What Counts as a First Case

Every clause of the Constitution started life as words on parchment. At some point, someone with a real grievance went before a judge and said, in effect, "this clause protects me" or "this clause does not let the government do that." The judge then had to decide what the words meant. That moment is what this course calls a first case.

This module is the toolkit for the rest of the course. It explains what counts as a first, why some parts of the Constitution were tested in the 1790s while others were not tested until the 1980s or never, and what the Supreme Court actually did in its first few years. It ends with a step-by-step method you can use to find the first case on any clause yourself, so you do not have to take anyone's word for it, including ours.

A note on method. Every case name, citation, year and author in this module was checked against a primary or reference source, listed in the verification log. Where a source says a case was "the first," we say so and link it. Where no source says so, we use the phrase "the earliest case we found." That is not hedging for its own sake. Legal history is full of forgotten circuit court rulings, and confident claims about "the first" are often wrong.

What counts as a "first"

There are at least four different questions hiding inside "what was the first case on this clause?"

• First to interpret. The first time the Supreme Court explained what a clause means, even if the law being challenged survived.
• First to enforce or strike down. The first time the Court used a clause to void a law or stop a government action. This often comes much later than the first interpretation.
• First in any court. State courts and lower federal courts sometimes ruled on a clause years or decades before the Supreme Court did. When that gap is large, we say so.
• First to apply it to the states. The Bill of Rights originally limited only the federal government. The Supreme Court said so in Barron v. Baltimore (1833). Most of those rights were later applied to the states through the Fourteenth Amendment, one at a time, in a process called incorporation. For each amendment we will note both its first federal case and its first case against a state.

Some clauses have no first case at all. Others have only a lower court case. That is a real answer, not a gap in research, and we will say it plainly when it happens.

Why some clauses waited decades: how a case reaches court

The Constitution gives federal courts power over "Cases" and "Controversies." Article III, Section 2 opens: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority." Courts have read those two words to mean they may only decide real disputes between parties with something at stake. Several doctrines follow from that.

Standing

The person suing must have standing. The modern test comes from Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), as summarized by the Constitution Annotated. The plaintiff must show three things: an injury in fact that is "concrete," "particularized," and "actual or imminent, not conjectural or hypothetical"; that the injury is fairly traceable to the defendant's conduct; and that a court ruling is likely to fix it.

Standing explains a lot of constitutional history. Many structural clauses, such as the rules about how bills are passed or who may sit in Congress, rarely injure any particular person in a way a court can fix. A clause can be broken for years with no one able to sue about it.

Ripeness

A case can also be too early. The Constitution Annotated describes ripeness as a question of timing: a claim that depends on "contingent future events that may not occur as anticipated, or indeed may not occur at all" is generally not ready for a court. Courts weigh whether the issue is fit for decision against the hardship of waiting.

No advisory opinions

Federal courts will not answer abstract legal questions just because someone asks, even when the someone is the President. That rule dates to 1793, discussed below. It is one more reason that the meaning of a clause usually waits until a real dispute comes along.

The first sessions of the Supreme Court

According to the Supreme Court Historical Society, the Court first met on February 1, 1790, in the Royal Exchange in New York City, then the temporary capital. Only three of the six justices were present, so the Court adjourned until the next day. Once it had a quorum it appointed a crier and a clerk and admitted lawyers to its bar. In the Society's words, "The Court heard no cases during its first term." The Court followed the government to Philadelphia, and from August 1791 it met in Old City Hall for about a decade.

West v. Barnes (1791): the first decision

The first decision the Supreme Court issued is West v. Barnes, 2 U.S. (2 Dall.) 401 (1791), decided in August 1791. William West, a Rhode Island farmer, had a mortgage on his farm. He tried to pay off the debt in paper money. David Leonard Barnes, an attorney and heir of the mortgage holder, insisted on gold or silver and took West to the federal circuit court in Rhode Island, which ruled against West. West then sought review in the Supreme Court by a writ of error, according to a history of the Rhode Island federal courts published by the Federal Bar Association.

