Article III and the Creation of the Federal Judiciary
Antifederalists on Article III
(1) No Check on the Judiciary – ultimate symbol of power/tyranny
•“There is no power above them, to controul any of their decisions. There is no
authority that can remove them, and they cannot be controuled by the laws of
the legislature. In short, they are independent of the people, of the legislature,
and of every power under heaven. Men placed in this situation will generally
soon feel themselves independent of heaven itself.” [Brutus No. 15]
•“That there is no power above them that can controul their decisions, or correct
their errors. There is no authority that can remove them from office for any
errors or want of capacity, or lower their salaries, and in many cases their power
is superior to that of the legislature.” [Brutus No. 15]
•“There is no power above them that can correct their errors or controul their
decisions--The adjudications of this court are final and irreversible, . . . .”
[Brutus No. 15]
Article III and the Creation of the Federal Judiciary
Antifederalists on Article III
(1) No Check on the Judiciary – ultimate symbol of power/tyranny
•Judicial power “is of such a nature, that when we have ascertained and fixed its limits,
with all the caution and precision we can, it will yet be formidable, somewhat arbitrary
and despotic--that is, after all our cares, we must leave a vast deal to the discretion and
interpretation--to the wisdom, integrity, and politics of the judges--“ [Federal Farmer
No. 15]
•“When the legislature makes a bad law, or the first executive magistrates usurp upon
the rights of the people, they discover the evil much sooner, than the abuses of power in
the judicial department; the proceedings of which are far more intricate, complex, and
out of their immediate view. . . . In this country, we have been always jealous of the
legislature, and especially the executive; but not always of the judiciary: . . . .” [Federal
Farmer No. 15]
•“ . . . we may fairly conclude, we are more in danger of sowing the seeds of arbitrary
government in this department than in any other.” [Federal Farmer No. 15]
Article III and the Creation of the Federal Judiciary
Antifederalists on Article III
(1) No Check on the Judiciary – ultimate symbol of power/tyranny
•“They are to be rendered totally independent, both of the people and the legislature,
both with respect to their offices and salaries. No errors they may commit can be
corrected by any power above them, if any such power there be, nor can they be
removed from office for making ever so many erroneous adjudications.” [Brutus No.
11]
•“They will give the sense of every article of the constitution, that may from time to
time come before them. And in their decisions they will not confine themselves to any
fixed or established rules, but will determine, according to what appears to them, the
reason and spirit of the constitution. The opinions of the supreme court, whatever they
may be, will have the force of law; because there is no power provided in the
constitution, that can correct their errors, or controul their adjudications. From this court
there is no appeal. And I conceive the legislature themselves, cannot set aside a
judgment of this court, because they are authorised by the constitution to decide in the
last resort.” [Brutus No. 11]
Article III and the Creation of the Federal Judiciary
Antifederalists on Article III
(2) Expand Powers of National Government via Construction
“This part of the plan is so modelled, as to authorise the courts, not only to carry into
execution the powers expressly given, but where these are wanting or ambiguously
expressed, to supply what is wanting by their own decisions.” [Brutus No. 11]
“that in their adjudications they may establish certain principles, which being
received by the legislature, will enlarge the sphere of their power beyond all bounds.”
