Chisholm v. Georgia and the question of the judiciary in the early republic.

• Author: Stob, Paul

Legal argumentation, as a number of scholars have concluded, arises from and returns to legal and political culture. Judges do not speak from and address themselves to some ahistorical entity known as "the Law"; rather, they are immersed in and responsive to a community, a set of ideals and values, and various legal purposes. The process of legal argumentation, as Richard Rieke (1991) has put it, is the process of "judicial dialogue," in which judges speak to and from a community of interests about shared norms. As Marouf Hasian, Jr., and Earl Croasmun (1992) insist, we need to understand the social context in which legal texts function if we are to grasp their meaning and power. Furthermore, Edward Schiappa (2001) adds, social knowledge, shared understanding, and communal resources of definition are crucial for understanding legal argument. Legal reasoning operates, Kurt Nutting (2002) writes, with "shared practices, skills, and understandings" (p. 124). As Balter (2001) puts it: "Law is a social system that must serve not only its own interests, but also those of the lifeworld of which it is a part" (p. 388). Thus, to understand judicial rhetoric and argumentation, we need to understand the values, needs, purposes, stories, expectations, and hopes of the social, legal, and political culture in which justices speak (Aune, 1999; Feteris, 1997; Lewis, 1994; Mathewson, 1998; Wiethoff, 1985).

Just as there is no one "public" (Hauser, 1999), however, there is no unified legal and political culture. There are multiple, competing legal and political cultures that present judges with ambiguity and moments of choice. Confronted with these various legal and political cultures, judges must select those values, needs, and purposes that seem most pertinent and compelling in a given case. Although there are certain expectations regarding and constraints on judicial decision making, there is always some ambiguity about which legal and political cultures a judge will choose to address when crafting an opinion. Judicial opinions, then, offer us insight into the process by which judges rhetorically navigate the waters of ambiguity and choice in addressing competing legal and political cultures.

One of the best illustrations of this ambiguity is the predicament faced by the early Supreme Court after ratification of the Constitution. Although Alexander Hamilton (Hamilton, Madison, & Jay, 1961) famously said that the Supreme Court was "the least dangerous" branch of government (p. 464), it was not clear to the first justices what roles they would play, how they would decide cases, and what the scope and limits of their power would be (Casto, 1995). Consequently, deciding the Court's first cases demanded negotiation of the ambiguities of the newly created American judiciary.

The early Supreme Court, and the early republic in general, had no clear grasp of the legal values that would guide the nation. As Publius said about the radical experiment that was the judiciary: "'Tis time only that can mature and perfect so compound a system, can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent WHOLE" (Hamilton et al., 1961, p. 490). For the Court, this was a time of legal and political indecision like few others in the nation's history. How the Court chose to respond to this indecision would influence profoundly the nation's legal and political discourse for generations to come.

The Court had the chance to respond to this remarkable ambiguity in its very first case--Chisholm v. Georgia (1793). On its face, the case was simply a debt dispute that involved the legal standing of "foreigners" (citizens of a different state or country) to sue a state. But the majority's decision turned the case into "the first constitutionally significant case ever decided by the Supreme Court" (Amar, 2005, p. 332). The Court's remarkable, and controversial, decision shifted the case away from the common law tradition, which, until that time, had been the dominant legal force in America, and toward constitutional arguments regarding the dimensions of political representation. This shift carved out for the Court a unique place in debates over the boundaries between the branches of government, national and local affairs, and individual citizens in American society. For these reasons, the decision occupies an early place in America's "high drama of public affairs" (Orth, 1987, p. 19). In short, the Court's response to the legal and political cultures in which it operated would shape the form and content of America's constitutional experiment.

At the core of the decision was the issue of representation, which was a crucial dimension of the nation's early political culture (Morrow, 1999, 2000; Pole, 1966; Rakove, 1996). For many in the early republic, representation entailed a form of republican government that "united the people's ultimate sovereignty with the guidance of representatives whose rationality, prudence, and temperance would offer stability and order to the whole" (Morrow, 1999, p. 43). This was a notion of representation forged through rhetoric and argument. It gave the United States a unique position among the world's diverse political systems, and into this position the Supreme Court worked to place itself.

