Marin K. Levy

Melville’s Ishmael declares in the opening chapter of Moby Dick, “Whenever I find myself growing grim about the mouth; whenever it is a damp, drizzly November in my soul . . . then, I account it high time to get to sea as soon as I can.” In this dark February, the timing is right to take to sea—and Kevin Arlyck’s new book, The Nation at Sea: The Federal Courts and American Sovereignty, 1789–1825—is just the thing to take us there.

The Nation at Sea provides a new historical account of the federal judiciary’s early days—one that shifts the way we understand how our country took its place in the world, and how the federal courts took their place in our country. The story so often told is that the federal courts were rather quiet after they were established. They began to find their voice with Chief Justice Marshall at the Court’s helm in cases such as Marbury v. Madison and McCulloch v. Maryland. And through such cases, the story goes, the Court began establishing its role in the constitutional order and its role in American nation-building.

Arlyck has a different story to tell—one that centers around the power of the courts in resolving disputes not on American soil but out at sea. His book shows how case after case made its way to federal court through Article III’s exclusive admiralty and maritime jurisdiction, and why these cases were of political, legal, and diplomatic import. From matters of trade to matters of war, American judges adjudicated foreigners’ legal rights and obligations. What’s more, the other branches of the federal government came to depend upon what had been perceived to be the “weakest” of the three, thereby building the judiciary’s credibility at home.

They key point is not simply that federal judges were making their way as they stated the law in cases of international consequence. It is that at a time when the outcome of our national project was uncertain, the resolution of such disputes by our courts helped prove the project’s mettle on the world stage. In Arlyck’s words, such judicial actions “demonstrated the young republic’s fitness for admission into the community of ‘civilized’ (that is, European) nations” resulting in a kind of “judicial sovereignty-making.”

It is in moments such as this that historians (and reviewers of the work of historians) face a common challenge: what is the work’s payoff? To be sure, this history is valuable in and of itself. Facts matter and the stories we tell matter—and Nation at Sea, by correcting the record of our origins, should be viewed as essential reading for those who teach and write in Federal Courts. (As if that were not enough, it is simply a delight to spend time reading up on prize cases and puzzling through whether and when U.S. courts can exercise jurisdiction over foreign pirates!) But a skeptic may nevertheless press—does Nation at Sea provide lessons for our current moment?

Arlyck says the answer is yes—and the end of the book makes connections to the modern day. It focuses on the courts’ role in cases that implicate foreign relations. One oft-made claim is that courts are to be greatly deferential to the other branches in this space. And yet, as we learn in Nation at Sea, it was well settled through the first few decades of the country’s history that the courts could (and, it was thought, should) resolve various maritime controversies implicating foreign relations, even (if not especially) during wartime. Particularly at a time when judicial interest in early historical practices is piqued, the courts’ role in foreign affairs for the first third of a century of the country’s life could well reorient that inquiry today.

More broadly, it is worth observing that there is a great deal of uncertainty on today’s horizon. Returning to our point of origin, as one of the sailors declares in Moby Dick, “I know not all that may be coming . . .” In myriad ways, we are all at sea. At this moment, a fuller story of how the courts came into their power—and helped bring the country into its power—is a worthy tale to take in, not just as a log of past journeys, but as a potential compass for future ones.