1702692559 美国最高法院通识读本 [:1702690382]

1702692560 美国最高法院通识读本 Chapter 1Origins

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1702692562 “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”

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1702692564 With those words—the opening sentence of the Constitution’s Article Ⅲ—the document’s Framers announced the birth of an institution then unknown to the world, a national court with the authority to decide cases “arising under” the country’s Constitution and laws. Precisely what that authority would mean in practice—what the Supreme Court’s role would be with respect to the two elected branches of the new government—was far from clear when the Constitution was drafted in 1787. That role remains disputed even today, when Supreme Court nominees are routinely asked by members of the Senate Judiciary Committee to disavow all interest in using the Court’s authority in a manner that might be described as “judicial activism.”

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1702692566 This book is not intended primarily as a work of history. Its aim is to enable readers to understand how the Supreme Court of the United States operates today. But while detailed knowledge of the Court’s history is not required for that purpose, acquaintance with the Court’s origins helps appreciate the extent to which the Supreme Court that we know today has been the author of its own history. From the beginning, it has filled in the blanks of Article Ⅲ by defining its own power. In the process, the Court has defied Alexander Hamilton’s prediction in Federalist No. 78 (one of the eighty-five essays in the Federalist Papers, written to rally public support for the Constitution’s ratification) that lacking “influence over either the sword or the purse,” and possessing “neither force nor will, but merely judgment,” the judiciary would prove to be the “least dangerous branch.” That process of self-definition continues today.

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1702692568 The Articles of Confederation that the new United States ratified in 1781 provided neither a national judicial system nor an executive branch. (There was a single national court, the Court of Appeals in Cases of Capture, with jurisdiction limited to disputes over captured ships. The Congress also had the power to establish special courts to resolve boundary disputes between states; such a court had only sat once.) Every state had its own system of courts, as the states do today. Citizens of the new nation had feared that a federal court system with general jurisdiction would threaten the sovereignty of the loosely confederated states. But to the delegates who assembled in Philadelphia in 1787 to revise the national charter, the absence of a national judicial system was one of the decentralized government’s more obvious failings.

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1702692570 The Constitutional Convention quickly agreed to the proposal of Governor Edmund Randolph of Virginia for a national government of three branches: legislative, executive, and judicial. Randolph’s resolution “that a national Judiciary be established” passed unanimously. Debating and defining the powers of Congress in Article I and of the president in Article II consumed much of the delegates’ attention and energy. Central provisions of Article III were the product of compromise and, in its fewer than five hundred words, the article left important questions unresolved. Lacking agreement on a role for lower courts, for example, the delegates simply left it to Congress to decide how to structure them. The number of justices remained unspecified. Article III itself makes no reference to the office of chief justice, to whom the Constitution(in Article I) assigns only one specific duty, that of presiding over a Senate trial in a presidential impeachment. The convention debated at length over how the members of the Supreme Court should be selected, eventually settling on nomination by the president and confirmation by the Senate. By providing that federal judges “shall hold their offices during good Behaviour,” the delegates intended to protect judicial independence.

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1702692572 But independence to do what, exactly? The delegates were aware that the supreme courts of several states were exercising the power of judicial review, invalidating legislative acts that, in the judges’ view, violated provisions of the state’s constitution. The Massachusetts Supreme Judicial Court, interpreting the Massachusetts Constitution of 1780, had invoked this power to declare slavery unconstitutional within the commonwealth. Courts in Virginia, North Carolina, New Jersey, New York, and Rhode Island had also exercised judicial review, sometimes generating public controversy, during the pre-Constitution period.

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1702692574 Although the delegates appear to have assumed that the federal courts would exercise some form of judicial review over federal and state laws, Article III says nothing explicit on the subject. It states in broad terms that the federal courts’ judicial power“shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties.” It then goes on to list specific types of disputes over which the federal courts may exercise jurisdiction: cases between states; cases between a state and citizens of another state, or between citizens of different states; “controversies to which the United States shall be a party”; admiralty and maritime disputes; cases involving ambassadors and other foreign diplomats; and cases between a state or its citizens and the government or residents of a foreign state.

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1702692576 For the Supreme Court specifically, Article III makes a distinction between “original” and “appellate” jurisdiction—between the Supreme Court as a court of first resort for cases involving states or foreign diplomats, and the Court as the recipient of appeals from lower courts in all other cases. Given the initial absence of lower courts, this distinction must have seemed quite arcane to readers of the judiciary article. It would shortly prove highly significant.

