see Allan C. Hutchinson, “Work-In-Progress: Evolution and Common Law” TEXAS WESLEYAN LAW REVIEW 11 (Spring, 2005) 253-267.

19 Furman v. Georgia, 408 U.S. 238 (1972). Miranda v. Arizona, 384 U.S. 436 (1966). Roe v. Wade, 410 U.S. 113 (1973).

20 Williams v. Rhodes, 393 U.S. 23 (1968). Jenness v. Fortson, 403 U.S. 431 (1971). Storer v. Brown, 415 U.S. 724 (1974).

21 Compare Easley v. Cromartie, 532 US 234 (2001) with Shaw v. Reno, 509 U.S. 630 (1993). Compare Whitney v.

California, 274 U.S. 357 (1927)(Brandeis J. concurring). with Abrams v. United States, 250 U.S. 616 (1919). Compare United States v. Lopez, 514 U.S. 549 (1995). with Gonzales v. Raich, 545 U.S. 1 (2005).

22 Compare Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). with McCutcheon v. Federal Election Commission, 572 U.S. ___ (2014). Compare Regents of the University of California v. Bakke, 438 U.S. 265 (1978) with Grutter v. Bollinger, 539 U.S. 306 (2003). Compare Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983). with Clinton v. City of New York, 524 U.S. 417 (1998).

23 Marbury v. Madison, 5 U.S. 137 (1803). Hayburn's Case, 2 U.S. 409 (1792). United States v. Hudson and Goodwin, 11 U.S. 32 (1812). Fletcher v. Peck 10 U.S. 87 (1810). Hylton v. United States, 3 U.S. 171 (1796). Hodgson v. Bowerbank 9 U.S. 303 (1809). Barron v. Baltimore, 32 U.S. 243 (1833). Calder v. Bull 3 U.S. 386 (1798). McCulloch v. Maryland 17 U.S 24 Compare Minersville School District v. Gobitis, 310 U.S. 586 (1940) with West Virginia State Board of Education v.

Barnette, 319 U.S. 624 (1943). Compare Hepburn v. Griswold, 75 U.S. 603 (1870). with The Legal Tender Cases.

Compare National League of Cities v. Usery, 426 U.S. 833 (1976). with Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985).

25 William N. Eskridge Jr., “Fetch Some Soupmeat,” 16 CARDOZO LAW REVIEW 2209-2217 (1995) (“Church of the Holy Trinity has…been the focal point of the debate between the Supreme Court’s ‘new textualists’ and more purpose based interpreters.”). Fredrick Schauer, “Constitutional Invocations,” 65 FORDHAM LAW REVIEW 1295-1307 (1997) (“Church

Williams College Law Journal

18

Habib Olapade drawing praise and criticism from a wide array of legal academics, jurists, and judges.26 While the current debate on the reasoning in Holy Trinity is too complex to be reduced to a simple dichotomy, speaking broadly, there are two predominate perspectives on the case and its congruence (or lack thereof) with the legal elite’s understanding of statutory interpretation in the early republican period.27 On one hand, purposivists, led by Yale Law professor William Eskridge, argue that the original public understanding of the judicial power included, inter alia, the power to invoke the ‘equity of the

statute,’ which allowed a federal judge to extend a statutory provision to a casus omissus, an unprovided case.28 These legal scholars find support for their theory in highly regarded secondary literature on, and primary sources from, the founding era that emphasizes the elite’s receptivity to a firm judiciary and a functionalist-Madisonian perspective on the separation of powers.29 In order to buttress the explanatory power of their model, Purposivists have also defined three other methods of statutory construction during the early republican period: the ameliorative, suppletive, and voidance powers. The ameliorative power is invoked when a judge

26

Indeed, the case is taught albeit with different degrees of emphasis in every legislation, administrative law, and statutory interpretation class available at Stanford. See Michael Asimow and Ronald M. Levin, State and Federal Administrative Law (2014). Jerry L. Mashaw, Richard A. Merrill, Peter M. Shane, M. Elizabeth Magill, Mariano-Florentino Cuéllar, and Nicholas R. Parrillo, Administrative Law, the American Public Law System: Cases and Materials (2014). Stephen G. Breyer, Administrative Law and Regulatory Policy: Problems, Text, and Cases (New York: Wolters Kluwer Law & Business, 2011).

William N. Eskridge, Philip P. Frickey, and Elizabeth Garrett, Cases and Materials on Statutory Interpretation (St. Paul, MN: Thomson/West, 2012). William N. Eskridge, Abbe R. Gluck, and Victoria F. Nourse, Statutes, Regulation, and Interpretation: Legislation and Administration in the Republic of Statutes (2014).William N. Eskridge, Philip P. Frickey, Elizabeth Garrett, and James J. Brudney, Cases and Materials on Legislation and Regulation: Statutes and the Creation of Public Policy (2014). Abner J. Mikva and Eric Lane, Legislative Process (New York: Aspen Publishers, 2009). The commentary on Holy Trinity and the questions it poses are large and growing. Stephen G. Breyer, Active Liberty: Interpreting a Democratic Constitution (Oxford: Oxford University Press, 2008) 85. Stephen G. Breyer, Making Our Democracy Work: A Judge's View (New York, N.Y.: Alfred A. Knopf, 2010) 85-106. Guido Calabresi, A Common Law for the Age of Statutes (Cambridge, Mass: Harvard University Press, 1982) 163-167. Richard A. Posner, How Judges Think (Cambridge, MA: Harvard University Press, 2008) 196-197. Antonin Scalia and Amy Gutmann, A Matter of Interpretation: Federal Courts and the Law : an Essay (Princeton, N.J.: Princeton University Press, 1997) 18-23. Hereafter referred to as Matter of Interpretation. Antonin Scalia, and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (St. Paul, MN: Thomson/West, 2012) 11-13. Frank B. Cross, The Theory and Practice of Statutory Interpretation (Stanford, Calif: Stanford Law Books, 2009) 102-134. William N. Eskridge, Philip P. Frickey, and Elizabeth Garrett, Legislation and Statutory Interpretation (New York: Foundation Press, 2006) 213-220. Kent Greenwalt, Legislation: Statutory Interpretation : 20 Questions (New York: Foundation Press, 1999) 59-76. Kent Greenawalt, Statutory and Common Law Interpretation (Oxford [UK]: Oxford University Press, 2013) 43-77. Carol Chomsky, “The True History of the Holy Trinity (case),” 100 COLUMBIA LAW REVIEW (2000). William Eskridge, Jr. “Textualism, TheUnknown Ideal?,” 96 MICHIGAN LAW REVIEW 1509 (1998). Adrian Vermeule, “Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church,” STANFORD LAW REVIEW 1833 (1998). John M. Walker Jr., “Judicial Tendencies in Statutory Construction: Differing Views on the Role of the Judge,” 58 NEW YORK UNIVERSITY ANNUAL SURVEY OF AMERICAN LAW 203 (2001). Stephen F. Williams, “Restoring Context, Distorting Text: Legislative History and the Problem of Age,” 66 GEORGE WASHINGTON LAW REVIEW 1368 (1998).

27 See, e.g., Michael C. Dorf, “Foreword: The Limits of Socratic Deliberation,” 112 HARVARD LAW REVIEW 4 (1998).

Legal Process, 1374-1380. Frank H. Easterbrook, “Text, History, and Structure in Statutory Interpretation,” 17 HARVARD JOURNAL OF LAW & PUBLIC POLICY 61-63 (1994). Unsurprisingly, this general divide is reflected in many statutory cases that come before the nation’s highest court. See West Virginia University Hospital Incorporated v. Casey, 499 U.S. 83, 112 (1991) (Stevens, J., dissenting) (“In recent years the Court has vacillated between a purely literal approach to the task of statutory interpretation and an approach that seeks guidance from historical context, legislative history, and prior cases identifying the purpose that motivated the legislation.”).

28 William N. Eskridge Jr., “All About Words Early Understandings of the “Judicial Power” in Statutory Interpretation,” 101 COLUMBIA LAW REVIEW 990 (2001). Hereafter referred to as All About Words.

29 Gordon S. Wood, The Creation of the American Republic, 1776-1787 (Chapel Hill: Published for the Institute of Early American History and Culture at Williamsburg, Va., by the University of North Carolina Press, 1969) 453-463. Hereafter referred to as Creation of the American Republic. Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: A.A. Knopf, 1996) 19. Publius, Federalist No. 9: The Union as a Safeguard Against Domestic Faction and Insurrection, in The Avalon Project: Documents in Law, History, and Diplomacy http://avalon.law.yale.edu/18th_century/fed9.asp. Publius, Federalist No. 47: The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts , in The Avalon Project: Documents in Law, History, and Diplomacy http://avalon.law.yale.edu/18th_century/fed47.asp. Charles de Secondat Montesquieu, Esprit des lois (Paris: Firmin Didot frères, fils et cie, 1849). It is important to note that Montesquieu’s notion of the separation of powers did not mirror what readers would associate with the concept today because the judiciary was widely thought to be a subsidiary of the executive branch rather than its own department during his lifetime. M. J. C. Vile, Constitutionalism and the Separation of Powers (Oxford: Clarendon P., 1967) 95.

