The Historical Role of the Supreme Court in Legislative Centric-Federalism
In 1803, the Supreme Court issued its opinion in the Marbury v. Madison case, and in so doing, it exerted and codified its ability to act as a check on a federal government by asserting its right to judicial review under the Constitution. This decision reflects a pattern of actions taken by the nation’s highest court to assert its place within the federal government—a concern that did not exist for the legislature or the executive under the new Constitution. The Court’s decisions have led some scholars to question the Constitutionality of “judiciary-centric federalism”, that is a system of government whereby the judiciary exerts a significant level of dominance within the federal system, which emerged in the twentieth century.1 Regardless of the Constitutionality of judicial review, the need to issue decisions that explicitly confer upon the judiciary powers that were not explicitly given in the Constitution leads to questions about the intended nature of the Supreme Court. The seeming inferiority of the national judiciary under both the Articles of Confederation government and the new Republican government established in 1789 raises questions about the nature of the vague language attributed to the federal judiciary in the Constitution.
When state delegates assembled in Philadelphia for the 1787 Constitutional Convention, a primary concern among them was the structure of the federal judiciary department. The debates over the federal judiciary were emblematic of larger concerns within the new nation that involved the emerging ideas of federalism and the consolidation of political power within the new national government. This paper will argue that the inferiority ascribed to the federal judicial department in the Constitution was the result of a compromise between different factions of delegates whose priorities reflected a need to ensure that the new central government was not subservient to individual states. An analysis of the proposals that were debated at the constitutional convention and the comments made during the state ratification conventions demonstrates the aspects of the federal judiciary that received wide consensus versus those that were heavily scrutinized. The resulting judicial powers and jurisdictions of the federal judiciary enshrined into the Constitution reflected the narrow consensus among the delegates and the priorities of the new federal government.
The nature of the judicial department of the United States government that was established through the Constitution of 1789 came about because of the weaknesses that characterized the Confederation government assembled when the British North American colonies proclaimed their independence in 1776. While scholars have noted a series of weaknesses in the Articles of Confederation, one of the most pronounced weaknesses of the Confederation was the “lack of a steady judicial body, endowed with real powers of adjudication … without the necessity of obtaining the consent of the parties to its jurisdiction.”2 The very nature of the confederation government rendered the existence of any judicial body encompassing more than one state with appellate jurisdiction very difficult to create and maintain. The appellate court that was put into place during the confederate government was the Court of Appeals in Cases of Capture, created by an act of Congress on January 15, 1780. The need for such a court was brought to the attention of the Congress by General George Washington in 1775, to which Congress responded with reluctance by creating in place of an appellate court, a “special committee”, followed by a “standing committee” in the Congress.3 In addition, Congress adopted a resolution authorizing appeals from colonial admiralty courts prompting every state, except for New York, to establish an admiralty court with “jealous reservations” about the loss of their autonomy. As such, individual States limited their Congressional appeals to “cases involving vessels commissioned by the Confederation.”4 Even when Congress finally created the Court in 1780, its decisions were often ineffective. As a reporter noted, “the weak point of this whole judicial system was this: that it necessarily depended upon state officers to enforce [its judgements]” and as such, “State courts refused to enforce the rights of property acquired under Federal decrees.”5 In 1783, Alexander Hamilton noted, “one of the most grievous defects in the Articles of Confederation was the lack of a federal judicature.”6 The fragility of the nation’s only Federal court under the Articles of Confederation government was further demonstrated when Congress halted the salaries of its judges in 1785—prompting significant debate about judicial compensation at the Constitutional Convention in 1787. The ominous nature and lifespan of the Court of Appeals in Cases of Capture, being the only confederate court during the confederation, underscored the need for a refined structure of government that embodied a Federalist approach to the establishment of a national judicial department. Further, the tensions between this appellate court, the Continental Congress, and the individual States foreshadowed the disagreements that would arise about state encroachment on Federal power and Federal encroachment on State power.
