1. Story was appointed to the Court in 1811 by a Republican president, James Madison.

2. On the gradual replacement of “polycentric localism” with a more unitary nationalism in the early national period, see Tomlins, Christopher, “Republican Law, 1770–1820,” in The Oxford Handbook of the American Revolution, ed. Gray, Ed and Kamensky, Jane (forthcoming, 2012)Google Scholar.

3. On the importance of the concept of supremacy to United States constitutional law and the law of federal jurisdiction, see Pfander, James E., One Supreme Court: Supremacy, Inferiority, and the Judicial Power of the United States (New York: Oxford University Press, 2009)CrossRefGoogle Scholar.

4. An Act to Provide for the More Convenient Organization of the Courts of the United States, §11, 2 Stat. 89 (1801) (Judiciary Act of 1801) (granting the circuit courts “cognizance . . . of all cases in law or equity, arising under the constitution and laws of the United States, and treaties made, or which shall be made, under their authority”). See also LaCroix, Alison L., The Ideological Origins of American Federalism (Cambridge: Harvard University Press, 2010), 179Google Scholar; Marcus, Maeva, The Documentary History of the Supreme Court of the United States (New York: Columbia University Press, 1992), 4:123Google Scholar; and Turner, Kathryn [Preyer], “Federalist Policy and the Judiciary Act of 1801,” William & Mary Quarterly 22, 3rd Series (1965): 3–32CrossRefGoogle Scholar.

5. Sedgwick to King, Rufus, November 15, 1799, in King, Charles R., ed. The Life and Correspondence of Rufus King, (New York: G.P. Putnam, 1896), 3:145Google Scholar.

6. See LaCroix, Ideological Origins of American Federalism, 212; cf. Kramer, Larry D., “But When Exactly Was Judicially-Enforced Federalism ‘Born’ in the First Place?,” Harvard Journal of Law and Public Policy 22 (1998): 123–37Google Scholar.

7. Resolutions Proposed by Mr. Randolph, in Convention May 29, 1787, in Notes of Debates in the Federal Convention Reported by James Madison (New York: W.W. Norton & Co., 1987), 32Google Scholar.

8. An Act to repeal certain acts respecting the organization of the Courts of the United States; and for other purposes (March 8, 1802), 2 Stat. 132. Congress reestablished the inferior federal courts' jurisdiction over federal question cases in 1875, and the grant still stands today. See Act of March 3, 1875, chap. 137, §1, 18 Stat. 470 (granting the federal circuit courts jurisdiction “of all suits of a civil nature at common law or in equity . . . arising under the Constitution or laws of the United States, or treaties made, or which shall be made under their authority”); see also 28 U.S.C. § 1331 (providing that “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution”).

9. U.S. Const. Art. III, §§ 1–2. Cf. Hart, Henry M. Jr., “The Power of Congress to Limit the Jurisdiction of the Federal Courts: An Exercise in Dialectic,” Harvard Law Review 66 (1953): 1362–402CrossRefGoogle Scholar (providing a thorough exegesis of Congress's authority to regulate the scope of federal jurisdiction). Of course, some commentators––both in the nineteenth century and today––dispute the notion that Congress may grant less than the full amount of Article III jurisdiction to the lower federal courts. See Story, Joseph, Commentaries on the Constitution (Boston: Hilliard, Gray 1833)Google Scholar; Amar, Akhil Reed, “A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction,” Boston University Law Review 65 (1985): 205–74Google Scholar; Clinton, Robert N., “A Mandatory View of Federal Court Jurisdiction: A Guided Quest for the Original Understanding of Article III,” University of Pennsylvania Law Review 132 (1984): 741–866CrossRefGoogle Scholar; and Sager, Lawrence Gene, “The Supreme Court, 1980 Term—Foreword: Constitutional Limitations on Congress' Authority to Regulate the Jurisdiction of the Federal Courts,” Harvard Law Review 95 (1981): 17–89CrossRefGoogle Scholar.

10. See Turner, “Federalist Policy and the Judiciary Act of 1801,” 3 (noting that “awareness of the Act seems to have been kept alive chiefly because it must be summoned to serve as the cause of its own repeal in March 1802”).

