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

4AHMP: 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 of the United States Constitution establishes the federal court system. It includes “the highest court in the land,” otherwise known as The Supreme Court, as well as a series of lower or “inferior” courts.

Article III, Section 1, reads as follows: “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. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”

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. Thomas Jefferson, for one, wrote to James Madison of his concern that the Constitution contained no bill of rights which is, as he said, “what the people are entitled to against every government on earth, general or particular, & what no just government should refuse, or rest on inferences.”

During the ratification process, concerns continued to be raised about potential abuses of power by the judiciary. Concerns were also raised about the establishment of a court system which included lower tribunals rather than a singular court which would hear matters. Robert Yates, a noted Antifederalist, is thought to have penned a series of essays opposing the ratification of the Constitution under the pseudonyms of “Sydney” and “Brutus.” Yates had taken part in the Constitutional Convention but left after six weeks because he viewed the delegates as overstepping the purpose of the meeting by composing a completely new document rather than simply making changes to the existing Articles of Confederation. Yates, and fellow New York delegate John Lansing, both expressed their views in a letter to New York’s Governor, George Clinton, that the type of government proposed in the newly written Constitution could not, in their words, “afford that security to equal and permanent liberty which we wished to make an invariable object of our pursuit.”

While Yates and Lansing were whole-heartedly in the Antifederalist camp, the same could not be said for one of New York’s other delegates: Alexander Hamilton. 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. Although it is not completely clear who wrote several of the essays, it is believed that John Jay wrote five, James Madison wrote 28, and Alexander Hamilton wrote the lion-share of the publications which totaled 52 in all.

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 assured readers 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 went on to say that 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; and can take no active resolution whatever. 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.” Hamilton further argued: “the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that ‘there is no liberty, if the power of judging be not separated from the legislative and executive powers.’ And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments.”

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 in a speech before the House of Representatives. A committee was formed , and the 10 Amendments which we know as the Bill of Rights was created, Four of those Amendments  specifically relate to the rights that citizens have when they are involved in judicial proceedings.

Which Amendments protect us against judicial tyranny? The Fourth Amendment restricts the government from unreasonably conducting searches and seizures on the People or their property. It requires that all warrants be issued only upon probable cause, supported by Oath, and limited to specific places to be searched and persons or property to be seized. The oath that is referenced is a sworn oath of a witness. The Fifth Amendment guarantees an individual’s right to refrain from self-incrimination, as well as to be tried under the due process of law, only upon indictment, and only one time for the same offense. The Government is also restricted from taking private property for public use without just compensation. That is also known as eminent domain. The Sixth Amendment assures an individual’s right to the assistance of Counsel, to arraignment, to seek defense witnesses, to confront accusers, as well as a speedy and public trial by jury. The Seventh Amendment guarantees an individual’s right to a civil court jury trial. It further restricted the government from re-examining facts which have been tried by a jury according to the rules of the common law. The final Amendment in the Bill of Rights which protects an individual’s liberties with respect to court proceedings is the Eighth Amendment: It prohibits the imposition of excessive bail or fines. The government is further restricted from the infliction of cruel and unusual punishment.

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.  The proposed system faced little opposition within the Legislature. The Judiciary Act was introduced by Richard Henry Lee on June 12, 1789, and passed by the Senate on July 17th. The House passed the bill with amendment on September 17th, and after a revision or two, the bill was signed into law by President Washington on September 24, 1789. The Judiciary Act of 1789 divided the country into 13 judicial districts, which were, in turn, organized into three circuits: the Eastern, Middle, and Southern. The Supreme Court, the country’s highest judicial tribunal, was to sit in the Nation’s Capital, and was initially composed of a Chief Justice and five Associate Justices.

In stark contrast to how things proceed in the nation’s capital today, on the same day that he signed the bill into law, President Washington nominated the Chief Justice of the Supreme Court, five Associate Justices, a bevy of US Marshals and Attorneys, as well as Federal District Court Judges to sit in Virginia, South Carolina, Pennsylvania, New Hampshire, Maine, Massachusetts, Maryland, Kentucky, Georgia, Delaware, and Connecticut.

You might be wondering what life was like for those who were members of the 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 the circuits on horseback, and hold circuit court twice a year in each judicial district. They had plenty of time to do so because the original Court’s term was limited to between February and August.  In 1800, the Court moved to Washington, D.C., but no building had been constructed for it in which to hear matters. Instead, it was relegated to a small room in the basement of the Capitol Building. It remained in that room until after the Civil War. The building that the Supreme Court currently occupies was not completed until 1935. Although Chief Justice Roberts currently earns a salary of slightly more than $250,000, John Jay received only $4000.00 which is approximately $110,000 in the value of today’s dollars. Associate justices received a salary which was only $500.00 less than what was given to by John Jay,  while the present day Associate Justices earn approximately $11,000 dollars less than the current Chief Justice.

Another dramatic difference from the Supreme Court of today was the lack of interest in serving on the Court at all. Although it is the dream of many to one day sit on today’s Supreme Court, people were not pounding on the door to be a member of the fab six. Robert Harrison, one of George Washington’s original selections declined the appointment. In his place, James Iredell took the bench, but not until after the February term had concluded. Another one of Washington’s original appointments, John Rutledge, missed the entire meeting period for the year. He was sworn in on February 16, 1790, but never served actively on the Court. He was also sitting as a judge in the South Carolina Court at the time as he sat on the Supreme Court. Yes, the original justices were very much active in public at that time, and they conducted themselves in a manner far different from the present members of the Court. John Jay not only negotiated a Treaty with Great Britain, as well as twice campaigning to be the governor of New York. He did so at the same time he sat as the Chief Justice of the Supreme Court. He ultimately left the Court when he was elected to the position he sought.

