+(,121/,1( Citation: 15 Law & Hist Rev. 391 1997 Content downloaded/printed from HeinOnline (http://heinonline.org) Fri Jul 27 16:02:04 2012 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0738-2480 Book Reviews kept Australia on the imperial path of legal correctness, but the delegates to the conventions which drafted the federal constitution voted, narrowly, to abolish most imperial appeals in favor of a local final court of appeal. McMinn stresses the narrowness of the vote and the lack of popular concern about it. Others might stress the astonishing fact that this was done at all at the time of the peak of British legal imperialism and its partner, pseudo-scientific legal positivism. Law trickled down from above, went the dominant legal theory, from London to the empire. Even those who criticized the Privy Council's competence in the 1890s had tended to accept its right to hear appeals (on this see Paul Finn, Law and Government in ColonialAustralia [Melbourne, 1987], 44). Similarly, McMinn seems to downplay the significance of the fact that in every colony a majority of those who voted supported the federal constitution; instead he would have us look at the one-sixth who voted against the proposal and at the fact that many chose not to vote at all. The same applies in later chapters; there are even suggestions that federalism itself prevents Australia becoming an unambiguous nation, although that is no obstacle to other federal nations (269). McMinn's acknowledgment of his sources goes no further than a bibliography and the intermittent mention of authors' names in the text. This makes it unnecessarily timeconsuming to check the veracity of assertions, to distinguish his views and findings from those of others, and to ascertain the extent to which he relies on particular authors. Richard Lucy University of New South Wales Bruce Kercher Macquarie University, N.S.W. Maeva Marcus et al., eds., The DocumentaryHistory of the Supreme Court of the UnitedStates, 1789-1800, vol. 5, Suits againstStates, New York: Columbia University Press, 1994. Pp. xxxix + 686. $125.00 (ISBN 0-231-08872-8). Morris L. Cohen and Sharon Hamby O'Connor, A Guide to the Early Reports of the Supreme Court of the United States, Littleton, Colo.: Fred B. Rothman, 1995. Pp. xii + 237. $42.50 (ISBN 0-8377-0468-5). Although the subject matter of these two books overlap, their primary intended audiences are radically different. A Guide to the Early Reports is a bibliographic tool written by librarians for librarians, and this orientation significantly limits the book's value to historians. In contrast Maeva Marcus's fifth volume in The Documentary History of the Supreme Court provides a wealth of documentation that is absolutely essential to any study of the Supreme Court in the early Republic. The first four volumes in this series already have provided valuable information on the Court's early years. Volume I painstakingly reproduced the Court's minutes for that era and covered the appointment process. Volumes 2 and 3 dealt with the Justices' activities in the Circuit Courts, and volume 4 covered early federal legislation regulating the judiciary. The recently published volume 5 treats suits against states. Volume 5 introduces us to the structure that will be used to organize most of the re- HeinOnline -- 15 Law & Hist Rev. 391 1997 392 Law and History Review, Fall 1997 maining volumes in the second half of the series. Approximately the first 600 pages of this volume are devoted to discrete and independent presentations of seven different suits filed in the Supreme Court against individual states. This case by case organization is followed by a treatment of the drafting and ratification of the Eleventh Amendment. After these eight subtopics, the volume concludes with a valuable, comprehensive index. The presentation of each case begins with an extended narrative introduction. The introduction to the first case, Van Staphorst v. Maryland, is fourteen pages long and describes the case's factual background and procedural history in valuable (albeit, tedious) detail. Writing these introductions was clearly a daunting task and must have appeared thankless, but these essays serve important functions. One of the serious problems confronting the Documentary History project is the sheer volume of pertinent documents. If everything were reproduced, the project would collapse of its own weight. On the other hand if no mention were made of relevant documents, the documents' very existence would be obscured. The dilemma is resolved in as satisfactory a way as possible by citing documents in the essay and suggesting their relevance. The introductory essays also provide a discursive framework for comprehending the documents that are reproduced in chronological order for each case. Finally the