Volume IV, Issue I

19

On Combating Mischief and Mayhem interprets a statute sparingly so as to exclude a case from coverage.30 Strict interpretation of an ambiguous criminal statute under the rule of lenity is an example of this method.31 The voidance power is invoked when a judge invalidates a statute because it violates a natural or positive higher law. The Court’s nullification of § 13 of the Judiciary Act of 1789 and the Missouri Compromise of 1820 in Marbury and Dred Scott respectively are examples of this method.32 Finally, the suppletive power (equity of the statute) is invoked when a judge stretches a statute to cover a provision that is not within the terms of the law.33 Church of the Holy Trinity is the paradigmatic example of this method, which had roots in the state courts of the early republic.34 It is important to note

that while most purposivists believe that judges are coordinate partners in the lawmaking process, others within the group do not necessarily subscribe to this view.

On the other hand, textualists led by Harvard Law professor John Manning, counter that late eighteenth century American notions of the judicial power did not include equity of the statute because the U.S. Constitution imposed a strict separation of powers among the three branches of government.35 According to the Manning thesis, while judges may have exercised a considerable amount of legislative power in the British common law system by drafting legislation36 and providing legal counsel to members of both houses of parliament,37 decisions made during

30

For another example, see Eyston v. Studd 2 Plowden 459, 75 Eng. Rep. 688 (K.B. 1574). Mathew Bacon, A New Abridgment of the Law Volume Four (6th ed. 1793) 643-649. Thomas Egerton Ellesmere and Samuel E. Thorne, A Discourse Upon the Exposicion & Understandinge of Statutes with Sir Thomas Egerton's Additions (San Marino, Calif: Huntington Library, 1942) 140-141. Edward Coke and Thomas Littleton, The First Part of the Institutes of the Lawes of England, Or, A Commentary Upon Littleton, Not the Name of a Lawyer Only, but of the Law it Selfe: Haec Ego Grandaevus Posui Tibi Candide Lector (London: Printed by Miles Flesher, John Haviland, and Robert Young assignes of John More, Esquire,) 24.

Christopher Hatton, A Treatise Concerning Statutes or Acts of Parliament And the Exposition Thereof (London: Printed for Richard Tonson, 1677) 2-30.

31 For examples of the rule’s application, see United States v. Gradwell 243 U.S. 476 (1917). Hughey v. United States 495 U.S. 411 (1990). United States v. Granderson 511 U.S. 39 (1994). Cleveland v. United States 511 U.S. 39 (2000). Ratzlaf v.

United States 510 U.S. 135 (1994). Boyle v. United States 283 U.S. 25 (1931). Unsurprisingly, this canon became popular among judges after English authorities began to punish many trivial offenses with the death penalty. See Zachary Price, “The Rule of Lenity as a Rule of Structure,” 72 FORDHAM LAW REVIEW 885 (2004). Einer Elhauge, Statutory Default Rules: How to Interpret Unclear Legislation (Cambridge, MA: Harvard University Press, 2008.) 168-178.

32 5 U.S. 137 (1803). 60 U.S. 393 (1857). Of course, the Court’s invalidation of the infamous 36°30 agreement and the nonseverable provisions of the Missouri Compromise on substantive due process grounds was a moot point because the 33 rd Congress repealed the measure in 1854. Act of May 30, 1854, 10 Stat. 277.

33 For more examples, see Heydon’s Case 76 Eng. Rep. 637 (Ex. 1584). Darby v. The Brig Erstern 2 U.S. (2 Dall.) 34, 34 (Fed. Ct. App. 1782). Executors of Barracliff v. Administrator of Griscom 1 N.J.L. 224 (Sup. Ct. 1793). Whiting & Frisbie v.

Jewel 1 Kirby 1 (Conn. Super. Ct. 1786). Brocken v. Visitors of William & Mary College 7 Va. (3 Call) 573, 578 (Va. Ct. App. 1790). Gustin v. Brattle 1 Kirby 299 (Conn. Super. Ct. 1787).

34 143 U.S. 457 (1892). Executors of Barracliff v. Administrator of Griscom, 1 N.J.L. 224 (Sup. Ct. 1793). Whiting & Frisbie v. Jewel, 1 Kirby 1 (Conn. Super. Ct. 1786). Bracken v. Visitors of William & Mary College, 7 (Va. Ct. App. 1790).

Bacon v. Masters, (Conn. Super. Ct. 1793) Hancock v. Hovey, 1 N.C. (1799). Brown, Campbell & Co. v. Clary, 2 N.C. 125 (1794). Lessee of Grant v. Eddy, 2 (Pa. 1796). Watson & Hartshorne v. Alexander, 1 Va. (1794).

35 John F. Manning, “Textualism and Equity of the Statute,” 101 COLUMBIA LAW REVIEW 1 (2001). Hereafter referred to as Textualism.

36 Frederick J. de Sloovère, “The Equity and Reason of a Statute,” 21 CORNELL LAW QUARTERLY 592 (1936). Hans Baade, “The Casus Omissus: A Pre-History of Statutory Analogy,” 20 SYRACUSE JOURNAL OF INTERNATIONAL LAW & COMMERCE 69 (1994). Courtenay Ilbert, Parliament; Its History, Constitution and Practice (London: Thornton Butterworth, 1932) 13. William Frederic Maitland and H. A. L. Fisher, The Constitutional History of England, A Course of Lectures (London: Cambridge University Press, 1961) 186-189. Theodore Frank Thomas Plucknett, A Concise History of the Common Law (Boston: Little, Brown, 1956) 323. Charles Howard McIlwain, The High Court of Parliament and Its Supremacy; An Historical Essay on the Boundaries between Legislation and Adjudication in England (New Haven: Yale University Press, 1910) 35-36. William Searle Holdsworth, Arthur Lehman Goodhard, Harold Greville Hanbury, and John McDonald Burke, A History of English Law (London: Methuen, 1956) 483. James Fosdick Baldwin, The King's Council in England During the Middle Ages (Oxford: Clarendon Press, 1913) 75. Frederick Pollock, A First Book of Jurisprudence for Students of the Common Law (London: Macmillan, 1923) 330. H.G. Richardson & George Sayles, “The Early Statutes,” 50 LEGAL QUARTERLY REVIEW 540-545 (1934). Courtenay Ilbert, Legislative Methods and Forms, CADAL. 1901. <http://galenet.galegroup.com/servlet/MOML?af=RN&ae=F3751014531&srchtp=a&ste=14>. A. F. Pollard, The Evolution of Parliament (London: Longmans, Green and Co, 1926) 34.

37 Stewart Jay, “Servants of Monarchs and Lords: The Advisory Role of Early English Judges,” 38 AMERICAN JOURNAL OF LEGAL HISTORY 126-27 (1994). Elizabeth Read Foster, The House of Lords, 1603-1649: Structure, Procedure, and the Nature of Its Business (Chapel Hill: University of North Carolina Press, 1983) 82. David Lindsay Keir, The Constitutional History of Modern Britain, Since 1485 (London: A. and C. Black, 1960) 29. Publius, Federalist No. 47: The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts, in The Avalon Project: Documents in Law, History, and Diplomacy http://avalon.law.yale.edu/18th_century/fed47.asp.

Williams College Law Journal

20

Habib Olapade 38

the drafting and ratification of the constitution39 as well as the liquidation of the Article III judge’s role shortly thereafter foreclosed such an approach.40 Manning and his adherents also maintain that cases from the Jay, Ellsworth, and early Marshall Courts indicate that these decisions prompted the legal elite to see federal judges as ‘faithful agents’ of Congress carrying out its instructions by adhering to the statutory text not, coordinate (or even subordinate) partners in the legislative process.41 Manning’s coverage of the Jay, Ellsworth, and Marshall Court cases poses several methodological problems, however. First, he only examines a small

sample of cases from each period and attempts to portray them as representative of the entire era. This approach is especially troubling when it comes to the Marshall Court. This dilemma holds because several scholars have persuasively documented the methodological and substantive jurisprudential shifts that the third Chief Justice implemented in attempting to keep the Court in the political mainstream by following the presidential election returns.42 Second, Manning fails to appreciate the significance of repeated judicial citations to equity of the statute after the Revolution of 1800.43 This pattern is significant because it suggests that unlike common law crimes,44

38

Richard H. Fallon, John Manning, Daniel Meltzer, and David Shapiro, Hart and Wechsler's The Federal Courts and the Federal System (New York, NY: Thomson Reuters/Foundation Press, 2009) 6-20.

39 Publius, Federalist No. 78: The Judiciary Department, in The Avalon Project: Documents in Law, History, and Diplomacy http://avalon.law.yale.edu/18th_century/fed78.asp. (The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment). Publius, Federalist No. 79: The Judiciary Department Continued, in The Avalon Project: Documents in Law, History, and Diplomacy http://avalon.law.yale.edu/18th_century/fed78.asp. (NEXT to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support. The remark made in relation to the President is equally applicable here. In the general course of human nature, A POWER OVER A MAN's SUBSISTENCE AMOUNTS TO A POWER OVER HIS WILL. And we can never hope to see realized in practice, the complete separation of the judicial from the legislative power, in any system which leaves the former dependent for pecuniary resources on the occasional grants of the latter).Publius, Federalist No. 81: The Judiciary Continued, and the Distribution of the Judicial Authority, in The Avalon Project: Documents in Law, History, and Diplomacy (The members of the legislature will rarely be chosen with a view to those qualifications which fit men for the stations of judges; and as, on this account, there will be great reason to apprehend all the ill consequences of defective information, so, on account of the natural propensity of such bodies to party divisions, there will be no less reason to fear that the pestilential breath of faction may poison the fountains of justice. The habit of being continually marshalled on opposite sides will be too apt to stifle the voice both of law and of equity).

