The Dorr Rebellion

One of the major developments in American history in the first half of the Nineteenth Century was the extension of the franchise to all adult white men.  By 1841, Rhode Island was the only state that had not removed the property requirement for voting by adult white men.  Years of frustration in failed attempts to remove the property requirement through legislation burst out into one of the more unusual rebellions in US history.  Led by Thomas W. Dorr, a so-called People’s Convention was held in October 1841 which drafted a new constitution for Rhode Island.  The convention had not been authorized by the Rhode Island legislature.  Opponents of Dorr and his followers in the state legislature drafted a new constitution for Rhode Island which they designated the Freeman’s Constitution.  This constitution made some concessions to broadening the franchise.  It was defeated in the legislature by followers of Dorr.

A statewide referendum called by Dorr approved the constitution which had been drafted by the People’s Convention.  In 1842 Rhode Island witnessed two sets of election with two competing legislatures and two governors: Thomas W. Dorr and Samuel W. King.

The Dorr forces attempted an attack on the arsenal in Providence on May 19, 1842 and were routed, most, including Dorr, fleeing the state.  The Rhode Island legislature approved a new Constitution which was approved by a referendum.  The new constitution extended the franchise to all adult white men who could pay a poll tax of $1.00.

In the case of Luther v. Borden, 48 US 1, the United States Supreme Court declined to rule on which of the competing Rhode Island governments had been the legitimate government, holding that such a decision was a political one and not subject to judicial determination: (more…)

Published in: on June 20, 2012 at 5:30 am  Comments Off on The Dorr Rebellion  
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General Order Number 20

During the Mexican War, General Winfield Scott, who was commanding the American invasion that would take Mexico City and win the War, was concerned about crimes committed by American troops, especially volunteers, against the Mexican civilian population.  (The crimes were often precipitated by the anger of American troops at sickening mutilation and murder of Americans captured by Mexican guerillas.)  Up to this time, American soldiers accused of crimes against civilians had simply been tried in American civilian courts.  This was clearly not an option available during a war waged on foreign soil.  Scott hit upon the idea of trying troops before military commissions, and he embodied this idea in Order Number 20.  Here is the text of the order: (more…)

Published in: on March 16, 2012 at 5:30 am  Comments Off on General Order Number 20  
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McCulloch v. Maryland

The above video was produced by PBS under contract from the United States Judicial Conference in 1976 as part of the bicentennial celebrations.

Maryland in 1818 attempted to tax notes of all banks not chartered in Maryland.  The tax was an attempt to impede the operation of the Second Bank of the United States in Maryland.  James McCulloch, branch manager of the Baltimore branch of the Second Bank of the United States refused to pay the tax.  The Maryland courts found that since the Constitution did not grant the Congress authority to charter a Bank, the Second Bank of the United States was unconstitutional.

On appeal to the US Supreme Court, John Marshall wrote the opinion of the Court finding that Congress had the authority to charter the Bank and that Maryland could not impede the operation of the Bank. (more…)

Published in: on September 2, 2010 at 5:30 am  Comments (1)  
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Marbury v. Madison

The above video was produced by PBS under contract from the United States Judicial Conference in 1976 as part of the bicentennial celebrations.

Marbury was the first step by the United States Supreme Court down a path which today has left it the final authority on any piece of legislation, state or federal, that comes before it.  This of course would have astounded the Founding Fathers.  In the Britain of their day Parliament reigned supreme, and the idea of a British court overturning an act of Parliament would have been considered a bad joke.  Likewise, colonial legislatures exercised the same sort of authority free of judicial review in America.

The case arose from the flurry of activity engaged in by lameduck President John Adams and the lameduck Federalist Congress.  Eager to install as many Federalists in positions of authority as possible before the Jeffersonian Republicans came to power, Congress passed the Judiciary Act of 1801 amending the Judiciary Act of 1789.  The Act created six new Federal district courts and doubled the number of Federal circuit courts of  appeal from three to six.  Adams, just before his term ended, appointed 16 Federal circuit judges and 42 Federal Justices of the Peace, among them William Marbury, an ardent Federalist.  It fell to John Marshall, still acting as Secretary of State, although he had recently been appointed Chief Justice of the Supreme Court, to deliver the appointments.  Not all of the appointments could be delivered before the end of the Adams administration.  The new Secretary of State, James Madison, refused to deliver the appointments that had not been delivered.

The Judiciary Act of 1789 authorized the Supreme Court to order writs of mandamus to Federal officials.  Marbury filed suit with the Supreme Court requesting that a writ of mandamus issue compelling Madison to issue his appointment.

Marshall wrote the decision of the Court in 1803 which has always struck me as odd.  His involvement in delivering, and failing to deliver, the appointments should have caused him to recuse himself from the case.  In any event Marshall held that the Court could not issue a writ of mandamus because Congress could not expand the jurisdiction granted to the Supreme Court by the Constitution, and that the attempt to expand the jurisdiction was unconstitutional.

Marshall defended the assumption of the power to hold acts of Congress unconstitutional by the Court in the decision: (more…)


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