The movement claim that Glass v. Sloop Betsey and Hepburn v. Ellzey support Beers's framework via 'founded upon compact' and 'two types of states' propositions is unsupported, because the cited passages appear to be counsel argument rather than the Court's binding opinion
The movement proposition
Byron Beers’s Treatise #3 (The Natural Order of Things) cites two early-Republic Supreme Court cases for propositions central to the natural-order framework:
Glass v. Sloop Betsey, 3 Dall. (3 U.S.) 6, 13 (1794):
“Our government is founded upon compact. Sovereignty was, and is, in the people.”
The proposition supports the framework’s natural-order claim that American sovereignty resides in the people rather than in government, contrasting with European systems “acquired by force or fraud.”
Hepburn and Dundas v. Ellzey, 6 U.S. (2 Cranch) 445 (1804): The case is cited for a “two types of states” distinction drawing on Cicero (state as common-interest association with common laws) and Burlamaqui (state as dependence on a superior protective power). The distinction supports the framework’s natural-order/unnatural-order binary at the level of political form: legitimate states are of the first type; states under the unnatural order resemble the second.
Both citations appear in mainstream movement literature with these attributions and have circulated for decades.
What appears to be the case
For both Glass and Hepburn, the verbatim text of the Beers-cited passages appears to come from counsel’s argument preserved in the official reports rather than from the Court’s binding opinion.
Glass v. Sloop Betsey. Chief Justice Jay’s opinion in Glass is famously brief — approximately one paragraph in the U.S. Reports. The case held unanimously that French consuls in U.S. ports could not adjudicate prize/admiralty cases; exclusive admiralty jurisdiction lies in U.S. District Courts. The opinion is procedural and jurisdictional; it does not develop political-philosophy claims about the foundation of American government.
The “founded upon compact / sovereignty in the people” language, if present in the case’s reports, is from oral argument — likely by James Wilson, who at the time was simultaneously a sitting Supreme Court Justice and counsel of record in this case, an unusual situation that early federal practice tolerated. Wilson’s oral argument or written brief would have been preserved in the reports along with Jay’s opinion. The scholarly account (as best as could be determined in this triage cycle, without access to the original U.S. Reports volume’s full counsel-argument materials) is that the sovereignty-compact language is argument, not Jay’s binding written opinion.
The proposition itself — that American government is founded upon compact with sovereignty in the people — is uncontroversially true as a matter of constitutional theory. It is what the Declaration of Independence asserts. It is what the Federalist Papers argue. It is the operative theory underlying Marbury v. Madison. The proposition does not need a Glass v. Sloop Betsey citation to be defended; it is constitutional commonplace.
Hepburn v. Ellzey. Chief Justice Marshall’s opinion in Hepburn is a one-issue jurisdiction holding: D.C. residents are not citizens of a “state” within Article III diversity jurisdiction. The full holding is procedural and clause-specific; it does not develop political-philosophy claims about the nature of states.
The Cicero/Burlamaqui contrast Beers cites is plausibly from counsel’s argument at pp. 446-51 of the official reports, preceding Marshall’s opinion. Counsel may well have argued the case by distinguishing types of states under classical political philosophy (Cicero) and modern natural-law philosophy (Burlamaqui), reasoning toward whether D.C. residents fit one type or the other. Marshall’s response — refusing to extend “state” in Article III to include D.C. — was a textual holding that didn’t engage the classical-philosophy framework counsel had raised.
If the Cicero/Burlamaqui contrast is in counsel argument and not in Marshall’s opinion, citing it as a Hepburn holding is doctrinally improper. Counsel argument has no precedential value; only the Court’s reasoning constitutes binding doctrine.
Why this matters
Counsel argument in U.S. Reports volumes has a specific scholarly status. It is preserved in the official reports as part of the historical record of the case. It is not binding precedent. Modern legal practice would never cite counsel argument from an old case as supporting authority for a present-day proposition without explicit acknowledgment that the source is counsel argument.
The Beers corpus’s tendency to cite passages from old Supreme Court reports without distinguishing opinion-from-counsel-argument has appeared previously in this triage series. The Treatise #1 cycle’s Swift overruled by Erie finding documented that the “Constitution… predicated upon the existence of the common law” passage in Swift v. Tyson (often cited by movement literature) is from Dana’s brief — counsel argument, not Story’s opinion. The Glass and Hepburn citations show the same pattern.
The methodological observation is: movement readers (and legal scholars generally) should check pin cites against the opinion-vs-argument distinction in early-Republic cases. The U.S. Reports volumes preserved counsel arguments because the Supreme Court reporter’s practice differed from modern federal-reporter practice. A pin cite to pp. 12-13 of an early case may land in counsel argument rather than in the Court’s reasoning.
The underlying propositions on their own merits
Apart from the citation question, the propositions Beers attributes to Glass and Hepburn have different doctrinal statuses on their own merits.
“American government founded upon compact / sovereignty in the people” is constitutional commonplace. The proposition does not require Glass v. Sloop Betsey to support it; it is what the Constitution itself articulates (“We the People… do ordain and establish this Constitution”) and what the founding-era political theory developed across many sources. The proposition is supported. What it does not produce, however, is the operative-doctrinal conclusions Beers’s framework needs. “Founded upon compact” is descriptive of constitutional-democratic theory; it does not license individual opt-out from operative law any more than the Lockean tradition broadly does. The proposition is true and uncontroversial; the inference Beers builds on it is the move that fails.
“Two types of states” (Cicero vs. Burlamaqui) is interesting comparative political philosophy and is genuinely traceable through classical and natural-law traditions. The doctrinal question is whether the distinction operates in American constitutional law. The answer is no in any direct sense; American constitutional law operates through the textual framework of the Constitution and its amendments, not through a classical/natural-law typology of state forms. Counsel may have argued Hepburn using the typology, but Marshall’s holding did not adopt it. Beers’s use of the typology as if it were operative doctrine therefore lacks the doctrinal support the framework needs.
Verdict
Unsupported. The specific Glass v. Sloop Betsey and Hepburn v. Ellzey citations Beers uses for the “founded upon compact” proposition and the “two types of states” distinction appear, on examination, to be counsel argument preserved in the official reports rather than the Court’s binding opinion. The proposition that American government is founded upon compact is constitutional commonplace and does not depend on the Glass citation; the proposition that states can be typologized along Cicero/Burlamaqui lines is comparative political philosophy and does not operate in American constitutional law independent of the constitutional text.
The methodological observation worth carrying forward: cited passages in early-Republic U.S. Reports may be counsel argument rather than holding. The pattern recurs across the Beers corpus (Swift v. Tyson’s “predicated upon the common law” was counsel argument; now Glass and Hepburn show the same pattern). Movement readers should learn to check pin cites against the opinion-vs-argument distinction; legal scholars and adverse reviewers should do the same.
The verdict reflects the operative-doctrinal claim, not the underlying constitutional theory. Beers’s framework requires the cited passages to be binding doctrine. Counsel argument is not binding doctrine. The framework’s claim to operative-doctrine support through these particular citations is therefore unsupported, regardless of whether the underlying constitutional-theory propositions are true (they are mostly true and uncontroversial — but the framework needs more than the propositions are true; it needs them to license individualized doctrinal conclusions, and the citations do not deliver that).
Sources cited
- The Natural Order of Things — Byron Beers