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Authors: Kevin R. C. Gutzman
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they did not flock to support Hamilton's vision. Instead, two-thirds of the
delegates they elected to the state ratification convention opposed the
Constitution. It was only New York City's threat of secession, coupled with the real prospect of independence from the other twelve states, that
pushed an extremely hesitant New York into ratifying the unamended
Constitution.
Chapter Four
JUDGES: POWER-HUNGRY
FROM THE BEGINNING
hat does the Constitution say about the courts? Not much.
In describing the federal judiciary, Article III of the Constitution says, "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." Article III also lists
several types of jurisdiction that Congress may choose to grant to inferior
federal courts and describes the Supreme Court's original jurisdiction. In
addition, it grants federal judges "good behavior" tenure.
In the Judiciary Act of 1789, the first federal Congress established the
three-tiered federal court system-with a supreme court at its apex, intermediate appellate courts, and federal district courts to conduct trialswith which Americans have had to contend ever since. This system
violated James Madison's pledge during the ratification debates that the
federal government would first try to get along without any federal trial
courts (leaving trials of federal issues entirely to the state courts). But it
proved uncontroversial in the first Congress, which was dominated by
Federalists of various stripes. (Virginia's two senators were alone in that
body in having opposed ratification of the unamended Constitution.)
Besides giving the federal judiciary a skeleton, the Judiciary Act
included two other sections ultimately destined for great significance.
In Section 25, the Act said that questions of federal law (including constitutional law) could be appealed from state supreme courts to the
federal Supreme Court. The constitutionality of this provision, dubious
then as now, would be hotly debated within a generation, and it would
be controversial repeatedly in American history.
Guess what?
-.' The concept of
state sovereigntyso dear to the
delegates at the
Philadelphia
Convention-was
effectively
dismissed by
judges only six
years later.
-sW The omnipotence
of today's Supreme
Court would have
surprised and
horrified the
founders-even
the Federalists.
-4W At least two
states considered
secession because
of the Alien and
Sedition Acts of
1798.
The Judiciary Act had another important provision. It concerned suits
where federal courts were involved as neutral arbiters because the plaintiffs hailed from different states. Congress decided that the law of the state
where the federal court sat would be the governing law. The congressmen
wanted to prevent federal courts from devising a federal common law;
the presumption was that state law should be applicable in everyday disputes. The creators of the federal government once again erred on the side
of federalism, leaving matters to state governments rather than transferring decision-making authority to the federal government.
Judging the judges
President George Washington considered three criteria in appointing the
first men to the Supreme Court: prospective appointees must be eminent
in their states, they must have favored ratification of the Constitution, and
they must, taken together, be of diverse geographic backgrounds. He had
a chief justiceship and five associate justiceships to staff, and he made
good on his intention to fill them with able Federalists.
The first chief justice, John Jay of New York, was a surprising choice
for that post even to Washington himself. According to Jay family lore,
Washington offered Jay any position he wanted in the new government.
Washington wanted and expected Jay to take the senior cabinet position,
secretary of state. Instead,
they did not flock to support Hamilton's vision. Instead, two-thirds of the
delegates they elected to the state ratification convention opposed the
Constitution. It was only New York City's threat of secession, coupled with the real prospect of independence from the other twelve states, that
pushed an extremely hesitant New York into ratifying the unamended
Constitution.
Chapter Four
JUDGES: POWER-HUNGRY
FROM THE BEGINNING
hat does the Constitution say about the courts? Not much.
In describing the federal judiciary, Article III of the Constitution says, "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." Article III also lists
several types of jurisdiction that Congress may choose to grant to inferior
federal courts and describes the Supreme Court's original jurisdiction. In
addition, it grants federal judges "good behavior" tenure.
In the Judiciary Act of 1789, the first federal Congress established the
three-tiered federal court system-with a supreme court at its apex, intermediate appellate courts, and federal district courts to conduct trialswith which Americans have had to contend ever since. This system
violated James Madison's pledge during the ratification debates that the
federal government would first try to get along without any federal trial
courts (leaving trials of federal issues entirely to the state courts). But it
proved uncontroversial in the first Congress, which was dominated by
Federalists of various stripes. (Virginia's two senators were alone in that
body in having opposed ratification of the unamended Constitution.)
Besides giving the federal judiciary a skeleton, the Judiciary Act
included two other sections ultimately destined for great significance.
In Section 25, the Act said that questions of federal law (including constitutional law) could be appealed from state supreme courts to the
federal Supreme Court. The constitutionality of this provision, dubious
then as now, would be hotly debated within a generation, and it would
be controversial repeatedly in American history.
Guess what?
-.' The concept of
state sovereigntyso dear to the
delegates at the
Philadelphia
Convention-was
effectively
dismissed by
judges only six
years later.
-sW The omnipotence
of today's Supreme
Court would have
surprised and
horrified the
founders-even
the Federalists.
-4W At least two
states considered
secession because
of the Alien and
Sedition Acts of
1798.
The Judiciary Act had another important provision. It concerned suits
where federal courts were involved as neutral arbiters because the plaintiffs hailed from different states. Congress decided that the law of the state
where the federal court sat would be the governing law. The congressmen
wanted to prevent federal courts from devising a federal common law;
the presumption was that state law should be applicable in everyday disputes. The creators of the federal government once again erred on the side
of federalism, leaving matters to state governments rather than transferring decision-making authority to the federal government.
Judging the judges
President George Washington considered three criteria in appointing the
first men to the Supreme Court: prospective appointees must be eminent
in their states, they must have favored ratification of the Constitution, and
they must, taken together, be of diverse geographic backgrounds. He had
a chief justiceship and five associate justiceships to staff, and he made
good on his intention to fill them with able Federalists.
The first chief justice, John Jay of New York, was a surprising choice
for that post even to Washington himself. According to Jay family lore,
Washington offered Jay any position he wanted in the new government.
Washington wanted and expected Jay to take the senior cabinet position,
secretary of state. Instead,
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