It is in each of the sovereignties that Wood concentrates if not positing the vibrancy of revolutionary
fervor and experience. His accounts of the political strains that ran through the individual colonial
experiences reflects some of the same kinds of concerns -- and to a degree inform much of the vital
consideration that went into forging the Constitution -- but his entire Whig science of politics seems
nearly as bankrupt in economic terms as the nation was becoming under that government. But it was in
this vital area of concern for the colonists, that associated with political economy, where the Articles
proved most inadequate. And it was from this area that the impetus which culminated in the Constitution
largely arose. Congress could not make uniform commercial rules -- that was left to the constituent states -
- and this was not very conducive to trade or growth. There was no national power to standardize tariffs,
and interstate tariff wars resulted. Tariff revenue went to the states and that, too, largely at Southern
insistence (partially due to concern over slaves as property), is where property rights were cradled. Nor
could Congress tax individuals directly. Even indirectly they could do little but plead for revenue from the
states. In addition, there was no national currency -- this, too, was left to the states with a tremendous
hindering effect upon commerce and enterprise.

     The combination of all these factors helped create in the struggling nation a real economic crisis. And
this in turn not only called into question the ability of the new republic (or even republics) to survive, but
fed the discontent which led to the series of uprisings typified by Shay's Rebellion. And the inadequacy of
the General government in responding to either crisis worked toward a conjunctural crisis of sorts that
demanded change in the interest of the public good and the maintenance of the nation. The growing
groundswell for that alteration was certainly political economic in large measure. And, except that it
seemed to be Physiocratic at heart, the effort to counter such alteration was primarily political alone in
nature -- could fundamental liberties be preserved were the Articles replaced by a Federal system? But, by
the same token, what use would such rights be if there was no growth, if the experiment failed, or if the
colonies were even reconquered? Jacobin threats were consequently very real. Jay seems to have been as
moved by a fear of leveling as Hamilton was by the necessity of creating a political economic basis and
foundation for the nation. And that is what they and their Federalist friends set about doing. Rather than
substituting machinery for organism, they formed the political instruments for capital formation and
development in creating an economic union within a political one.

     What the 'bundle of compromises' was, was as reflective of such economic matters as the Declaration
had been in its enumeration of grievances. The new government possessed greater power to promote
economy but also to suppress rebellion, the one being actually corollary to the other. Simultaneously, there
was built in an all-encompassing system of checks and balances toward 'limited' government. If this new
triad of mixed government was like that of the British Constitution is a sense, it was certainly much
different, as well. There may have been some commitment to the idea of an aristocracy of wisdom both
generally and in special regard to the Senate, but then, too, it was a concession to the states. Politically,
the entire document mirrors such notions and concerns.

     But more importantly, the Constitution's Federal Government would provide the vehicle for economic
growth. There were prohibitions against debtor relief (not initially very successful), and bills of credit. The
ex post facto clause strengthened contract law and effected constraints on alteration of debtor liability. The
contract clause prevented abrogation of contracts by state legislatures and a stipulated uniform enactment
of bankruptcy law.  Most especially in the enumerated powers of Congress, but also in the elastic clause,
the new government could effect sound economic policy. The bankruptcy of the nation's currency and debt
situation could be resolved, tariffs could be standardized, there was to be a national judiciary to work in
large part toward similar ends, and there was a national executive which could be the kind of 'Head'
Hamilton knew was essential as an advocate of policy to create social surplus and wealth. And, under the
Constitution, it was, as noted at the outset, the People who were the active or catalyzing agent in the
government. The states were 'competent' but subordinate. It included a more flexible amendment
procedure to complement the Supremacy Clause and there was a provision that mandated a guarantee of
republican government in the states. 

     In the final analysis, it is not a matter of the Founding Fathers having simply changed their minds so
much as it was a lawful process of necessity and hegemony by those 'Whigs' who understood the Whig
science of political economy. The purpose of the nation-state was, perhaps going well beyond Adam Smith
but very much in the spirit and vein of Thomas Gresham, to promote policy to foster capitalism and
economic development and growth -- the generation and creation and dedication of social surplus through
enhancement of labor power. It was to be as Franklin described a Republic, a representative government
committed to science.