[Brutus No. 12]
“In determining these questions, the court must and will assume certain principles,
from which they will reason, in forming their decisions. These principles, whatever
they may be, when they become fixed, by a course of decisions, will be adopted by the
legislature, and will be the rule by which they will explain their own powers.” [Brutus
No. 12]
“We have seen, that they will be authorized to give the constitution a construction
according to its spirit and reason, and not to confine themselves to its letter.” [Brutus
No. 12]
Article III and the Creation of the Federal Judiciary
Antifederalists on Article III
(2) Expand Powers of National Government via Construction
“that the great end of the constitution, if it is to be collected from the preamble, in which its
end is declared, is to constitute a government which is to extend to every case for which any
government is instituted, whether external or internal. The courts, therefore, will establish this
as a principle in expounding the constitution, and will give every part of it such an explanation,
as will give latitude to every department under it, to take cognizance of every matter, not only
that affects the general and national concerns of the union, but also of such as relate to the
administration of private justice, and to regulating the internal and local affairs of the different
parts.” [Brutus No. 12]
“The courts therefore will establish it as a rule in explaining the constitution to give it such a
construction as will best tend to perfect the union or take from the state governments every
power of either making or executing laws. . . . And under this the courts will in their decisions
extend the power of the government to all cases they possibly can, . . . that if the spirit of this
system is to be known from its declared end and design in the preamble, its spirit is to subvert
and abolish all the powers of the state government, and to embrace every object to which any
government extends.” [Brutus No. 12]
Article III and the Creation of the Federal Judiciary
Antifederalists on Article III
(2) Expand Powers of National Government via Construction
•“But the judges under this constitution will controul the legislature, for the supreme
court are authorised in the last resort, to determine what is the extent of the powers of
the Congress; they are to give the constitution an explanation, and there is no power
above them to set aside their judgment.” [Brutus No. 15]
•“this court will be authorised to decide upon the meaning of the constitution, and that,
not only according to the natural and ob[vious] meaning of the words, but also
according to the spirit and intention of it. In the exercise of this power they will not be
subordinate to, but above the legislature.” [Brutus No. 15]
•“The supreme court then have a right, independent of the legislature, to give a
construction to the constitution and every part of it, and there is no power provided in
this system to correct their construction or do it away. If, therefore, the legislature pass
any laws, inconsistent with the sense the judges put upon the constitution, they will
declare it void; and therefore in this respect their power is superior to that of the
legislature.” [Brutus No. 15]
Article III and the Creation of the Federal Judiciary
Antifederalists on Article III
(3) Threaten Traditional legal Rights, Procedures, Guarantees
•Full power over law and fact
•No protection of the common law (no federal common law – state
court authority)
•No trial by jury in civil cases [Federal Farmer No. 3; Federal Farmer
No. 15; A Democratic Federalist; Cincinnatus No. 1; Dissent of
Minority of Pennsylvania Convention]
•Allows a state to be a defendant [Brutus no. 13]
How have these fears been addressed after Ratification . . .
Article III and the Creation of the Federal Judiciary
Judiciary Act of 1789
•Article III vests judicial power of the United States in one Supreme Court and
such inferior courts as Congress shall establish; need to create federal judicial
system, and establish procedures for operation; point of contention was how much
power the Constitution transferred from states to the nation.
•Compromise between nationalists and states-rightists – limited jurisdiction of
federal courts and made state courts more important.
•(1) Supreme Court with chief justice and five associate justices; (2) each state to
have one District Court (MA and VA which would have two judges, one to serve in
frontier districts that would become KY and ME); as new states entered union,
new district judges would be appointed; (3) each state to have one Circuit Court,
which consisted of two Supreme Court justices and one district judge; nation
divided into three circuits, and two Supreme Court justices assigned to each
circuit; (4) jurisdiction extended to all admiralty cases and private lawsuits
between citizens of different states (where value was more than $100); all criminal
cases and private suits exceeding $500; some potential for appeal to Circuit
Courts.
Article III and the Creation of the Federal Judiciary
Judiciary Act of 1789
•Section 25: chief accomplishment of the centralizers, as state courts
brought directly under federal appellate jurisdiction by providing
for appeals from state courts to the federal judiciary; under this
section appeals could be taken to the U. S. Supreme Court whenever
the highest state court having jurisdiction of a case (1) ruled against
constitutionality of a federal treaty or law, (2) ruled in favor of the
validity of a state act which had been challenged as contrary to the
Constitution, treaties, or laws of the United States, or (3) ruled
against a right or privilege claimed under the Constitution or federal
law; in effect, this meant that appeals would be taken in all instances
where the state judiciary failed to give full recognition to the
supremacy of the Constitution or to treaties and laws of the United
States (i.e. violated the Supremacy Clause of Article VI) –
established principle of judicial review of state legislation.
