Documents: Early Republic

After his unanimous election as the nation’s first President, George Washington delivered his First Inaugural Address to a joint session of both houses of Congress on April 30, 1789 at Federal Hall in New York City, the nation’s capital at that time. He acknowledged Providence as guiding the nation’s steps: “No people can be bound to acknowledge and adore the Invisible Hand which conducts the affairs of men more than those of the United States.”

He explained that virtuous Americans would make the new nation a model for the world: “[T]he foundation of our national policy will be laid in the pure and immutable principles of private morality, and the preeminence of free government be exemplified by all the attributes which can win the affections of its citizens and command the respect of the world.”

Finally, he closed by putting the responsibility for the survival of the nation squarely in the hands of citizens. “[T]he preservation of the sacred fire of liberty, and the destiny of the republican model of government, are justly considered as deeply, perhaps as finally staked, on the experiment entrusted to the hands of the American people.”

Article III of the new U. S. Constitution adopted in 1789 specifically created only one national court: The U. S. Supreme Court. However, it said nothing about the number of members of the Supreme Court and authorized Congress to “ordain and establish inferior courts.” Congress took several important actions concerning the new judicial branch of the U. S. government in the Judiciary Act of 1789: (1) authorized only six Justices for the first U. S. Supreme Court; (2) established certain cases which the Supreme Court could hear; (3) created 13 lower courts below the Supreme Court; and (4) created the office of Attorney General of the U.S.

In 1803 in the landmark case Marbury v. Madison the Supreme Court established its power of judicial review when it declared unconstitutional Section 13 of the Judiciary Act which appeared to grant the Supreme Court original jurisdiction to hear certain cases outside of what the U.S. Constitution authorizes.

President George Washington’s Farewell Address was not delivered as a speech but was instead first published in the Philadelphia Daily American Advertiser on September 19, 1796 and then later in other newspapers around the nation. The opening paragraphs were largely taken from an earlier version written by James Madison in 1792 when Washington briefly considered not running for a second term. In 1796, Alexander Hamilton assisted Washington in writing the rest of the Farewell Address.

In this Address, Washington announced that he would not seek a third term as President and outlined what he hoped would be “guiding principles” for the new nation. He urged citizens to cherish the Constitution as the best means of preserving their liberty and reminded them that the document contains within itself the means for amendment. He asserted that religion and morality were the basis for justice and necessary for good government.

Finally, he discussed what he considered the two major threats to the young nation: one domestic and one foreign. First, he warned his fellow citizens about what he called “the baneful effects of the spirit of party.” Political parties, he argued, were a threat to the nation because they allowed “a small but artful and enterprising minority” to “put in the place of the delegated will of the nation, the will of a party.” Second, judged from the amount of the Address devoted to it, Washington felt the greatest threat to the nation was the dangerous influence of foreign powers. In foreign affairs, he called for the young nation “to steer clear of permanent alliances” with foreign powers.

The Federalist controlled U. S. Congress passed the Sedition Act, and Federalist President John Adams signed it into law on July 14, 1798. It was set to expire on March 3, 1801, which turned out to be John Adams’ last day as President. The law made it a criminal offense “to write, print, utter or publish any false, scandalous, and malicious writing against the government of the U. S., or either house of Congress, or the President, with intent to defame or bring either into contempt or disrepute.” Conviction for violation of the law was punishable by a fine not to exceed $2,000 and imprisonment for no more than two years. Adams claimed that the law was needed for national security because he wished to avoid war with France and argued that the restriction on speech and press was necessary to quell growing support for the French in the U. S. after the French Revolution. However, the obvious political motivation of the law is illustrated by two important facts: (1) the Vice President of the U. S., at the time Thomas Jefferson who was a leader of the new political group called the Democratic-Republicans, was not covered by the law; and (2) the only people charged with violating the law were Democratic-Republicans. The first person charged, tried, and convicted of violating the law was Matthew Lyon, a Jeffersonian Republican member of the U. S. House of Representatives from Vermont. Lyon had written a letter to a Republican newspaper in which he criticized President Adams for “a continued grasp for power” and for his “unbounded thirst for ridiculous pomp, foolish adulation, and self-avarice.”

Thomas Jefferson, James Madison, and others argued that the Sedition Act was a clear violation of the U. S. Constitution’s First Amendment and its protection of freedom of speech and press, but the law was never challenged in the courts as to its constitutionality. However, historians believe that Federalist adoption of the law was a factor in their overwhelming defeat in the elections of 1800. In one of his first official acts as the nation’s third President, Thomas Jefferson pardoned all those who had been convicted of violating the Sedition Act.

