To Bring Law Home: The Federal Judiciary in Early National Rhode Island (review)

To Bring Law Home uses Rhode Island as a case study to illustrate the nationalizing impact of the federal court system in the early republic. Too often the story of American constitutionalism oscillates from a perspective focusing exclusively on the formation and adoption of the federal Constitution and the rise of the Supreme Court to a focus on the weaknesses of the early federal government and its limited impact on the lives of ordinary people.

The continued reliance of scholars on Charles Warren’s classic work, The Supreme Court in United States History (1922), is responsible for the former view. Historian William J. Novak advanced the latter argument in his informative work, The People’s Welfare: Law and Regulation in Nineteenth Century America (Chapel Hill, NC, 1996). Novak argues against the myth of American statelessness for what he terms a “well-regulated society.” According to Novak, up until the Civil War, governance was strictly local in nature, with “towns, local courts, common councils, and state legislatures” serving as “the basic institutions of governance” (10).

Historian D. Kurt Graham adds another element to Novak’s account through his mining of the historical records of neglected federal court cases. To Bring Law Home builds on the author’s 2002 dissertation at Brown University, which historian Gordon Wood relied on in his recent book, Empire of Liberty: A History of the Early Republic, 1789–1815 (Oxford, UK, 2009). Graham details the myriad of ways in which the federal judiciary served the needs of the local populace, especially the merchant classes. Rhode Island merchants had a stake in the success of the new federal government, and thus they looked to the federal court system to mediate commercial transactions and revenue laws.

The author persuasively argues that the federal courts “empowered the local citizenry, were staffed by local people, and functioned alongside state and local institutions in ways that often made them indistinguishable” (63). The circuit courts enjoyed “concurrent cognizance” with the state courts in cases where diversity of citizenship was present and the monetary amount exceeded five hundred dollars (68). With the creation of offices such as district judge and district attorney, the federal court system “provided additional opportunities” for members of the legal profession because these men were often drawn from the local elite (39). A case in point is the career of Ray Greene, who served as the state’s attorney general and district attorney from 1793 to 1797.

Because of Rhode Island’s hostility toward the Union, its penchant for paper money schemes, its reluctance to adopt the federal Constitution, its peculiar political culture, and its long-standing fear of overarching federal authority, Graham argues that “if national authority could take root” there, “it could take root anywhere” (8). Until 1842 Rhode Island was governed by its 1663 colonial charter. Nearly 75 percent of the colony’s white male population was able to meet the freehold requirement set by the legislature until the Revolutionary period. Thus the liberal nature of the document, as the leading scholar of the state’s history, Patrick T. Conley, has noted, prompted citizens to “preserve and enshrine” it (Democracy in Decline: Rhode Island’s Constitutional Development, 1776–1841 [Providence, RI, 1977], 54). However, as Graham points out, while Rhode Island’s unique political culture often set it apart from its neighbors, it was certainly not unique in relation to its weak state judiciary. Eleven of the thirteen states in the period 1787–89 used trial courts, not appellate courts, as the highest judicial tribunal. This meant that the final authority often rested with the legislative branch.

Federal law as administered by the Judiciary Act of 1789 provided a remedy of sorts because it had the capacity to bypass state law and directly reach individuals. The 1787 Constitution created the Supreme Court and outlined the classes of cases in which its jurisdiction would be appellate...