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Protection against Judicial Tyranny and the Supreme Court of the Founding Period

4 5MAHMP: Protection against Judicial Tyranny and the Supreme Court of the Founding Period

By what authority do the federal courts operate? What guarantees against judicial tyranny were established for us by the Founders? Are there interesting facts or tales about the Supreme Court of the Founding period? Those are the questions we will focus on in this edition.

Article III, Section 1, of the Constitution establishes the Judicial Branch of the Federal Government.

As we learned in the last edition, concerns were raised about potential abuses of power by the Judicial Branch during the Constitutional Convention. As you might expect, those concerns continued after the Constitution was signed. Patriots such as Thomas Jefferson wrote supporters of the Constitution, including James Madison, about his concern that the Constitution contained no bill of rights

Robert Yates, a noted Antifederalist, is thought to have penned a series of essays, under the pseudonyms of “Sydney” and “Brutus,”  He opposed the ratification of the Constitution out of concerns including the lack of guarantees of individual rights.

Alexander Hamilton, James Madison, and John Jay collectively mounted quite a pro-ratification campaign. Publishing under the pseudonym of “Publis,” they each contributed to a body of 85 essays in an effort to educate the public why the proposed governmental structure was the best possible for the United States and details as to how the government would operate.

Federalist 78 is perhaps the most often cited of the Federalist Papers with respect to the establishment of a national Judiciary. In Federalist 78, Hamilton made numerous assurances including that “the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.”

Hamilton’s assurances did not dampen concerns raised by Yates and others, and promises were eventually made by supporters of the Constitution that a bill of rights would be the first order of business for the new Congress.

In keeping with those promises, on June 8th, James Madison proposed 39 guarantees of individual rights to be added to the Constitution. Eventually, they were whittled down to the first 10 Amendments to the Constitution that we know as the Bill of Rights. The Fourth, Fifth, Sixth, Seventh, and Eighth Amendments specifically relate to the rights that citizens have when they are involved in judicial proceedings.

In addition to promptly beginning to form the Bill of Rights, the newly established Congress also quickly created a system of Federal trial courts by passing the United States Judiciary Act.

It was, in fact, the first bill introduced in the Senate.  It faced little opposition, and was quickly passed by the Congress. George Washington also quickly appointed Justices to the Supreme Court, as well as Judges to the lower courts in the Federal System.

What was it like to be a member of the first Supreme Court? It was far different from that of today’s members. For the first 101 years of the Supreme Court’s existence – except for a brief period in the early 1800’s — the Justices were also required to travel throughout circuits on horseback, and hold circuit court twice a year in each judicial district.

The Court met for much of the first 50 years in a small room in the basement of the Capitol Building. The current building where the Supreme Court sits was not completed until 1935. Another dramatic difference between the Supreme Courts of today and yesteryear was the difficulty Presidents Washington and Adams had finding people willing to sit on the Court at all. There were only 6 Justices at that time, and often Justices held or campaigned for other jobs while sitting on the Court. The Justices were criticized for their garb, including their white wigs  which Thomas Jefferson reportedly said made them look “like rats peeping through bunches of oakum.”

The Supreme Court met for the first time in February, 1790. There were no cases on their docket, and they made no decisions until their second session. The name of the first decision they rendered was West v. Barnes.

John Adams sought to have a lasting impact on the Court after he lost his bid for re-election. He attempted to nominate John Jay for a second term as the chief justice  to replace the ailing Oliver Ellsworth. Jay refused Adams’ appointment because of the poor perception of the Court as a whole, and Adams then nominated his secretary of state, John Marshall. Many senators were not in favor of Marshall but feared Adams’ third choice to fill the vacancy. Marshall was confirmed, and it was decisions by the Marshall Court (including Marbury v. Madison) which changed the nature of the Court since that time.

If you would like to hear the complete edition of this podcast, go to, and scroll down under the “subscribe to American History for the Modern Patriot Podcast” to the American History for the Modern Patriot Episodes tab. Better yet, subscribe to both podcasts and choose each week whether you would like to listen to the 5 minute or the comprehensive version.

Until next time, this is Dr. Susan Rempel encouraging you to remain motivated, vigilant, and engaged in the political process. Visit my website,, with more than 500 pages of documents, products, and information designed to motivate the modern patriot.






















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