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Why the Judiciary was included in the structure of the Federal Government

Have you ever wondered why the Framers chose to include a judicial branch in the structure of our federal government? How did the original Supreme Court compare with the Court we are familiar with today? Well, we will explore those two questions, as well as learning a few fascinating stories about the original Supreme Court in this and the next edition as well

The Supreme Court, as we know it, is a 9 person body with tremendous power. At present, the Supreme Court selects only 75 to 80 cases out of nearly 10,000 petitions from which to hear oral arguments. Its decisions often create sweeping and significant changes not only in the body of law but in American society as well.

But the Supreme Court envisioned by the Founding Fathers was far different from the one which we are familiar with today. In fact, the document under which the country functioned in 1786 did not even include a judicial branch at all.

That document was known as the Articles of Confederation. It was the Founding Document which provided a structure for and detailed operational instructions for the newly formed Federal Government of the United States. It was adopted by the Continental Congress on November 15, 1777 and ratified by all of the original 13 states in 1781. All of that occurred well before the end of the American Revolution. The document provided for no executive, nor a federal judiciary, and problems with that structure quickly became apparent.

Critics of the document, such as Alexander Hamilton, began to call for a stronger federal government. When he later wrote Federalist 15, Hamilton actually described the Articles of Confederation as somewhat of an embarrassment. He said, “We may indeed with propriety be said to have reached almost the last stage of national humiliation. There is scarcely anything that can wound the pride or degrade the character of an independent nation which we do not experience.”

Hamilton also noted in Federalist 15 that the United States had no body to impose sanctions or punishment, and justified the national system of courts called for in the Constitution. He wrote, “Government implies the power of making laws. It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation.”

Hamilton was not the lone critic of the Articles of Confederation. Many of the Founding Fathers wrote of the inadequacies created by the document. In fact, George Washington, in a letter to Benjamin Harrison, described the Federal Government as “half-starv’d” and “limping.”

Another author of the Federalist Papers, James Madison, also had concerns about the system of Government created by the Articles of Confederation. In a letter to Edmund Pendleton, he stated: “the present System neither has nor deserves advocates, and if some very strong props are not applied will quickly tumble to the ground.”

Madison believed that a federal system should be created which would insure respect for the government’s authority, as well as force the states to comply with requisitions which translates into providing money to fund the government and necessary bodies or programs such as the military. If should a system was not created the Union would soon break apart into three smaller bodies.

However, Madison did more than to merely complain about the problems created by a federal system with only one branch. Heavily influenced by the writings of Montesquieu, Madison laid out a plan for a Federal Government which included not only a legislature, but an executive branch, and judicial branch as well. The plan, introduced at the Constitutional Convention by fellow Virginian Edmund Randolph, is known as the Virginia Plan.

The Virginia Plan was one of the first matters considered by delegates at the Constitutional Convention. The Virginia Plan had two provisions related to a national judiciary.

The first provision called for a national judiciary with one or more supreme tribunals and of inferior tribunals as well. The members of the tribunals would be chosen by the Legislature, and would continue to hold their office during good behavior. Members would received fixed compensation, and their duties included matters involving “piracies & felonies on the high seas, captures from an enemy; cases in which foreigners or citizens of other States applying to such jurisdictions may be interested, or which respect the collection of the National revenue; impeachments of any National officers, and questions which may involve the national peace and harmony.

Perhaps more interesting was the second provision called for in The Virginia Plan. It stated 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, & every act of a particular Legislature before a Negative thereon shall be final; and that the dissent of the said Council shall amount to a rejection, unless the Act of the National Legislature be again passed, or that of a particular Legislature be again negatived by [number left blank] of the members of each branch.”

A negative is what we know as a “veto.” The “Council of Revision” mentioned in the plan would join with the Executive, the person we refer to as the President, to provide oversight of the legislature with the potential to veto any legislation that had been passed.

Although current court rulings often overturn legislation or find ways to indirectly impact public policies, the idea that courts would have anything to do with the public policy did not sit well with many delegates to the Constitutional Convention.

