Adler: Justice John Rutledge: A George Washington favorite and founding era juggernaut

Washington’s admiration for Rutledge dated to their strategic consultation during the Revolutionary War when Washington served as Commander in Chief of the continental army and Rutledge as his state’s Commander in Chief. Washington, who adhered to his criteria more predictably than his successors, saw in Rutledge’s distinguished career a man who fit his yardstick for service on the nation’s High Tribunal. Washington sought support and advocacy for the Constitution, distinguished service in the Revolution, active participation in the civic life of a state or the nation and prior judicial service.

He sought, as well, “favorable reputation with his fellows” or personal ties to Washington himself, geographic suitability and love for the nation. To Washington, the most important of these factors was advocacy of the Constitution.

Rutledge was born into a wealthy family in 1739, educated by his father, a physician, until his death in 1750, and then by an Anglican minister. He read law before enrolling in the Middle Temple in London, in 1754. He became a member of the English bar in 1760 and then returned to South Carolina in 1761, when he opened a law office and was elected to the colonial assembly, in which he served until the Revolution. His law practice, among the most lucrative in the province, enabled him to purchase 30,000 acres. Like John Adams in Massachusetts, Rutledge believed in the right of defense for all classes, and he represented indigents who were charged with serious crimes.

Rutledge was widely admired throughout South Carolina, which led to election to national office. He was elected in 1765 to the Stamp Act Congress in New York, where he chaired the committee that drafted the petition to Parliament for the restoration of Americans’ rights. He was elected to the First Continental Congress in 1774, but he was reluctant to support measures that he believed would lead to war. A year later, he was elected to the Second Continental Congress and changed his mind about the growing tensions with England.

He rejected parliamentary control over the colonies and supported the establishment of independent states and the measures that would place America on a war footing. He played a leading role in drafting the South Carolina Constitution of 1776 and was elected by the state assembly as its president and commander-in-chief. His service to South Carolina included stints as governor and election to Congress.

Rutledge was a heavyweight in the Constitutional Convention, among the most influential of the leaders in Philadelphia. He was appointed chair of the Committee of Detail, which began writing the first draft of the Constitution on July 26, 1787. Along the way, Rutledge introduced a motion to add the Supremacy Clause — Article VI — to the Constitution, which declared federal laws superior to state laws. He lent his voice to the group that advocated the appellate authority of the U.S. Supreme Court over state court decisions, which reinforced the Supremacy Clause and promoted the all-important uniformity of constitutional interpretation.

He was also an advocate of judicial review, which gave federal courts the authority to review and declare unconstitutional the laws enacted by Congress and the actions of the president, power which he believed integral to the doctrine of checks and balances. And Rutledge echoed the unanimous view of the Convention, that the executive should not have the power of “war and peace.” The constitutional authority to initiate military hostilities on behalf of the nation would be vested by Article 1 of the Constitution in Congress, not the presidency.

Rutledge was disappointed that Washington had not named him Chief Justice of the Supreme Court in 1789. Although appointed Senior Justice, Rutledge suffered from ailing health and resented the arduous strain of riding circuit to preside over federal trials. He resigned from the Court in 1791 to assume the chief justiceship of South Carolina.

In 1795, when John Jay resigned as Chief Justice of the U.S. Supreme Court to become Governor of New York, Rutledge beseeched Washington to name him as Jay’s successor. Washington was happy to oblige Rutledge’s wish and placed him on the Court as a recess appointment, which he held for four months. However, the Senate rejected Rutledge’s nomination later that year because of his emphatic denunciation of Jay’s Treaty.

The rejection, his wife’s death in 1792, declining health, financial bankruptcy and the loss of his reputation, sent him into a depression and odd behavior that led friends to question his mental stability. He tried, unsuccessfully, to drown himself in the Ashley River and lived the remainder of his life in virtual solitude in Charleston until his death in 1800.

David Adler, Ph.D., is a noted author who lectures nationally and internationally on the Constitution, the Bill of Rights and Presidential power. His scholarly writings have been cited by the U.S. Supreme Court and lower courts by both Democrats and Republicans in the U.S. Congress. Adler’s column is supported in part through a grant from Wyoming Humanities funded by the “Why it Matters: Civic and Electoral Participation” initiative, administered by the Federation of State Humanities Councils and funded by Andrew W. Mellon Foundation. Adler can be reached at david.adler@alturasinstitute.com.