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…
Providence has been pleased to give this one connected country, one united people; a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in manners and customs, and who, by their joint counsels, arms and efforts, fighting side by side throughout a long and bloody war, have nobly established their general liberty and independence.
John Jay, Federalist 2.
Yesterday’s post discussed Adam Liptak’s New York Times piece on the decline of the U.S. Constitution as a global model, entitled “’We the People’ Loses Appeal With People Around the World.” Today’s post is dedicated to the proposition that Liptak’s title is right on the money, although quite probably not in the intended sense: the “We the People” of the Constitution encapsulates a constitutional model that is simply not available to many countries, under modern conditions. Their constitutions don’t look like ours because they can’t, and any discussion as to whether they should or shouldn’t is a silly distraction. As always, The Upside Down Constitution contains a more extensive version of the argument.