In light of the apparent weakness of judicial power in the Articles of Confederation government, the entirety of the new judicial department of the United States government was the subject of many proposals, amendments, and debates at the Constitutional Convention of 1787. The result of the convention’s negotiations was a series of compromises known collectively as the “Madisonian Compromise” creating a federal judiciary whose powers were primarily listed in the Constitution implicitly (with few exceptions) under the judicial power clause of Article III. The federal judiciary’s structure was also vaguely defined and the comprise left its structure—aside from the Supreme Court—out of the Constitution and in the care of the Congress. Although the ambiguity of the federal judiciary’s role in the new federal government did not have one specific cause, it can be primarily traced back to a divergence of opinion amongst the delegates about the role of a federal judiciary in a system of government that was being constructed for the first time. As the Anti-Federalist Robert Yates wrote,
The judges in England, it is true, hold their offices during their good behaviour, but then their determinations are subject to correction by the House of Lords; and their power is by no means so extensive as that of the proposed supreme court of the union.7
Thus, the role of the new judicial branch of the United States government was the cause of significant diverging opinions at the Constitutional Convention in large part because it was a new system that incorporated aspects of the British common-law system, yet deviated from the colonial system in place before independence. The Supreme Court’s jurisdiction, as laid out in Article III of the Constitution, would allocate the highest appellate jurisdiction away from the Legislative branch (as was the case in England) to a new and independent judicial branch that would have the final say in matters of law and fact pertaining to its own jurisdiction. Although the novel idea for a third and independent branch of government comprising the federal judiciary received general approval at the Convention, the level of independence that should be afforded to it was the subject of much debate.
While there was a range of diverging opinions about the extent of the independence that should be attributed to the new judicial branch of the federal government, there was a consensus among most of the delegates in Philadelphia that certain mechanisms needed to be put into place to separate political influence from the judicial department. Although other aspects of the judicial authority referenced in the Constitution are more ambiguous, several clauses in Article III, Section 1 of the Constitution received majority support at the Constitutional Convention; those clauses are the good behaviour clause, the compensation clause, and the judicial power clause. The most notable proposal that advocated for an independent judiciary was the “Virginia Plan” presented by the Governor of Virginia, Edmund Randolph, which proposed the creation of a federal judiciary overseeing the entire nation. The Ninth Resolution of the plan stated:
Resd. that a National Judiciary be established … to be chosen by the National Legislature, to hold their offices during good behaviour; and to receive punctually at stated times fixed compensation … in which no increase or diminution shall be made so as to affect thee persons actually in office.8
In contrast to many of the other proposals at the Convention, the good behaviour clause was widely accepted and only challenged once by John Dickenson, who sought to include a provision that would have allowed the Congress to remove a judge at the request of the executive. Dickenson’s motion was defeated seven to one and was criticized by Gouverneur Morris who said that “it was fundamentally wrong to subject Judges to so arbitrary an authority” in reference to the power the amendment would have provided both the executive and the legislature.9 The acceptance of the Virginia Plan’s good behaviour clause demonstrated the importance that was attributed to judicial independence as the delegates attempted to segregate political influence and judicial decision making.
Likewise, the compensation clause also received a significant amount of Federalist and Anti-Federalist support at the Convention which further emphasized the importance that an independent federal judiciary carried throughout these negotiations. Although the matter of compensation was the subject of more debate and attempted amendments than the good behaviour clause, discussions primarily concerned the Virginia Plan’s proposal to ban pay increases or decreases for the judiciary. The discussion surrounding compensation primarily focused on the reasonability of allowing Congress to periodically increase judicial salaries without surrendering the judiciary to legislative control—an important consideration in light of how the Confederate government used compensation to shut down that government’s appellate court.10 The impulse to have the Constitution control judicial compensation was also due to the Colonial era practice of “court fees.” It involved colonial judges directly charging court fees to litigants which was seen as a corrupt practice and it was eventually outlawed in several of the early state constitutions.11 The primary amendment proposal about compensation was put forward by Gouverneur Morris, who suggested that periodic increases (but not decreases) in salary be permitted. He justified his proposal by arguing that the potential increase in the number of new cases and the fluctuation in the value of money over time meant that “the amount of salaries must always be regulated by the manners & the style of living.”12 Although Morris’ proposed amendment was accepted 6 to 2 with one abstention, James Madison expressed concerns about the minor ramifications that the amendment had on the concept of judicial independence which opened up a conversation about the level of independence the federal judiciary should be granted.