11. See Turner, Kathryn [Preyer], “The Midnight Judges,” University of Pennsylvania Law Review 109 (1961): 494–523CrossRefGoogle Scholar; see also Nelson, William E., “The Province of the Judiciary,” John Marshall Law Review 37 (2004): 336Google Scholar (stating that “[t]he 1801 Act, as we know, was a failure”).

12. But see Turner, “Federalist Policy and the Judiciary Act of 1801,” 3 (arguing that “the Act was clearly not occasioned by the Republican victory in 1800”); Kerber, Linda K., Federalists in Dissent: Imagery and Ideology in Jeffersonian America (Ithaca: Cornell University Press, 1970), 136Google Scholar (“Contrary to its subsequent reputation, the Judiciary Act of 1801 had been the subject of a full and responsible debate during the preceding session of Congress, and its terms represented an attempt to correct the inadequacies of the first Judiciary Act of twelve years before.”).

13. See Hart, Henry M. Jr. and Wechsler, Herbert, The Federal Courts and the Federal System (Brooklyn: Foundation Press, 1953)Google Scholar.

14. For the foundational statement of the Madisonian compromise, see Fallon, Richard H. Jr., John F. Manning, Daniel J. Meltzer, and David L. Shapiro, Hart & Wechsler's The Federal Courts and the Federal System, 6th ed. (New York: Foundation Press, 2009), 7–9Google Scholar. See also Redish, Martin H. and Woods, Curtis E., “Congressional Power to Control the Jurisdiction of Lower Federal Courts: A Critical Review and a New Synthesis,” University of Pennsylvania Law Review 124 (1975): 52–56CrossRefGoogle Scholar; and Clinton, Robert N., “A Mandatory View of Federal Court Jurisdiction: A Guided Quest for the Original Understanding of Article III,” University of Pennsylvania Law Review 132 (1984): 763–64CrossRefGoogle Scholar.

15. See Holt, Wythe, “The First Federal Question Case,” Law and History Review 3 (1985): 169–89CrossRefGoogle Scholar (discussing the sole federal question case brought under the Judiciary Act of 1801 that survived the 1802 repeal).

16. The Judiciary Act of 1789 contained specific grants of jurisdiction to the lower federal courts for cases involving federal crimes or penalties and forfeitures, and cases in which an ambassador was a party. 1 Stat. 73, 77, § 9.

17. An Act to Establish the Judicial Courts of the United States, chap. 20, 1 Stat. 73 (1789).

18. See, generally, Skinner, Quentin, “Meaning and Understanding in the History of Ideas,” History and Theory 8 (1969): 3CrossRefGoogle Scholar (discussing the difficulties of interpretation across time); cf. LaCroix, Alison L., “Temporal Imperialism,” University of Pennsylvania Law Review 158 (2010): 1329–73Google Scholar (examining the Supreme Court's efforts to interpret its decisions across time).

19. A female visitor to the White House on New Year's Day 1825 described the president as “tall and well formed[, h]is dress plain and in the old style, small clothes, silk hose, knee-buckles, and pumps fastened with buckles.” Gilman, Daniel Coit, James Monroe (Boston: Houghton, Mifflin and Co., 1898), 215Google Scholar (quoting Mrs. Tuley).

20. See Sellers, Charles, The Market Revolution: Jacksonian America, 1815–1846 (New York: Oxford University Press, 1991)Google Scholar; Howe, Daniel Walker, What Hath God Wrought: The Transformation of America, 1815–1848 (New York: Oxford University Press, 2007)Google Scholar (describing the widespread social, economic, technological, and cultural transformations of the years after 1815).

21. See Freeman, Joanne B., “The Election of 1800: A Study in the Logic of Political Change,” Yale Law Journal 108 (1999): 1959CrossRefGoogle Scholar (discussing the “logic of political change” in the context of early national culture).

