The task figured to be a challenge, but no one realized just how daunting it would be when the Supreme Court Historical Society conceived the Documentary History Project and hired Maeva Marcus, a young historian with a newly minted Ph.D., to run it.
That was 30 years ago. Ms. Marcus’s two children, who used the Supreme Court building as their weekend playground when the project was housed there in its early years, grew up to become, not surprisingly, lawyers. One, Jonathan Marcus, argues before the Supreme Court as a lawyer in the solicitor general’s office. The other, Stephanie Marcus, handles appeals in the Justice Department’s civil division.
Now Maeva Marcus and the project’s three associate editors are getting ready to close their office in the basement of the Thurgood Marshall Federal Judiciary Building on Capitol Hill. The eighth and final volume of the “Documentary History of the Supreme Court of the United States, 1789-1800,” has gone to press. Columbia University Press, which began publishing the project’s work in 1985, will bring out the last volume in February.
The final volume collects background material on the cases that came before the court from 1798 through 1800, including petitions, lawyers’ and justices’ notes, accounts of arguments (which lasted for days), drafts of opinions, correspondence and newspaper articles.
In addition to two earlier volumes of case material, other volumes in the series cover the court’s first appointments and initial proceedings, the organization of the federal judiciary, and the activities of the justices as they rode circuit, traveling on horse or by carriage to other states to preside over trials in the Federal Circuit Courts.
The earlier volumes have been cited by judges throughout the federal court system. Justice David H. Souter, who cited “Suits Against States,” the fifth volume, in opinions on the losing side of two federalism cases, is one of the project’s most enthusiastic boosters.
“It’s not just a collection of documents,” Justice Souter said in an interview this month. “It gives us a broader contextual basis for understanding those early cases.”
When the project got under way in 1977, few would have supposed that some of the court’s earliest cases would gain new relevance. The court began to approach constitutional interpretation with a new interest in the founding generation’s original understanding.
For example, the 11th Amendment, which limits the jurisdiction of the federal courts to hear suits against states, became a hot topic during the 1990s when Chief Justice William H. Rehnquist, to Justice Souter’s dismay, dusted it off and invoked it as a bulwark of state sovereignty. The 11th Amendment was adopted to overturn a 1793 Supreme Court decision, and the history project’s fifth volume offers a font of information about that case, Chisholm v. Georgia, and about debates that have not been resolved to this day.
“It never pays to write off an amendment,” Justice Souter said dryly.
The first five years of the documentary history project were spent searching private and public collections around the country for documents. The project’s collection eventually reached about 20,000 documents. Many are reprinted in the volumes. Others may be digitized to make them accessible to researchers.
Some mysteries were never solved, Ms. Marcus said in an interview. The court’s earliest cases were argued without written briefs. Then in 1795, the justices adopted a rule requiring lawyers to submit the “material points” of their arguments in writing. But the project found only a handful of these among the justices’ papers. Were all the others lost, or did the lawyers fail to submit them? There is no way to know.
“What you realize is that everything was very fluid,” Ms. Marcus said. “No one knew how it would all work out.” But by the end of the period that the project covers, on the eve of John Marshall’s appointment as the fourth chief justice in 1801, “the court was absolutely a functioning institution,” she said.
In the early days, the justices did not issue written opinions; they announced their judgments from the bench. Nor did the court employ an official reporter of its decisions. A freelancer stepped in, Alexander James Dallas, a Philadelphia lawyer whose somewhat impressionistic accounts of what occurred in the courtroom comprise all there is of an official record.
It was well known that Mr. Dallas did not always get it exactly right. But new research showed that he was sometimes flat-out wrong. In one 1798 case, Wilson v. Daniel, Mr. Dallas reported that the Supreme Court had affirmed the trial court’s judgment. Actually, the court voted to reverse. “This mistake culminates a jumbled and confusing report of the case that is often difficult to reconcile with the court’s own records,” a diplomatically worded footnote in the new volume observes.
The project has touched, if not dominated, the lives of those who have spent so many years immersed in the court’s early history.
While reading letters and diaries, Natalie Wexler, one of the associate editors, became captivated by the relationships among four of the original Supreme Court personalities — Justice James Wilson and his wife, Hannah, whom he married when he was 51 and she was 19; and Justice James Iredell and his wife, also named Hannah.
“I feel I truly know them,” Ms. Wexler wrote in an essay in the Summer 2006 issue of The American Scholar, the magazine of the Phi Beta Kappa Society. “But of course,” she added, “what I know is largely what I’ve made of them. They’ve become ghostly emanations, hovering in some limbo between truth and fiction.”
Ms. Wexler, who also has written a historical novel about the Wilsons and the Iredells, imagines illicit passions that would raise plenty of eyebrows around the court today.
Ms. Marcus, who is president-elect of the American Society for Legal History, will next turn her attention to the Institute for Constitutional Studies, a program she started in 1999. It is now housed at George Washington University’s law school and counts Justices Antonin Scalia and Ruth Bader Ginsburg among its academic advisers.
Among its activities, the institute brings young scholars to Washington for seminars on constitutional history. In other words, it may give a new generation the equipment and desire to uncover some of the mysteries that, even after 30 years, still remain.