The amendment to the Virginia Plan’s compensation clause that was proposed by Gouverneur Morris and accepted by the Convention’s Committee of Detail triggered an important dialogue about the concept of judicial independence that was underpinning the creation of the federal judiciary. James Madison who voted to keep the Virginia Plan’s original language was concerned with the potential dependence that could arise between a judge seeking an increase in salary from the legislature who may have business before that judge’s court. Madison agreed with the majority of the delegates that this dependence was lessened in allowing only increases, yet he argued that any dependence between the two branches would be improper.13 This was an argument that Madison articulated in Federalist No. 51 stating, “the members of each department should be as little dependent as possible on those of the others for the emoluments annexed to their offices” adding that “were … the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal.”14 The only opposition to the proposed compensation clause emerged from Robert Yates, an Ant-Federalist who “wrote more frequently and more forcefully about the judiciary than any other Anti-Federalist.” Yates complained that when taken together, the good behaviour clause and the compensation clause made federal judges too independent because they could not be chastised for any errors except through impeachment.15 However, as the vote tallies demonstrate, few delegates fully agreed with Yates’ characterization, including Alexander Hamilton who emphasized the importance of judicial independence in Federalist No. 79 by stating that the tenure of office and fixed compensation contributed the most to judicial independence.16 Through the various debates about both the tenure and emoluments for judges, the consensus that the delegates arrived at was the importance of preserving judicial independence, which demonstrates the increasing significance of an independent federal judiciary. Furthermore, the decision to enshrine specific language about the tenure and salaries of federal judges into the Constitution while leaving other aspects of the federal judiciary in the hands of the legislature demonstrates the importance attributed to judicial independence, and by relation, judicial power in the emerging Republic.
While the clauses that pertained to judicial tenure and compensation received broad consensus among the delegates at the convention, the debates about the terminology to establish the “Judicial Power” clause began to draw out the divisions between proponents and opponents of a strong central government. Although the structure of the United States government is often described in terms of “separation of powers”, there is no provision in the Constitution that explicitly separates the government’s powers. Rather, the Constitution classifies and assigns different powers to various departments of government. Firstly, Section I of Article I grants that “All legislative Powers herein granted shall be vested in a Congress of the United States.”17 Secondly, Section I of Article II grants that “The executive Power shall be vested in a President of the United States of America.”18 Finally, Section I of Article III grants that “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish” (emphasis added).19 As the debates about the tenure and compensation of federal judges have demonstrated, the delegates at the convention were keenly aware of the importance of the idea of judicial independence. Yet, despite the broad acceptance of the need for an independent judiciary, the question of judicial power was plagued with a much starker divide between those who supported a strong central government with a strong independent judiciary and those who preferred a judicial department that relied on state tribunals. These divisions led to compromises about the creation of lower federal courts, the appellate jurisdiction of the Supreme Court, and the scope of judicial federalism in the emerging republic, all of which were consolidated into the “Madisonian Compromise” of 1787.
Once Governor Randolph introduced the Virginia Plan at the convention, the Ninth Resolution establishing a federal judiciary became the subject of much debate as it related to judicial independence. The original text of the Ninth resolution stated in part, “Resolved that a National judiciary be established, to consist of one supreme tribunal and of one or more inferior tribunals to be chosen by the National Legislature” (emphasis added).20 However, after significant debate on June 4th and 5th, 1787, the delegates voted to omit the words “one or more” from the text because of disagreements about the jurisdiction that inferior federal courts were to have within the context of the emerging federal system of governance.21 The core of the objections raised about lower federal courts regarded the fear that some had about the encroachment of the federal government on states and their sovereignty. Robert Yates again argued that the judiciary was too independent saying “the adjudications of this court are final and irreversible … in this respect it differs from the courts of England, for there the house of lords is the highest court, to whom appeals, in error, are carried.”22 Many Anti-Federalists presumed that some form of judicial usurpation of power would occur through encroachments on state courts, which they viewed as a problem originating from too much independence for the federal judiciary.
To address the jurisdictional issues raised by the prospects of inferior federal courts, some Anti-Federalists proposed that state courts be given the jurisdiction through the federal constitution to rule on federal matters that impacted individual states. However, they conceded that this outcome would only be accepted if the Supreme Court was final appellate jurisdiction over those cases. This proposal raised questions about judicial independence in light of the conduct of some states under the Articles of Confederation. Skeptical about the commitment of individual states, Charles Pinckney of South Carolina justified the need for a coercive Federal judiciary power as “the principles of Confederation ha[d] been neglected with impunity in the hour of the most pressing necessity … many of the states ha[d] certainly shewn a disposition to evade a performance of their Federal duties, and thrown the burden of Government upon their neighbors.”23 The solution that the delegates reached as a part of the negotiation became a part of the “Madisonian Compromise” and it resulted in a deferral of the power to create lower federal courts to the Congress. Thus, the final draft of the judicial power clause of the Constitution read, “The judicial Power of the United States, shall be vested … in such inferior Courts as the Congress may from time to time ordain and establish.”24 Thus, the creation of inferior federal courts remained an optional power delegated to Congress rather than enshrined into the Constitution. As Matthew Brogdon has noted, the establishment of a federal judicial system was central to the Federalist’s vision because “it solidified the institutional capacity of the federal government to enforce its own laws without relying on the states as intermediaries.”25 Brogdon’s analysis reflects the previously noted weakness of the judicial system under the articles of confederation government that was wholly reliant on individual states or local law enforcement—who often didn’t comply—to implement court decisions. Thus, the Madisonian Compromise allowed the advocates of a strong federal government and judiciary to enshrine into the Constitution a Supreme Court and while maintaining the possibility to create inferior federal courts by deferring to the legislature.
