Lesson 1 of 12 · about 19 minutes
What Counts as a First Case
You'll be able to
- Distinguish the different kinds of first case: first to interpret, first to strike down, first in any court, and first applied to the states
- Explain how standing, ripeness and the ban on advisory opinions control when a clause is first tested
- Describe the Supreme Court's earliest decisions, from West v. Barnes (1791) to Fletcher v. Peck (1810)
- Use the Constitution Annotated, Justia, Cornell LII and the Library of Congress to find and verify the first case on a clause
Start here: the short version
- A "first case" can mean several different things: the first time the Supreme Court interpreted a clause, the first time it struck down a law under that clause, or the first time any court (state, federal trial or federal appeals) took up the question. This module always says which kind of first it means.
- Courts only decide real disputes brought by people who were actually harmed. That rule, called standing, plus ripeness and related limits, is why some clauses waited decades, or forever, for a first case.
- The Supreme Court met for the first time on February 1, 1790, in New York and heard no cases in its first term. Its first decision, West v. Barnes (1791), was about a procedural mistake, not a grand constitutional question.
- Marbury v. Madison (1803) was the first time the Court held an Act of Congress unconstitutional. It was not the first time the Court looked at whether a federal law was constitutional: Hylton v. United States (1796) did that and upheld the law.
- Fletcher v. Peck (1810) is generally cited as the first time the Court declared a state law unconstitutional. Earlier, Ware v. Hylton (1796) held that a treaty overrode a Virginia law.
Every clause of the Constitution started life as words on parchment. At some point, someone with a real grievance went before a judge and said, in effect, "this clause protects me" or "this clause does not let the government do that." The judge then had to decide what the words meant. That moment is what this course calls a first case.
This module is the toolkit for the rest of the course. It explains what counts as a first, why some parts of the Constitution were tested in the 1790s while others were not tested until the 1980s or never, and what the Supreme Court actually did in its first few years. It ends with a step-by-step method you can use to find the first case on any clause yourself, so you do not have to take anyone's word for it, including ours.
A note on method. Every case name, citation, year and author in this module was checked against a primary or reference source, listed in the verification log. Where a source says a case was "the first," we say so and link it. Where no source says so, we use the phrase "the earliest case we found." That is not hedging for its own sake. Legal history is full of forgotten circuit court rulings, and confident claims about "the first" are often wrong.
What counts as a "first"
There are at least four different questions hiding inside "what was the first case on this clause?"
- First to interpret. The first time the Supreme Court explained what a clause means, even if the law being challenged survived.
- First to enforce or strike down. The first time the Court used a clause to void a law or stop a government action. This often comes much later than the first interpretation.
- First in any court. State courts and lower federal courts sometimes ruled on a clause years or decades before the Supreme Court did. When that gap is large, we say so.
- First to apply it to the states. The Bill of Rights originally limited only the federal government. The Supreme Court said so in Barron v. Baltimore (1833). Most of those rights were later applied to the states through the Fourteenth Amendment, one at a time, in a process called incorporation. For each amendment we will note both its first federal case and its first case against a state.
Some clauses have no first case at all. Others have only a lower court case. That is a real answer, not a gap in research, and we will say it plainly when it happens.
Why some clauses waited decades: how a case reaches court
The Constitution gives federal courts power over "Cases" and "Controversies." Article III, Section 2 opens: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority." Courts have read those two words to mean they may only decide real disputes between parties with something at stake. Several doctrines follow from that.
Standing
The person suing must have standing. The modern test comes from Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), as summarized by the Constitution Annotated. The plaintiff must show three things: an injury in fact that is "concrete," "particularized," and "actual or imminent, not conjectural or hypothetical"; that the injury is fairly traceable to the defendant's conduct; and that a court ruling is likely to fix it.
Standing explains a lot of constitutional history. Many structural clauses, such as the rules about how bills are passed or who may sit in Congress, rarely injure any particular person in a way a court can fix. A clause can be broken for years with no one able to sue about it.
Ripeness
A case can also be too early. The Constitution Annotated describes ripeness as a question of timing: a claim that depends on "contingent future events that may not occur as anticipated, or indeed may not occur at all" is generally not ready for a court. Courts weigh whether the issue is fit for decision against the hardship of waiting.
No advisory opinions
Federal courts will not answer abstract legal questions just because someone asks, even when the someone is the President. That rule dates to 1793, discussed below. It is one more reason that the meaning of a clause usually waits until a real dispute comes along.
