Book Review

In the summer of 1793 the Washington administration drew up a series of hypothetical questions arising from its neutral policy and the obligations imposed by the treaty with France. Because the resolution of these questions required legal expertise concerning the construction of treaties and international law, the administration requested the consent of the justices of the Supreme Court to have the questions referred to them. Several weeks later the justices politely declined this request, citing the principle of separation of powers as strongly arguing "against the Propriety of our extrajudicially deciding the questions alluded to; especially as the Power given by the Constitution to the President of calling on the Heads of Departments for opinions, seems to have been purposely as well as expressly limited to executive Departments" (179). In this book Stewart Jay undertakes to explain the meaning of this episode.	1
The conventional wisdom (embodied in our constitutional law) is that this incident established the precedent for confining the role of Supreme Court justices to the decision of adjudicated cases. It explicitly affirmed a rule against giving advisory opinions on points of law that was at least implicit in the Constitution itself. Jay persuasively makes the case for abandoning this traditional understanding. The separation of powers principle has become so deeply ingrained in our constitutional law, he says, that we are inclined to read the justices' refusal at face value, to accept it as a straightforward explanation on constitutional grounds of their unwillingness to give advisory opinions. On the contrary, Jay contends, that explanation was mostly rationalization, obscuring a larger reality of history, politics, and personality that he brings to light in this brief but densely argued and annotated monograph (less than two hundred pages of text, fortified by more than one hundred pages of notes). A law professor, Jay puts on the historian's hat to conduct an inquiry into the advisory role of early British and American judges, which his research shows to have been an integral part of the constitutional order on both sides of the Atlantic through the eighteenth century. The advisory function survived the advent of the theory of separation of powers and indeed was regarded as fully compatible with that theory as understood by the American founding generation. Given this earlier history and understanding of the separation of powers, the task of explaining the justices' refusal is far more complex than historians have generally believed. For Jay the explanation lies in the intricacies of the politics of the Washington administration. He downplays "logic and abstract theory" as agents of constitutional change in favor of "the actual political circumstances behind the issue, including the personal outlooks and interests of those figures who are in a position to influence the developments" (9).	2
Jay carefully reconstructs the several contexts, historical, political, and personal, that are essential for understanding why the Supreme Court justices declined to advise the president. He begins with a long chapter on the advisory role of British judges, who in theory and in practice were considered to be servants of the Crown. Separation of powers theory in its early manifestations was primarily concerned with reducing the Crown's excessive influence over Parliament rather than with detaching the judiciary from the executive. Jay attributes the gradual decline in giving extrajudicial advice not to "formal constitutional theory" but to the "political dynamics" of the various Hanoverian cabinets and particularly to the actions of a central player, Lord Mansfield, chief justice of the Court of King's Bench. The next two chapters consider the advisory role of American judges through the formation of the Constitution. As in England, the practice of giving advisory opinions was regarded as entirely proper in the colonies and continued into the state period, even to the extent of being embodied in constitutions. Although the Federal Convention failed to approve an explicitly advisory role for the judges, a close look at the debates discloses no firm evidence of an intention to exclude such a role. In any event the first Supreme Court justices engaged in widespread extrajudicial activities, including advisory opinions, which Jay describes in the first of three chapters dealing with the Washington administration.	3
The core of the book is two chapters that present a detailed exposition and analysis of the events of the summer of 1793. The new nation was then in the midst of a crisis provoked by the outbreak of war in Europe and characterized by partisan wrangling over the administration's foreign policy. It is the interplay of politics and personality during this crisis, Jay contends, that furnishes the most satisfactory explanation of the justices' refusal to advise the president on the legal ramifications of neutrality. Politically, the crisis brought to the fore the issue of control over foreign affairs, the outcome of which seemed to involve the very destiny of the young republic. Alexander Hamilton and Thomas Jefferson were principals in this debate, but for Jay the key player in the events of that summer was Chief Justice John Jay (no relation). The chief justice, he says, was a savvy Federalist politician who believed as strongly as Hamilton in executive control over foreign policy. At the same time he sought to protect the federal judiciary, which had rendered itself unpopular by its decisions in several controversial cases, from further entanglement in divisive public questions. These considerations, not scruples about separation of powers, were uppermost in the minds of Jay and his brethren in declining to assist the administration.	4
Author Jay suggests that the justices thought of their refusal as being confined to the peculiar circumstances of this case and did not mean to establish a precedent foreclosing all future advisory opinions. Indeed, their letter to the president could itself be considered as an advisory opinion acknowledging the executive's full authority to act in the neutrality crisis. Whatever may have been their true intentions, the action of the justices in the summer of 1793 did mark the end of formal advisory opinions by the Supreme Court as an institution, though individual justices continued to play an advisory role (in grand jury charges and in private communications) at least through the end of the decade. As this book makes so abundantly clear, the justices renounced a formal advisory role from motives of political expediency and institutional self-interest. In different circumstances these same motives would continue to influence the Court to steer clear of politics by confining its opinions to the decision of actual cases. In this way a pragmatic decision undertaken in the heat of a crisis in 1793 hardened into a rule of constitutional law.	5
Jay effectively combines a lawyer's skill in mustering arguments and evidence with a historian's careful weighing of the same to reach balanced judgments. While strictly adhering to the advisory role theme, he takes a broad approach to his subject. Nothing of any possible relevance to the topic has escaped his attention. The result is a comprehensive and informative study of the federal judiciary in its earliest years.	6
Charles F. Hobson College of William and Mary

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