John Rutledge would have returned to the Court as Chief Justice following a recess appointment July of 1795. However, he was not confirmed by the Senate after he publicly denounced the Jay Treaty with the purported statement, “that he had rather the President should die than sign that puerile instrument.” After the Senate’s rejection of Rutledge, John Adams wrote to his wife that it “gave me pain for an old friend, though I could not but think he deserved it. Chief Justices must not go to illegal Meetings and become popular orators in favor of Sedition, nor inflame the popular discontents which are ill founded, nor propagate Disunion, Division, Contention and delusion among the people.” Rutledge attempted suicide after he learned of the Senate’s rejection.

The justices of yesteryear also did not enjoy the same level of respect that we accord members of today’s Supreme Court, and the garb they chose to wear certainly did not help. In 1802 Senator Stevens Mason described the robes worn by members as being “party-colored.”  Benjamin Harrison reported that Justice William Cushing arrived at the Court’s first meeting resplendent in the white powder wig atop his head that he had worn on the Massachusetts Bench. Harrison quoted Thomas Jefferson as saying, “For heaven’s sake, discard the monstrous wig which makes the English judges took like rats peeping through bunches of oakum.” Needless to say, the justices soon did away with the wigs and chose more sedate black robe with red vestments. Although they wore prestigious black robe with red facings. Over the years, the facings became smaller and smaller until the judicial garb was solely black in color.

When did the Supreme Court meet for the first time? February 1, 1790 is often cited as the date of the first meeting of the United States Supreme Court. It is true that a meeting was scheduled on the first day of February. However, two of the original members, William Cushing and John Blair, were hampered by “transportation problems.” Try as I might, I was unable to find out what those problems were, but I suspect they were weather related. The Court achieved a quorum, and actually met for the first time, on February 2, 1790. Who was in attendance at that first meeting of our Supreme Court? The answer was only Chief Justice John Jay, and Associate Justices William Cushing, John Blair and James Wilson. The Supreme Court was initially housed in the Merchants’ Exchange Building which is located at 55 Wall Street in New York City. At that time, New York was the nation’s capital. When Philadelphia became the capital, the Court met in Independence Hall.

The first court did not have an avalanche of petitions that first year. In fact, there were no cases on its docket, and it issued no decisions. The first recorded decision by the Supreme Court occurred in 1791, and centered around a procedural matter. The case was known as: West v. Barnes.

However, what did occur quickly was the Court’s ability to raise concerns about the power it intended to wield. In 1793, it held in Chisholm v. Georgia that the federal courts could hear lawsuits filed against the states. The states, concerned about the potential for abuse which was created by that ruling, prompted Congress to propose the Eleventh Amendment. It was in that Amendment that the states received immunity from specific types of lawsuits in federal courts. The Court’s less than prestigious aura continued through its first decade of existence.

In 1801, after losing his bid to be re-elected, and the consequent removal of the Federalists from power, John Adams sought to fill the empty office of Chief Justice of the Supreme Court by offering the position once again to John Jay. Jay  declined in writing to Adams on January 2, 1801 stating: “Such was the temper of the times, that the Act to establish the Judicial Courts of the United States was in some respects more accommodated to certain prejudices and sensibilities, than to the great and obvious principles of sound policy. Expectations were nevertheless entertained that it would be amended as the public mind became more composed and better informed; but those expectations have not been realized, nor have we hitherto seen convincing indications of a disposition in Congress to realize them. On the contrary, the efforts repeatedly made to place the judicial department on a proper footing have proved fruitless….I left the bench perfectly convinced that under a system so defective it would not obtain the energy, weight, and dignity which are essential to its affording due support to the national government, nor acquire the public confidence and respect which, as the last resort of the justice of the nation, it should possess. Hence I am induced to doubt both the propriety and the expediency of my returning to the bench under the present system; especially as it would give some countenance to the neglect and indifference with which the opinions and remonstrances of the judges on this important subject have been treated.”

John Adams was in a quandary because Chief Justice Oliver Ellsworth was in poor health. He wanted to appoint a new Chief Justice before his term ended, and the Federalists lost power. In keeping with Adams’ desire to limit the new Administration’s impact on the judiciary, the lame duck Federalist controlled Congress had passed the Midnight Judges Act. That act reduced the Supreme Court to five members which in effect delayed puerile delay Thomas Jefferson’s first opportunity to appoint a Supreme Court Justice. Yet, Adams wanted to leave his own lasting mark on the Court. When Jay’s letter arrived on January 20th, John Marshall stood next to Adams in the President’s office. Adams seemingly looked around and said, “How would you like the job?” Marshall, who had been a Congressman, and then served as Adams’ Secretary of War and eventually his Secretary of State, was not necessarily a popular choice in the eyes of most senators. However, fearing what Adams’ third choice might be, Marshall was confirmed by the Senate on January 27th. New Jersey Senator’s Jonathan Dayton wrote of their decision to confirm Marshall “lest another not so qualified, and more disgusting to the Bench, should be substituted, and because it appeared that this gentleman was not privy to his own nomination.”  Of Marshall’s appointment, Adams wrote: “My gift of John Marshall to the people of the United States was the proudest act of my life.”

 It might now well be argued that John Marshall was instrumental in changing the Court into what was feared by many of the Antifederalists. That, however, is topic for a future podcast

You can read the entire text of many of the documents that I have referenced by visiting

If you would like to teach others about the Constitution, or learn more about it yourself, please consider my book, Everyone’s Guide to the Constitution. It’s available in both print and kindle editions on Amazon.

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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