Article III and the Creation of the Federal Judiciary
Judiciary Act of 1789
•But, state courts granted significant amount of jurisdiction and
federal courts given limited exclusive original jurisdiction
(admiralty, maritime, and crimes declared by act of Congress) and
much concurrent original jurisdiction with state courts; premise of
the act that the rights of the Federal Government could be safely
confided to state tribunals, as adjudication of cases arising under the
Constitution consigned in first instance to the state courts; thusly,
while the Constitution restricted the powers of the state
governments, the First Congress enhanced the powers of the state
courts; cases not falling under federal jurisdiction - the vast majority
of cases - the decisions of the highest tribunals in each state were
final and without appeal.
•Section 34: demonstrated the influence of the states, as federal
courts to adopt the methods and procedures of the state courts.
Article III and the Creation of the Federal Judiciary
Separation of Powers
• Precedence for not providing advisory opinions to other branches
Chisholm v. Georgia and 11th Amendment
• Concerns volatile question of whether states can be sued in federal court – namely, the
question of whether a private person could sue a state in federal court – but ultimately,
involving the right of the federal judiciary to summon a state as defendant and to adjudicate
its rights and liabilities.
• Article III, Sections 2(1) and 2(2) gives the Court power to hear such suits; but, in two
cases in the early 1790s, states refused to obey a writ from the Supreme Court (allowed
under Section 14 of the Judiciary Act of 1789) to appear before the Court, in cases which
states were being sued in federal court; during the ratification debates.
• Federalists assured state ratifying conventions that the clause would not be construed to
open states to such suits, but that states would only be plaintiffs; Court could not force a
state to comply, even if it had the powers, as no state would comply, thus undermining
federal powers.
Article III and the Creation of the Federal Judiciary
Chisholm v. Georgia and 11th Amendment
• In Chisolm case, GA protested that the Court lacked jurisdiction in a case in which GA was
being sued by an individual in federal court, and then declined to participate in the argument; five
justices deliver opinions finding that constitution permitted private citizens to sue a state in
federal court, and then ordered GA to appear at next term and show cause why judgment should
be entered against it, or judgment to be awarded in default.
• Court also ruled against NY and VA in similar cases
• GA and MA legislatures enact resolutions threatening punishment against any federal court
enforcement against them
• In 1794, Senate and House approve amendment to constitution preventing individuals from
suing states in federal courts, and President Adams announces in 1798 that enough states had
ratified the 11th Amendment
• Presents question of what federalism meant and where sovereignty resided, as most Americans,
especially Jeffersonian Republicans (Madison included) believed that the happiness of the people
could only be protected through the sovereignty of the states, as states checked centralized
authority and protected liberties against tyrannical acts of national government.
Article III and the Creation of the Federal Judiciary
Judicial Review
Precedent for Judicial Review [prior to Marshall Court]
 1780s state court cases overturning state statutes (e.g. Commonwealth of Virginia v.
Caton); state judicial review accepted course of court power; judicial review established at
state level before Constitution written.
 Article III, Section 2: Supremacy Clause – but judicial review not granted expressly.
 Federalist No. 78 (Hamilton): an element of checks and balances.
 Judicial Review meant simply the power not to enforce a concededly unconstitutional act;
it did not entail a power to interpret the fundamental law; framers did not intend the
judiciary to have a general power to interpret or decide every conceivable constitutional
issue that might arise; judicial review intended to keep legislative branch within its sphere of
power and to check its encroachment.
 Ware v. Hylton (1796)
 Hylton v. U. S. (1796)
 Other Circuit Court decisions nullifying state laws during the 1790s, which arouse little or
no objections.