How did the delegates react to the proposals in the Virigina plan? Those in favor of strengthening the Federal Government supported the inclusion of a federal judiciary into any revision of the Articles of Confederation. However, support for such a body was by no means unanimous.

In fact, the concept of a federal judiciary was not readily embraced at the Constitutional Convention. Anti-federalists, such as Elbridge Gerry, feared that the judiciary had the potential to become an instrument of tyranny.

Madison’s notes on June 4th at the Constitutional Convention described Anti-federalist Gerry’s objections to the Judiciary’s involvement in a Council of Revision as follows: “Mr. GERRY doubts whether the Judiciary ought to form a part of it, as they will have a sufficient check agst. encroachments on their own department by their exposition of the laws, which involved a power of deciding on their Constitutionality. In some States the Judges had actually set aside laws as being agst. the Constitution. This was done too with general approbation. It was quite foreign from the nature of ye. office to make them judges of the policy of public measures.”

However, antifederalists were not lone voices in objecting to the Judiciary’s involvement in policy review Rufus King, who would be the Federalist Party’s candidate for Vice President in 1804 and 1808, as well as its Presidential Candidate in 1816, stated:  “Judges ought to be able to expound the law as it should come before them, free from the bias of having participated in its formation.”

James Wilson, who later served as an Associate Justice of the Supreme Court after being nominated by George Washington, was quoted as saying: “If the Legislative Exetv & Judiciary ought to be distinct & independent. The Executive ought to have an absolute negative. Without such a self-defense the Legislature can at any moment sink it into non-existence.” Madison reported that Wilson was for varying the proposal to give the Executive & Judiciary joint power over an absolute negative.”

Although the idea of a Council of Revision had been struck down in June, it was the same James Wilson who raised the idea again on July 21. The motion for reconsideration was seconded by James Madison. In a statement strikingly similar to those who support judicial activism, Wilson said: “The Judiciary ought to have an opportunity of remonstrating agst. projected encroachments on the people as well as on themselves. It had been said that the Judges, as expositors of the Laws would have an opportunity of defending their constitutional rights. There was weight in this observation; but this power of the Judges did not go far enough. Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet may not be so unconstitutional as to justify the Judges in refusing to give them effect. Let them have a share in the Revisionary power, and they will have an opportunity of taking notice of these characters of a law, and of counteracting, by the weight of their opinions the improper views of the Legislature.-“

Elbridge Gerry, amongst others, once again objected to the notion. He stated “It was establishing an improper coalition between the Executive & Judiciary departments. It was making Statesmen of the Judges; and setting them up as the guardians of the Rights of the people. He relied for his part on the Representatives of the people as the guardians of their Rights & interests. It was making the Expositors of the Laws, the Legislators which ought never to be done. A better expedient for correcting the laws, would be to appoint as had been done in Pena. a person or persons of proper skill, to draw bills for the Legislature.”

Edmund Randolph, who sometimes took positions in support of a strong government, but stood with the Antifederalists on other occasions also objected to the judiciary’s involvement in the Council of Revision stating “the Judges of all men the most unfit to be concerned in the revisionary Council. The Judges ought never to give their opinion on a law till it comes before them.”

The concept of a Council of Revision was once again rejected by the delegates. Ultimately, the Executive was given the singular control over the negative, and thus the sole responsibility for reviewing legislation passed by the Congress.

Although he was successful in leading the opposition to the Judiciary’s participation in a Council of Revision, Elbridge Gerry ultimately refused to sign the Constitution. He cited reasons including his belief that the third branch, to use his words, “will be oppressive.”

Coincidentally, Edmund Randolph, the delegate who had proposed the Virginia Plan to the Convention, also refused to sign the Constitution voicing concerns including that the document failed to limit and define the power of the judiciary.

In the next edition, we will learn about the third branch of government as established by the Constitution, the assurances against judicial tyranny that were given to us in the Bill of Rights, and interesting stories and information about the members of and rulings by the Supreme Court of the Founding Period.

As always, remain motivated, vigilant, and engaged in the political process.

Susan C. Rempel, Ph.D.

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