Recovering the Constitution of a Forgotten Founder: James Iredell, Minge v. Gilmour, and Popular Constitutional Authorship in the Early Republic

This thesis explores the relationship between the People and constitutions in the Early Republic. Despite broad agreement that the People were sovereign and that constitutions were binding on the legislature, the precise contours of how the People exercised their sovereignty—and their relationship to written constitutions—remained uncertain. This thesis recovers the views of James Iredell, an inaugural Associate Justice of the U.S. Supreme Court and an important but understudied legal thinker of the Early Republic, by closely reading his all-but-forgotten 1798 opinion in Minge v. Gilmour. In adjudicating a challenge to a North Carolina state law that had abolished an archaic form of property holding called the fee tail, Justice Iredell deployed a particular—and peculiar—understanding of the People and of constitutions, leaning heavily on the notion that the constitution was “authored” by the People but, interestingly, without seeking to ground that authorship in explicit, real-world consent, such as by popular ratification.
This thesis first dives deep into the historical and legal background of Minge, telling the story of the parties, their dispute, and of the law in question, while also drawing out Minge v. Gilmour’s illuminating relationship with Iredell’s much more famous opinion in Calder v. Bull, delivered later that year. I next examine Iredell’s theory of judicial review as evinced in Minge, and in particular his then-controversial assertion that only a written constitution could support judicial review, as opposed to the dictates of “natural justice.” Underlying these beliefs is the ultimate sovereignty of the People and their exclusive power to make fundamental law. I then analyze Iredell’s perplexing decision to defend the justice of the North Carolina law, a defense which also ultimately rested on the awesome power of the People not only to make law but to shape the contours of natural justice itself.
Yet Iredell’s heavy emphasis on popular constitutional authorship in Minge was not accompanied by any concern about whether the constitution he was deploying had ever been ratified by the People. This cuts against a common claim from scholars like Gordon Wood and Jonathan Gienapp that popular ratification was a sine qua non for constitutional legitimacy—in Minge v. Gilmour, the fiction of popular constitutional authorship was sufficient to justify its legal and indeed moral power. Thus, in addition to its lessons for the legal history of North Carolina and for the broader historical and legal debates about the nature of judicial review, my recovery of Minge v. Gilmour from the brink of oblivion raises questions about the very nature of “the People” in the Early Republic.