Article III and the Creation of the Federal Judiciary
Judicial Review
Types of Judicial Review
 State review of State
 Federal review of State
(both negative and positive)
 Federal review of Federal
(both negative and positive)
 State review of Federal
Article III and the Creation of the Federal Judiciary
Judiciary Act of 1801
• Issues involved (1) Supreme Court justices riding circuit, and then deciding again
on appeals to Supreme Court that they ruled on at the Circuit Court level, and (2)
cases at the state level involving Federalist land speculators vs. state land laws (not
a federal jurisdiction), and Republican controlled states favored settlers
• Federalists see expansion of federal court jurisdiction as means of containing
Republican ascendancy and the last bastion of Federalist control; established 6
new circuit courts w/ own judiciary, thus appointing 16 circuit judges w/ original
jurisdiction in all cases of law and equity arising under the Constitution (removed
$500 minimum requirement of the 1789 judiciary act and gave jurisdiction over
cases involving disputed land titles, and made it easier to remove from state to
federal courts, and enlarged jurisdiction of federal courts in diversity cases) +
several new district courts (“midnight appointments”) + reducing size of Supreme
Court from six justices to five effective the next vacancy (to prevent Jefferson from
appointing Supreme Court justices).
Election of Jeffersonian Republicans and “Revolution of 1800” . . .
Article III and the Creation of the Federal Judiciary
Judiciary Act of 1802
High Federalists (Hamilton)
vs.
Adams Federalists (Adams)
Marshall
•Marshall’s appointment bitterly resented by Hamiltonians
•Republicans generally indifferent to Marshall’s appointment
•Marshall shared Madison’s brand of national republicanism (e.g. 2nd phase of
Marshall Court)
•Differences between Marshall and Jefferson based on temperament and
personality than on principles
•Radical Republicans disliked Marshall
Article III and the Creation of the Federal Judiciary
Judiciary Act of 1802
Radical Republicans (Monroe/Randolph)
vs.
Moderate Republicans (Jefferson/Madison)
Article III and the Creation of the Federal Judiciary
Judiciary Act of 1802
•Regarding judicial review:
• Federalists insisted upon power of Supreme Court to declare acts of Congress
unconstitutional
• Republicans responded that if the judges of the Supreme Court possessed this
power they could interfere with the machinery of government whenever they
wished, and they could become complete despots, oppressing the country at
will, as judges not above party interest – true check upon acts of Congress not
the judiciary, rather the state legislatures and people themselves.
•Controversy over passage of the repeal act further increased tension between
extremists in two parties, and threats that Supreme Court would declare such an
act unconstitutional, combined with the approaching Marbury case (see below), set
two parties on a collision regarding judicial review.
Article III and the Creation of the Federal Judiciary
Judiciary Act of 1802
•1802 legislation precluded meeting of Supreme Court and thus denied opportunity to overturn the
repeal act -- Thus, High Federalists embark on more immediate forms of opposition:
(1)Ask Supreme Court judges to refuse to perform duty of reinstated circuit judges – Chase agrees, but
Marshall persuades other justices not to agree to this, and circuit courts held as scheduled.
(2)Join with dispossessed circuit judges and make a political issue in order to force Supreme Court
judges into acknowledging or denouncing repeal act (pamphlet, redress of grievances, test cases)
(3) Marshall and other justices had no intention of backing down from their opinions on the
constitutionality of the repeal act, which leads to number of brief but intense encounters between
Marshall and High Federalists – attempts of lawyers for defendants to deny authority of the circuit
courts in their April sessions, which are denied. [December 1802 case in 5th Circuit – Stuart v. Laird
– appealed to Supreme Court]
(4) After Congress convenes in December of 1802, (a) memorial to Congress asking for judicial tribunal
to determine if rights of circuit judges had been violated, (b) dispossessed DC justices of peace
petition Congress for information from executive and Senate re: their nominations – Congress
denounces both motions, as attacks on Congress and executive rights.