The Madisonian Compromise settled a dispute between the Federalists and Anti-Federalists by omitting the creation of lower federal courts in the Constitution and deferring that power to Congress. However, the compromise also created doubt about the principle of judicial independence and the emerging doctrine of separation of powers. James Madison was one of the only delegates who viewed the dependence between inferior federal courts and the national legislature as a form of judicial independence. He defended this position against the opponents of the Constitution who saw this compromise as a violation of the theory of the separation of the branches of power writing in Federalist No. 48 that “unless these departments be so far connected and blended, as to give each a constitutional control over the others, the degree of separation which the maxim requires as essential to a free government, can never in practice, be duly maintained.”26 This sentiment had also been echoed by John Adams in his 1776 pamphlet, Thoughts on Government, in which he states that “the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that.”27 The portion of the debate on the scope of judicial power that concerned the existence of inferior federal courts demonstrated the division among the different groups of federalists and the anti-federalists concerning the strength of the emerging Federal government. At the heart of the debates that culminated in the Madisonian Compromise was the emerging ideas about Federalism which placed the new federal government in competition with individual states. Despite the delegates’ awareness that the more important characteristics of judicial independence—compensation and tenure—needed to be included in the constitution, the deferral of the inferior federal courts to the legislature demonstrates a clear intention for the judicial department of government to be dependent on and subservient to the other two powers, at least to a certain extent. The reluctance to detach the judiciary power from the legislative power was emblematic of how the legislature of the Confederate government tried to withhold power from the appellate court or the state admiralty courts.
Several proposals that were presented and defeated at the convention provide historians with insight into the thinking of the delegates concerning the independent federal judiciary they sought to establish. One of the most debated proposals that was never adopted was from the Eight Resolution of the Virginia Plan which proposed:
Resolved, that the Executive, and a convenient number of the national Judiciary, ought to compose a Council of Revision, with authority to examine every act of the National Legislature, before it shall operate … a negative thereon shall be final.28
The proposal would have provided a federal veto power to a Council of Revision made up of the President and several justices of the Supreme Court.29 The idea for the council came from a long-held tradition in English law that had developed from the pre-Norman era when Anglo-Saxon kings retained a council of advisers. During the Tudor and Stuart monarchies, the council became the Privy Council carrying both legislative and judicial power simultaneously.30 Historically, the council has been intermingled in the legislative and judicial affairs in England which posed a problem for proponents of a strict system that comprised judicial independence within the doctrine of separation of powers. While the delegates at the convention debated the executive’s veto power on legislation, James Wilson and James Madison brought up the idea of the council which was debated and defeated on three separate occasions. They proposed that the revisionary power of the council be vested in the federal judiciary—a concept known as judicial review.31 Although judicial review will be discussed in a later section, it is important to note that this debate demonstrated that the delegates were reluctant to mix the judicial and executive departments of the federal government as they had done with the legislative department in the Madisonian Compromise.
The convention debates that considered adopting the Eight Resolution of the Virginia Plan to establish a council of revision generated further discussion on the meaning and significance of the emerging theory on the separation of powers, which as previously indicated was an idea rather than an explicit legal doctrine at this time. Luther Martin argued that the Supreme Court had a “negative” on laws, which would become a “double negative” under the council of revision adding that “the Supreme Judiciary should have the confidence of the people [which] will soon be lost, if they are employed in the task of remonstrating agst popular measures of the Legislature.”32 However, offering a pragmatist view of the separation of powers theory, Madison disagreed saying, “instead therefore of contenting ourselves with laying down the Theory [of separation of powers] in the Constitution that each department ought to be separate & distinct, it was proposed to add a defensive power to each which should maintain the Theory in practice.”33 Madison’s argument in favour of the council amounted to what has become known as the system of “checks and balances” whereby different departments of the United States government were given the power to negate the actions of another. Madison viewed the mere distinction between branches of government on paper as insufficient for ensuring the security of each. Instead, he saw the negative powers afforded to each—such as the council in this case—as a practical mechanism to erect barriers between the branches. Although the idea of installing negatives between different branches would be incorporated into the Constitution in other circumstances (i.e., the Presidential and Legislative Vetoes in Article I), the delegates ultimately decided against Madison’s idea. The significance of this decision was that it diverged from the English precedent by creating a separate legal process so that judges could decide legal and constitutional conflicts outside of a political environment.
