Recovering the Congresses' Constitution

Abstract

David P Currie, The Constitution in Congress: The Federalist Period, 1789-1801. Chicago: University of Chicago Press, 1997. Pp. xv, 327. $32.50. The history of constitutional interpretation is often seen as synonymous with the history of the Supreme Court. The casebooks through which law students are introduced to constitutional law, for example, generally begin with the 1803 decision of Marbury v. Madison and the theory of judicial review. These books implicitly present the period between the ratification of the Constitution and Marbury as a vast wasteland in which no constitutional interpretation of any significance took place. As applied to the Supreme Court, this characterization is fairly accurate. Apart from Chisholm v. Georgia, which provoked the ratification of the Eleventh Amendment, and Calder v. Bull, which analyzed vested property rights, the Supreme Court handed down no memorable decisions in the 1790s. The insignificance of the Court was amply demonstrated by the eagerness with which its own members departed when any opportunity presented itself. John Jay, the first Chief Justice, resigned his post to become Governor of New York. Associate Justice John Rutledge resigned in 1791 to become Chief Justice of the South Carolina Supreme Court. Chief Justice Oliver Ellsworth, who served from 1796 to 1800, resigned his position to accept a diplomatic post in France.