(5) Stuart v. Laird (1803) – Marshall and Supreme Court uphold 1802 repeal act
Article III and the Creation of the Federal Judiciary
Marbury v. Madison (1803)
• “significance of its origins has been misinterpreted and overdramatized”
• Midnight appointments of justices of peace for District of Columbia
(Marbury, Hooe, Harper, Ramsay) – decide to test constitutionality of
repeal act of 1802 before Supreme Court, via mandamus ordering SOS
Madison to deliver commissions; Marshall grants motion
• Jefferson’s reduction, under authority provided under the Organic Act
and later confirmed, of number of justices from Adams’s higher number
• Minor case and essentially moot, but Marshall uses case to build power of
the judiciary; Marshall also recognized the political ramifications of the
case, and decided against antagonizing Republicans; Federalists actually
united moderate and radical Republicans against the federal judiciary, as
it appeared a bold usurpation of power to control the executive – Jefferson
now committed totally to the repeal of the Judiciary Act of 1801.
Article III and the Creation of the Federal Judiciary
Marbury v. Madison (1803)
(1) Was the issue justiciable? Marshall declares the applicant has
right to commission he demands, the appointment was legally
complete, and to withhold it was unwarranted by law;
(2) Do the laws afford Marbury remedy? Marshall answers yes;
(3) Did the Supreme Court have jurisdiction (was the proper
remedy a mandamus)?
Marshall declares Section 13 of
Judiciary Act of 1789 unconstitutional; power to issue
mandamus not enumerated among original jurisdiction powers
in the Constitution – only one of two instances before the Civil
War where Supreme Court overturns federal law – and
Marbury’s application for mandamus denied.
Article III and the Creation of the Federal Judiciary
Marbury v. Madison (1803)
• Marshall’s obiter dicta: province and duty of the judiciary to say what the law is;
a law repugnant to the Constitution is void and the courts as well as the other
departments are bound by the constitution (Supremacy Clause)
• Judicial review expresses the Court’s duty to refuse to enforce a void or
unconstitutional law; question at hand concerned powers of the judiciary only -Marshall made no general assertion that a judicial decision regarding the
constitutionality of an act of Congress was binding on the political branches, nor did
he contend that the interpretation of the judiciary was superior to or entitled to
precedence over that of Congress or the executive.
• Marshall had serious doubts about political expediency of hearing the motion in
the first place and his main concern was avoiding a confrontation with the
executive branch.
Article III and the Creation of the Federal Judiciary
Marbury v. Madison (1803)
•Marshall’s opinion received very little criticism from even most partisan
Republican newspapers; any hostility that did arise directed not at Court’s right to
decide on constitutionality of a law, but at Marshall’s attack on Jefferson as a
violator of the laws; few Republicans prepared to deny right of Supreme Court to
review for itself an act of Congress.
•President Jefferson likewise had no wish to deny such power – deleted section
from First Annual Message to Congress made clear that he believed each branch
of the government had the right to decide for itself the constitutionality of matters
before it; Jefferson instead irritated at Marshall’s obiter dicta on rights of federal
appointees; Jefferson never challenged nor condemned Court’s exercise of judicial
review.
•Case is unimportant at time, but used in the 20th century as a precedent for what
it never intended: judicial supremacy – the Supreme Court as the final and
ultimate arbiter of the constitution; Marshall only wanted to place Supreme Court
on equal footing with the executive and legislative branches.
Article III and the Creation of the Federal Judiciary
Belko’s Obiter Dicta
• Supreme Court & Federal Judiciary most dangerous branch
• Assumed broad legislative, executive, and administrative powers
• Not final and sole arbiter of the Constitution
• President, Congress, States – and the People have a direct say
• Only reviews congressional legislation and executive actions
• Only appeals from federal courts
• Original limited jurisdiction and only appellate from federal courts
• No power of judicial review over state courts
• Highest tribunal in the land is your state supreme court
• All federal vs. state issues decided by U. S. Senate [Jacksonian]
• Impeachment acceptable tool to blunt the tyranny of the bench