     Over the years a number of spins have been put on the constitutional convention, its members, its
practices, its intentions, its failings. Beard's ECONOMIC INTERPRETATION probably went as far as
any in challenging the way we view the Framers. It was not merely that they made use of their positions
for initiating policy which would reap them economic reward, quite in the spirit of Adam Smith's self-
interested economic player. In Beard, it is almost that what they did was to set up class rule to conduct
class war against the people. Such an economic interpretation of the Constitution is not only uninformed
by political economy, it muddies the waters as to the real economic vision the Constitution is expressive
of.  The institutional structure it created became the bedrock upon which economic development might
take place and the soil in which it would bloom.

     If Madison is not always so clear on this, Hamilton is. By way of example of how the Constitution
provided the economy with such potential, it is possible to identify any number of extremely important
inclusions, the explicit objective of which was providing the basis for a strong, vibrant, industrial and
commercial capitalist economy. It was perhaps the major thrust of the Constitution to create the
environment for capitalist business to prosper. As examples of the provided measures, in addition to those
just articulated:
 
protection of private property
near sanctity of contract
sound common currency
encouragement of exports
encouragement of research and development and investment --copyright, patent, etc.
an energetic executive
common tariff structure
regulation of interstate business
standardization of weights, measures, etc.
limitation of slave trade -- rising value with shortage of labor  would undermine the institution
national court system
military authorization, including a navy
national supremacy 
judicial superintendency (review)
prohibition of capitation (direct taxes)
prohibition of debtor relief
guarantee of public debt
prohibition of bills of credit
ex post facto clause to strengthen contract
provision for common bankruptcy law
economy of scale

     Traditionally, historians seem to have held a somewhat limited view of the importance of both John
Jay himself and of the Jay Court collectively, at least in terms of any real impact upon the law and the
development of the Court and of our legal system generally. They seem to have considered him as rather
lacking in vision for the court if not as a somewhat dismal and failed warm-up for the Marshall Court.
Even Richard Morris, who has been  described as involved in an attempt to somewhat restate the role of
this earliest Supreme Court as coming very close to foreshadowing Marshall, is still, by asserting that he
sort of set the stage for him, nevertheless measuring him by his eventual successor. That may not be all
bad since it can also be said of most justices and Chief Justices before and since.

     It would seem that Jay, an active Federalist and sometime attorney and judge, was neither particularly
anxious to fill the seat of Chief Justice, nor was he Washington's first choice. In fact, and this reflects the
standing that the Court (if not the government) held in public esteem, Jay was offered the post only after
three others had declined. Lacking in history or legitimacy, there was very little notion as to what the
court should do or be. The colleagues he was to serve with seem to reflect that general attitude and are
considered a rather mediocre bunch of fellows, a point which by itself reflects the previous notion, and
with a very light caseload -- as much attributable to the process of bubbling up to that level as to anything
else -- its prestige would be slow in coming. What rulings it did hand down were primarily related to
treaties, land, and credit. Jay, however, had a much different idea about a role for the court than all that
suggests, and it was he, the President, and Mr. Hamilton, who set about forging the court into some form
of effective instrument. Undoubtedly, the reason he was selected had to do with his expertise in diplomacy
and foreign relations dating back to at least his work with Franklin in hammering out the peace that
ended the Revolutionary War. What he brought to the Court was a systematic political philosophy which,
if it held a rather dim view of human nature as intractably evil and in need of law and government to
constrain him, also held that their were requisite powers and functions of governance.  

     The political economist Jay was committed to the concept that government had a duty to oversee the
domestic economy, in order to prevent corruption and regulate greed, to be sure, but moreover to promote
its development. He held that such objects of state were realizable through jurisdictional authorities of the
Supreme Court. Convinced that Europe had to be persuaded that the new Republic  was to be a
trustworthy and faithful trading  partner, he seems to have been concerned with domestic affairs as an
extension or prerequisite of foreign affairs and trade. Basic to that concept was his view that  a scrupulous
implementation of treaties was requisite above all. Toward that end, to persuade other nations to engage in
trade with the U.S., by securing rigorous adherence to terms of treaties, the states had to be held so as not
to abridge those terms. Stemming from that, the Constitution would have to be applied, and the laws of
Congress reflect, effort to create the strongest central government acceptable. In that manner there would
be the achievement of prosperity. By laying emphasis on such generalities, Jay thought that the Supreme
Court  would be effecting support for such principles by the lower judiciaries. It followed from that vision
that he should be the agent for the treaty  that was worked out with England by him while he was Chief
Justice.