The first sessions of the Supreme Court
According to the Supreme Court Historical Society, the Court first met on February 1, 1790, in the Royal Exchange in New York City, then the temporary capital. Only three of the six justices were present, so the Court adjourned until the next day. Once it had a quorum it appointed a crier and a clerk and admitted lawyers to its bar. In the Society's words, "The Court heard no cases during its first term." The Court followed the government to Philadelphia, and from August 1791 it met in Old City Hall for about a decade.
West v. Barnes (1791): the first decision
The first decision the Supreme Court issued is West v. Barnes, 2 U.S. (2 Dall.) 401 (1791), decided in August 1791. William West, a Rhode Island farmer, had a mortgage on his farm. He tried to pay off the debt in paper money. David Leonard Barnes, an attorney and heir of the mortgage holder, insisted on gold or silver and took West to the federal circuit court in Rhode Island, which ruled against West. West then sought review in the Supreme Court by a writ of error, according to a history of the Rhode Island federal courts published by the Federal Bar Association.
The Court never reached the money question. Barnes objected that the writ had been issued by the clerk of the Rhode Island circuit court instead of the clerk of the Supreme Court. The Court agreed that writs of error removing cases from lower courts "can regularly issue only from the clerk's office of this court" and refused West's motion. The printed report says "The Court were unanimously of opinion" (see the U.S. Reports page). The first decision of the highest court in the land turned on paperwork. That is worth remembering: most "firsts" are not dramatic.
Hayburn's Case (1792): judges refuse a non-judicial job
In 1792 Congress passed a law letting disabled Revolutionary War veterans apply to the federal circuit courts for a pension. The judges would decide each veteran's eligibility and send the result to the Secretary of War, who could withhold a name if he suspected fraud or error.
Several circuit courts, staffed by Supreme Court justices riding circuit, refused to carry out the law. In letters to President Washington, reprinted with Hayburn's Case, 2 U.S. (2 Dall.) 409 (1792), the judges objected that the duties were not judicial and that letting an executive officer revise court decisions was improper. The Pennsylvania circuit court, Justices Wilson and Blair and District Judge Peters, wrote: "1st. Because the business directed by this act is not of a judicial nature."
When Attorney General Edmund Randolph asked the Supreme Court to order the Pennsylvania court to act on William Hayburn's petition, the Court took the motion under advisement. It never ruled, because Congress changed the pension law first. So Hayburn's Case is not a Supreme Court holding that a law was void. It is the earliest episode we found in which federal judges openly declined to carry out an Act of Congress because they thought it conflicted with the Constitution.
The Correspondence of the Justices (1793): no advisory opinions
In 1793, with war between Britain and France threatening American neutrality, President Washington's cabinet sent the justices a list of legal questions about treaties and neutrality. On August 8, 1793, Chief Justice John Jay and Justices James Wilson, John Blair, James Iredell and William Paterson wrote back declining to answer. They pointed to "the Lines of Separation drawn by the Constitution between the three Departments of Government" and doubted "the Propriety of our extrajudicially deciding the questions alluded to." No court case was involved, but this letter is the foundation of the rule against advisory opinions.
Example: Chisholm v. Georgia (1793), the first big constitutional loss
During the Revolution, Georgia's commissioners bought supplies from Robert Farquhar, a South Carolina merchant, for American troops near Savannah. Georgia never paid. Farquhar died in 1784. The executor of his estate, Alexander Chisholm, petitioned the Georgia legislature for payment in 1789 and was refused. So he sued Georgia in the U.S. Supreme Court, relying on Article III's grant of jurisdiction over controversies "between a State and Citizens of another State."
Georgia refused to appear. It argued that a sovereign state could not be sued without its consent. In Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), decided February 19, 1793, the justices wrote separate opinions, one after another, as was the custom. According to the Federal Judicial Center, the vote was 4 to 1 that Georgia was not immune. Chief Justice Jay and Justices Blair, Wilson and Cushing were in the majority. Justice Iredell dissented, arguing that a private suit against a state needed the state's consent.
The reaction was fierce. The Federal Judicial Center reports that the Georgia House passed a resolution threatening death for anyone who tried to enforce a judgment against the state, though the state Senate did not act. Congress proposed the Eleventh Amendment on March 4, 1794, a little over a year after the ruling (the Senate had passed it on January 14, 1794). The states ratified it on February 7, 1795, and it bars federal suits against a state by citizens of another state or of a foreign country. The 1794 judgment for Chisholm was never enforced.
Why it matters: Chisholm is the earliest major constitutional decision of the Supreme Court, and the earliest one we found that the country overruled by amending the Constitution. It shows that a first case can set off a chain of events far beyond the case itself. We return to it in the module on the Eleventh Amendment.
