Paul Greenberg

In 1793, the first administration of George Washington -- indeed, the first administration of the United States under its still new Constitution -- respectfully asked the country's Supreme Court for some help and guidance:

Would the learned justices of the court please interpret some of the more uncertain clauses of the country's treaties affecting its relations with Britain and France? For those two great powers were then locked into a bitter struggle that would turned the Atlantic into a war zone and Europe into an arena of conflict, turmoil and disorder from which it has emerged only intermittently since.

It was a reasonable and polite enough request of the court. To which the court responded with equal deference. John Jay, its chief justice, replied just as reasonably and politely, even reverently, to the Father of His Country -- but not positively. The astute chief justice, speaking on behalf of the whole court, explained that President Washington had a cabinet of advisers to give him political guidance in such matters, and that it would exceed the bounds of propriety if the high court were to offer him any.

Rather, the justices explained, with all due modesty, that their function was to decide disputes between litigants who had a legitimate interest in the cases before the court. (Today we call it standing.) And not dive in and tell the government of the United States what policies it should adopt -- policies whose legality the court might be called on to judge later. Thus was planted the seed of what would grow into one of the wisest and soundest of approaches to the law. It's called judicial restraint. . .

Wise man, and judicious chief jurist, that John Jay. The very language which he used in replying to the president and his secretary of state, a Mr. Thomas Jefferson, remains a tribute to Chief Justice Jay's courtly manner and deep respect for the boundaries the Constitution had set for his branch of government -- and for the other two as well. No wonder he was one of the authors of what remains an eloquent piece of statecraft, the Federalist Papers. The reader can almost envision his bowing from the waist and doffing his tri-cornered hat as he responded to the president's request:


Paul Greenberg

Pulitzer Prize-winning Paul Greenberg, one of the most respected and honored commentators in America, is the editorial page editor of the Arkansas Democrat-Gazette.