40 Thomas Jefferson to John Jay, July 18, 1793. Hayburn's Case, 2 U.S. 409 (1792). United States v. Wilson 32 U.S. 150 (1833). Stuart v. Laird 5 U.S. 299 (1803). The Judiciary Act of 1789 was also critical in defining the framers’ understanding of the scope of the judicial power as it related to state legislatures and courts as well. William R. Casto, The Supreme Court in the Early Republic: The Chief Justiceships of John Jay and Oliver Ellsworth (Columbia, S.C.: University of South Carolina Press, 1995) 27-53. Hereafter referred to as The Supreme Court in the Early Republic. Charles Warren, “Legislative and Judicial Attacks on the Supreme Court of the United States – A History of the Twenty-Fifth Section of the Judiciary Act,” 47 AMERICAN LAW REVIEW 1-3 (1913). Hereafter referred to as History of the Twenty-Fifth Section.

41 John Rutledge of South Carolina served briefly as Chief Justice from June 1795 to December 1795 after President Washington appointed him while the Senate was in recess. This article, however, will not examine the cases that came before the Court during this period because Rutledge’s term was very brief and the Senate ultimately rejected him by a 14-10 vote.

This practice is conventional among most constitutional historians in the academy. Indeed, for methodological and substantive reasons both John Manning and William Eskridge declined to provide any treatment of the Rutledge Court’s decisions. The former only mentions Rutledge in one footnote that references a debate in the constitutional convention on the council of revision. The latter only devoted one sentence to Rutledge mentioning that the South Carolinian had failed to obtain confirmation in the Senate because of rumors regarding his mental health. Textualism, 65 (note 237). All About Words, 1037.

42 Of course, this expression comes from Peter Dunne’s commentary on the Fuller Court’s opinion in The Insular Cases “"No matther whether th’ constitution follows h’ flag or not, th’ Supreme Coort follows th’ election returns” F. Peter Dunne, “Mr. Dooley Reviews the Supreme Court’s Decision,” The Sunday Chat (Paducah, KY) (June 9, 1901) 6. Mark A. Graber, “Federalist or Friends of Adams: The Marshall Court and Party Politics,” 12 STUDIES IN AMERICAN POLITICAL DEVELOPMENT 229 (1998). History of the Twenty-Fifth Section, 1. Maeva Marcus, “Judicial Review in the Early Republic,” in Launching the “Extended Republic”: The Federalist Era, ed. Ronald Hoffman and Peter J. Albert (Charlottesville: University Press of Virginia, 1996). Jack N. Rakove, “The Origins of Judicial Review: A Plea for New Contexts,” 49 STANFORD LAW REVIEW 1040-1041 (1997).

43 Supra note 26.

44 Stephen Presser, “A Tale of Two Judges: Richard Peters, Samuel Chase, and the Broken Promise of Federalist Jurisprudence,” 73 NORTHWESTERN LAW REVIEW 48-52 (1978). United States v. Henfield 11 Fed. Cas. 1099 (1793).

United States v. Ravara 27 Fed. Cas. 714 (C.C.D.Pa. 1793). United States v. Worrall 28 Fed. Cas. 774 (1798). William Blackstone, St. George Tucker, and Edward Christian, Blackstone's Commentaries With Notes of Reference to the Constitution and Laws of the Federal Government of the United States, and of the Commonwealth of Virginia Volume One, (South Hackensack, N.J.: Rothman Reprints, 1969) 438. Morton J. Horwitz, The Transformation of American Law, 17801860 (Cambridge, Mass: Harvard University Press, 1977) 14-15. H. Jefferson Powell, “The Principles of ’98: An Essay in

Volume IV, Issue I

21

On Combating Mischief and Mayhem jury determination on points of law,45 and overtly political judicial instructions,46 equity of the statute was an accepted judicial practice among high Federalists and Democratic-Republicans. Finally, Manning ignores the extent to which the invocation of clear statement rules and substantive canons of construction accomplished results that would naturally flow from the use of equity of the statute.47 In response, Manning counters that dicta in many of the same clear statement and substantive canon cases which appears to endorse the faithful agent model proves that federal judges were reluctant to overtly invoke equity of the statute for legitimacy reasons.

However to the extent that the debate surrounding the nature of the judicial power at the founding is a descriptive pursuit, the participants should not be limited by the normative scruples of the historical actors whose behavior they seek to describe. In some form or another we all ought to be legal realists now, which means that the primary subject of interest should be law in action not law in the books.48 Judges manufacture idealistic, pre-textual reasons to justify many a decision that would otherwise seem to be the

product of ulterior motives to an outside observer in the same cultural setting.49 And if a legal historian were to uncritically adhere to the reasons an actor gives for why he did something, her power to describe and explain the past would be severally hamstrung. In a word, a wolf in sheep’s clothing is still a wolf notwithstanding the Sheppard’s voluntary or (involuntary) delusion.

Of necessity, this lack of sufficient coverage raises a plethora of pressing questions. Would a painstaking examination of the federal courts’ early case law interpreting statutes yield any patterns that contradict Manning’s thesis? If yes, do those patterns give cause to question Manning’s portrayal of certain cases? How should one account for the invocation of a clear statement rule and substantive canons of construction holding that statutes should be interpreted so as to not conflict with constitutional provisions, international law, or the rule of lenity?

These questions are critical because a proper understanding of the early federal judiciary’s approach to statutory interpretation could provide clues to the original public meaning of the judicial

Historical Retrieval,” 80 UNIVERSITY OF VIRGINIA LAW REVIEW 689 (1994). Hudson and Goodwin, 11 U.S. 32 (1812).

45 Compare George Mason’s Speech in the Virginia Ratification Convention on the republican virtue of grand and petit juries with § 25 of the Judiciary Act of 1789 which prevented appellate review of jury fact finding through writs of error. Jonathan Elliot and James Madison. The Debates In the Several State Conventions On the Adoption of the Federal Constitution: As Recommended by the General Convention At Philadelphia In 1787. Together with the Journal of the Federal Convention, Luther Martin's Letter, Yates's Minutes, Congressional Opinions, Virginia and Kentucky Resolutions of '98-'99, and Other Illustrations of the Constitution ... (Washington: Printed by and for the editor, 1836) 521-528. Judiciary Act of 1789, ch. 20 § 25, 1 Stat. 85-87 (1789).

46 Justice Samuel Chase’s Charge to the Baltimore Grand Jury and Congressman John Randolph’s opening Argument for the Conviction of Justice in Samuel Chase, Samuel Harrison Smith, and Thomas Lloyd, Trial of Samuel Chase, An Associate Justice of the Supreme Court of the United States, Impeached by the House of Representatives for High Crimes and Misdemeanors Before the Senate of the United States (New York: Da Capo Press, 1970) 108-127, Appendix 5-8. Hereafter referred to as Trial of Samuel Chase.

47 For more on the deconstructvist potential of ‘constraining’ cannons see, Karl N. Llewellyn, “Remarks on the Theory of Appellate Decision and the Rules or Canons about How Statutes Are to Be Construed,” 3 VANDERBILT LAW REVIEW 401-06 (1950). Jack Balkin, “Deconstructvist Practice and Legal Theory,” 96 YALE LAW JOURNAL 743 (1987). William Eskridge Jr. and Gary Peller, “The New Public Law Movement: Moderation as a Postmodern Cultural Form,” 89 MICHIGAN LAW REVIEW 707 (1991). Peter Schanck, “Understanding Postmodern Thought and Its Implications for Statutory Interpretation,” 65 SOUTHERN CALIFORNIA LAW REVIEW 2505 (1992). Several scholars have sought to revisit and challenge Professor Llewellyn’s conclusions. Matter of Interpretation, 27. David Shapiro, “Continuity and change in Statutory Interpretation,” 67 NEW YORK UNIVERSITY LAW REVIEW 950 (1992). Cass Sunstein, “Interpreting Statutes in the Regulatory State,” HARVARD LAW REVIEW 452-454 (1989). I remain convinced, however, that these critiques still cannot provide axiomatic guidance in close cases, though. Ronald Dworkin, Law's Empire (Cambridge, Mass: Belknap Press, 1986) 225-355.

48 For more on the essential elements of mainstream legal realism, see generally, Karl Llewellyn, “A Realistic Jurisprudence—The Next Step” COLUMBIA LAW REVIEW (1930). Karl Llwellyn, “Some Realism about Realism: Responding to Dean Pound,” 44 HARVARD LAW REVIEW 1222-1264 (1931).For instance, in the past decade several sociologists have produced studies that have forced contract, corporate, and family law scholars to re-think the real world role of formal doctrine in their respective practice areas. Stewart Macaulay, “Non-Contractural Relations in Business: A Preliminary Study,” 28 AMERICAN SOCIOLOGICAL REVIEW 55 (1963). H. Laurence Ross, Settled Out of Court The Social Process of Insurance Claims Adjustments (Chicago: Aldine Pub. Co, 1970) 232-261. Lynn M. Mather, Craig A. McEwen, and Richard J. Maiman, Divorce Lawyers at Work: Varieties of Professionalism in Practice (Oxford: Oxford University Press, 2001) 118. Constitutional lawyers might also benefit from a similar re-examination of their accepted formalist dogmas. See Richard Posner, “Against Constitutional Theory,” 73 NEW YORK UNIVERSITY LAW REVIEW 22 (1998).

49 For examples of some of the more infamous cases, see Bolling v. Sharpe, 347 U.S. 497 (1954). Bush v. Gore, 531 U.S. 98 (2000).

