Constitutional Conscience: The Moral Dimension of Judicial Decision

By H. Jefferson Powell | Go to book overview

CONCLUSION To Govern Ourselves in
a Certain Manner

The Supreme Court's first great constitutional decision, Chisholm v. Georgia, was also its first great public relations disaster. Chisholm held that Article III authorized the Court to exercise jurisdiction over a state at the suit of a citizen of another state; within two years of the decision, the cumbersome amendment process of Article V had overturned the decision through what we now refer to as the Eleventh Amendment.1 The nation's swift rejection of the decision was doubtless one of many reasons that Chief Justice John Jay, who was in the majority in Chisholm but resigned from the Court in 1795 to become governor of New York, declined reappointment in 1801. As Jay informed President John Adams, he “left the bench perfectly convinced” that the Court would never “obtain the energy, weight, and dignity which are essential to its affording due support to the national government, nor acquire the public confidence and respect which, as the last resort of the justice of the nation, it should possess.”2 Jay's unhappiness with his experience on the Court is understandable—in addition to the negative popular reaction to Chisholm, the physical burdens of a justice's duties (which included hundreds of miles of travel on circuit each year) were wearying—but it is difficult to imagine any twenty-first-century nominee declining appointment on Jay's ground that the Court lacks energy, weight, dignity, or public confidence and respect. The Court's history has not been without its low points, but in the present it clearly enjoys the central role in national government and in our constitutional system that Jay thought it never would. The fact that Congress and the states have used Article V

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Constitutional Conscience: The Moral Dimension of Judicial Decision
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Preface ix
  • Introduction 1
  • 1: The Rule of Five 16
  • 2: Playing the Game 38
  • 3: A Question of Degree 56
  • 4: Men and Women of Goodwill 80
  • 5: Making It Up as We Go along 103
  • Conclusion: To Govern Ourselves in a Certain Manner 117
  • Notes 123
  • Index 145
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