     And if Jay's vision faltered in its execution and he left the Court somewhat disheartened after
ratification of the Eleventh Amendment, and if John Marshall would later more effectively apply that
vision, there was a small but significant body of law that proceeded from the Court upon which that could
rest. Those decisions had to do with the validity of revolutionary war debts and Loyalist claims to property
which had been seized. While the 1783 Treaty provided for speedy repayment even if at high interest, the
States involved were not so anxious to abide. Near bankruptcy, some of them had actually spent
sequestered wealth that was to have been held in trust. In Van Stophorst and Oswald, and in the Georgia
cases, Jay's directive to the States to pay forthwith was all but ignored. In answer to the Court's ruling that
States had to obey the mandate which the Treaty stipulated because the agreement made by the national
government (even though it had been that under the Articles) prevailed in as much as the States had given
up some sovereignty to a supreme power in joining the Union, was rejection on the basis of purported
sovereign immunity of States. Even Jay's personal entreating to save the Union and prevent war, since
violation of the Treaty might be construed as an act of war, fell upon deaf ears in the States. 

     If, in the wake of that debacle, the Ellsworth Court had a little more success in its assertion of vested
rights bound by Treaty and a modicum of judicial review by intonation, and all that was tempered by the
uproar over the Alien and Sedition Acts and all the related furor of treason trials and imminent civil war
and nullification, John Marshall was able to slowly build upon the rubble.

     Marshall had risen to fame at the Convention and had been part of the commission to France in the
infamous XYZ Affair, and after declining appointments as an associate justice, he accepted the position of
Chief Justice from Adams after a stint in Congress and a brief tenure as Secretary of State. His skill as a
consensus builder was complimented by his superb use of formal abstract logic founded in a world view
grounded in inalienable natural right. And if the, too, held a very hierarchical view of society with an
enlightened elite 'aristocracy' at the top (not unlike that of Hamilton which is generally misunderstood and
is really a conviction in free will ), he was also dedicated to both a political nationalism and a supreme
judicial nationalism that would be forged by singularly objective judges. He also subscribed to the idea of
discretionary government which held the three departments possessive of inherent and implied powers not
bound by the letter of the law absolutely. He was prepared to nudge the immutable boundaries of
Blackstone outward in creative rule-making to do what was necessary in the midst of tremendous social
change and capitalist growth in order to anchor economic development in a conservative set of laws.
Marshall knew that an establishment of the Supreme Court's position as authoritative interpreter of the
Constitution was necessary for that and that this relied on the establishing of a judicial review power that
was insured from political attack.                                                                                                                                                 

     The extremely tentative review power implied in the carriage tax case and vested rights decisions was
slowly and deliberately broadened through tedious legal writing primarily on circuit, but the first real coup
was accomplished amidst much anti-court sentiment when he handed down the Marbury decision. By
arguing that Marbury had a right to the commission and that federal law provided him with a remedy, but 
the  Court could not secure it through mandamus because the provision of the Judiciary Act that
empowered it was an over-extension of Constitutional authority and was therefore unconstitutional. He
thus tied Jefferson's hands -- he could fill the posts if he wanted, but Marshall had declared an act of
Congress unconstitutional to do that, and had sustained a degree of executive support for the act. The
power was not used again in this way until Dred Scott, although the Marshall Court repeatedly used it to
invalidate acts of state legislatures, beginning with Peters and Hunter's Lesee.

     Equally important were the accomplishments of Marshall in consolidating the Court's power as an
instrument of federalization which stems from such decisions. The Court was the final arbitrar of federal
authority. In his  drive to create a moral economic order in which the rapidly expanding economic order   
was seen as moral, cases related to the economy and not federalism or the Congress per se were the
vehicle. The relationship between government and the economy which Jay had  articulated would be
cemented in application of the contract and commerce clauses. First in McCulloch and then in Cohens,
the Marshall Court set about shoring up both a national economic order and the power of the judges in
structuring it in the law. The Constitution, created by the people, not the States, made a nation in which
the national objects and departments, especially the judges, were supreme. In the Gibbons 'steamboat' case
and series of cases from Fletcher to Dartmouth, the Marshall Court cemented the ultimate authority of the
contract and commerce clauses (and the courts in finally deciding) vested in Congress, not the States, in
order to establish the national government as the agent for the encouragement of economic activity and
investment.

     In contract, there was a moral and a legal obligation. The  moral obligation, rooted in natural law,
could not be impaired by legislatures. They might affect the remedy through alteration of legal obligation,
but no more. Moreover, the private moral agreement was based on the social compact, and in defending
contract in this manner, the Court was also securing the ultimate social compact, the Constitution, from
state impairment. Marshall had elevated Jay's objects of state to the supreme moral order under federal
jurisdiction with the courts as the ultimate arbitrar.