The Virginia and Kentucky Resolutions were adopted by the Virginia and Kentucky legislatures in 1798 in response to the Federalist-controlled U. S. Congress’ passage of the Sedition Act of 1798. Thomas Jefferson, the Vice President of the U. S. serving with President John Adams, authored the Kentucky Resolution, but he did not acknowledge this until years later out of fear that he himself might be charged with sedition. Both resolutions argued that Congress had no authority to exercise power not specifically delegated to it in the Constitution. Jefferson’s Kentucky Resolution further argued that the states had the power to nullify unconstitutional national laws: “[T]he several states who formed that instrument [the Constitution], being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those [states], of all unauthorized acts….is the rightful remedy.”

James Madison authored the Virginia Resolution which said that by enacting the Sedition Act, Congress was exercising “a power not delegated by the constitution, but on the contrary, expressly and positively forbidden by one of the amendments thereto; a power, which more than any other, ought to produce universal alarm, because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.”

No other state acted in support of the Resolutions. However, in the 1830s, John C. Calhoun of South Carolina asserted that he was borrowing from the Virginia and Kentucky Resolutions when he argued for the states’ power to nullify national laws. During this 1830’s nullification controversy, Madison rejected the legitimacy of nullification and argued that it was not part of his Virginia Resolution of 1798.

Thomas Jefferson wrote this letter to a Baptist Church in Danbury, Connecticut in 1802. In the letter, he explained his beliefs about federalism and the meaning of the no establishment of religion clause of the First Amendment to the U. S. Constitution. Jefferson did not address the subject of state-sponsored churches, but assured the congregation that the government of the U. S. could not interfere with their church or offer special favors to any specific sect. He wrote, “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.”

Jefferson thus echoed the words of Rhode Island founder Roger Williams who in 1644 wrote about “a hedge or wall of separation between the garden of the church and the wilderness of the world.” Several U. S. Supreme Court Justices through history have borrowed from Jefferson’s “wall of separation” metaphor. For example, Justice Hugo Black in 1947 in Everson v Board of Education of Ewing Township wrote: “In the words of Thomas Jefferson, the clause against establishment of religion by law was intended to erect a wall of separation between church and state.”

Through the Louisiana Purchase Treaty in 1803, President Thomas Jefferson doubled the land size of the United States by purchasing the Louisiana Territory from France for $15 million. The purchase opened several hundred thousand acres of land west of the Mississippi River to settlement but also resulted in the further displacement of Native Americans.

The Purchase eventually raised issues about the expansion of slavery. The Missouri Compromise of 1820 partially addressed this issue, but questions remained as to the power of Congress to regulate slavery in the new territory.

Supreme Court Cases

Before his term as President ended, a defeated President John Adams appointed William Marbury as a Justice of the Peace for the District of Columbia. Adams’ Secretary of State John Marshall failed to deliver Marbury his appointment papers before the new President Thomas Jefferson and the new Secretary of State James Madison assumed office. The new President and the new Secretary of State declined to give Marbury the position. After hiring an attorney and using part of a 1789 law passed by Congress, Marbury filed suit directly with the Supreme Court asking that Court to direct President Jefferson and Secretary of State Madison to give Marbury the position. The Supreme Court did not rule for or against Marbury. In other words, the Court did not order Secretary of State Madison and President Jefferson to give Marbury the position. What the Court did was something far more important. For the first time, in Marbury v Madison, the Supreme Court declared unconstitutional an act of Congress (a section of the Judiciary Act of 1789 under which Marbury had brought his case directly to the Supreme Court). This was an exercise of the power of judicial review—the power of the Supreme Court to interpret laws of Congress and declare them unconstitutional if in the judgment of the Court they are in conflict with the Constitution. Speaking for a unanimous Supreme Court, Chief Justice John Marshall thus established the Court as an equal partner in government with the executive and legislative branches, something it had not been prior to Marshall becoming Chief Justice. The Supreme Court became the final authority on what the Constitution means. Marshall wrote: “It is emphatically the province and duty of the judicial department to say what the law is.” Marshall continued, “[T]he Constitution of the United States confirms and strengthens the principle… that a law repugnant to the Constitution is void.” The Supreme Court, further, was the proper authority to decide if a law is in conflict with the Constitution. He called this responsibility “the very essence of judicial duty.”
After a dispute over the governance of Dartmouth College, the New Hampshire legislature enacted legislation that essentially converted Dartmouth from a private college to a state operated college. The state argued that Dartmouth’s charter had been granted by the British king and that, as heirs to British sovereignty, like the king before it, the state now had the right to cancel contracts. The Supreme Court reasoned that while that may have been true in the past, the adoption of the new U. S. Constitution changed things. Speaking through Chief Justice John Marshall, the Court held that New Hampshire could not seize Dartmouth College and turn the institution into a state school. The school’s private charter with the British Crown involved private property and was a contract. Marshall and the Court invoked the Contracts Clause of Article I, Section 10 of the Constitution which provides that “no state shall pass any law impairing the obligation of contracts.” The prohibition against impairing the obligation of contracts thus applies to states as well as to private parties.

