In lieu of an abstract, here is a brief excerpt of the content:

INTRODUCTION This book is an introduction to the Supreme Court's creation and roughly its first decade of operation, up to 1801, when John Marshall became its fourth Chief Justice. The book is intended for general readers-both lawyers and nonlawyers-with a scholarly interest in the subject. Much of the book is devoted to matters that the Founding Generation deemed important. For example, consistent with the federal government 's original primary purpose, chapter five's chronological survey of the Court's first decade is organized entirely around national security issues. In addition, the book covers topics like the relationship between the Court and the Constitution that have proved from a late-twentiethcentury perspective to be of enduring significance. Today the Supreme Court is a unique political institution whose immense power is supported and limited by over two hundred years of tradition . This tradition, however, was not always so well established, and we should strive not to project our current understanding of the Court back into the late eighteenth century. Some of the central tenets of the Court's formative years have faded from existence or suffered a flat rejection; some were in an embryonic form that has been subtly but significantly changed over the years. This book depicts the beginning of the experiment that was to become the Court we know today. A student of the Court's creation must constantly bear in mind that the Court originated as part of a grand experiment. In 1790 John Jay, the first ChiefJustice of the United States, reminded the nation in the first paragraph of his first grand jury charge that "Whether any People can long govern themselves in an equal uniform & orderly manner, is a Question ... exceedingly important to the Cause of Liberty. This Question , like others whose Solution depends on Facts, can only be determined by Experience." Jay believed that "the present national Government already affords advantages," but he did not think the new 1 2 THE SUPREME COURT IN THE EARLY REPUBLIC government was perfect. "It is a consolation," he continued, "to reflect that the good Sense of the People will be enabled by Experience to discover and correct its Imperfections."l In addition to remembering the tentative nature of the Court's creation and initial operation, readers in the late twentieth century must understand the drastic differences between today's fundamental principles of jurisprudence and those of the late eighteenth century. When the Court was created, virtually all American attorneys were natural lawyers who believed thatjudges did not and should not resort to considerations of policy in adjudicating cases. They believed that law was a comprehensive and systematic body of principles based upon divine wisdom and the perfection of human reason. As Thomas Jefferson wrote in the Declaration of Independence, natural lawyers believed in "the Laws of Nature and of Nature's God."2 This system of laws existed in nature independent of the state. In contrast, legal positivism is the mainstream of American jurisprudence in the late twentieth century. Today virtually all Americans with any background in the study oflaw are legal positivists, at least insofar as we believe that law is an expression of political power and that the law's content is largely a function ofindividual human lawmakers' views ofappropriate policy. Moreover, virtually all Americans in the late twentieth century believe thatjudges are lawmakers and therefore thatjudges necessarily must look to considerations of public policy in adjudicating cases. The difference between legal positivism and natural law is so vast that many of the Founding Generation's thoughts and actions cannot be understood without setting positivism aside and studying those earlier thoughts and actions in their original natural-law context. Another significant difference between the legal landscape of the late eighteenth century and that of the present relates to the geographic orientation of the country, or at least of its ruling class. When the federal government was created, the country perched on the eastern seaboard and looked toward Europe. Only Vermont, Kentucky, and Tennesseeall admitted to the Union after the original thirteen states-did not face the Atlantic. On the other side of the Atlantic, Europe was the acknowledged cultural center ofAmerica's world in 1789, and Europe had three large and powerful nations (Great Britain, France, and Spain) that had open designs on American territory. The raison d'etre of the federal gov1 . John Jay, Charge to the New York Grand Jury (Apr. 12, 1790), reprinted in 1 DHSC 25-30. 2. THE DECLARATION...

Share