22. Jefferson to Marshall, March 2, 1801, in Hobson, Charles F., ed. The Papers of John Marshall (Chapel Hill: University of North Carolina Press, 1990), 6:86Google Scholar. The seconding to Jefferson of the clerk in question, Jacob Wagner, at the time of the inauguration was the proximate cause of the famous nondelivery of the commission that became the gravamen of the controversy in Marbury v. Madison, 5 U.S. 137 (1803). Writing to his brother a few weeks later, Marshall explained, “I shoud however have sent out the commissions which had been signd & seald but for the extreme hurry of the time & the absence of Mr. Wagner who had been calld on by the President to act as his private Secretary.” Marshall to James M. Marshall, March 18, 1801, in Papers of John Marshall, 6:90.

23. Story to Sarah Story, March 7, 1829, in Story, William W., ed. Life and Letters of Joseph Story (Boston: Charles C. Little and James Brown, 1851), 1:563Google Scholar. Story followed this observation by remarking that he had immediately left Washington following the inauguration.

24. See Martin v. Hunter's Lessee, 14 U.S. 304 (1816) (civil cases); and Cohens v. Virginia, 19 U.S. 264 (1821) (criminal cases).

25. An Act to Establish the Judicial Courts of the United States, Chap. 20, 1 Stat. 73 (1789), § 25 (hereinafter Judiciary Act of 1789).

26. U.S. Const., Art. III, § 2.

27. U.S. Const., Art. VI, cl. 2.

28. Marbury v. Madison, 176,180.

29. Judiciary Act of 1789, §§ 9 and 11.

30. See Kempe's Lessee v. Kennedy, 9 U.S. 173, 185 (1809).

31. See Farrand, Max, ed. The Records of the Federal Convention of 1787 (New Haven: Yale University Press, 1966), 1:124–25Google Scholar; see also Redish and Woods, “Congressional Power to Control the Jurisdiction of Lower Federal Courts,” 52–56 (describing the “Madisonian compromise”).

32. See Marcus, Documentary History of the Supreme Court, 4: 473; LaCroix, Ideological Origins of American Federalism, 184–201 (discussing the 1790s debates concerning reforms to the 1789 act).

33. The majority of early national commentators took the position that scope of federal judicial power was and ought to be coextensive with that of federal legislative power. This “coterminous power” theory, as G. Edward White refers to it, reflected a sense that Congress, the Court, and the president were agents charged with carrying out an overarching federal interest. The three institutional actors were therefore seen as “departmental associates engaged in partisan struggles with the states.” See White, G. Edward, The Marshall Court and Cultural Change, 1815–1835, abr. ed. (New York: Oxford University Press, 1991), 122Google Scholar. Also cf. Ponceau, Peter S. Du, A Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States (Philadelphia: Abraham Small, 1824)Google Scholar (offering a non-coterminous account of the relative power of Congress and Court).

34. United States v. Worrall, 2 U.S. (F. Cas.) 384 (Cir. Ct. Penn. 1798). Also cf. United States v. Coolidge, 14 U.S. 415 (1816) (finding no common law federal criminal jurisdiction in a case involving forcible rescue of a prize in possession of United States privateers). See, generally, Ritz, Wilfred J., Rewriting the History of the Judiciary Act of 1789: Exposing Myths, Challenging Premises, and Using New Evidence, ed. Holt, Wythe and LaRue, L.H. (Norman: University of Oklahoma Press, 1990)Google Scholar; Zeigler, Donald H., “Twins Separated at Birth: A Comparative History of the Civil and Criminal Arising Under Jurisdiction of the Federal Courts and Some Proposals for Change,” Vermont Law Review 19 (1995): 673–793Google Scholar.

35. Section 11 grants the circuit courts “exclusive cognizance of all crimes and offences cognizable under the authority of the United States, except where this act otherwise provides.” Judiciary Act of 1789, § 11.

36. United States v. Worrall, 2 U.S. at 390 (“A case arising under a law, must mean a case depending on the exposition of a law, in respect to something which the law prohibits, or enjoins.”).

37. Cf. Story, Commentaries, 3:500–17 (elaborating meaning of “arising under”).

38. Cf. Amar, Akhil Reed, “The Two-Tiered Structure of the Judiciary Act of 1789,” University of Pennsylvania Law Review 138 (1990): 1499–567CrossRefGoogle Scholar; Hart, “The Power of Congress to Limit the Jurisdiction of the Federal Courts: An Exercise in Dialectic.”