The first tests of federal and state laws
Hylton v. United States (1796): a federal law tested and upheld
In 1794 Congress taxed carriages kept for personal use. Daniel Hylton did not pay; the agreed statement of facts said he kept 125 chariots for his own use. The parties agreed to bring the case to test whether the tax was a "direct" tax, which the Constitution requires to be apportioned among the states by population.
In Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796), decided March 8, 1796, the justices upheld the tax as an indirect tax. Justice Paterson called it an indirect tax, Justice Iredell wrote that it was "not a direct tax in the sense of the constitution," and Justice Chase also voted to uphold it. Justice Wilson wrote briefly that his view favoring the tax had not changed. Justice Cushing did not take part on the merits. The case is often described as the first in which the Supreme Court considered whether an Act of Congress was constitutional. The law passed the test, so the question of whether the Court could strike one down did not have to be answered yet.
Ware v. Hylton (1796): a treaty beats a state law
During the Revolution, Virginia passed a 1777 law letting Virginians who owed money to British creditors pay the debt into the state loan office instead and be discharged. Daniel Hylton and Francis Eppes had paid part of a 1774 debt to a British firm that way. After the war, the British creditor's representative sued for the full amount, relying on the 1783 Treaty of Paris, which promised that creditors would meet no lawful impediment to recovering their debts.
In Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796), decided March 7, 1796, the justices, writing separately, held that the treaty overrode the Virginia law and the creditor could recover. This is an early application of the Supremacy Clause. It is not usually described as the Court striking down a state law under the Constitution, because the conflict was between a treaty and a state statute. We cover it in more depth in the module on Articles IV to VII.
Marbury v. Madison (1803): the first Act of Congress held void
At the end of his term, President John Adams nominated, and the Senate confirmed, a group of justices of the peace for the District of Columbia. William Marbury was one. His commission was signed and sealed but not delivered before Thomas Jefferson took office. Jefferson's Secretary of State, James Madison, did not deliver it. Marbury asked the Supreme Court, as a court of first instance, to order Madison to hand it over by a writ of mandamus.
In Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), decided February 24, 1803, Chief Justice John Marshall wrote for the four participating justices. The Court held that Marbury had a right to his commission and that the law gave him a remedy, but that the Supreme Court could not issue the order. The part of the Judiciary Act of 1789 that seemed to let Marbury bring his case directly in the Supreme Court tried to expand the Court's original jurisdiction beyond what Article III allows. That part of the Act was therefore void.
Marshall's reasoning is still quoted in nearly every judicial review case: "It is emphatically the province and duty of the judicial department to say what the law is." He reasoned that "the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void," and that courts may not give such an act effect. Marbury is the first time the Supreme Court held an Act of Congress unconstitutional. According to the House Divided project at Dickinson College, Dred Scott v. Sandford in 1857 was the next time the Court invalidated a federal statute.
Fletcher v. Peck (1810): the first state law held unconstitutional
In 1795 the Georgia legislature sold a vast tract of western land, the Yazoo lands, to speculators, amid charges that legislators had been promised shares in exchange for their votes. The next legislature, in 1796, passed a law declaring the 1795 sale null and void. By then, land had been resold to buyers in other states. In 1803 John Peck sold 15,000 acres traced to the 1795 grant to Robert Fletcher, who then sued Peck, claiming the title was bad because of the 1796 rescinding law.
In Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810), decided March 16, 1810, the Court held that Georgia could not take back the land by statute. The case summary states the holding this way: "A law annulling conveyances is unconstitutional because it is a law impairing the obligation of contracts." Chief Justice Marshall wrote the opinion. Justice William Johnson wrote separately. The Supreme Court Historical Society states that "This marked the first time that the Supreme Court declared a state law unconstitutional." We return to it in the module on Article I, Sections 9 and 10, because it is also the first major Contract Clause case.
Myth: Marbury v. Madison was the first time the Supreme Court reviewed a law's constitutionality
Marbury was the first time the Court held an Act of Congress void, but it was not the first time the Court judged whether a federal law was constitutional. Seven years earlier, in Hylton v. United States (1796), the justices examined whether the federal carriage tax violated the Constitution's rules on direct taxes, and upheld it. In 1792, circuit judges in Hayburn's Case had already refused to carry out a pension law they considered unconstitutional. What Marbury did was state the principle clearly, in an opinion for the Court, and apply it to strike down a statute. The idea had been in the air, and in the debates over ratification, before 1803.
