VINDICATING LIBERTY:

Before he undertook to shape its meaning, James Iredell paid a great price for his American citizenship. He was disowned by a wealthy uncle in the West Indies--an uncle whose heir he had been. Also he lost his powerful patrons in England and Ireland. Moreover, he was cut off from his closest relations, left for many years with only a tenuous connection through the mails. Finally, he was separated from a total culture which, as he wrote the King in 1777, he continued to cherish, feeling, even in self-imposed exile, "a strong attachment to my native country." Edenton, his family and friends there, the regard for him which they expressed, made good Iredell's losses, and transformed the young attorney, as he participated fully in the public life of North Carolina, into one of the representative Southerners of his time.

Iredell's careful apologia for the American cause--a teaching which he developed in a series of essays and public letters written from 1773-1778--clearly contains a foreshadowing of what he thought should be in a constitution for the United States. In response to the Declaratory Act (1766), the Coercive Act (1774), and the "Declaration for Suppressing Rebellion and Sedition" (1775), the young lawyer from Edenton backed slowly toward the conclusion that Crown and Parliament would never agree to any restraint upon their powers of supervision over the colonies and that therefore they had forfeited all the authority over Americans they had once enjoyed.

And while he was withdrawing from the King's no-longer-paternal protection, the entire Tidewater section of North Carolina, a very conservative community, was inwardly, often unknowingly, quietly, doing the same. As Professor Don Higginbotham has maintained, James Iredell wrote originally of his politics in the hope of preserving a connection with Great Britain, and also the liberty of his neighbors under the British constitution. In his "Essay on the Law Court Controversy," his "To the Inhabitants of Great Britain," "The Principles of an American Whig," "Causes of the American Revolution," "To His Majesty George the Third, King of Great Britain," and "To the Commissioners of the King of Great Britain for Restoring Peace, etc...," he envisaged an empire of equal parts, like what came later with the British Commonwealth of Nations. Only a small change in the colonial pattern before 1763 was needed, but no less would serve. As early as September 1773 he had written, "I have always been taught and, till I am better informed, will continue to believe, that the Constitution of this country [North Carolina] is founded on the Provincial Charter, which may be considered the original contract between King and inhabitants." In the same spirit, looking back on relations between colonies and mother country since the first English settlement on this continent, he later informed King George III (as he withdrew his allegiance from that prince) that there would have been no Revolution "if your Majesty had disliked innovation as much as we did."

The great failing of the British system, according to James Iredell, was that it did not include a judiciary powerful enough to protect its constitution from the abusive acts of Crown and Parliament. Divided sovereignty, enforced by a judiciary speaking for an antecedent (and truly sovereign) fundamental law, provided a formula for preserving both liberty and civil order. Such an argument Iredell may have learned from his friend William Hooper, who in 1774 wrote to the young immigrant from Bristol of a hope for setting up on these shores "a British constitution purged of its impurities." But whatever its source, it is in keeping with the point of view which he affirmed throughout his public life. For well before most Americans, James Iredell came to believe that what we now call judicial review is essential to any hope for a government of laws. Functioning as a private attorney, he established the doctrine in North Carolina in the 1787 case of Baynard v. Singleton, and affirmed it again at every opportunity.

Looking back on a war fought more against the "700 or 800 Tyrants" of the House of Commons than the despotism of a monarch, Iredell in "An Address to the Public" wrote:

We had not only been sickened and disgusted for years with the high and almost impious language from Great Britain, of the omnipotent power of the British Parliament, but had severely smarted under the effects. We felt, in all its rigor, the mischiefs of an absolute and unbounded authority, claimed by so weak a creature as man, and should have been guilty of the basest breach of trust, as well as the grossest folly, if in the same moment, when we spumed at the insolent despotism of Great Britain, we had established a despotic power among ourselves.

Because of what he had learned as an Englishman in America, he wished no system of legislative supremacy on these shores. Instead, even with respect to North Carolina, he insisted that "it has ever been my opinion that an act inconsistent with the [state] Constitution was void, and that the judges, consistently with their duties, could not carry it into effect. The Constitution appears to me to be a fundamental law, limiting the powers of the legislature, and with which every exercise of those powers must, necessarily, be compared." In 1783 he observed, "In a Republic... the Law is superior to any or all Individuals, and the Constitution superior even to the Legislature, of which the Judges are the guardians and protectors." Legislative supremacy was an idea of democratic, doctrinaire egalitarians. And Iredell was assuredly not of that company.

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