Williams College Law Journal

22

Habib Olapade power in Article III of the constitution. Because Manning and others who subscribe to his work tend to embrace original public meaning originalism, if the early federal bench did not believe that strict adherence to the text and the ‘faithful agent’ role were inherent in the judicial power, Manning would be hard pressed to find another normative justification for his theory of statutory interpretation. As a comprehensive and contextual examination of over twenty-one cases from the Jay, Ellsworth, and Marshall Court that Manning emphasizes in his work demonstrate, the federal judges routinely re-wrote the language of the statutes they interpreted from 17891811 in an effort to avoid constitutional issues and controversial political conflicts and maintain equity in the legal system in general, which suggests that it this technique was part of the legal elite’s original understanding of the judicial power.

It is impossible to understand an institution without knowing the context in which it operates. The Jay and Ellsworth Courts are no exception to this rule. Hence, a cursory review of the political environment both Courts operated in is necessary before proceeding to an examination of the tribunal’s decisions interpreting statutes.

In the immediate aftermath of the Constitution’s ratification in 1788, Americans were still unsure of

what they should expect from their fundamental charter. Most of these concerns were structural in nature and implicated Congress and the president.50 Would congressmen be elected from single member districts or at-large from the whole state?51 Would either house employ standing or select committees to draft legislation?52 How would the government obtain funding and deal with the national debt?53 Could executive officers participate in debate in the House like the English prime minister’s officers did?54 Would debate in either House be limited?55 Would the chambers of either house of Congress be open to the press?56 How would citizens address the president?57 Did the president’s veto power extend to the legislation’s merits or could the negative only be exercised when the executive entertained constitutional doubts about a bill?58 Did the president have to physically meet with the senate in person to obtain its “advice and consent” on a treaty?59 Did the president have to solicit input from Congress when negotiating treaties and disclose information during the treaty drafting process?60 Would the president have a cabinet and, if so, who would serve in it?61 In short, many of the ordinary customs that are taken for granted today had to be worked out by the First Congress and George Washington.

In this tumultuous context, the concerns over the

50

David J. Siemers, Ratifying the Republic: Antifederalists and Federalists in Constitutional Time, (Stanford, Calif: Stanford University Press, 2002) 164-193. Jonathan Gienapp, Inventing the Fixed Constitution: Language, Justification, and Constitutional Interpretation at the American Founding, (Cambridge, MA: Harvard University Press) (Forthcoming).

51 James Kent and Oliver Wendell Holmes Jr., Commentaries on American Law Volume One, (Boston: Little, Brown, and Company, 1873) 230-231. Act of June 25, 1842, 5 Stat. 491. Act of May 23, 1850, 9 Stat. 428.

52 See Joanne Freeman, Opening Congress in Julian E. Zelizer, The American Congress: The Building of Democracy (Boston: Houghton Mifflin, 2004) 28.

53 See Alexander Hamilton, “Report on Public Credit,” in The Founders’ Constitution accessed March 13, 2016, http://presspubs.uchicago.edu/founders/documents/a1_8_2s5.html. “Residency Act of 1790,” National Archives Catalog, accessed March 13, 2016, https://research.archives.gov/id/299948. “Funding Act of 1790,” Federal Reserve Archive, accessed March 13, 2016, https://fraser.stlouisfed.org/scribd/?title_id=1105&filepath=/docs/historical/congressional/funding-act1790.pdf#scribd-open. Act of February 25, 1791, 10 Stat. 191. Act of Act of March 2, 1791, 11 Stat. 196. Thomas Jefferson, Opinion on the Constitutionality of the National Bank, in The Avalon Project: Documents in Law, History, and Diplomacy http://avalon.law.yale.edu/18th_century/bank-tj.asp. Hereafter referred to as Jefferson’s Opinion on the National Bank.

Alexander Hamilton, Opinion on the Constitutionality of the National Bank, in The Avalon Project: Documents in Law, History, and Diplomacy http://avalon.law.yale.edu/18th_century/bank-ah.asp. Act of July 4, 1789, 1 Stat. 24. Tariff of 1790, in The Avalon Project: Documents in Law, History, and Diplomacy http://avalon.law.yale.edu/19th_century/1803-01.asp.

54 Forrest McDonald, Alexander Hamilton: A Biography (New York: Norton, 1982) 128. 1 Annals of Congress 607 (1789).

55 Eric Rauchway, The Transformation of the Congressional Experience in Julian E. Zelizer, The American Congress: The Building of Democracy (Boston: Houghton Mifflin, 2004) (noting that debate in the House was unlimited from 1789 to the mid-nineteenth century).

56 Supra note 42.

57 In keeping with his insufferable vanity, John Adams wanted the Commander-in-Chief to be addressed as “His Highness, the President of the United States, and Protector of their Liberties.” Instead, Washington settled on the more humble “Mr. President.”

58 Compare Jefferson’s Opinion on the National Bank with Andrew Jackson’s Veto Message on the Re-Chartering of the National Bank in in Michael Stokes Paulsen, Steven G. Calabresi, Michael W. McConnell, and Samuel L. Bray, The Constitution of the United States (2013) 68-69.

59 Gerhard Casper, Separating Power: Essays on the Founding Period (Cambridge, Mass: Harvard University Press, 1997) 26.

60 Ibid.

61 An Act for establishing an executive department, to be denominated the Department of Foreign Affairs, 1 Stat. 28-29 (1789). An Act to establish an Executive Department, to be denominated the Department of War, 1 Stat. 49-50 (1789). An Act to establish the Treasury Department, 1 Stat. 65-67 (1789).

Volume IV, Issue I

23

On Combating Mischief and Mayhem federal judiciary were an afterthought relative to other pressing issues. Indeed, unlike the political branches, which automatically came into being through state controlled elections,62 the federal judiciary had to be established through statute.63 The Judiciary Act of 1789 created a three layer tribunal system that included federal district courts, circuit courts, and the Supreme Court.64 Oliver Ellsworth, the chairman of the Senate select committee that drafted the bill, took several measures to ensure that the statute would establish a firm national court system while also paying deference to concerns from states’ rights proponents.

The judiciary act promoted compromise in three ways. First, district court jurisdiction extended to several issues that the state courts were ill-equipped to handle because of the need for doctrinal uniformity or municipal prejudice against the national interest.65 Under the 1789 act, the district court’s subject matter jurisdiction covered federal crimes, tort actions against foreigners who violated international law, suits at common law initiated by the federal government, and maritime actions.66 However, Congress sought to quiet Anti-Federalist fears that the judiciary would oppress the people by providing for petit juries in all cases except maritime actions.67 Juries were expected to use their power to decide the facts (and in some cases the law) as a democratic check on judges and prosecutors by rejecting unmeritorious government claims.68 Second in the interests of combating local

prejudice, the circuit courts were given jurisdiction over diversity cases, controversies where the United States was a party, and most appeals from district courts.69 The circuit courts, though, were also designed to preserve state court control over most civil cases and, to expose Supreme Court justices to local conditions across a wide section of the new nation.70 The former objective was accomplished by mandating that the district courts use the common law procedures of the state in which they were sitting71 and, limiting the courts’ diversity jurisdiction to cases where the amount in controversy exceeded $500, a substantial sum in the late-eighteenth century.72 Procedural rules that were indexed to state practice and high monetary bars to entry preserved the power of the state courts and bar by saving local attorneys the hassle of learning a new set of procedural rules73 and, limiting the number of cases that circuit courts could hear, which preserved the state courts’ caseload.

Supreme Court justices were exposed to local conditions across the nation by being forced to ‘ride circuit’ when the high court was not sitting and, deciding cases in the northeastern, mid-Atlantic, or southern section of the country.74 The circuit courts were modeled off the English circuit court system and were to be composed of two Supreme Court justices and a federal district court judge.75 Justices on circuit made the appellate process more accessible to local litigants because petitioners did not have to go to New York City, Philadelphia, or Washington D.C. to

62

United States Constitution, Art. I § 4, Art. II § 1 cl. 2.

Edmund Randolph, Report on the Judiciary (1790) in Maeva Marcus and James R. Perry, Documentary History of the Supreme Court of the United States 1789-1800 Volume IV (New York: Columbia University Press, 1985-1982) 128, 162.

64 Judiciary Act of 1789, ch. 20, 1 Stat. 73 (1789).

65 Max Farrand, The Records of the Federal Convention of 1787 Volume II (New Haven: Yale University Press, 1911) 44-46, 428. Publius, Federalist No. 80: The Powers of the Judiciary, in The Avalon Project: Documents in Law, History, and Diplomacy http://avalon.law.yale.edu/18th_century/fed80.asp. Burt Neuborne, “The Myth of Parity,” 90 HARVARD LAW REVIEW 1105 (1977). Martin v. Hunter’s Lessee 14 U.S. 304 (1816). Cohens v. Virginia 19 U.S. 264 (1821).

66 § 9, 1 Stat. at 76-77.

67 Ibid. James Madison, The Debates In the Several State Conventions On the Adoption of the Federal Constitution: As Recommended by the General Convention At Philadelphia In 1787. Together with the Journal of the Federal Convention, Luther Martin's Letter, Yates's Minutes, Congressional Opinions, Virginia and Kentucky Resolutions of '98-'99, and Other Illustrations of the Constitution ... (Washington: Printed by and for the editor, 1836) 521-528.

68 Saul Cornell, The Other Founders: Anti-Federalism and the Dissenting Tradition in America, 1788-1828 (Chapel Hill: Published for the Omohundro Institute of Early American History and Culture, Williamsburg, Virginia, by the University of North Carolina Press, 1999) 60.

69 § 11, 1 Stat. at 78-79.

70 Joshua Glick, “On the Road: The Supreme Court and the History of Circuit Riding,” 24 CARDOZO LAW REVIEW 1753, 1757-61 (2003). Warren, Charles, The Supreme Court in United States History (Boston: Little, Brown, and Co, 1937) 58.