The debates at the Constitutional Convention were all undertaken to augment the interests of the individual states that each delegate represented which resulted in differing views about the scope of federalism emerging within the structure of the new government. Advocates for an interpretation of federalism that included a strong central government saw the judiciary department as a central mechanism to ensure that the interests of the federal government were enforced without the necessity to rely on states as the confederate government was required to do.34 Although measures to secure a stronger federal government such as the Virginia Plan’s “negative” through the Council of Revision were soundly rejected by the delegates. However, many delegates nonetheless shared Madison’s view about the necessity to mitigate the “centrifugal tendency of the States” which “continually fly out of their proper orbits and destroy the order & harmony of the political system.”35 In light of this perspective, many delegates leaned towards establishing a federal system that separated direct contact between state governments and the federal government with the express intention that direct contact through military force between the two be avoided altogether.36 While delegates such as Madison had initially proposed a system of federalism whereby the legislature was central to the power of the federal government, they ended up searching for a mechanism where “states might be both restrained from exploiting each other and coaxed into aligning their interests with those of the Union.”37 The delegates needed to decide on the nature of the mechanism that they would use to curb the less desirable behaviour of states. James Madison’s long-time friend Thomas Jefferson, who had been serving as a minister to the Court of Versailles, articulated his disapproval for the “council of revision, which Jefferson viewed as a power that was too broad and open-ended.38 The defeat of the council of revision at the convention and its criticism from Jefferson demonstrated to Madison that the most optimal solution to state encroachment on the federal government was a judicial process rather than a political one.
The delegates’ rejection of the council of revision demonstrated their reluctance to include explicit language in the Constitution that provided the Federal government with the power to review state-level legislation through political processes. Instead, having already settled on the creation of a Supreme Court with the option for the legislature to create inferior federal courts as it saw fit, the delegates enshrined the power to intervene in state cases to the federal judiciary in both Article III and Article VI of the Constitution. The Cases and Controversies clause of Article III, Section II provided the Supreme Court with “original jurisdiction” which is the “jurisdiction exercised by the court that initially hears a lawsuit” in “Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party.”39 This decision allowed the delegates to opt for a judicial, rather than a political, intervention in cases where state legislation interfered with the federal government’s interests.40 However, the allocation of original jurisdiction to the Supreme Court in these areas did not preclude Congress from granting concurrent jurisdiction to other courts. As Alison LaCroix has noted, the veracity with which commentators attacked the federal judiciary during the ratification debates suggests “that they regarded jurisdictional decisions as central to defining the new republic.”41 Thus, in explicitly giving the Supreme Court original jurisdiction in matters in which a state is implicated, the delegates effectively shifted the handling of state encroachment on federal matters to the judicial system while simultaneously elevating its importance to states.
In addition to original jurisdiction in federal matters that involved states, the delegates at the convention also granted the Supreme Court with appellate jurisdiction on all other types of cases and controversies as are mentioned in Article III, Section 2, Clause I of the Constitution. The appellate power of the federal judiciary was also supplemented by the supremacy clause of Article VI which established that “the Laws of the United States … shall be the supreme Law of the Land, and the Judges in every State shall be bound thereby.”42 The supremacy clause forced state judges to void any state laws that conflicted with federal law which would be further enforced by “federal question jurisdiction” which emerged from section 25 of the Judiciary Act of 1789. This act which was passed during the first Congress by many of the same delegates that were present at the convention provided the Supreme Court with “federal question jurisdiction”, which gave them jurisdiction to hear appeals on matters relating to state laws that implicated federal interests.43 Thus, the delegates that were advocating for a decentralized judicial department, that avoided federal encroachment on states, accepted the supremacy of the Supreme Court’s appellate jurisdiction, but in return, state courts maintained their original jurisdiction on cases of state law. This dynamic increased the likelihood that the Constitution would be ratified by the states because the delegates limited the involvement of the federal judiciary to appeals, rather than constructing an entire federal judiciary system enshrined in the Constitution. Thus, in matters of state laws implicating federal interests, the delegates chose to create a strong federal system with explicit judicial power to curb any harmful practices on the part of individual states which had doomed the Confederation government.