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1702692578 Once the Constitution was ratified, Congress quickly turned to the task of setting up a court system within the Article III framework. The Judiciary Act of 1789, often called the First Judiciary Act, established two tiers of lower courts: thirteen district courts that followed state lines, each with its own district judge, and three circuit courts, for the Eastern, Middle, and Southern Circuits. But the Judiciary Act did not provide for judges to staff the circuit courts. Instead, the circuits would be staffed during their two annual sittings by two Supreme Court justices and one district judge. This system required the justices to “ride circuit,” an onerous duty under primitive conditions of interstate transportation, and one that early justices keenly resented. Hannah Cushing, the wife of Justice William Cushing, referred to herself and her husband as “traveling machines.” Despite the justices’ frequent complaints, however, this system lasted, in somewhat modified form, for more than a century, until Congress established fully staffed circuit courts (known today as United States Courts of Appeals, of which there are currently thirteen) in the Evarts Act of 1891.

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1702692580 The first Supreme Court, consisting of five associate justices and Chief Justice John Jay, a prominent New York lawyer from a distinguished family and a co-author of the Federalist Papers, began its work of self-definition almost immediately. Three of the associate justices, John Rutledge of South Carolina, James Wilson of Pennsylvania, and John Blair Jr. of Virginia, had been delegates to the Constitutional Convention. All were acutely aware of the Court’s place in the Constitution’s design of separated powers. (President George Washington later appointed two more Constitutional Convention veterans to the Court, William Paterson of New Jersey and Oliver Ellsworth of Connecticut.)

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1702692582 One early turning point came in 1793, when Secretary of State Thomas Jefferson sent the Supreme Court a letter on behalf of President Washington requesting help in resolving questions of interpretation that had arisen under the 1778 treaty between France and the United States. The letter posed twenty-nine specific questions. Judges of the state courts then commonly offered—as several still do—“advisory opinions” of the sort the president sought. But Chief Justice Jay and the associate justices viewed the request as falling outside the jurisdiction of the federal courts. In a letter to the president, the Court responded: “The lines of separation drawn by the Constitution between the three departments of the government—their being in certain respects checks upon each other—and our being judges of a court in the last resort—are considerations which afford strong arguments against the propriety of our extrajudicially deciding the questions alluded to.”

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1702692584 This early rejection of an advisory role established a lasting principle: that the federal courts have the constitutional power to decide only those questions that arise in the context of disputes between opposing parties. The principle is easier to state than to apply, and the Court has spent the subsequent two centuries elaborating on it. Even today, the contours of what is often referred to as the “Article III jurisdiction” of the federal courts remain contested. The important points here are simply these: that questions concerning the federal courts’ jurisdiction are anchored deeply in the nation’s constitutional origins, and that the Supreme Court itself has provided the answers.

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1702692586 The Supreme Court met for the first time on February 2, 1790, in New York City, the country’s first capital. The Court’s meeting place was the Merchants Exchange (sometimes referred to as the Royal Exchange) building in lower Manhattan, the first of several locations that served as a home for the Supreme Court until the justices got their own building on Capitol Hill in 1935.

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1702692591 1. The Old Merchants Exchange Building. Sometimes called the Royal Exchange, this was the Supreme Court’s first home. The Court met in this building in lower Manhattan for the first time on February 2, 1790.

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1702692593 After a year in New York, the Court moved to Philadelphia, sitting first in the State House and then in the city’s newly constructed city hall, where the justices shared space with the mayor’s court. After nine years in Philadelphia, the Court moved along with the rest of the national government to the new capital in Washington, DC in 1800. There, the Court operated for the next 135 years from the Capitol building. That the president and Congress were able to move into their own homes by 1800, while the Supreme Court lacked its own real estate until nearly the middle of the twentieth century, certainly suggests that the Court, and the branch that it was to head, began life in something less than equal partnership with the other two branches. It would be up to the Court itself to establish parity, something it achieved by giving itself dominion over the Constitution.

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1702692595 In the beginning, the prospect seemed distant that the Court would matter much at all. During its first two terms, February and August 1790, it had almost nothing to do. A year after its first session, the Court finally received its first case, but the case settled before argument. Six months later, in August 1791, the Court received a second case, an appeal in a commercial dispute. The justices heard arguments, but then declared that a procedural irregularity in the appeal barred them from proceeding to a decision. Not until 1792 did the Supreme Court begin issuing opinions.