Reading the old reports
Early Supreme Court cases look different from modern ones. A few things to know before you open one:
- Reporter names in citations. Early volumes were named for the reporter who compiled them: Dallas, Cranch, Wheaton, Peters, Howard, Black and Wallace. That is why you see "2 U.S. (2 Dall.) 401." The first number is the official U.S. Reports volume; the number in parentheses is the reporter's own volume.
- Seriatim opinions. In the 1790s each justice usually gave a separate opinion. Marshall's practice of a single "opinion of the Court" came later. Counting votes in early cases means reading each opinion.
- Old spelling and type. Scanned originals use the long s, which looks like an f. "Conftitution" is "Constitution."
How to: find the first case on any clause yourself
- Start with the exact text. Read the clause in the National Archives transcription. Note the clause number (for example, Article I, Section 8, Clause 3).
- Open the Constitution Annotated. Go to constitution.congress.gov, choose "Browse the Constitution Annotated," and open your clause. The essays are written by the Congressional Research Service and usually move from the clause's history to its earliest cases. Cornell's Legal Information Institute mirrors the same essays.
- Look for "historical background" and "early" essays. Many clauses have essays with those words in the title. Read the footnotes. The oldest case cited in the footnotes is a strong lead, not proof.
- Check whether the essay actually says "first." If it does, you can quote it. If it does not, write "the earliest case we found" or "an early case."
- Pull the opinion itself. Search the case name on Justia or Cornell LII for the text, and confirm the citation, year and author on the opinion page. For scans of the printed U.S. Reports, use the Library of Congress U.S. Reports collection.
- Get the vote right. For modern cases, the syllabus at the top of the opinion lists who wrote, who joined and who dissented. Oyez gives vote counts and audio for many cases. For early cases, read each justice's opinion.
- Look below the Supreme Court. Some clauses were first tested in state courts or federal circuit courts. The Constitution Annotated footnotes often cite them. If the Supreme Court has never ruled, say so.
- Find what came after. Search later cases that cite your first case. The Constitution Annotated essay usually names the leading modern case. A first case that has been overruled is still a first case, but say it was overruled.
- Keep a log. Write down each fact and the URL where you confirmed it. If a fact cannot be confirmed, leave it out.
A quick guide to the sources
- Constitution Annotated (constitution.congress.gov): the official legal analysis of the Constitution prepared for Congress. Best first stop.
- Justia (supreme.justia.com): free full text of Supreme Court opinions, organized by U.S. Reports volume and page.
- Cornell LII (law.cornell.edu): opinions, the Constitution Annotated mirror, and a plain-language legal encyclopedia (Wex).
- Library of Congress (loc.gov): page scans of the printed U.S. Reports, the version lawyers cite.
- Oyez (oyez.org): case summaries, votes and oral argument audio for modern cases.
- Founders Online (founders.archives.gov): letters and papers of Washington, Jay, Madison and others, useful for the earliest years.
Summary of firsts in this module
| Clause | First case | Year | What kind of first |
|---|---|---|---|
| Supreme Court's appellate procedure (Judiciary Act) | West v. Barnes, 2 U.S. 401 | 1791 | First decision issued by the Supreme Court |
| Article III, judicial power | Hayburn's Case, 2 U.S. 409 | 1792 | Earliest episode we found of federal judges refusing to carry out a statute as unconstitutional (circuit courts; no Supreme Court ruling) |
| Article III, cases and controversies | Correspondence of the Justices (letter, not a case) | 1793 | Foundation of the rule against advisory opinions |
| Article III, suits against states | Chisholm v. Georgia, 2 U.S. 419 | 1793 | First major constitutional decision; first overturned by amendment (Eleventh) |
| Article I, direct taxes | Hylton v. United States, 3 U.S. 171 | 1796 | Often described as the first review of an Act of Congress's constitutionality (law upheld) |
| Article VI, treaties as supreme law | Ware v. Hylton, 3 U.S. 199 | 1796 | Treaty held to override a state law |
| Article III, original jurisdiction | Marbury v. Madison, 5 U.S. 137 | 1803 | First Act of Congress held unconstitutional |
| Article I, Section 10, Contract Clause | Fletcher v. Peck, 10 U.S. 87 | 1810 | First state law held unconstitutional |
If you report on this
Be careful with the word "first." If a lawyer, candidate or press release says a case is "the first ever" on some issue, ask which kind of first they mean and how they know. Check the Constitution Annotated essay on the clause, and look at the footnotes. Distinguish between "the first time the Supreme Court ruled" and "the first time any court ruled," and between "interpreted" and "struck down." When a court dismisses a case for lack of standing or ripeness, report that accurately: the court did not decide the constitutional question, and the issue may come back. Link to the opinion itself, not just to a news summary of it. And when you cannot confirm a detail, such as an exact vote in an early case with separate opinions, leave it out or say that the justices wrote separately.
