Most humble servants : the advisory role of early judges

It has long been assumed that throughout the history of the United States, the role of judges was limited to adjudicating cases and did not include performing other official functions for the executive and legislative branches of government. This book challenges that assumption, investigating the variety of duties judges performed until the end of the eighteenth century and exploring why a new separation of powers developed only after 1793. Stewart Jay shows that early judges in both the United States and Great Britain provided extrajudicial advisory opinions to the executive, took administrative assignments, assisted in legislative drafting, and even held offices in other branches of government. In 1793, however, the U.S. Supreme Court refused to answer the Washington administration’s request for legal advice on American treaty relations with France. Jay argues that if we take into consideration late eighteenth-century theories of separation of powers and the probable intent of the Framers of the Constitution, no significant constitutional barriers prevented the Court from answering Washington’s questions. The actual reasons for the Court’s refusal were more related to the practical consequences that would result if the Justices issued a formal advisory opinion during a foreign policy crisis. Similarly, says Jay, British judges of the same period also abandoned advisory opinions owing to pragmatic concerns. Jay thus offers a revisionary accoun of the 1793 political-legal crisis, a landmark event in the formation of the American judiciary and the doctrine of separation of powers. Contents 7 Acknowledgments 9 Introduction 11 I. The Advisory Role of Judges in Great Britain Through the Eighteenth Century 20 2 The Advisory Role of American Judges Prior to 1787 61 3 The Advisory Role of Judges During the Formation of the U.S. Constitution 67 4 The Advisory Role of Judges During the Washington Administration 87 5 Declining Washington's Request: The Events of 1793 123 6 Explaining the Supreme Court's Refusal to Assist 149 the Washington Administration 159 Conclusion 181 Appendix: Letter from the Justices of the :Supreme Court to President George Washington 189 Abbreviations 191 Notes 199 Index 305