John E. Semonche, Keeping the Faith: A Cultural History of the U.S. Supreme Court (Lanham, Md: Rowman & Littlefield Publishers, 1998) 48. William Garrott Brown, The Life of Oliver Ellsworth (New York: The Macmillan Company, 1905) 245. Leonard Baker, “The Circuit Riding Justices,” SUPREME COURT HISTORICAL SOCIETY 63 (1977).

71 Act of Sept. 29, 1789, ch. 22, 1 Stat. 94 (1789).

72 Supra note 59.

73 Bellia & Bradford R. Clark, “The Original Source of the Cause of Action in Federal Courts: The Example of the Alien Tort Statute,” 101 UNIVERSITY OF VIRGINIA LAW REVIEW 652-653 (2015).

74 § 4, 1 Stat. at 74–75.

75 Renée Lettow Lerner , The Creation of Appellate Courts and the Effect on Judicial Comment on Evidence to the Jury (Forthcoming).

63

Williams College Law Journal

24

Habib Olapade 76

present their case on appeal. The Justices also spread republican values in appellate courts by delivering jury charges that resembled lectures on the principles of the national government.77 This educative function was essential because many wellrespected citizens such as Benjamin Rush and Thomas Jefferson believed that a republic could survive only so long as the “people” were virtuous, or prioritized the public good over their own selfinterest.78 Public education was one of the few ways the state could cultivate virtue in the citizenry.

Because state funded common schools were rare in the late-1700s, the onus of this educative burden fell on juries.79 In this forum, judges guided the jurymen through the intricacies of the law much in the same way a teacher led her pupils through a lesson plan.

Third, the judiciary act gave the Supreme Court original jurisdiction over all the cases provided in Article III § 2 of the Constitution.80 Section twentyfive of the statute also granted the Court appellate jurisdiction over state supreme court decisions that sustained a state law over a federal preemption claim or interpreted a federal statute, treaty, or constitutional provision.81 The act, however, also provided some protection for local judicial institutions by refusing to give the Court exclusive jurisdiction over the cases listed in Article III § 2 and limiting state supreme court appeals to issues of law.82 These two power reservations complemented one another because they created a mechanism by which lower federal courts could take up a case within the Court’s Article III §2 jurisdiction, charge a

jury to find facts, impose a verdict, and leave the case for appeal. If the lower court did not commit a legal error, though, the Supreme Court would be powerless to remedy a case where a federal jury deliberately ignored a judge and used its fact finding power to undermine the national interest. For these three reasons, the Judiciary Act of 1789 created a federal court system that was not wholly independent from local control and thus prone to grassroots efforts to undermine its legitimacy.

Local juries and state courts, however, were not the only institutions that possessed the capacity to check the federal judiciary. Once the Ellsworth and Jay Courts were created, the administration and Congress continued to embroil them in highly partisan affairs which weakened the Court’s effort to establish itself as a non-partisan interpreter of the law.

Two events in particular demonstrate the Court’s struggles with its coordinate partners. First in the winter of 1794, Washington convinced Chief Justice Jay to travel to London as a special envoy.83 Jay was sent to negotiate a commercial treaty with England.

The product of the bilateral negotiations was not well received among Francophiles and debtors in the United States because it granted Great Britain trading privileges with the United States and provided that British merchants could collect debts that predated the Revolutionary War in federal court.84 Indeed, the treaty reportedly was so disliked in the United States that Jay quipped that “one could have traveled from Kittery, Massachusetts to Savannah, Georgia by the light of bonfires burning my effigy.”85 Despite the

76

The Supreme Court in the Early Republic, 45.

Trial of Samuel Chase, 5-8. See generally, Stanton D. Krauss, Gentlemen of the Grand Jury: The Surviving Grand Jury Charges from Colonial, State, and Lower Federal Courts Before 1801 (Durham, N.C.: Carolina Academic Press, 2012) 1367-1433.

78 Benjamin Rush, “Of the Mode of Education Proper in a Republic,” The Founders’ Constitution accessed March 13, 2016, http://press-pubs.uchicago.edu/founders/documents/v1ch18s30.html.Thomas Jefferson, Notes on the State of Virginia (London: J. Stockdale, 1787) 152-154. Creation of the American Republic, 65-70. To be sure, a younger generation of Americans led by Madison and Hamilton were beginning to see the efficient channeling of self-interest the rather than the maximization of virtue as necessary characteristic for a republic to survive. See Bernard Mandeville and Frederick Benjamin Kaye, The Fable of the Bees: Or, Private Vices, Publick Benefits (Oxford: Clarendon Press, 1957).

79 In the words of the French aristocrat, Alexis De Tocqueville “the jury contributes powerfully to form the judgment and to increase the natural intelligence of a people; and this, in my opinion, is its greatest advantage. It may be regarded as a gratuitous public school, ever open, in which every juror learns his rights, enters into daily communication with the most learned and enlightened members of the upper classes, and becomes practically acquainted with the laws, which are brought within the reach of his capacity by the efforts of the bar, the advice of the judge, and even the passions of the parties. I think that the practical intelligence and political good sense of the Americans are mainly attributable to the long use that they have made of the jury in civil causes.” See Alexis de Tocqueville, Harvey C. Mansfield, and Delba Winthrop, Democracy in America (Chicago: University of Chicago Press, 2000) 284.

80 § 13, 1 Stat. at 80-81.

81 § 25, 1 Stat. at 85-87.

82 Ibid. Zephaniah Swift, “A System of the Laws of the State of Connecticut Volume II,” 275 (1796).

83 Richard B. Morris, John Jay, the Nation, and the Court (Boston: Boston University Press, 1967) 93-94. John Jay to Sarah Livingston Jay, April 15,1794.

84 See Article VI of Treaty of Amity Commerce and Navigation, between His Britannick Majesty; and The United States of America, by Their President, with the advice and consent of Their Senate, in The Avalon Project: Documents in Law, History, and Diplomacy http://avalon.law.yale.edu/18th_century/jay.asp.

85 William Jay, The Life of John Jay: With Selections from His Correspondence and Miscellaneous Papers (New York: J. & J. Harper, 1833) 360. Walter Stahr, John Jay: Founding Father (New York: Hambledon and London, 2005) 337.

77

Volume IV, Issue I

25

On Combating Mischief and Mayhem political brouhaha that unfolded after the treaty was presented to the Senate, Jay was elected Governor of New York while he was abroad. When President Adams attempted to re-appoint Jay to the Court after Oliver Ellsworth resigned in 1800, the New Yorker swiftly declined citing the tribunal’s lack of “energy, weight and dignity” as one of the primary reasons for his choice. Jay’s refusal, however, was not due solely to the treaty fiasco. Rather, the first Chief Justice’s judgment of the Court’s prestige in the late-eighteenth century is best read as the cumulative result of the Treaty fiasco in tandem with the structural design set out by the Judiciary Act of 1789.

Second, the Fifth Congress’ passage of the Alien and Sedition Acts in 1798, forced the Justices to preside over the politically charged trials of individuals who criticized the Adams administration.

Several federal judges went out of their way to secure convictions by interpreting the sedition act liberally and cited common law criminal doctrines to support their actions.86 In United States v. Haswell, for instance, Justice William Paterson, sitting on the Vermont circuit court, interpreted the sedition act broadly by exposing publishers to criminal penalties even if they had no part in the writing or editing of a defamatory piece.87 Likewise when Matthew Lyon, an Irish-American congressman, was tried in front of Justice Paterson in the same forum for writing a “seditious article” accusing President Adams of embracing “ridiculous pomp, foolish adulation, and selfish avarice,” Paterson refused to let Lyon or his attorney instruct the jury to return an acquittal if they

believed the sedition act was unconstitutional.88 Democratic-Republicans in Virginia and Kentucky responded to this bold exercise of judicial power in part by passing a set of resolutions in 1799, which declared that the sedition act violated the First Amendment “because it [was] levelled against that right of freely examining public characters and measures.”89 The Kentucky resolution even went so far as to propose a formal theory of state interposition and succession whereby “the states ha[d] the…right to…nullif[y]” federal statutes they deemed unconstitutional.90 The immediate constitutional crisis was avoided, though, after other state legislatures in the northeastern and Mid-Atlantic region of the country condemned the resolutions,91 the Seventh Congress allowed the sedition act to expire,92 and President Jefferson pardoned convicted dissenters because of his doubts regarding the statute’s constitutionality.93 But, in a limited sense the late-eighteenth century federal bench engaged in behavior that helped create the constitutional theory that would nearly destroy the union fifty years later and, begin the Federalist Party’s slow decline into national obscurity.94 In this toxic political climate the judiciary was truly the “least dangerous branch” of government.95 Thus, it would not be unreasonable for the Jay and Ellsworth Courts to attempt to avoid political controversy by employing the guarded expressions that Manning references in his work. Justice Samuel Chase’s passing statement in Priestman v. United States is representative of the language that Manning routinely

86

United States v. Worrall, 2 U.S. 393-396 (C.C.D. Pa. 1798). United States v. Henfield 11 Fed. Cas. 1099 (1793).

United States v. Haswell 26 F. Cas. 218 (1800).

88 Lyon’s Case, 15 F. Cas. 1183, 1188 (C.C.D. Vt. 1798).

89 Virginia Resolution of 1798, in The Avalon Project: Documents in Law, History, and Diplomacy http://avalon.law.yale.edu/18th_century/virres.asp. See generally, Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004) 128-158.