Although original jurisdiction and federal question jurisdiction explicitly empowered the federal judiciary in matters involving states, the power vested in the judicial department in federal matters remained ambiguous and implicit. The Virginia Plan’s Council of Revision was the only proposal that would have explicitly allocated the power of judicial review on federal legislation to the Supreme Court and the rejection of the council removed any explicit mention of a review power in the Constitution. In light of this, some scholars have argued that the delegates never intended for the Supreme Court to have to power to review and invalidate federal legislation. However, the record of the debates at the convention and the ratification debates clearly show that the delegates had assumed that the federal judiciary possessed a revisionary power of federal legislation. The overwhelming justification for the rejection of the council of revision was that it afforded federal judges a “double negative” on federal laws; thus, without the existence of a council of revision federal judges would continue to have a single “negative” power.44 Furthermore, Mary Sarah Bilder has argued that judicial review was rooted in the longstanding and widely accepted English common law custom of reviewing a “corporation’s ordinances … for repugnancy to the laws of England.”45 Thus, the absence of an explicit judicial review of federal law in the constitution was, at least in part, due to the existence of the repugnancy review standard in colonial law during this era.
The power of nullification for both federal and state laws was also articulated by Oliver Elsworth at the Connecticut ratification convention who said “If the United States … make a law which the Constitution does not authorize, … the judicial power, the national judges … will declare it to be void.”46 Elsworth’s use of the term “judicial power” is significant because of the meaning that it carries in Article III of the Constitution when defining the scope of the power of the United States government that would be allocated to the federal judiciary. The important distinction to be drawn from this is that the delegates prioritized the explicit mention of the nullification of state laws in Article VI. However, they did not explicitly mention the nullification of federal laws in the scope of the judiciary’s power other than in a general sense. The importance of this distinction is even more relevant when compared to the “executive veto” and “legislative veto” powers that are explicitly given to the executive and the legislature in Article I, Section 7 of the Constitution. The powers of the judiciary on a federal level in contrast to the executive and legislative departments of the United States government demonstrates the inferiority that the federal judiciary had at ratification. While the federal judiciary’s inferiority to the two other branches of government was not necessarily intended, it reflected the context of the Madisonian Comprise which aimed to deter a potentially tyrannical judicial department. The inferiority of the judicial department concerning the other two branches of the federal government reinforced the argument that it did not pose a threat to judicial usurpation. This reassurance was reflected by Alexander Hamilton in Federalist No. 78:
The judiciary … has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society … it may truly be said to have neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.47
The distinction between the explicit power of the judiciary to curb overreaching state legislatures through nullification and the implicit power to review federal legislation demonstrates that the federal judiciary’s primary role was intended to quell state conflict with the federal government, but not to intervene in the legislative affairs of the emerging federal government regularly.
When the delegates assembled for the Constitutional Convention in 1787, many of them were aware of the flaws that were present in the Articles of Confederation that necessitated a new Constitution. Thus, throughout the lengthy debates, the delegations discussed and agreed upon the nature of the new federal judiciary department of the national government as well as the constitutional text that would empower it. While the delegates largely agreed on aspects such as the good behaviour clause and the compensation clause, their opinions on judicial power, inferior federal courts, and federal court jurisdiction diverged. The result of these disagreements became known as the Madisonian Compromise, which was largely informed by differing views of federalism amongst the delegates. While some federalists wanted a strong federal government, including a powerful and independent federal judiciary, others were concerned that this would lead to a judicial usurpation of political power. Ultimately, the delegates included a minimum amount of judicial powers in the Constitution, while leaving the remainder of the decisions about the judicial branch—such as the lower federal courts—in the hands of the legislature to preserve keep legislative superiority and appease the Anti-Federalists.
To arrive at a feasible compromise between all of the differing views about the federal judiciary, the delegates concentrated much of the explicit language about the powers of the Supreme Court to matters that affected potential encroachment on the part of individual states. The language attributed to the handling of these matters included the judiciary’s original jurisdiction, appellate jurisdiction and federal question jurisdiction which provided the court with ample powers to curb reprobate behaviour from states. However, the language attributed to the judiciary in matters that pertained to conflicts amongst departments within the federal government was very limited except for the very general language of the supremacy clause in Article VI of the Constitution. Although scholars have pointed to a range of comments during the convention, ratification conventions, or in other written sources such as the Federalist Papers, the absence of comparable jurisdictional language at the federal level created a federal judiciary that was inferior to the other branches of government. The context of the constitutional convention, including the necessity to write a constitution that would be ratified by the states, diluted the powers attributed to the federal judiciary. Further, it rendered the federal judiciary subservient to the other two branches of government in a significant number of federal matters. Consequently, in light of this inferiority, proponents of a strong federal judiciary like future Chief Justice John Marshall felt obliged to use written opinions of legal decisions at the federal level to elevate the court’s power to match the powers of the other branches of government.