In one of his numerous appearances before the Supreme Court, a young Daniel Webster successfully argued and won the case on behalf of Dartmouth College.

The U. S. Congress’ constitutional power to create a national bank had been controversial since Secretary of the Treasury Alexander Hamilton first successfully argued for it during President George Washington’s first term as President. Secretary of State Thomas Jefferson, also in Washington’s Cabinet, had argued against Congress’ power to create the bank. The charter of the first Bank of the United States had been allowed to expire, but in 1816, Congress chartered the Second Bank of the U. S. The largest branch of this bank was located in Baltimore, Maryland. Like Jefferson at an earlier time, Maryland did not believe that Congress had the power under the Constitution to create banks. The state decided to drive the bank out of business by passing a law placing a tax on all banks “not incorporated by the state” which meant the Baltimore branch of the Bank of the United States. Maryland asserted that Congress had no constitutional power to charter banks and that even if it did, a state could tax the bank. In this early federalism case, speaking through Chief Justice John Marshall, the Supreme Court unanimously ruled that Congress had the power to create a national bank. The creation of a bank was an implied power of Congress.

Marshall pointed out that while the power to charter banks does not appear in the list of Congress’ enumerated powers found in Article I, Section 8 of the Constitution, the creation of a bank was a means of executing its enumerated powers: “Although, among the enumerated powers of government, we do not find the word ‘bank,’…we find the great powers to lay and collect taxes; to borrow money; to regulate commerce…” Those enumerated powers, when combined with the power given Congress in Paragraph 18 of Section 8 “to make all laws necessary and proper for carrying into execution the foregoing powers,” authorized Congress’ action. This interpretation broadly expanded the power of Congress to enact laws over subjects not specifically mentioned in the Constitution.

Marshall asserted that the people, not the states, were the agents of the Constitution’s establishment. He invoked the supremacy clause of Article VI, Paragraph 2 of the Constitution in the Court’s ruling that Maryland could not tax the national bank. Marshall noted that “the power to tax involves the power to destroy.” By that he meant that a state could impose a tax so burdensome that the entity, in this case the national bank, would not be able to survive.

In 1808 the New York Legislature awarded Robert Fulton’s steamboat company the exclusive right to issue licenses to steamboats operating in New York waters. In 1811, Fulton in turn granted Aaron Ogden a license to operate steamboats between New York and New Jersey. In 1818, the U. S. Congress, using the power given Congress by the commerce clause of Article I, Section 8 of the Constitution, granted Thomas Gibbons a license to engage in the coastal trade and operate steamboats between New York and New Jersey. Ogden sued and won an injunction in a New York state court forbidding Gibbons from operating his boats in New York waters. After obtaining the services of Daniel Webster as his lawyer, Gibbons appealed to the U. S. Supreme Court. Speaking through Chief Justice John Marshall, the Supreme Court unanimously ruled in favor of Gibbons and thus Congress’ power. Writing about Congress’ power under the commerce clause, Marshall stated: “This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution.” According to Marshall, one important purpose of the new Constitution was to “rescue [the United States] from the embarrassing and destructive consequences, resulting from the legislation of so many different States, and to place it under the protection of a uniform law.” Furthermore, Marshall and the Court invoked the supremacy clause of Article VI, Paragraph 2 of the Constitution and affirmed that state laws that contradict constitutional acts of Congress must yield. The Court acknowledged that states can enact laws that regulate interstate commerce but only if these laws do not interfere with national laws. If a state law does interfere, national law preempts state law and the state law is invalid.