At Lawfare, Thomas H. Lee (Fordham): The Maritime Origins of Judicial Review. From the introduction:
To transpose Jane Austen, “it is a truth, universally acknowledged, that a new nation in possession of great resources, must be in want of a credible court.” Georgetown law professor Kevin Arlyck’s book, “The Nation at Sea: The Federal Courts and American Sovereignty, 1789-1825” (2025), engagingly recounts how federal courts used the flowing canvas of oceanic conflict during the nation’s first decades to gain legitimacy with the political branches and anchor the United States’ status as a co-equal sovereign in the eyes of European powers. Arlyck ends his account in 1825, as the United States turned inward and maritime captures along the western Atlantic Ocean subsided. These shifts, he contends, have obscured the critical role played by federal courts in early American foreign relations and nation-building.
Arlyck begins by describing consensus at the founding that the Supreme Court and any lower federal courts Congress chose to create would hear “all cases of admiralty and maritime Jurisdiction.” A key reason for this consensus was to avoid the diplomatic turbulence caused by the lack of credible centralized adjudication of American maritime captures during the War of Independence. With the Continental Navy vastly overmatched by the Royal Navy, the states and the Continental Congress issued letters of marque authorizing private persons to prey on British ships and cargoes as then permitted by the international laws of maritime war. These “privateers,” driven by patriotism and profit, often attacked and claimed as “prizes” (from the French word for “captured” or “seized”) ships and cargoes owned by foreign neutrals, not just British belligerents. But state admiralty courts, some with local juries, would adjudge the captures as lawful prizes anyway, in violation of international prize law, thus aggravating implicated neutral foreign governments. Federal courts with exclusive admiralty and maritime jurisdiction (including prize), in which judges would decide “both as to Law and Fact,” would eliminate state prize-law decisions that foreign nations often perceived as lawless.
And from later on:
The federal courts are neither heroes nor villains in Arlyck’s even-handed treatment of the critical but underexamined role of the federal courts in the early history of the United States. What we see instead is a lot like what we are seeing today. The Supreme Court and federal district judges tended to align their decisions with the national security interests the president perceived. They paid lip service to lofty ideals such as republican government and the imperative of following the law of nations. But their actual decisions were often pragmatic, keeping the peace when American neutrality was the political branches’ goal and greasing the war machine when the United States was a belligerent. And when confronted with the monstrous immorality of the slave trade, the Supreme Court balked and restored enslaved persons and slave ships to European masters. The decisions in this respect foreshadow the federal courts’ handling of the Fugitive Slave Act cases and Dred Scott v. Sandford (1857).
There are three other ways in which Arlyck’s luminous book shines. First, he has a gift for explaining how pragmatism manifested itself in jurisdictional holdings. His treatment of the key maritime war cases demonstrates a rare blend of expertise as a historian and as a technical lawyer.
Second, Arlyck excels at incorporating vignettes about key figures and events in the early history of the United States and the federal courts that are not as well-known as they should be: the swashbuckling Thomas Taylor, who hailed from Delaware but emigrated to Buenos Aires and was a superstar Latin American privateer operating out of Baltimore; the litigious British consul Benjamin Moodie in the 1790s; the haughty Spanish minister to the United States, Luis de Onis; the suave Portuguese envoy, Jose Franscisco Correa da Serra; and the lawyers’ duel—in Baltimore for Taylor’s federal criminal trial—between the U.S. Attorney General William Wirt, who personally took the case, and Wiliam Pinckney, “widely regarded as the greatest lawyer of his generation.” Arlyck brings complicated themes vividly to life with his flair for narrative and the human element.
Third, Arlyck gives ample attention to the action in the lower federal courts. Legal scholarship tends to focus almost exclusively on the Supreme Court and its justices. This is in part due to the difficulty in accessing primary sources related to district- and circuit-court proceedings. But, as Arlyck shows, federal district judges such as Thomas Bee (D. S.C.), John Davis (D. Mass.), William Paca (D. Md.), and Richard Peters (E. D. Pa.), were critical as first-instance adjudicators, a role amplified by the absence of juries. Arylck’s account is a story about the federal courts as a whole, not just the Supreme Court or Supreme Court justices.
Agreed! It’s a great book.
(Via Legal History Blog.)
Posted at 6:05 AM