Mark C. Dillon. The First Chief Justice: John Jay and the Struggle of a New Nation. SUNY American Constitutionalism. Albany: State University of New York Press, 2022. 336 pp. $95.00 (cloth), ISBN 978-1-4384-8785-4.

Reviewed by Richard Stocking (Mammoth-San Manuel School District)
Published on H-History-and-Theory (January, 2023)
Commissioned by Andrew J. Kettler (University of California, Los Angeles)

In The First Chief Justice: John Jay and the Struggle of a New Nation, Justice of the Appellate Division of the New York State Supreme Court Mark C. Dillon uses his impressive legal knowledge and detailed historical inquiry skills to examine John Jay’s tenure as the first chief justice of the United States Supreme Court. Dillon’s eloquently written analysis is broken down into eleven chapters that are in chronological order but also focus on different themes. This volume’s major contributions are innovative and important insights into “the cases that were handled by the United States Supreme Court during the time that John Jay was our nation’s first chief justice, and the broader domestic, legal, and international issues that were facing our young country during the earliest years of its founding” (p. xii). Additionally, Dillon’s well-formatted bibliography and notes demonstrate his extensive use of valuable primary and secondary sources. Finally, Dillon’s use of illustrations and short passages entitled “Jay’s Day’s” at the end of each chapter keep readers deeply engaged with his analysis. Ultimately, this volume adds important insight into the study of Jay, SCOTUS (Supreme Court of the United States), and major issues concerning legal theory in the early republic.

Although numerous biographies and narratives of John Jay have been published, this volume is useful because it focuses on several early and underexamined SCOTUS cases that incorporate transnational, legal, and national themes surrounding the early republic. In Glass v. Sloop Betsey (1794), SCOTUS “broke with the international law recognized by European nations at the time” by holding that only American courts could hear admiralty cases on US soil (p. 253). Additionally, in Pagan v. Hooper (1793), the court refused to issue an advisory opinion regarding French privateering to the Washington administration. To this day, SCOTUS does not issue advisory opinions, which shows the influence of the Jay court on practical theories of legal precedent.

Moreover, under Jay, “the judges adhered closely to the plain language of the Constitution and laws” (p. 253). For example, in West v. Barnes (1791) and Re Hayburn (1792) the court “left to the Congress the responsibility of curing problems with statutory language” (p. 253). In other words, the court let Congress deal with writing and making laws. The court, which was not activist in any sense, maintained the separation of powers between the three branches. By allowing Congress to deal with issues with the statutory language in Re Hayburn, the Jay court did not deem the Invalid Pensions Act of 1792 unconstitutional. Thus, the court did not use the power of judicial review, a tradition that would not come to fruition until Marbury v. Madison (1803). Throughout this work, Dillon details each of these cases and more while discussing their international, legal, and domestic implications.

Dillon’s bibliography and notes reveal the diverse and valuable nature of his sources. In terms of secondary sources, Dillon incorporates numerous scholarly articles, books, assorted internet resources, a dissertation, and a master’s thesis. As for primary sources, Dillon uses newspapers, treaties, proclamations, federal statues, state statutes, the papers of several founding fathers, and a myriad of state and federal court rulings. Dillon, effectively and persuasively, intertwines these sources throughout The First Chief Justice. Furthermore, this volume’s notes are considerably beneficial for academics as they directly cite where Dillon found specific information, they are categorized by chapter, and many offer notes with more specific information.

Throughout this volume, Dillon adds various illustrations and “Jay’s Day’s” excerpts that help keep readers engaged. Overall, there are forty illustrations that vary in subject. For example, in the first chapter, “Formative Days in New York,” there is a drawing of Jay’s boyhood home in Rye, New York. While Dillon thoroughly summarizes and analyzes Jay’s upbringing, this drawing helps focus readers’ attention. There are numerous varieties of illustrations throughout the book including documents that Dillon discusses, various buildings and rooms that Jay worked or lived in, and individual people who are central to the storyline. Additionally, the “Jay’s Day’s” passages sustain the interest of readers by offering additional information related to the chapter. In chapter 1, for example, which is about Jay’s upbringing and education in colonial New York, the passage includes details about King’s College (now Colombia College) and “Lindley Murray, who clerked with John Jay at [Benjamin] Kissam’s law office” (p. 21). The mix of illustrations and insightful passages engages the reader in this work.

Legal scholars, constitutional theorists, historians of the early republic, and history enthusiasts should find The First Chief Justice readable, interesting, and useful. Dillon articulates the importance of several cases heard by the Jay court, demonstrates a masterful use of a variety of sources, and uses illustrations and interesting excerpts to keep readers engaged. In the final chapter of this volume, entitled “History’s Verdict,” Dillon suggests that “Jay has not been placed into the exclusive first tier list of the nation’s founding fathers…. He is, however, perceived as at the top of the second tier” (pp. 251-252). Dillon’s work demonstrates that Jay was and should be considered a first tier founding father for his commitment to public service and his essential contributions to the creation of the American legal system as the first chief justice of the United States Supreme Court. Hopefully, this work will inspire others to study, research, and write about “second tier” founding fathers to shed light on the ways they influenced the political and legal construction of the United States.

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Citation: Richard Stocking. Review of Dillon, Mark C., The First Chief Justice: John Jay and the Struggle of a New Nation. H-History-and-Theory, H-Net Reviews. January, 2023.
URL: http://www.h-net.org/reviews/showrev.php?id=58246

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