90 Kentucky Resolution of 1799, in Thomas Jefferson and J. Jefferson Looney, The Papers of Thomas Jefferson Volume Thirty (Princeton, NJ: Princeton University Press, 2004) 550-556.

91 Response of the States of Rhode Island and Providence Plantations and New York in Michael Stokes Paulsen, Steven G. Calabresi, Michael W. McConnell, and Samuel L. Bray, The Constitution of the United States (2013) 111-113.

92 John Chester Miller, Crisis in Freedom: The Alien and Sedition Acts (Boston: Little, Brown, 1951) 230.

93 James Morton Smith, Freedom's Fetters: The Alien and Sedition Laws and American Civil Liberties. Ithaca: Cornell University Press, 1966) 268.

94 Francis N. Stites and Oscar Handlin, John Marshall, Defender of the Constitution (Boston: Little, Brown, 1981) 97.

Indeed, the Federalist Party failed to gain a majority in either house of Congress after the 1800 elections and only remained relevant in New England until the ill-fated Hartford Convention gave the Party a finishing blow. While the Virginia and Kentucky Resolutions were condemned by legislatures in the New England and Mid-Atlantic States in part on the grounds that the Supreme Court’s interpretation of the Constitution was binding on the states and federal government, this practice is best read as a political ploy without substance. Indeed, from 1800 to 1860 several state legislatures often issued resolutions condemning Supreme Court rulings on the grounds and claiming that the state was not bound to follow the ruling only to reverse course and issue resolutions arguing the exact opposite when it suited the legislature’s political interests. Whatever ancillary benefit this practice may have provided to the Court, it was premised on the degree to which the political elite found the Court’s rulings to be palatable. See Melvin I. Urosky, A March of Liberty: A Constitutional History of the United States (New York: Knopf, 1988) 409-446.

95 Publius, Federalist No. 78: The Judiciary Department, in The Avalon Project: Documents in Law, History, and Diplomacy http://avalon.law.yale.edu/18th_century/fed78.asp.

87

Williams College Law Journal

26

Habib Olapade 96

underscores. In Priestman, Chase declared that federal judges had a duty to “conform…to the letter of the statute” in the absence of ambiguity or a pressing hardship.

The problem with this language, however, is that it takes Chase out of context and does not accurately describe the Jay and Ellsworth Court’s actual behavior. The issue in Priestman was whether an American merchant had violated §19 of a federal costal trading law, which provided that an importer who neglected to register his goods with a federal collector would forfeit the merchandise to the national government.97 William Priestman, an American businessman, conceded that he had not registered his goods with the proper authorities but, insisted that he had paid the duties levied on the imported merchandise and provided the relevant documentation. Priestman’s lawyer, countered that §33 of the same federal statute exempted his client’s goods from forfeiture. Section 33 stated that “in all cases where [the duties on cargo] on board any ship shall have been previously paid [the cargo]…shall be exempted from forfeiture under this act, anything therein contained to the contrary notwithstanding.”98 The statute provided a clear exemption for merchants such as Priestman who paid federal taxes on imported goods but for some reason had failed to comply with the rather complex interstate regulations set out in the costal trading law. The Ellsworth Court, however, flatly ignored this exemption when it decided Priestman.99 Thus while it is true that the Court agreed with Chase’s assertion that it had to “conform…to the letter of the statute,” the Justices ignored an important section of the law they were interpreting on the grounds that “public policy, national purposes, and the regular operation of government require that the revenue system should be…strictly executed.”100 Public policy, though, was not the only justification the Court cited for ignoring or re-writing the text of a statute. The Justices also relied heavily on equitable modes of interpretation in order to save statutes that conflicted with constitutional principles or provisions. In fact, on several occasions the Court sought to avoid interpreting a federal statute as unconstitutional by

using principles of equity to re-write the law. Thus in Hayburn’s Case, the Jay Court began its per curium opinion by insisting “that on all proper occasions [its] high respect for the national legislature,” would guide its determination of every case.101 In Hayburn, however, the Justices interpreted the Invalid Pensioners Act of 1792, a statute that subjected federal judges’ legal decisions to review by the Secretary of War and Congress, equitably so as to allow federal judges the option to decline performing their duties under the act.102 This reading of the pensioners act was in clear conflict with the plain meaning of the statute, which provided that “the circuit courts shall certify” pension claims, which implied a lack of discretion.103 The Jay Court chose this interpretation because all of the Justices believed that the 1792 act violated the separation of powers laid out in the Constitution by allowing the political branches to reverse the judiciary’s decisions.104 In this sense, Manning is correct that the U.S. Constitution was radically different from its English counterpart because of the rather clear division between the three branches of government. The implication of this separation in Hayburn, however, was an equitable not strictly textual mode of statutory interpretation.

Likewise, in Mossman v. Higginson, the Ellsworth Court had to decide whether § 11 of the Judiciary Act of 1789 allowed an alien to sue another alien in federal court.105 The provision at issue provided that “the circuit courts shall have original cognizance in all suits [where] an alien is a party.”106 The Court, however, refused to follow the plain meaning of this provision and interpreted that statute as only providing jurisdiction over suits between a citizen and an alien because that was all that Article III § 2 provided for.107 This reading was unusual because at the turn of the eighteenth century it was not clear that Congress could not extend the federal court’s original jurisdiction to cases that were not delineated in Article III.108 The Court exercised a rather broad degree of discretion in interpreting statutes that allowed it avoid striking down legislation and antagonizing Congress.

The Ellsworth Court took a similar tack in Ware

96

4 U.S. 30 (1800).

Act of February 18, 1793, 8 Stat. 313.

98 Act of February 18, 1793, 8 Stat. 316.

99 4 U.S. 35 (1800).

100 Ibid.

101 2 U.S. 408(1792).

102 Hayburn’s Case at 409.

103 Act of March 23, 1792, 11 Stat. 243-244 (1792).

104 Supra note 88.

105 4 U.S. 12 (1800).

106 § 11, 1 Stat. at 78-79.

107 U.S. Const. Art. III §2.

108 William Van Alstyne, “A Critical Guide to Marbury v. Madison,” 18 DUKE LAW JOURNAL 30-33 (1969).

97

Volume IV, Issue I

27

On Combating Mischief and Mayhem v. Hylton by re-writing article four of the 1783 Treaty of Paris despite its simultaneous pledge to follow the “express meaning” of the bilateral compact.109 Originally, the provision read that “creditor[s]…shall meet no lawful impediment to the recovery…of all…debts…heretofore contracted” [emphasis added].110 Justice Chase speaking for the Court, though, interpreted the expression ‘heretofore contracted’ to extend article four retroactively so as to cover debts contracted before 1783.111 While this reading did violence to the text, it bolstered U.S. relations with Great Britain, undermined state efforts to circumvent debt collection efforts, and underscored the Federalist commitment to property rights. The Court was more than a faithful-agent in Ware, it was a coordinate partner in the legislative process.

In truth, the case law from the 1790s also suggests that the Justices did not harbor reservations about referencing a broad range of materials when interpreting seemingly clear texts. As a case in point, the question in Chisholm v. Georgia was whether Article III § 2 of the constitution, which provided that “the judicial power shall extend to controversies between a state and citizens of another state,” allowed Georgia’s creditors to sue the state in federal court without the state’s consent.112 In answering this question in the affirmative Chief Justice Jay and Justice Wilson paid only passing attention to the constitution’s text and ignored § 14 of the judiciary act, which implied that the Court could only entertain

actions that were consistent with the common law principles of sovereign immunity.113 Instead both Justices focused on the inequitable results that would flow from state immunity to suit and cited the constitution’s preamble as well as writings on the philosophy of language,114 theology,115 European feudalism,116 ancient Greece,117 and early modern Spain and France to justify their result.118 Granted, the Court’s holding in Chisholm was overturned by the Eleventh Amendment two years later.119 The amendment, however, was narrowly tailored to reverse the result in Chisholm and did not address the structure of the judiciary or the mode of reasoning employed by its judges.120 Federal judges continued to embrace equitable interpretations after the 11th amendment was passed.

In VanHorne’s Lessee v. Dorrance, the Jay Court refused to adhere to the plain meaning of a Pennsylvania eminent domain statute because the law did not set out fair procedures for determining the value of the confiscated land and interfered with fundamental property interests.121 The Court did not even bother to show an ounce of deference to the legislature in dicta. Finally, the Justices were not the only individuals engaging with these artful constructions. In fact, it was not uncommon for district court judges hearing maritime controversies to award seamen’s wages or decline to revoke wages on purely equitable grounds with little if no statutory guidance or analysis whatsoever.122 Contrary to

109

3 U.S. 199 (1796).

Article IV of The Definitive Treaty of Peace 1783 in The Avalon Project: Documents in Law, History, and Diplomacy http://avalon.law.yale.edu/18th_century/paris.asp.

111 Ware 239-246.

112 2 U.S. 491 (1793). U.S. Const. Art. III §2 cl. 1.

113 § 14, 1 Stat. at 81-82.

114 Thomas Reid, Derek R. Brookes, and Thomas Reid, An Inquiry into the Human Mind: On the Principles of Common Sense (University Park, Pa: Pennsylvania State University Press, 1997) 11-24.

115 Marcus Tullius Cicero and Alessandro Ronconi, Somnium Scipionis (Firenze: Felice Le Monnier, 1966).

116 Charles-Jean-Francois Henault, A New Chronological Abridgement of the History of France Containing The Publick ̧ ́ Transactions of That Kingdom, from Clovis to Lewis XIV. Their Wars, Battles, Sieges, &C. Their Laws, Manners, Customs, &C. Written in French by M. Henault, President of the Court of Inquests and Requests in the Parliament of Paris ; and Translated into English, with Additional Notes, Relative Chiefly to the History of England, by Mr. Nugent, from the Fifth Edition, Corrected and Improved by the Author Volume One, (London: Printed for J. Nourse, opposite Katherine-Street in the Strand, Bookseller in Ordinary to his Majesty, 1762) 94.