39. See, for example, United States v. Hudson and Goodwin, 11 U.S. 32 (1812) (denying federal courts the power to punish the common law crime of libel); United States v. Coolidge, 25 F. Cas. 619 (Cir. Ct. Mass. 1813) (recognizing a federal common law of crimes) (Story, J.), reversed 14 U.S. 415 (1816).

40. See Kerber, Federalists in Dissent, 170 (distinguishing between the Republican vision of the common law as “something very specific: those features of English law which the colonies had not adopted or which had not been rephrased into American statutes” and the Federalist idea of it as “a metaphor for an extensive and reliable system of national justice . . . a federal law commonly enforced throughout the nation”). Story, a Republican and the leading nineteenth-century exponent of a robust federal common law, was obviously an exception to this general taxonomy. Cf. Nelson, William E., The Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830 (Cambridge: Harvard University Press, 1975)Google Scholar; Collins, Kristin A., “‘A Considerable Surgical Operation: Article III, Equity, and Judge-Made Law in the Federal Courts,” Duke Law Journal 60 (2010): 249Google Scholar.

41. See, for example, Bellia, Anthony J., “The Origins of Article III ‘Arising Under’ Jurisdiction,” Duke Law Journal 57 (2007): 263Google Scholar. (“In the first decades following ratification, a famous debate ensued regarding whether federal courts, absent congressional action, could exercise jurisdiction [necessarily ‘arising under’ jurisdiction in most instances] over common law crimes against the United States.”)

42. See, for example, ibid. 268–69 (arguing that “the Marshall Court came to rely upon English jurisdictional principles as a means of limiting Article III ‘arising under’ jurisdiction to cases implicating the supremacy of actual federal laws”).

43. Even some proponents of a broad federal common law assumed that the categorization of a case as “arising under” federal law was a more fundamental decision than the particular issue of using the common law to fill statutory gaps. “There are a great variety of cases arising under the laws of the United States,” Justice Story wrote, “and particularly those which regard the judicial power, in which the legislative will cannot be effectuated, unless by the adoption of the common law.” Coolidge, 25 F. Cas. at 620.

44. Du Ponceau, Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States, 98.

45. Ibid., 99.

46. Ibid.

47. Bank of the United States v. Deveaux, 9 U.S. 61 (1809).

48. Ibid., 92.

49. Ibid., 91–92.

50. Ibid., 86.

51. Ibid., 85.

52. 1809 U.S. LEXIS 418, 15.

53. Ibid., 16. See White, The Marshall Court and Cultural Change, 122.

54. Marshall's distinction between the capacity or rights of parties and the jurisdiction of courts presaged a recurring tension in the case law between rights, or causes of action, on the one hand, and jurisdiction on the other. Were they in fact the same, such that one created the other, or was there a distinction between a substantive federal right and access to a federal court? Cf. Du Ponceau, Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States.

55. 1809 U.S. LEXIS 19.

56. Ibid.

57. 9 U.S. at 85.

58. Compare. United States v. Worrall 2 U.S. at 394-395 (“[T]he United States, as a Federal government, have no common law . . . . Judges cannot remedy political imperfections, nor supply any Legislative omission) (Chase, J.) with ibid. at 430 (“The power to punish misdemeanors . . . might have been exercised by Congress in the form of a Legislative act; but, it may, also, in my opinion be enforced in a course of Judicial proceeding.) (Peters, J.).

59. See also U.S. v. Hudson and Goodwin, 11 U.S. 32 (1812) (holding that Congress must act to make a particular activity [here, libel] a crime before the Court can punish that activity).

60. The most famous of these feints came, of course, in Marbury v. Madison. Marbury, 5 U.S. 137 (1803) (finding that Marbury had a right to the commission, and therefore to the mandamus, before determining that the Court lacked jurisdiction to issue the mandamus).