     What has come to known as the Second Marshall Court was in actuality but a reflection of the
changing tide represented by Jackson and epitomized in short order by the tenure of Roger Taney. The
retreat from Marshall's judicial nationalism became a matter then of total redefinition. The banners of
Jacksonianism might have been democracy, community, economic justice, et al, but behind the facade was
states' rights, racialism, and abdication to finance capital. 

     Taney undoubtedly earned his place on the Court when he agreed to act as Jackson's henchman in
withdrawal of federal revenue from the Bank. Others had refused to do so on the basis of questionable
constitutionality of the action, but Taney's commitment to a different moral order than that expressed by
Marshall overcame such 'trivial' matters. The nation was surely different now than it had been during
Marshall's heyday. A good deal of that difference is directly attributable to the application of the notions
of political economy enjoined in the national order flowing from the American System and political and
economic nationalism of those, from which Marshall had grown. They are also attributable in a large
measure to the conscious effort to undermine that moral economic order. The demise of the Second Bank
put the economic control of the nation in the hands of the 'pet' banks, but also indirectly under control of
the emerging financial powers. It also meant a proliferation of bank notes and speculation that directly
contributed to the massive collapse that came after 1837. All of this was also contributing to the
substitution of sectionalism for the nationalism that had prevailed. Inherent in the mentality of those in
power was also a dedication to slavery and the concept of the inherent inferiority of non-whites. Taney
began to unwind the sanctity of contract in striking down the contractual monopoly concept with the
Charles River Bridge  case. Now it would be the community of local interests which would define
economic development. The old nationalists saw this, not as an extension of economic progress, but as an
attack on prosperity. If contract could be violated, faith in government would decline, and venture capital
would be less often risked. Now the local community's power would be supreme; the power of the State,
not the Federal government, or the judges. This also made the States the vital force in the passage of
community rules regarding slavery. State's Rights would replace the old federalism of the people as a
whole community.

     With the Bank of Augusta decision, Taney, under the pretense of freeing up economic energy which
Marshall had supposedly inhibited, actually was re-enforcing the developing sectionalism of the nation
while simultaneously acting in a manner that could effectively block creation of a new national bank or its
effectiveness and power if it were enacted. In that and similar cases, he fed the rampant bank-making
abroad in the land. But again, in asserting the supremacy of state police power, he was acting to defend
the institution of slavery. Seemingly at odds with Jackson's position against nullification, they were
undermining the notion of contract, i.e., social compact, that had been at the heart of Marshall's drive, and
thereby laying the foundation for the negation of the compact through secession. By arguing for
'community,' 'comity,' they were replacing the useful fiction of the 'people' with States' Rights. Although
none of the early cases dealt per se with slavery, it was shored up by these attacks on contract, and by the
undoing of Marshall's structuring of the commerce power of the federal government. In upholding the
New York  law in the Miln case, they not only undermined federal commerce power, but further enhanced
sectionalism and 'community' control over slavery. The trend continued through the Licensing and
Passenger cases, a chaotic group of decisions that promulgated further authority of popular sovereignty
concepts. And this direction was augmented in the Cooley case establishing the Doctrine of Selective
Exclusiveness in federal versus state authority over commerce. The slavery issue actually surfaced in the
Prigg case in which Story tried to check the drift of the law, but his effort eventually served as the
motivation and basis of Taney's contortion of it into Dred Scott which totally localized the question of
slavery. (Prigg dealt with the Fugitive Slave Law  and Story's intent was to maintain Congressional and
national jurisdiction over slavery, its extension, and runaways expressly in face of the Taney Court effort
to place it under local auspices, which backfired in the long-run). Thus it was, that by the time Lincoln
became President, while the Court's power of judicial review had actually been reinforced by Taney and
his cohorts, the entire basis for the national moral economic order or Marshall had been pretty well
unraveled in the direction of sectionalism and states' rights. Slavery had been given the legitimizing seal
of constitutionality,  and the role of the judges was more and  more to allow that which was established in
the law to continue. Taney had been leading the nation back towards the Articles of Confederation.  In
short, a real counter-revolution had been carried out. The basis for the moral economic order had been
undone. Slavery had been reified. And moreover, the social compact Constitution was now, like contracts
generally, violable. Dred Scott may not have caused the Civil War, but Taney did more than his share in
contributing to it in having done all this over time.


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