This blog article was written by Hon. Mark C. Dillon, and it’s a preview of his Judicial Notice Issue 15 article on John Jay. Mark C. Dillon is an Associate Justice of the Appellate Division, Second Judicial Department of the New York Supreme Court, an Adjunct Professor of New York Practice at Fordham University School of Law, and an author of the McKinney’s CPLR Practice Commentaries. He has authored By The Light of My Burning Effigies: Chief Justice John Jay in the Struggle of a New Nation, a book that is being published in 2020 by SUNY Press.
Judicial Notice Issue 15 is on the way, but we ran into a slight delay and are unable to send the newest edition to your homes. Who are the four men profiled in this new issue? Find out each week as our authors preview their impressive articles.
There is a misperception that the 1804 case of Marbury v. Madison was the first decision of the U.S. Supreme Court of great constitutional importance. Instead, the first case of great constitutional magnitude was the 1793 case of Chisholm v. Georgia, the third case ever decided by the Supreme Court. Chief Justice John Jay, of Westchester County, was at the center of the political and judicial maelstrom that surrounded Chisholm.
Chisholm arose from the failure of the framers of the 1789 constitution to clearly address the question of whether the sovereign states could be sued as defendants in the federal courts. There is evidence, including Alexander Hamilton’s Federalist Paper #81, that the drafters of the constitution did not intend for the states to be subject to federal suits, which was among the assurances that the states relied upon in ratifying the constitution. The actual constitutional language that was ratified, however, said in Article III section 2 that the federal courts could hear suits “between a State and Citizens of another State.” Creditors who were owed money from the near-bankrupt states soon tested the constitutional language by bringing suits against them, and the Chisholm case was the first such action to reach the Supreme Court. Chisholm raised the question of whether the concept of constitutional “originalism,” at a time when all jurists were originalists, was to be guided by the intent of the drafters or, alternatively, by the plain language of the constitution itself. Usually, there is no difference between intent and plain language, but in the case of Chisholm, the difference was glaring.