61. Bank of the United States v. Deveaux, 9 U.S. at 85.

62. Bank of the United States v. Deveaux, 1809 U.S. LEXIS 19. (“If an act of congress could authorize any person to sue in the federal courts, on the ground of its being a case arising under a law of the United States, it would be in the power of congress to give unlimited jurisdiction to its courts. But it is only when the state courts disregard or misconstrue the constitution, laws, or treaties, of the United States, that the federal courts have cognisance under that clause of the constitution which declares that the judicial power shall extend to all cases arising under the constitution, laws and treaties of the United States.”)

63. Ibid.

64. Marshall to William Paterson, February 2, 1801, in Hobson, The Papers of John Marshall, 6:65 (emphasis added).

65. Marshall to Oliver Wolcott, April 5, 1802, in ibid., 6:104.

66. Samuel Chase to Marshall, April 24, 1802, in ibid., 6:110. Chase's reference to Congress's power to expand the Supreme Court's original jurisdiction anticipated the Court's decision in Marbury. The facts of the case were at this point already known to Chase and the other justices, for the repeal act's alteration to the Court's schedule meant that the case had been postponed from December 1801 to February 1803. See Editorial Note in ibid., 6:160–61.

67. See, for example, Gouverneur Morris to Robert R. Livingston, February 20, 1801, in Sparks, Jared, ed. The Life of Gouverneur Morris (Boston: Gray and Bowen, 1832) 3:153–54Google Scholar (commenting on his fellow Federalists' response to the election: “They are about to experience a heavy gale of adverse wind; can they be blamed for casting many anchors to hold their ship through the storm?”).

68. See LaCroix, Ideological Origins of American Federalism, 187–201 (describing the early national debate over establishing state courts as the initial arbiters of all federal questions versus vesting this power in inferior federal courts).

69. Cf. Bellia, “The Origins of Article III ‘Arising Under’ Jurisdiction” (suggesting that Article III's “arising under” formulation was new in United States law and does not appear to have had English antecedents).

70. Stuart v. Laird, 5 U.S. 299 (1803). The case was decided 6 days after the decision in Marbury. Marshall, who had heard the case while sitting circuit, recused himself from hearing the case when it reached the Supreme Court.

71. Osborn v. Bank of the United States 22 U.S. 738 (1824). R. Kent Newmyer describes Osborn as “beg[inning] as an attack on McCulloch and end[ing] in a frontal challenge to the jurisdiction of the Court.” Newmyer, R. Kent, John Marshall and the Heroic Age of the Supreme Court (Baton Rouge: Louisiana State University Press, 2001), 299Google Scholar.

72. See White, Marshall Court and Cultural Change 524–26 (describing the facts of Osborn); and Bogart, Ernest L., “Taxation of the Second Bank of the United States by Ohio,” American Historical Review 17 (1912): 312–331CrossRefGoogle Scholar; see also “The State of Ohio, vs U. States Bank,” Chillicothe Weekly Recorder, September 22, 1819, 47; “The State of Ohio vs. United States Bank,” Western Monitor (Lexington, Ky.), Sept. 28, 1819, 2.

73. See White, Marshall Court and Cultural Change, 526.

74. See Editorial Note, in Hobson, Papers of John Marshall, 10:39.

75. Osborn v. Bank of the United States, 22 U.S. at 817.

76. Ibid. 805 (reporter's summary); see also An Act to Incorporate the Subscribers to the Bank of the United States, April 10, 1816, 3 Stat. 266, § 7.

77. Ibid.

78. Ibid., 807 (reporter's summary).

79. Ibid., 814–15, 813 (reporter's summary).

80. Annals of Congress, House of Representatives, 14th Cong., 1st Sess., 499 (January 8, 1816).

81. Ibid., 1203 (March 12, 1816).

82. Ibid., 1204.

83. Ibid.

84. The Senate passed a few amendments to the bill; those recorded in the Annals of Congress do not relate to the jurisdictional provision. House members concurred in all the amendments and sent the bill to Madison. According to a leading scholar of the Second Bank, the Senate “would not suffer any amendments touching the essentials of the bill, though slight and unimportant changes were made.” See Catterall, Ralph C., The Second Bank of the United States (Chicago: University of Chicago Press, 1902), 21Google Scholar.