117 Antoine-Yves Goguet, Alexandre Conrad Fugere, Robert Henry, Alexander Spearman, and D. Dunn, The Origin of Laws, ̀ Arts, and Sciences, and Their Progress Among the Most Ancient Nations (Edinburgh: Printed by A. Donaldson and J. Reid for the translator, 1761).

118 William Robertson, The History of America Volume One (London: Printed for W. Strahan, T. Cadell, 1780) 188-189.

William Blackstone, Commentaries On the Laws of England: Book the First By William Blackstone, Esquire Solicitor General to Her Majesty (Dublin: printed for John Exshaw, Henry Saunders, Boulter Grierson, Elizabeth Lynch, James Williams, John Milliken, Joseph Shippard, Charles Ingham, and Thomas Walker, 1770) 46-52.

119 Ironically enough, the Court later interpreted the amendment equitably to extend its inhibition to suits between a state and its own citizens despite the fact that the text of the provision only covered suits between a state and citizens of a different state. See Hans v. Louisiana, 134 U.S. 1 (1890).

120 Louis L. Jaffe, “Suits Against Governments and Officers: Sovereign Immunity,” 77 HARVARD LAW REVIEW 19 (1963).

121 2 U.S. 304 (1795).

122 See Coleman v. The Harriet 6 F. Cas. 62 (1796). Bray v. The Atalanta 4 F. Cas. 37 (1794). Drysdale v. The Ranger 7 F. Cas. 1118 (1799).

110

Williams College Law Journal

28

Habib Olapade Manning’s assertions, federal judges did not regard the text of the statute as the beginning and end of all matters. Indeed when cases implicating constitutional integrity, the nation’s position in the international arena, or property were presented to the Justices, inter alia, the statutory text was manipulated to serve these interests. Manning would have one believe that the Court’s commitment to sticking to the “letter of the statute” was a sign of meekness but in reality, it was simply activism cloaked as humility.

Manning counters by citing a number of cases that he believes stand for the principle that judges should focus primarily on the text of the statute and refrain from re-writing its provisions. In particular, he relies on Bas v. Tingy and United States v. Robins to support his claim.123 This retort is a classic example of law office history, though. Indeed, Manning only cites sections from these cases that support his argument and in some cases ignores contradictory language in the same opinion as well as the broader context in which these rulings were handed down.

For example, in Bas, Manning tells us that when Justice Paterson proclaimed that “the word prizes in…section [seven of the act for the government of the navy of the United States] c[ould] apply to the French, and the French only.” he was adhering closely to the text of the statute.124 Manning did not mention two things, however. First, the word ‘French’ never appeared in the act in question.125 Second, the only reason Paterson was so clear about his conclusion was because he relied extensively on legislative history from the Fifth Congress’ second session which demonstrated that the legislature had previously passed four statutes that all made explicit reference to the French as enemies in combat.126 Paterson’s clarity, therefore, was not a result of adherence to the text but rather, his willingness to go beyond the text and examine the naval act alongside the corpus juris as a whole. Similarly in United States v. Robins, Manning quotes South Carolina District

Court Judge, Thomas Bee, as a faithful agent of Congress because Bee felt he was “bound by the express words” of the Jay Treaty.127 This citation is an artful misrepresentation, however. Indeed, the majority of the surviving lower court records from Judge Bee’s court demonstrate that he routinely resorted to extra-textual, principles of equity when deciding admiralty cases.128 In fairness to Manning, he relies principally on a series of early Marshall Court cases to make his claim.129 Hence, it would be unfair to conclude from the analysis of the Jay and Ellsworth Courts above that Manning’s thesis is completely unfounded. Even if these decisions were closer to the date of the constitution’s ratification and were more probative of the framers’ original intentions, Manning still must be reckoned with on his own terms. Unfortunately, when the Marshall Court is also placed in its proper context, its behavior highly resembles that of its predecessors.

On February 17, 1801, the House of Representatives elected Thomas Jefferson president on its 36th ballot after Alexander Hamilton decided to leverage his political capital against Aaron Burr’s candidacy.130 Jefferson’s party also managed to win a majority in the House by beating twenty-two Federalist incumbents in eight different states.

Because Jefferson’s term did not start until March 4, 1801, however, the lame duck Federalist Congress continued to sit for the next month.131 The defeated Federalists wasted little time consolidating the remains of their political fortunes, which principally involved their “retire[ment] into the judiciary.”132 Indeed on February 13, 1801, the Federalist Congress passed “an act to provide for the more convenient organization of the courts of the united states,” which created sixteen new circuit court judgeships for President Adams to fill during the last two weeks of his term.133 Adams also appointed his Secretary of State, John Marshall, to the Chief Justiceship after

123

4 U.S. 37 (1800). 27 F. Cas. 825, 833 (D.C.D. S.C. 1795). Surprisingly, Manning also cites Ware v. Hylton for the proposition that “if the words [of a treaty] express the meaning of the parties plainly, distinctly and perfectly, there ought to be no other means of interpretation!”

124 Textualism, 86 (n. 339).

125 Act of March 2, 1799, ch. 24, §7, 1 Stat. 709.

126 Act of May 28, 1798, ch. 48, 1 Stat. 561. Act of June 25, 1798, ch. 60, 1 Stat. 572. Act of June 28, 1798, ch. 62, 1 Stat.

574. Act of July 9, 1798, ch. 68, 1 Stat. 578.

127 Robins at 833.

128 Supra note 104.

129 Textualism at 89-90.

130 The election was thrown into the House of Representatives because when the framers wrote Article II § 1 cl. 3 of the Constitution they did not foresee the development of political parties and the accompanying possibility that presidential electors would case two ballots for individuals running on a ‘ticket.’ The 12th amendment was promptly passed to correct this deficiency. Alfred H. Kelly, Winfred A. Harbison, and Herman Belz, The American Constitution: Its Origins and Development (New York: Norton, 1991) 138.

131 James O’ Fallon, “Marbury,” 44 STANFORD LAW REVIEW 221 (1992).

132 Thomas Jefferson to John Dickinson, December 19, 1801.

133 Act of February 13, 1801, 4 Stat. 89-100. It is worth noting that the Circuit Court Act of 1801 also instituted meaningful reform by eliminating the Justices’ obligations to travel around the country hearing cases. Michael McConnell, The Story of

Volume IV, Issue I

29

On Combating Mischief and Mayhem Oliver Ellsworth resigned for health related reasons.

Marshall continued to serve as Secretary of State after he was confirmed by the Senate on January 27, 1801, and was even involved in the delivery of the judicial commissions created by the Circuit Court Act.134 Thus, in an overtly political twist, the defeated Federalists sought to pack the federal judiciary with sympathetic judges who could use the equitable modes of interpretation described above to frustrate Jefferson’s political agenda.

The Democratic-Republicans were in no mood for this, however. Subsequent to taking over the government in early March of 1801, the Republicans implemented a three pronged attack on the Federalist judiciary. First, Congress repealed the Circuit Court Act of 1801 and abolished the newly created judgeships despite several objections that this repeal was unconstitutional.135 Second, in order to prevent the Supreme Court from deciding whether the repeal was unconstitutional, Congress canceled the Court’s 1802 term.136 In retrospect, this move was unnecessary, though, because the Marshall Court caved into the political pressure and approved the repeal one year later in Stuart v. Laird.137 Third, a hardline states’ right contingent of house representatives lead by John Randolph of Virginia began pushing for a flexible interpretation of the treason clause in Article II §4 of the constitution.138 The foregoing provision states that “all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”139 Instead of using the definition of treason provided in Article III § 3 of the constitution, which confined the crime to “levying war against [the United States], or giving…aid and comfort” to the enemy, Randolph pushed for an interpretation of the clause that equated mere dissatisfaction with the judge’s political beliefs as a “high crime or misdemeanor” that was sufficient

grounds for removal via impeachment.140 This campaign was significant for two reasons. First, if successful, it would have established a definition of ‘high crimes and misdemeanors’ that resembled the prevailing definition in England, where impeachment trials were used to remove royal ministers that Parliament disagreed with politically.141 Second, the new definition would have allowed the Republicans to remove sitting judges who were not appointed as a result of the Circuit Court Act of 1801. Republicans succeeded in impeaching and removing John Pickering, a New Hampshire District Court Judge, but by most accounts Pickering, a once able jurist, was unfit to continue in office because of mental illness and a penchant for liquor.142 After removing Pickering, the Jeffersonians turned to Samuel Chase and planned to target Marshall next, if the Chase impeachment was a success.143 The Senate failed to reach the necessary two-thirds vote on any of the eight articles of impeachment that were presented because there was serious doubt that Chase had committed a “high crime [or] misdemeanor” in presiding over several treason trials while riding circuit in Pennsylvania, Maryland, and Delaware in 1800.144 John Marshall, therefore, came within a few votes of being dragged off the high bench before his career had begun. Apparently, the experience moved Marshall so much that on January 23, 1804 he wrote the following note to Justice Chase: I think the modern doctrine of impeachment should yield to an appellate jurisdiction in the legislature. A reversal of those legal opinions deemed unsound by the legislature would certainly better comport with the mildness of our character than a removal of the Judge who has rendered them unknowing of his fault.145

Marbury v. Madison in Michael C. Dorf, Constitutional Law Stories (New York: Foundation Press/Thomson reuters, 2009) 14-15.

