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Citation: 15 Law & Hist Rev. 391 1997
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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-
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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.
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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
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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
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
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