85. On March 13, 1816, the day after Webster's amendment, a bill “further to extend the judicial system of the United States” was reported to the House. Annals of Congress, 14th Cong., 1st Sess., 1207. That bill, which included a proposal to grant the circuit courts jurisdiction over the full scope of Article III cases and controversies, had been drafted by Justice Story. See Part IV. It was read twice, committed to a committee of the whole, and subsequently postponed indefinitely by the House. See House Journal, April 23, 1816.

86. Clay to Biddle, February 17, 1824, in Hopkins, James F., ed. The Papers of Henry Clay (Lexington: University of Kentucky Press, 1963), 3:646Google Scholar. The Kentucky case that Clay had previously argued was Bank of the United States v. Roberts, 2 F. Cas. 728 (Cir. Ct. Ky. 1822) (upholding the federal circuit court's jurisdiction in an action by the Bank to recover upon a bill of exchange).

87. Clay to Biddle, February 17, 1824, in Hopkins, Papers of Henry Clay, 3: 646.

88. See, for example, United States v. Roberts, 2 F. Cas. at 733 (“This case being one, in our opinion, ‘arising under’ a law of the United States, decided by the supreme judicial tribunal of the nation, to be made pursuant to the constitution, our judgment is, that this court has jurisdiction . . . .”); and United States v. Smith, 27 F. Cas. 1147, 1147–48 (Cir. Ct. Mass.) (1792) (holding, in an action involving four indictments for counterfeiting bank bills of the First Bank, that “by the constitution of the United States the federal courts had jurisdiction of all causes or cases in law or equity arising under the . . . constitution and the laws of the United States” and “that this was a case arising under those laws”).

89. Osborn v. Bank of the United States. 22 U.S. at 317.

90. Ibid., at 319–20.

91. Cf. Bellia, “The Origins of Article III ‘Arising Under’ Jurisdiction” (arguing that the original understanding of “arising under” jurisdiction was narrower than the modern conception); Mishkin, Paul J., “The Federal ‘Question’ in the District Courts,” Columbia Law Review 53 (1953): 157–96CrossRefGoogle Scholar.

92. Osborn v. Bank of the United States, 22 U.S. at 820.

93. Ibid., 823.

94. Ibid., 827 (emphasis added).

95. Ibid., 878 (Johnson, J., dissenting).

96. Ibid., 883 (Johnson, J., dissenting). Much of the modern commentary on Osborn characterizes it as establishing “protective jurisdiction.” See, for example, Jeffries, John C. and Low, Peter W., Federal Courts and the Law of Federal–State Relations, 6th ed. (New York: Foundation Press, 2008), 287Google Scholar. This interpretation of the case captures the reasoning in Johnson's dissenting opinion rather than that of the majority. See 22 U.S. at 872 (Johnson, J., dissenting). Cf. Seinfeld, Gil, “Article I, Article III, and the Limits of Enumeration,” Michigan Law Review 108 (2010): 1389–452Google Scholar (discussing the doctrinal consequences of the Court's holding in Osborn that federal law “forms an original ingredient in every cause” to which the Bank was a party).

97. Ibid., 889–90 (Johnson, J., dissenting).

98. Ibid., 892–93 (Johnson, J., dissenting).

99. Osborn v. Bank of the United States 22 U.S. at 906.

100. See Jeffries and Low, Federal Courts and the Law of Federal–State Relations, 287–88. (“Of course, Congress can always confer federal-court jurisdiction where it has validly created a federal claim. The fighting issue is whether, where Congress has the power to create federal substantive rights, but does not do so, it may exercise the [lesser?] power of permitting a state–law suit to be brought in federal court.”)

101. Therefore, there was some irony in the Court's pointing to Congress as the source of the “arising under” jurisdiction for cases involving the Bank.

102. See, for example,. McCloskey, Robert G., The American Supreme Court, 5th ed. (Chicago: University of Chicago Press, 2010), 51–52CrossRefGoogle Scholar.