Scholars have shown how legal discourse relies upon specific notions of representation. As Clarke Rountree (2001) has written, "The chief rhetorical work of the judicial opinion ... is to embody and characterize actions" (pp. 3-4). As an embodiment and characterization, the judicial opinion represents past actions. James Boyd White (1987) argues that the ideal judge fairly represents the voices of the competing parties in a given dispute, using those voices to define "his own voice, the character he makes for himself as he works through a case" (p. 315). Taking the linkage between judicial opinions and representation even further, Glenda Conway (2003) contends that the Supreme Court relies fundamentally on constructed or even co-opted versions of the arguments of others; judicial texts "create--and rank--communities of competing voices," which can result in negative consequences for the parties involved (p. 489).

Chisholm v. Georgia illustrates how judicial opinions not only represent past actions and the voices of parties involved in disputes, but also represent the standing and power of the judiciary itself. By shifting the case away from common law legal culture to the terms of the debates over representation, the majority in Chisholm argued for its institutional capacity to re-present the voices and interests of America. To be sure, this capacity had to be demonstrated and established. Because the institutional dimensions of the judiciary were ambiguous in the early republic, Chisholm v. Georgia pushed America's infant political situation in remarkable new directions. Ultimately, it failed to move American law and politics in the direction it intended. Nevertheless, it offers a window onto the way justices rhetorically negotiate competing legal and political cultures.

In the next section, I will offer a brief history of the case and of the standing of representation during the early republic. Then I will undertake a close reading of the justices' opinions, (1) showing how their legal debate revolved around the Court's capacity to represent the Constitution, the American people, and itself. Finally, I will discuss Chisholm's significance, showing how it contributes to our understanding of legal argumentation as a response to different legal and political cultures and to our understanding of the relationship between judicial speech and representation. By turning back to the Supreme Court's very first opinion, we gain a better sense of how the Court relied, and still relies, upon rhetorical posturing to enhance its standing on the stage of American politics.

CHISHOLM V. GEORGIA AND REPRESENTATION IN THE EARLY REPUBLIC

Chisholm v. Georgia arose out of a debt dispute between Robert Farquhar, a merchant from South Carolina, and the State of Georgia, which purchased goods from Farquhar during the Revolution. (2) In late 1777, Georgia contracted with Farquhar for items such as cloth, thread, silk, handkerchiefs, blankets, coats, and jackets. In return, it agreed to pay Farquhar almost $170,000. Farquhar delivered the goods on time, and Georgia apparently authorized payment, but Farquhar never received it. He appealed to the state, which conducted an internal review and declared that the funds for his payment had been withdrawn from the state treasury. If he did not receive payment, the state said, Farquhar should sue the couriers who were supposed to deliver it.

In 1784, after numerous attempts to secure payment, Farquhar fell off his ship and drowned. He left his estate to his ten-year-old daughter but, until she was of age, another merchant from South Carolina, Alexander Chisholm, acted as custodian of the estate. Throughout the remainder of the 1780s, Chisholm petitioned the Georgia legislature for payment on the debt owed to Farquhar, to no avail. Frustrated, Chisholm took his case out of state jurisdiction to the newly created United States Circuit Court for the District of Georgia.

One of the presiding justices was James Iredell, also a justice of the United States Supreme Court. Claiming that the Constitution gave federal courts no authority to preside over cases in which a state was a defendant, Iredell concluded that the circuit court "can exercise no Jurisdiction in the case now before it.... Judgment must be given for the State" (Marcus, 1994, p. 155). The only option available to Chisholm was to petition the state; since he had petitioned repeatedly without success, he was out of luck.

In early 1792, Chisholm made a last-ditch effort to secure payment by appealing directly to the United States Supreme Court. Whether the Court had jurisdiction was debatable, but the...