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1702692597 In the early years, the justices worked hardest in their capacity as judges of the circuit courts, which had growing dockets due to their original jurisdiction over major federal crimes. It was in the circuit courts that the justices fleshed out some important principles of federal law and jurisdiction. One such instance came in 1792 in Hayburn’s Case. A new law, the Invalid Pensions Act, directed the circuit courts to act as pension boards and determine the pension claims of injured Revolutionary War veterans. The justices, as circuit judges, refused to exercise this new grant of jurisdiction. The problem was that any determination by the court that a veteran was entitled to a pension would be subject to review by the secretary of war. In the justices’ view, this added layer of executive branch review would turn the judicial determination into a nonjudicial act. Justices sitting on each of the three circuits wrote separately to President Washington explaining why they could not carry out the assigned duty. “Such revision and controul [sic] we deemed radically inconsistent with the independence of that judicial power which is vested in the courts,” Justices James Wilson and John Blair, sitting on the Middle Circuit, explained in their letter. The attorney general appealed to the Supreme Court, which heard arguments but never issued a decision, because Congress revised the offending statute in the meantime. Was Hayburn’s Case, then, the first instance of the Supreme Court declaring an act of Congress unconstitutional? Not formally. But the dispute received wide attention and could have left little doubt in the public’s mind that these justices would be zealous guardians of the jurisdictional boundaries that they understood the Constitution to have drawn.

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1702692599 The next year, the Court decided what is generally viewed as the major case of the early years. The decision, Chisholm v. Georgia(1793), provoked an immediate backlash, in the form of the first constitutional amendment to be ratified after the ten amendments of the Bill of Rights. The case was a suit by a merchant in South Carolina against the state of Georgia for a Revolutionary War debt. The plaintiff sued directly in the Supreme Court under the provision of Article III that gave the Court jurisdiction over suits between a state and a citizen of a different state. The Court rejected Georgia’s argument that as a sovereign state it was immune from suit without its consent. When Georgia refused to appear, the Court entered a default judgment against it.

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1702692601 The five justices in the majority (there was one dissent) each wrote a separate opinion, as was the custom. The opinions constituted a decision that was highly nationalist in tone. “As to the purposes of the union, therefore, Georgia is not a sovereign state,” wrote Justice Wilson. Not surprisingly, the states were alarmed by this development, and a constitutional amendment to overrule the decision was introduced two days later. In 1798, the Eleventh Amendment received final ratification, providing that the jurisdiction of the federal courts “shall not be construed to extend” to cases brought by citizens of one state against another state. Despite that seemingly conclusive language, the scope of state immunity from suit was far from settled, and remains a contested question even today.

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1702692603 Chief Justice Jay, who had run unsuccessfully for governor of New York while serving on the Court, was elected governor in 1795 and resigned his office. A New York newspaper approvingly described the chief justice’s election as governor as a “promotion.”Washington nominated John Rutledge of South Carolina, who had previously been confirmed to a position as an associate justice but had resigned without ever taking his seat, in order to become chief justice of the South Carolina Court of Common Pleas. This time, Rutledge agreed to serve and accepted a recess appointment, but the Senate refused to confirm him. Because Rutledge did serve in the position of chief justice from August 12 until December 15, 1795, he is counted as the country’s second chief justice.

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1702692605 Washington next nominated a sitting associate justice, William Cushing, whom the Senate promptly confirmed. But he declined to take his seat on the ground of poor health. The president’s next nomination, of Oliver Ellsworth of Connecticut, was successful. He took his seat as the third chief justice in March 1796, and served until resigning in ill health on December 15, 1800. President John Adams then offered John Jay his old job back. But Jay, who by then had served two terms as New York’s governor, declined, observing that he was “perfectly convinced” that the federal judicial system was fundamentally “defective” and could never “acquire the public confidence and respect which, as the last resort of the justice of the nation, it should possess.”

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1702692607 This was the inauspicious background for the nomination by John Adams of John Marshall, his secretary of state, to be the nation’s fourth chief justice. Marshall, a Virginian and combat veteran of the Revolutionary War, was forty-five years old, until this day the youngest person ever to assume the office (the next youngest was John G. Roberts Jr., who became chief justice in 2005 at the age of fifty). He was a national figure, having helped lead the effort in Virginia to ratify the Constitution and later having undertaken an important diplomatic mission to France. He was the oldest of fifteen children, a fact that may help explain his natural leadership qualities. Not infrequently, Marshall is mistakenly referred to as the first chief justice. The mistake is understandable. Taking his seat in February 1801, he served for more than thirty-four years until his death on July 6, 1835. He left the Court a transformed institution, no longer the stepsister of the other two branches. To the dismay of Thomas Jefferson, to whom Marshall administered the presidential oath of office on March 4, 1801, the Marshall Court embraced a strongly nationalist vision of the country and a willingness to harness the Constitution, and the Court’s own authority as its primary interpreter, in the service of that vision.

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