103. Marbury v. Madison, 5 U.S. 137 (1803).

104. Martin v. Hunter's Lessee, 14 U.S. 304 (1816).

105. McCulloch v. Maryland, 17 U.S. 316 (1819).

106. See, generally, LaCroix, Ideological Origins of American Federalism, 6–9 (discussing federalism as a normative vision of government based on multiplicity).

107. Judiciary Act of 1789, § 25.

108. The idea of distinguishing between federal and state domains based on subject matter dated back to the colonial period, when proto-Federalist ideology had begun to develop in response to metropolitan British claims that Parliament was sovereign over both internal colonial affairs and external imperial matters. See LaCroix, Ideological Origins of American Federalism, 103–04. For the single federal question case to survive repeal, see Holt, “The First Federal Question Case.”

109. On the normative debate in the early 1800s between proponents of Section 25 review on the one hand and supporters of lower federal courts on the other, see LaCroix, Ideological Origins of American Federalism, 187–201. Advocates of each mechanism argued that their approach was most appropriate to maintain a truly federal structure. Some modern commentators have made similar arguments for re-conceptualizing or rearranging existing institutions to better support a background commitment to federalism. See, for example, Metzger, Gillian E., “Administrative Law as the New Federalism,” Duke Law Journal 57 (2008): 2023–109Google Scholar.

110. Martin v. Hunter's Lessee, 14 U.S. at 304.

111. Cohens v. Virginia, 19 U.S. 264 (1821).

112. In the 1820s, proposals to eliminate this species of review surfaced in Congress, motivated sometimes by outrage at specific decisions by the Court and sometimes by the belief that the Court had tipped toward nationalism and was no longer demonstrating appropriate respect for the states as sovereigns. The first such proposal came from Senator Richard M. Johnson of Kentucky, who in December 1821 offered a constitutional amendment granting the Senate appellate jurisdiction over cases in which a state was a party, “and in all controversies in which a State may desire to become a party in consequence of having the Constitution or laws of such State questioned.” See Warren, Charles, The Supreme Court in United States History (Boston: Little, Brown and Company, 1922), 1:657Google Scholar. Other proposals included increasing the number of justices on the Court and requiring a supermajority of justices to strike down a state statute. See Hobson, Charles F., “The Marshall Court (1801–1835): Law, Politics, and the Emergence of the Federal Judiciary,” in The United States Supreme Court: The Pursuit of Justice, ed. Tomlins, Christopher (Boston: Houghton Mifflin Company, 2005), 60Google Scholar (describing early-nineteenth-century cases in which critics perceived the Court as paying insufficient respect to state legislation or state court decisions); see also Warren, Charles, “Legislative and Judicial Attacks on the Supreme Court of the United States – A History of the Twenty-Fifth Section of the Judiciary Act,” American Law Review 47 (1913): 1–34Google Scholar.

113. During this period, the Supreme Court also expanded its power to hear cases on appeal from the federal circuit courts. In addition to repealing the Judiciary Act of 1801, the 1802 Judiciary Act established the certificate of division procedure, which gave the Supreme Court appellate jurisdiction over cases in which the circuit judges disagreed on a question of law. Because one of the judges on circuit was typically a Supreme Court justice, the procedure created opportunities for the justices to capitalize on, or even create, disagreements with the district judges with whom they sat on circuit in order to ensure that a given case would reach the Supreme Court. Marshall and Story were particularly adept at using the certificate of division to bring a case before the Court. See White, Marshall Court and Cultural Change, 173–74.

114. On the circuit judges' substantial duties in overseeing trials, grand juries, and setting procedural rules, see Goebel, Julius Jr., Antecedents and Beginnings to 1801, vol. 1, Oliver Wendell Holmes Devise History of the Supreme Court of the United States (New York: Macmillan, 1971), 573–89, 615Google Scholar. On the grand jury charge's role during the period as both a public event and a vehicle for Federalist Party sentiments, see Haskins, George Lee and Johnson, Herbert A., Foundations of Power: John Marshall, 1801–15, vol. II, Oliver Wendell Holmes Devise History of the Supreme Court of the United States (New York: Macmillan, 1981), 222Google Scholar. For one example, see Chief Justice John Jay's 1790 charge to the circuit courts in several states, in which he observed, “We had become a nation. As such we were responsible to others for the observance of the Laws of Nations; and as our national concerns were to be regulated by national laws, national tribunals became necessary for the interpretation and execution of them both.” Johnston, Henry P., ed. The Correspondence and Public Papers of John Jay (New York: G.P. Putnam's Sons, 1891), 3:390Google Scholar.

