* Flanders, "The Lives and Times of the Chief-Justices of the
Supreme Court," vol. II , p. 38.


The pioneer work of the Supreme Court in constitutional
interpretation has, for all but special students, fallen into
something like obscurity owing to the luster of Marshall's
achievements and to his habit of deciding cases without much
reference to precedent. But these early labors are by no means
insignificant, especially since they pointed the way to some of
Marshall's most striking decisions. In Chisholm vs. Georgia,*
which was decided in 1793, the Court ruled, in the face of an
assurance in the "Federalist" to the contrary, that an individual
might sue a State; and though this decision was speedily
disallowed by resentful debtor States by the adoption of the
Eleventh Amendment, its underlying premise that, "as to the
purposes of the Union, the States are not sovereign" remained
untouched; and three years later the Court affirmed the supremacy
of national treaties over conflicting state laws and so
established a precedent which has never been disturbed.**
Meantime the Supreme Court was advancing, though with notable
caution, toward an assertion of the right to pass upon the
constitutionality of acts of Congress. Thus in 1792, Congress
ordered the judges while on circuit to pass upon pension claims,
their determinations to be reviewable by the Secretary of the
Treasury. In protests which they filed with the President, the
judges stated the dilemma which confronted them: either the new
duty was a judicial one or it was not; if the latter, they could
not perform it, at least not in their capacity as judges; if the
former, then their decisions were not properly reviewable by an