1. Alison L. LaCroix, "Federalists, Federalism, and Federal Jurisdiction," Law and History Review 30, no. 1 (2012): 206.
2. Joseph W. Wagner, "The History and Role of a Supreme Court in a Federal System," Montana Law Review 20 (1958): 171.
3. John C. Hogan, "The Court of Appeals in Cases of Capture," Oregon Law Review 33, no. 2 (1953): 95.
4. Scott Douglas Gerber, A Distinct Judicial Power the Origins of an Independent Judiciary, 1606-1787 (Oxford: Oxford University Press, 2011), 29.
5. Hogan, "The Court of Appeals in Cases of Capture," 104.
6. F. Regis Noel, "Vestiges of a Supreme Court among the Colonies and under the Articles of Confederation," Records of the Columbia Historical Society of Washington, D.C. 37/38 (1937): 128.
7. Alexander Hamilton, James Madison, and John Jay, The Federalist: With Letters of Brutus, ed. Terence Ball (Cambridge: Cambridge University Press, 2003), 524.
8. Max Farrand, ed., The Records of the Federal Convention of 1787 (New Haven, CT: Yale University Press, 1911), 1:21-22.
9. Farrand, ed., The Records of the Federal Convention of 1787, 2:428.
10. Hogan, "The Court of Appeals in Cases of Capture," 103-04.
11. Gerber, A Distinct Judicial Power the Origins of an Independent Judiciary, 1606-1787, 34.
12. Farrand, ed., The Records of the Federal Convention of 1787, 2:44-45.
13. Farrand, ed., The Records of the Federal Convention of 1787, 2:45.
14. Hamilton, Madison, and Jay, The Federalist: With Letters of Brutus, 252.
15. Gerber, A Distinct Judicial Power the Origins of an Independent Judiciary, 1606-1787, 34.
16. Hamilton, Madison, and Jay, The Federalist: With Letters of Brutus, 384.
17. U.S. CONST. art. I, sec. 1.
18. U.S. CONST. art. II, sec. 1.
19. U.S. CONST. art. III, sec. 1.
20. James Madison and Henry D. Gilpin, The Papers of James Madison (Washington: Langtree & O'Sullivan, 1840), 2:733.
21. Gerber, A Distinct Judicial Power the Origins of an Independent Judiciary, 1606-1787, 35.
22. Hamilton, Madison, and Jay, The Federalist: With Letters of Brutus, 526.
23. Farrand, ed., The Records of the Federal Convention of 1787, 3:119.
24. U.S. CONST. art. III, sec. 1.
25. Matthew S. Brogdon, "Constitutional Text and Institutional Development: Contesting the Madisonian Compromise in the First Congress," American Political Thought 5, no. 2 (2016): 219.
26. Hamilton, Madison, and Jay, The Federalist: With Letters of Brutus, 240.
27. George Wythe and John Adams, Thoughts on Government Applicable to the Present State of the American Colonies in a Letter from a Gentleman to his Friend (Philadelphia: J. Dunlap, 1776), 21.
28. Madison and Gilpin, The Papers of James Madison, 2:733.
29. James T. Barry III, "The Council of Revision and the Limits of Judicial Power," The University of Chicago Law Review 56, no. 1 (1989): 235.
30. Barry III, "The Council of Revision and the Limits of Judicial Power," 237-38.
31. Matthew S. Brogdon, "Political Jurisprudence and the Role of the Supreme Court: Framing the Judicial Power in the Federal Convention of 1787," American Political Thought 6, no. 2 (2017): 188.
32. Farrand, ed., The Records of the Federal Convention of 1787, 2:76-77.
33. Farrand, ed., The Records of the Federal Convention of 1787, 2:77.
34. Brogdon, "Constitutional Text and Institutional Development: Contesting the Madisonian Compromise in the First Congress," 219.
35. Farrand, ed., The Records of the Federal Convention of 1787, 1:165.
36. Brogdon, "Political Jurisprudence and the Role of the Supreme Court: Framing the Judicial Power in the Federal Convention of 1787," 179.
37. Alison L. LaCroix, "The New Wheel in the Federal Machine: From Sovereignty to Jurisdiction in the Early Republic," The Supreme Court Review 2007, no. 1 (2008): 353.
38. LaCroix, "The New Wheel in the Federal Machine: From Sovereignty to Jurisdiction in the Early Republic," 355.
39. Kermit L. Hall, James W. Ely, and Joel B. Grossman, The Oxford Companion to the Supreme Court of the United States (New York, NY: Oxford University Press, 2005), 712.