Go further
- Companion module: Article III: The Courts
- Companion module: Reading the Constitution
- Background: Constitution Origins
- Constitution Annotated (Congress.gov)
- West v. Barnes at the Library of Congress
- The Justices' 1793 letter to Washington (Founders Online)
- Supreme Court Historical Society: Homes of the Court
- Test yourself: Constitution Trivia
Check yourself
1. What did the Supreme Court decide in its first term in 1790?
The Court first met on February 1, 1790, in New York, but according to the Supreme Court Historical Society it heard no cases during its first term.
2. West v. Barnes (1791), the Supreme Court's first decision, turned on what issue?
The Court was unanimously of the opinion that writs of error removing cases from lower courts could issue only from the Supreme Court clerk's office, and refused West's motion without reaching the money question.
3. Which case is generally cited as the first in which the Supreme Court held an Act of Congress unconstitutional?
In Marbury, Chief Justice Marshall held that part of the Judiciary Act of 1789 tried to expand the Court's original jurisdiction beyond Article III and was void.
4. What was the result in Hylton v. United States (1796)?
The justices examined the tax's constitutionality and upheld it as an indirect tax that did not need to be apportioned by population.
5. Which of these is a standing requirement under Lujan v. Defenders of Wildlife (1992)?
Lujan requires an injury in fact that is concrete, particularized and actual or imminent, fairly traceable to the defendant, and likely to be redressed by a favorable ruling.
6. What happened after Chisholm v. Georgia (1793) allowed a citizen of another state to sue Georgia?
Congress proposed the Eleventh Amendment on March 4, 1794, a little over a year after the ruling, and the states ratified it on February 7, 1795. The judgment for Chisholm was never enforced.
Terms in this lesson
- Standing
- The requirement that a person suing show a concrete, particularized injury, caused by the defendant, that a court ruling is likely to fix (Lujan v. Defenders of Wildlife, 1992).
- Ripeness
- The timing requirement that a dispute be ready for decision rather than depending on future events that may never happen.
- Advisory opinion
- A court's answer to an abstract legal question with no real dispute before it. Federal courts have refused to give them since the justices' 1793 letter to President Washington.
- Judicial review
- The power of courts to decide whether a law or government action conflicts with the Constitution and, if it does, to refuse to enforce it. Marbury v. Madison (1803) first used it to void an Act of Congress.
- Seriatim opinions
- Separate opinions delivered by each justice in turn, the usual practice in the 1790s, instead of a single opinion of the Court.
- Incorporation
- The process by which the Supreme Court applied most Bill of Rights protections to the states through the Fourteenth Amendment, after Barron v. Baltimore (1833) held they limited only the federal government.
Verify independently
Every case, citation, vote count and quotation in this lesson was checked against a primary or reliable source in October 2026, but constitutions are amended, opinions are withdrawn and links move. Check the official text and the opinion itself before you rely on anything here.
Sources
- National Archives: The Constitution of the United States, A Transcription checked 2026-10
- Constitution Annotated (Congress.gov) checked 2026-10
- Constitution Annotated via Cornell LII: Overview of the Lujan Test checked 2026-10
- Constitution Annotated via Cornell LII: Ripeness Doctrine Overview checked 2026-10
- Supreme Court Historical Society: Homes of the Supreme Court checked 2026-10
- Library of Congress: West v. Barnes, 2 U.S. 401 (1791) checked 2026-10
- Justia: Hayburn's Case, 2 U.S. 409 (1792) checked 2026-10
- Founders Online: Supreme Court Justices to George Washington, 8 August 1793 checked 2026-10
- Justia: Chisholm v. Georgia, 2 U.S. 419 (1793) checked 2026-10
- Federal Judicial Center: Chisholm v. Georgia checked 2026-10
- Justia: Hylton v. United States, 3 U.S. 171 (1796) checked 2026-10
- Justia: Ware v. Hylton, 3 U.S. 199 (1796) checked 2026-10
- Justia: Marbury v. Madison, 5 U.S. 137 (1803) checked 2026-10
- Justia: Fletcher v. Peck, 10 U.S. 87 (1810) checked 2026-10
- Supreme Court Historical Society Civics: Fletcher v. Peck checked 2026-10