115. Hunter v. Martin, 4 Munf. 1, 45 (Va. 1815) (Roane, J.) (describing Section 25 as “a chimera, existing only in the imagination of a former congress” and an “after-thought, well calculated to aggrandize the general government, at the expence of those of the states”). Roane insisted that Supreme Court review must be confined to cases that arose in federal court. He viewed this judicial structure as the only one that comported with constitutionally required principles of federalism, insofar as it grouped federal courts together and left state court judges to reach their own decisions, subject to the requirements of the Supremacy Clause but without actual review by the Court. 4 Munf. at 33 (“[N]aturally the jurisdiction granted to a government, is confined to the courts of that government. It does not, naturally, run into and affect the courts of another and distinct government; whether that government operates upon the same, or another tract of country.”).

116. Martin v. Hunter's Lessee, 14 U.S. at 338 (emphasis added).

117. Ibid., 342.

118. Ibid., 338.

119. Ibid., 347.

120. Ibid., 348–49.

121. Ibid., 347.

122. Roane's colleagues on the Virginia court shared Story's sense that the Fairfax lands dispute implicated sensitive issues touching on the meaning of union, especially given the aggravated sectional divisions that accompanied the War of 1812. Indeed, the Virginia judges held back their decision not to abide by the Supreme Court's order in Fairfax's Devisee v. Hunter's Lessee for 20 months, from April 1814 to December 1815, because all except Roane hesitated to issue such a decision at the same time that New Englanders were actively considering disunion. See Hobson, Papers of John Marshall 8:116–117.

123. See Warren, The Supreme Court in United States History, 1:442.

124. Ibid. Warren notes that this was “a jurisdiction which in fact Congress did not grant until sixty years later”—that is, the 1875 statute that established modern federal question jurisdiction. The proposed bill also included a grant of general jurisdiction over federal common law crimes, a version of which—drafted by Story in 1818—was passed as the Crimes Act in 1825. Ibid., 1:442 &n.3.

125. See Story, Commentaries on the Constitution, 1:293.

126. Ibid., 1:293–94.

127. Ibid., 1:294.

128. Ibid. The conviction that the specific jurisdictional grants in the 1789 Act did not amount to a broad grant of arising under jurisdiction was widely shared among contemporary observers. Some scholars have argued that the 1789 Act should be understood as amounting to a grant of “arising under” jurisdiction, given the relatively narrow scope of federal regulatory power in this period. See, for example, Engdahl, David E., “Federal Question Jurisdiction Under the 1789 Judiciary Act,” Oklahoma City University Law Review 14 (1989): 521Google Scholar (arguing that “‘federal question’ jurisdiction was fully vested by the Judiciary Act of 1789”). This view ignores the stated beliefs of commentators, both those who supported and those who opposed federal question jurisdiction, in the early nineteenth century.

129. See Hobson, Papers of John Marshall, 10:284. On the political and economic context of McCulloch, see Killenbeck, Mark R., M'Culloch v. Maryland: Securing a Nation (Lawrence: University Press of Kansas, 2006)Google Scholar. For a probing examination of Marshall's newspaper essays in the wake of McCulloch, see Gunther, Gerald, John Marshall's Defense of McCulloch v. Maryland (Stanford: Stanford University Press, 1969)Google Scholar.

130. Hobson, Papers of John Marshall, 10:284.

131. Ibid.

132. “A Friend of the Constitution” No. 1, in Hobson, Papers of John Marshall, 8:318.

133. “A Friend of the Constitution” No. 6, in ibid., 8:348.

134. “A Friend of the Constitution” No. 8, in ibid., 8:355–56.

135. Marshall to Story, Sept. 18, 1821, in ibid., 9:184.