essays will be a godsend to anyone who happens to be interested in the specific case being covered. There are no comparable treatments of most of the cases covered in this volume. Oswald v. New York, which is the second case treated in this volume, illustrates a very basic value of any documentary history. The original court files for Van Staphorst have not survived, but they have for Oswald, and they are reproduced here. Perhaps, however, these files are reproduced in too great detail. For example, the original summons in the case takes five full pages (69-76). In future volumes, I hope a pro forma document like a summons will be summarized in half a page rather than reproduced in five pages. Nevertheless the tediously complete transcripts of such generally insignificant documents may serve a special purpose in this fifth volume. The specific words of the Constitution vest the Court with an original or trial jurisdiction rather than appellate jurisdiction over suits against the states. The Supreme Court's appellate case files are available from the National Archives on microfilm, but there is no microfilm edition of the files for the Court's original jurisdiction cases. Given this gap, I am not inclined to second guess the apparently inordinate number of pages covered by documents like the Oswald summons. At least the Court's files for these cases are now available outside the National Archives. The Oswald chapter also illustrates another major strength of the Documentary History. The private papers of the early justices-particularly William Paterson and James Iredell-contain numerous notes of oral argument and memoranda that shed valuable light upon the issues before the Court and the justices' individual thoughts. The Oswald materials include Paterson's notes of the oral argument and a draft opinion by Iredell (76-88, 117-19). Paterson and Iredell were quite competent and probably were the early Court's two most thorough legal thinkers. Therefore their notes in Oswald and other cases provide a rich source of insights. The Documentary History's transcription of Iredell's notes is particularly valuable because he had, without a doubt, the worst handwriting I have ever seen. I pity the people who were saddled with the task of reading Iredell's hand, and I also thank them from the bottom of my heart for the excellent service that they have performed. HeinOnline -- 15 Law & Hist Rev. 392 1997 Book Reviews In addition to Paterson's and Iredell's notes, this volume of the Documentary History introduces us for the first time to the notes of William Tilghman that have languished at the Historical Society of Pennsylvania (592-96). Tilghman was a capable advocate before the Court in the 1790s and has left valuable notes of cases that he either argued or happened to be in Court when others argued them. We will be seeing more of Mr. Tilghman in future volumes of the Documentary History. Of course the centerpiece of this volume is Chisholm v. Georgia and the materials related to the consequent framing and ratification of the Eleventh Amendment. Chisholm is the most famous case decided by the Court in the 1790s and has received more scholarly attention than any of the Court's other cases of that decade. Nevertheless there is new grist for the Chisholm mill. In particular we are.provided with Justice Iredell's unpublished opinion dismissing the claim originally filed in the Circuit Court (14855) and a tantalizing draft of his thoughts on whether the Constitution, itself, vested the Court with original jurisdiction over Chisholm's claim (186-93). We also are given numerous public and private reactions to the Court's opinion in Chisholm (220-72). In addition to these Chisholn materials, heretofore essentially inaccessible, the volume provides a reasonably complete legislative history of the Eleventh Amendment. Like the Court's original jurisdiction case files, the Amendment's drafting history has been available in the National Archives. Now, however, this is more readily accessible. Among other things, the various proposed drafts of the Eleventh Amendment clearly establish that Caleb Strong of Massachusetts was the father of the Amendment. We are given Strong's first draft with interesting alterations (607-8) and his final draft, which was approved by the Congress and ratified by the states (613-14). These drafts and private correspondence provide valuable new information. For example, staunch Connecticut Federalists in Congress like James Hillhouse and Zephaniah Swift fully supported the measure (623-24). The fifth volume also provides fascinating glimpses of eighteenth-century attitudes regarding a judge's participation in cases in which the judge has a financial or other interest. Because Justice Wilson was heavily invested in Yazoo lands, there was a public outcry