The history of the Supreme Court before the appointment of John Marshall in 1801 has long received scant attention from scholars. The unspoken assumption was that little of importance occurred during the Court’s first decade and that Marshall established the Court as a major institution. This dismissive attitude has been increasingly challenged. [See Scott Douglas Gerber, ed. Seriatim: The Supreme Court before John Marshall (1998)]. William R. Casto has contributed significantly to a reevaluation of the early Supreme Court in this readable and important study. Casto sets the stage by skillfully tracing the debate over the Judiciary Act of 1789 and…
The debate between Kurt Lash and Mark Tushnet involving Nathan Chapman and Michael McConnell’s interpretation of Samuel Chase’s opinion is an interesting one. While I hesitate to get involved, I do want to use this occasion to raise a question about how to interpret the paragraph from Calder v. Bull that Kurt Lash quotes. (I should add that I have nothing to say about Mark Tushnet’s questions about the support that Nathan and Michael have for their interpretation. That is not my concern here.)
It seems to me that there are three possible interpretations of what Chase has to say:
1. Chase endorses the view that there are natural law principles that, based on their own authority, override ordinary state legislation.
2. Chase endorses the view that the adopters of state constitutions should not be presumed to have given the legislature the power to violate these natural law principles. Thus, the state legislatures do not have the power to violate these principles, because the state constitutions do not confer on them the power to do so.
3. Chase endorses the view that the state legislatures, when they legislate, should not be presumed to have violated these natural law principles. Thus, the state legislatures have the power to violate these principles but should not be presumed to have done so in passing legislation.