40. Michael P. Zuckert, "Federalism and the Founding: Toward a Reinterpretation of the Constitutional Convention," The Review of Politics 48, no. 2 (1986): 189.
41. LaCroix, "The New Wheel in the Federal Machine: From Sovereignty to Jurisdiction in the Early Republic," 356.
42. U.S. CONST. art. VI, sec. 2.
43. LaCroix, "Federalists, Federalism, and Federal Jurisdiction," 207; Matthew S. Brogdon, "The Formation of Judicial Federalism in the United States," Publius: The Journal of Federalism 48, no. 2 (2018): 271.
44. Randy E. Barnett, "The Original Meaning of the Judicial Power," Supreme Court Economic Review 12 (2004): 122.
45. Mary Sarah Bilder, "The Corporate Origins of Judicial Review," The Yale Law Journal 116, no. 3 (2006): 504-05.
46. Jonathan Elliot and James Madison, The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787 Together with the Journal of the Federal Convention, Luther Martin's Letter, Yates's Minutes, Congressional Opinions, Virginia and Kentucky Resolutions of '98-'99, and Other Illustrations of the Constitution (Washington: Printed by and for the Editor, 1845), 2:198.
47. Hamilton, Madison, and Jay, The Federalist: With Letters of Brutus, 378.
Barnett, Randy E. "The Original Meaning of the Judicial Power." Supreme Court Economic
Review 12 (2004): 115-38.
Barry III, James T. "The Council of Revision and the Limits of Judicial Power." The University
of Chicago Law Review 56, no. 1 (1989): 235-61.
Bilder, Mary Sarah. "The Corporate Origins of Judicial Review." The Yale Law Journal 116,
no. 3 (2006): 502-66.
Brogdon, Matthew S. "Constitutional Text and Institutional Development: Contesting the
Madisonian Compromise in the First Congress." American Political Thought 5, no. 2 (2016): 219-49.
———. "The Formation of Judicial Federalism in the United States." Publius: The Journal of
Federalism 48, no. 2 (2018): 269-91.
———. "Political Jurisprudence and the Role of the Supreme Court: Framing the Judicial
Power in the Federal Convention of 1787." American Political Thought 6, no. 2 (2017): 171-200.
Elliot, Jonathan, and James Madison. The Debates in the Several State Conventions on the
Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787 Together with the Journal of the Federal Convention, Luther Martin's Letter, Yates's Minutes, Congressional Opinions, Virginia and Kentucky Resolutions of '98-'99, and Other Illustrations of the Constitution. Washington: Printed by and for the Editor, 1845.
Farrand, Max, ed. The Records of the Federal Convention of 1787. 3 vols. New Haven, CT:
Yale University Press, 1911.
Gerber, Scott Douglas. A Distinct Judicial Power the Origins of an Independent Judiciary,
1606-1787. Oxford: Oxford University Press, 2011.
Hall, Kermit L., James W. Ely, and Joel B. Grossman. The Oxford Companion to the Supreme
Court of the United States. New York, NY: Oxford University Press, 2005.
Hamilton, Alexander, James Madison, and John Jay. The Federalist: With Letters of Brutus.
Edited by Terence Ball. Cambridge: Cambridge University Press, 2003.
Hogan, John C. "The Court of Appeals in Cases of Capture." Oregon Law Review 33, no. 2
LaCroix, Alison L. "Federalists, Federalism, and Federal Jurisdiction." Law and History
Review 30, no. 1 (2012): 205-44.
———. "The New Wheel in the Federal Machine: From Sovereignty to Jurisdiction in the
Early Republic." The Supreme Court Review 2007, no. 1 (2008): 345-94.
Madison, James, and Henry D. Gilpin. The Papers of James Madison. Washington: Langtree
& O'Sullivan, 1840.
Noel, F. Regis. "Vestiges of a Supreme Court among the Colonies and under the Articles of
Confederation." Records of the Columbia Historical Society of Washington, D.C. 37/38 (1937): 123-43.
Wagner, Joseph W. "The History and Role of a Supreme Court in a Federal System."
Montana Law Review 20 (1958): 171-92.
Wythe, George, and John Adams. Thoughts on Government Applicable to the Present State
of the American Colonies in a Letter from a Gentleman to His Friend. Philadelphia: J. Dunlap, 1776.
Zuckert, Michael P. "Federalism and the Founding: Toward a Reinterpretation of the
Constitutional Convention." The Review of Politics 48, no. 2 (1986): 166-210.