134 R. Kent Newmyer, John Marshall and the Heroic Age of the Supreme Court (Baton Rouge: Louisiana State University Press, 2001) 158-159.

135 Act of March 31, 1802, 8 Stat. 132.

136 Act of April 29, 1802, 2 Stat. 156.

137 5 U.S. 299 (1803).

138 John Quincy Adams and Charles Francis Adams, Memoirs of John Quincy Adams: Comprising Portions of His Diary from 1795 to 1848 Volume One (Philadelphia: J.B. Lippincott & Co, 1874) 322.

139 U.S. Constitution Art. II § 4 cl 1.

140 U.S. Constitution Art. III §3 cl. 1.

141 Zechariah Chafee, Documents On Fundamental Human Rights (Cambridge: Harvard University Press, 1951), 646.

142 Pickering apparently was in such bad shape that there is a rumor that when his son heard of the Senate’s plan to try his father, he sent a petition requesting that the body remove his dad from his post. Daniel A. Farber and Suzanna Sherry, A History of the American Constitution (2013) 73-74.

143 Thomas Jefferson to Joseph H. Nicholson, May 13, 1801.

144 William H. Rehnquist, Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson (New York: Morrow, 1993) 104-105.

145 Albert J. Beveridge, The Life of John Marshall Volume III (Boston: Houghton Mifflin, 1916) 177.

Williams College Law Journal

30

Habib Olapade The political climate in 1803 had made Marshall so desperate that he was willing to sacrifice the institutional integrity and independence of the Court in order to prevent the Republicans from cleaning house. In light of this context, one should not be shocked that Marshall sought to deflect political pressure from Congress by repeatedly claiming “to [give] effect [to] the intention of the legislature” when interpreting statutes as Manning claims.146 It is one thing to say something, it is quite another to practice what one preaches, however. The Marshall Court in keeping with the tradition established by its predecessors also manipulated statutory language to bolster the Court’s position.

It is somewhat ironic that Manning relies so heavily on the early Marshall Court to support his argument that the federal judiciary adopted a strict textualist approach when interpreting federal statutes because Marbury v. Madison, perhaps the most famous Marshall Court case, is an example anything but strict textualism.147 In that case, William Marbury, one of the ‘midnight judges’ John Adams appointed during the waning hours of his administration, sued James Madison, Jefferson’s Secretary of State, in an effort to force Madison to deliver Marbury’s official commission appointing him as a Justice of the Peace for the District of Columbia. Pursuant to §13 of the Judiciary Act of 1789, Marbury sought a writ of mandamus from the Supreme Court, which would have compelled Madison to deliver the commission.148 At oral argument on February 10, 1803 Madison refused to appear in Court and the Jefferson administration made it clear that it would not comply if a writ was issued. The Court, therefore, was left with a lose-lose situation: either issue the writ and suffer the embarrassment of being ignored by the political branches or refuse to issue the writ and recognize its inability to enforce the law. In a masterful political maneuver, John Marshall, writing for the Court, avoided both unsavory options by holding that §13 of the Judiciary Act, the statute that gave the Court the ability to issue the writ, was unconstitutional because it attempted to modify the Court’s original jurisdiction in Article III §2 of the constitution.149 In the opinion, Marshall was able to have his cake and eat it too by rebuking the Jefferson administration in obiter dicta, establishing the Supreme Court’s ability

to invalidate unconstitutional congressional statutes, and escaping the Jeffersonians’ threat of noncompliance.150 However while Marshall’s opinion in Marbury was a masterful example of statesmanship, it was a poor example of textualist statutory construction because §13 did not conflict in anyway the section is best read as consisting of two parts. Part one reads: That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction.

And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul, or vice consul, shall be a party. And the trial of issues in fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury. 152 Part two reads: The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.153 It is clear from this language that the Court had an ability to issue a writ of mandamus only in cases arising under its appellate jurisdiction because the writ is only mentioned in part two of the statute.

Because Marbury initiated his suit at the Supreme

The Schooner Paulina’s Cargo v. United States, 11 U.S. 52, 60 (1812).

Kathleen M. Sullivan and Noah Feldman, Constitutional Law (2013) 11. Hereafter referred to as Constitutional Law. 148 Letter from Samuel Chase to John Marshall, Apr. 24, 1802.

149 Robert G. McCloskey and Sanford Levinson, The American Supreme Court (Chicago: Univ of Chicago Press, 2010) 25-8.

150 Letter from Thomas Jefferson to Justice William Johnson, June 12, 1823.

151 David Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789-1888 (Chicago: University of Chicago Press, 1985) 66-74. Edward S. Corwin, “Marbury v. Madison and the Doctrine of Judicial Review,” 12 MICHIGAN LAW REVIEW 538, 539-42 (1914).

152 § 14, 1 Stat. at 80 153 § 14, 1 Stat. at 81.

146 147

Volume IV, Issue I

31

On Combating Mischief and Mayhem Court, however, he claimed that the Court had original jurisdiction over his case. Therefore in order to avoid a substantive conflict between § 13 and Article III, a strictly textualist approach would have called for the Court to dismiss the case for lack of jurisdiction.154 Notwithstanding Manning’s assertions, Marshall also subordinated the text of the statute when political calculation called for it.

In fact, the Marshall Court did not hesitate to account for and ameliorate substantive conflicts between higher constitutional principles and statutory texts or gaps when the politics of the situation favored such an approach. In Talbot v. Seeman, for instance, the Court applied broad principles of international law in creating a common law rate of salvage for captured ships sailing under the flags of neutral countries.155 Despite the fact that a congressional statute covered the case in question, the Court ignored the plain meaning of the law because it violated the law of nations, which was widely regarded as part of the law of the United States,156 by rewarding a similar salvage rate for captured enemy and neutral vessels.157 While the Court’s reading of the congressional statute was at odds with the law’s text, it maintained American credibility abroad by demonstrating that the nation was committed to enforcing customary international law in its courts.158 Unsurprisingly after the Chase impeachment, the Justices’ willingness to re-write federal statutes extended to forfeiture and criminal laws that imposed undue hardships. In United States v. Willings, the Justices refused to affix a literal interpretation to a shipping regulation that called for the forfeiture of a vessel that was not re-registered with a federal official every time an ownership share of the vessel was sold.159 An ownership share in the Missouri, the ship in question, was sold while the ship was on voyage and the new owner was unable to re-register the ship until the vessel arrived in the United States.160 In explaining the Court’s deviation from the plain meaning of the text, Marshall asserted that it

would be inequitable to require an owner to deliver up a certificate of registry and comply with the statute when he could not physically do so.161 Notwithstanding the text of the statute, “this construction [was] so obvious…that the endeavor to make it clear would seem to be a misapplication of time.”162 Clarity is apparently in the eyes of the beholder. Likewise, in Adams v. Woods, the Marshall Court refused to allow the government to initiate an action for debt to collect a penal fine despite the fact that the statute in question only prohibited prosecutions by “indictment or information.”163 The Court adopted this approach because it refused to accept the fact that Congress would be so “capricious…to declare that the [ban on criminal prosecutions] did not apply to cases on…an action for debt” but did apply to cases involving other means of prosecution.164 According to Marshall, the legislature intended the opposite of what it said. Appellate and distrct judges followed Marshall’s lead by reading equitable exceptions into cases implicating land settlement,165 fugitive slaves,166 and Marshall Commissions.167 Strict textualism this is not.

The Jay, Ellsworth, and early Marshall Courts did more than simply follow the text of the statute in every case. These Courts were embroiled in highly toxic political environments that questioned the tribunals legitimacy and the endangered the nation as well. In many senses, the Court manipulated the text of many statutes to advance the cause of separation of powers, international law, and fair criminal procedure to name just a few instances. Each case was unique and presented a novel problem or mischief that threatened to devolve into a wider mayhem if the Court chose not to act. The first judges who sat on the federal bench held no reservations about combating these problems even if they were duplicitous at times.

As a public meaning originalist, John Manning would do well to encourage his contemporaries to embrace, rather than deny, this tradition.

154

Supra note 140.

5 U.S. 45 (1801).

156 Curtis A. Bradley, “The Alien Tort Statute and Article III,” 42 VIRGINIA JOURNAL OF INT’L LAW 587 (2002).

157 Act of March 2, 1799 24 Stat. 709-714. 5 U.S. 44 (1801).

158 Charles Warren, “New Light on the History of the Federal Judiciary Act of 1789,” 37 HARVARD LAW REVIEW 49, 73, 77 (1923). Stewart Jay, “Origins of Federal Common Law: Part One,” 133 UNIVERSITY OF PENNSYLVANNIA LAW REVIEW 1003, 1016 (1985). Wythe Holt, “To Establish Justice”: Politics, the Judiciary Act of 1789, and the Invention of the Federal Courts,” 1989 DUKE LAW JOURNAL 1421, 1440-53 (1990).

159 Act of December 31, 1792, 1 Stat. 294-295 160 8 U.S. 48-49 (1807).

161 Willing at 56.

162 Ibid.

163 Act of April 30, 1790, 9 Stat. 119.

164 6 U.S. 336 (1805).

165 Balfour’s lessee v. Meade 2 F.Cas. 543 (1803).

166 McCall v. Eve 15 F.Cas. 1232 (1804).

167 Bowerbank v. Morris 3 F.Cas. 1062 (1801).

155

Williams College Law Journal

32

[This page is intentionally left blank]

Williams College Law Journal

34