The Court never reached the money question. Barnes objected that the writ had been issued by the clerk of the Rhode Island circuit court instead of the clerk of the Supreme Court. The Court agreed that writs of error removing cases from lower courts "can regularly issue only from the clerk's office of this court" and refused West's motion. The printed report says "The Court were unanimously of opinion" (see the U.S. Reports page). The first decision of the highest court in the land turned on paperwork. That is worth remembering: most "firsts" are not dramatic.

Hayburn's Case (1792): judges refuse a non-judicial job

In 1792 Congress passed a law letting disabled Revolutionary War veterans apply to the federal circuit courts for a pension. The judges would decide each veteran's eligibility and send the result to the Secretary of War, who could withhold a name if he suspected fraud or error.

Several circuit courts, staffed by Supreme Court justices riding circuit, refused to carry out the law. In letters to President Washington, reprinted with Hayburn's Case, 2 U.S. (2 Dall.) 409 (1792), the judges objected that the duties were not judicial and that letting an executive officer revise court decisions was improper. The Pennsylvania circuit court, Justices Wilson and Blair and District Judge Peters, wrote: "1st. Because the business directed by this act is not of a judicial nature."

When Attorney General Edmund Randolph asked the Supreme Court to order the Pennsylvania court to act on William Hayburn's petition, the Court took the motion under advisement. It never ruled, because Congress changed the pension law first. So Hayburn's Case is not a Supreme Court holding that a law was void. It is the earliest episode we found in which federal judges openly declined to carry out an Act of Congress because they thought it conflicted with the Constitution.

The Correspondence of the Justices (1793): no advisory opinions

In 1793, with war between Britain and France threatening American neutrality, President Washington's cabinet sent the justices a list of legal questions about treaties and neutrality. On August 8, 1793, Chief Justice John Jay and Justices James Wilson, John Blair, James Iredell and William Paterson wrote back declining to answer. They pointed to "the Lines of Separation drawn by the Constitution between the three Departments of Government" and doubted "the Propriety of our extrajudicially deciding the questions alluded to." No court case was involved, but this letter is the foundation of the rule against advisory opinions.

The first tests of federal and state laws

Hylton v. United States (1796): a federal law tested and upheld

In 1794 Congress taxed carriages kept for personal use. Daniel Hylton did not pay; the agreed statement of facts said he kept 125 chariots for his own use. The parties agreed to bring the case to test whether the tax was a "direct" tax, which the Constitution requires to be apportioned among the states by population.

In Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796), decided March 8, 1796, the justices upheld the tax as an indirect tax. Justice Paterson called it an indirect tax, Justice Iredell wrote that it was "not a direct tax in the sense of the constitution," and Justice Chase also voted to uphold it. Justice Wilson wrote briefly that his view favoring the tax had not changed. Justice Cushing did not take part on the merits. The case is often described as the first in which the Supreme Court considered whether an Act of Congress was constitutional. The law passed the test, so the question of whether the Court could strike one down did not have to be answered yet.

Ware v. Hylton (1796): a treaty beats a state law

During the Revolution, Virginia passed a 1777 law letting Virginians who owed money to British creditors pay the debt into the state loan office instead and be discharged. Daniel Hylton and Francis Eppes had paid part of a 1774 debt to a British firm that way. After the war, the British creditor's representative sued for the full amount, relying on the 1783 Treaty of Paris, which promised that creditors would meet no lawful impediment to recovering their debts.

In Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796), decided March 7, 1796, the justices, writing separately, held that the treaty overrode the Virginia law and the creditor could recover. This is an early application of the Supremacy Clause. It is not usually described as the Court striking down a state law under the Constitution, because the conflict was between a treaty and a state statute. We cover it in more depth in the module on Articles IV to VII.

Marbury v. Madison (1803): the first Act of Congress held void

At the end of his term, President John Adams nominated, and the Senate confirmed, a group of justices of the peace for the District of Columbia. William Marbury was one. His commission was signed and sealed but not delivered before Thomas Jefferson took office. Jefferson's Secretary of State, James Madison, did not deliver it. Marbury asked the Supreme Court, as a court of first instance, to order Madison to hand it over by a writ of mandamus.

In Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), decided February 24, 1803, Chief Justice John Marshall wrote for the four participating justices. The Court held that Marbury had a right to his commission and that the law gave him a remedy, but that the Supreme Court could not issue the order. The part of the Judiciary Act of 1789 that seemed to let Marbury bring his case directly in the Supreme Court tried to expand the Court's original jurisdiction beyond what Article III allows. That part of the Act was therefore void.

Marshall's reasoning is still quoted in nearly every judicial review case: "It is emphatically the province and duty of the judicial department to say what the law is." He reasoned that "the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void," and that courts may not give such an act effect. Marbury is the first time the Supreme Court held an Act of Congress unconstitutional. According to the House Divided project at Dickinson College, Dred Scott v. Sandford in 1857 was the next time the Court invalidated a federal statute.

Fletcher v. Peck (1810): the first state law held unconstitutional

In 1795 the Georgia legislature sold a vast tract of western land, the Yazoo lands, to speculators, amid charges that legislators had been promised shares in exchange for their votes. The next legislature, in 1796, passed a law declaring the 1795 sale null and void. By then, land had been resold to buyers in other states. In 1803 John Peck sold 15,000 acres traced to the 1795 grant to Robert Fletcher, who then sued Peck, claiming the title was bad because of the 1796 rescinding law.

In Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810), decided March 16, 1810, the Court held that Georgia could not take back the land by statute. The case summary states the holding this way: "A law annulling conveyances is unconstitutional because it is a law impairing the obligation of contracts." Chief Justice Marshall wrote the opinion. Justice William Johnson wrote separately. The Supreme Court Historical Society states that "This marked the first time that the Supreme Court declared a state law unconstitutional." We return to it in the module on Article I, Sections 9 and 10, because it is also the first major Contract Clause case.

Reading the old reports

Early Supreme Court cases look different from modern ones. A few things to know before you open one:

• Reporter names in citations. Early volumes were named for the reporter who compiled them: Dallas, Cranch, Wheaton, Peters, Howard, Black and Wallace. That is why you see "2 U.S. (2 Dall.) 401." The first number is the official U.S. Reports volume; the number in parentheses is the reporter's own volume.
• Seriatim opinions. In the 1790s each justice usually gave a separate opinion. Marshall's practice of a single "opinion of the Court" came later. Counting votes in early cases means reading each opinion.
• Old spelling and type. Scanned originals use the long s, which looks like an f. "Conftitution" is "Constitution."

A quick guide to the sources

• Constitution Annotated (constitution.congress.gov): the official legal analysis of the Constitution prepared for Congress. Best first stop.
• Justia (supreme.justia.com): free full text of Supreme Court opinions, organized by U.S. Reports volume and page.
• Cornell LII (law.cornell.edu): opinions, the Constitution Annotated mirror, and a plain-language legal encyclopedia (Wex).
• Library of Congress (loc.gov): page scans of the printed U.S. Reports, the version lawyers cite.
• Oyez (oyez.org): case summaries, votes and oral argument audio for modern cases.
• Founders Online (founders.archives.gov): letters and papers of Washington, Jay, Madison and others, useful for the earliest years.

Summary of firsts in this module

Clause	First case	Year	What kind of first
Supreme Court's appellate procedure (Judiciary Act)	West v. Barnes, 2 U.S. 401	1791	First decision issued by the Supreme Court
Article III, judicial power	Hayburn's Case, 2 U.S. 409	1792	Earliest episode we found of federal judges refusing to carry out a statute as unconstitutional (circuit courts; no Supreme Court ruling)
Article III, cases and controversies	Correspondence of the Justices (letter, not a case)	1793	Foundation of the rule against advisory opinions
Article III, suits against states	Chisholm v. Georgia, 2 U.S. 419	1793	First major constitutional decision; first overturned by amendment (Eleventh)
Article I, direct taxes	Hylton v. United States, 3 U.S. 171	1796	Often described as the first review of an Act of Congress's constitutionality (law upheld)
Article VI, treaties as supreme law	Ware v. Hylton, 3 U.S. 199	1796	Treaty held to override a state law
Article III, original jurisdiction	Marbury v. Madison, 5 U.S. 137	1803	First Act of Congress held unconstitutional
Article I, Section 10, Contract Clause	Fletcher v. Peck, 10 U.S. 87	1810	First state law held unconstitutional