against the possibility of his participation as ajudge in cases involving those lands (505-6, 554, 560). Wilson also was an investor in the Indiana Company, which was the subject of Hollingsworth v. Virginia, (282, 300, 312). Nevertheless there is no evidence that anyone objected on this ground to his opinion in Chisholm that gave a green light to the Hollingsworth claims. Additional evidence regarding the proper role of a judge is found in Van Staphorstv. Marylandin which Chief Justice Jay apparently participated notwithstanding the fact that he had close prior connections to the claim. Among other things, he had served as an arbitrator in the dispute and was a friend and brother-in-law of one of the state's principal agents (14, 15, 18). This evidence-and other evidence like the early justices' grand jury charges and their general willingness to give personal advisory opinions-suggests a very relaxed attitude about the need for disinterested judges. Presumably additional pieces of this puzzle will be provided in future volumes. A Guide to the Early Reports of the Supreme Court was written by two distinguished law librarians and is primarily a bibliographic tool. For example, almost half the book is devoted to bibliographic descriptions of the first ninety volumes of the U.S. Reports (115-217). These descriptions tell us the precise title of each individual volume, the HeinOnline -- 15 Law & Hist Rev. 393 1997 Law and History Review, Fall 1997 name of the reporter, and when and where it was published. In addition, later editions of the volume are noted. For example, we learn that second editions of volume 17 of Howard's Reports were printed in 1885, 1889, 1895, 1903, 1906, and 1920 (185). Although this information may be of some value to librarians, its utility to historians is unclear. The book also provides brief ten to twenty page biographical sketches of the Court's first seven reporters. These sketches are probably the most valuable part of the book for an historian, but they are based almost entirely upon secondary sources and are essentially uncritical descriptions of the reporters' careers. For example, the description of Alexander James Dallas (11-22) barely hints at the fact that he was well known as a political lawyer firmly committed to representing pro-French and anti-Federalist causes. William R. Casto Texas Tech University School of Law Michael Kazin, The Populist Persuasion:An American History, New York: Basic Books, 1995. Pp. x + 381. $24.00 (ISBN 0-465-03793-3). Robert H. Wiebe, Self-Rule: A Cultural History of American Democracy,Chicgo: University of Chicago Press, 1995. Pp. x + 321. $25.95 (ISBN 0-226-89562-9). Each of these books addresses general readers of all political persuasions. Yet it is likely that each will be read mainly in the academy by "progressive" intellectuals. That may not be such a bad thing though. For they are the ones who need to read these books. Inside their mental time capsule (sealed in the 1970s) these intellectuals have heard tell of an upsurge of popular political energy, of ordinary people fed up with established patterns of government and culture expressing their exasperation in new movements, on talk radio, at the polls. This is going on, they hear, under banners of "democracy," even "power to the people." It is disturbing and puzzling because this popular political energy seems to be "right wing!" What's worse, today's "populists" are identifying them as part of the "elite" to be toppled from governmental and cultural power. "It's scary," they say (to one another). Rounding up the usual cliches, they denigrate it as a noxious expression of fundamentalist moralism and provincial insecurity, of white racism and male sexism, and of the "paranoid delusion" and "nostalgia" supposedly typical of populist movements. These two books-interpreting the history from which our fin de sicle populism has emerged-encourage and enable such readers to crack open their time capsule, look around and start thinking again. Their coincidence of approach is striking. Both sweep from early nineteenth- through late twentieth-century America, stopping to narrate and analyze particular moments and movements. Both focus on the "language" and politics of popular sovereignty. And both are driven by arguments about the deteriorating condition of American democracy. Their coincidence of interpretation is just as striking. Both begin with a model of popular sovereignty embodied in the white male polity of the nineteenth century. They argue that, in the twentieth century, democratic politics was undermined-so that, by the time the old sexual and racial exclusions had fallen, the polity in which women and people of color were included was but a shell of self-government. Today's populism, they HeinOnline -- 15 Law & Hist Rev. 394 1997