Establishment of the Federal judicial system and the setting of the
balance between
the Federal and the local judicial
branches of power
With the Judiciary Act of 1789, Congress first implemented
the constitutional provision 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.”
Although subsequent legislation altered many of the 1789 Act’s specific
provisions, and the 1891 Circuit Courts of Appeals Act effected a major
change, the basic design established by the 1789 Act has endured: a
supreme appellate court to interpret the federal Constitution and laws;
a system of power federal courts, separated geographically by state
boundaries and exercising basically the same jurisdiction; and reliance
on state courts to handle the bulk of adjudication in the nation.
However, Article III and its implementing legislation also reveal the
clash of major disagreements over the optimal extent of federal
jurisdiction and the optimal federal court structure to accommodate that
jurisdiction.
The Constitutional Convention’s decisions in 1787 about the
national government’s court system were few but important. The framers
agreed that there would be a separate federal judicial power and that to
exercise it there would be a Supreme Court and there could be other
federal courts. They specified the jurisdiction those courts could
exercise, subject to congressional exceptions. They prescribed the
appointment procedure for Supreme Court judges, and they sought to
protect all federal judges from reprisals for unpopular decisions:
Judges’ compensation could not be reduced, and judges could not be
removed from office other than by legislative impeachment and
conviction. Putting flesh on this skeleton fell to the First Congress.
The Judiciary Act and the Bill of Rights same forces that contended over
the writing and ratification of the Constitution in 1787 and 1788
sparred in the First Congress in 1789 over the nation’s judicial system.
Federalists generally supported the Constitution and the policies of
President Washington’s administration, and they wanted to establish a
lower federal judiciary. Anti-Federalists opposed the Constitution— or
at least wanted significant changes in it— and favored at best only a
very limited federal judiciary. After the Constitution went into effect
in 1789, outright opposition to it diminished quickly. Democratic
Republicans, or “Jeffersonians,” emerged as a counter to the Federalists
in power. department will be oppressive.” The star chamber of British
legal history lingered in some people’s minds, and many more remembered
how state courts issued judgments against debtors during the economic
turmoil under the Articles of Confederation. Charles Warren identified
four main changes that opponents sought in the Constitution’s judiciary
provisions: guaranteeing civil as well as criminal trial juries,
restricting federal appellate jurisdiction to questions of law,
eliminating or radically curtailing congressional authority to establish
lower federal courts, and eliminating the authorization for federal
diversity jurisdiction. Many who had supported the Constitution,
however, believed a federal court system was necessary but doubted the
need for a bill of rights. To them, the Constitution, in Hamilton’s
famous phrase, “is itself, in every rational sense, and to every useful
purpose, a bill of rights.” The Constitution as ratified contained
specific limitations on the national government (e. g., Article III’s
provision for criminal jury trials), and in a broader sense, it
established an energetic national government, extending over a large
republic, that would be capable of protecting people from the oppression
of local factions. Courts would also protect rights. As Chief Justice
John Jay later told the grand juries of the Eastern Circuit, “nothing
but a strong government of laws irresistibly bearing down [upon]
arbitrary power and licentiousness can defend [liberty] against those
two formidable enemies.” To many Federalists, state courts under the
Articles of Confederation had too easily yielded to popular pressures;
the Federalists believed that a separate set of federal courts was
necessary to achieve “a strong government of laws.”
Thus, the First Congress faced these interrelated questions:
What provisions should a bill of rights contain? Should Article III’s
provisions governing federal judicial organization and jurisdiction be
altered? How should Article III be implemented? From April to September
of 1789, the First Congress addressed them all. Early in the first
session of the House of Representatives, James Madison, the principal
architect of the Constitution, put together a proposed bill of rights
drawn from state proposals and constitutional provisions. Madison had
opposed a bill of rights a year earlier, claiming that “parchment
barriers” were no protection against “the encroaching spirit of power,”
but he knew the importance of honoring commitments made in the
ratification debates. More over, he told the House, if a bill of rights
is incorporated into the Constitution, “independent tribunals of justice
will consider themselves in a peculiar manner the guardians of those
rights.” Madison guided his proposed amendments through legislative
revisions and around colleagues who thought they were unnecessary or
unwise, and he eluded other legislators who wanted to add provisions to
curtail severely the contemplated federal judicial system. Meanwhile,
the Senate quickly took up the organization and jurisdiction of the
federal courts. The principal drafters of Senate Bill were three
lawyers: Oliver Ellsworth of Connecticut, William Paterson of New
Jersey, and Caleb Strong of Massachusetts. Ellsworth and Paterson had
served in the Constitutional Convention, and Ellsworth served on the
committee of the Continental Congress that heard appeals in prize cases.
He had a special appreciation of the role that a federal judiciary,
properly constituted, might serve. (Ellsworth and Paterson went on to
serve on the U. S. Supreme Court, Ellsworth as Chief Justice.) On
September 24, 1789, Washington signed “An Act to Establish the Federal
Courts of the United States” and sent his nominations for the first
federal judges to the Senate. On the same day, the House accepted the
conference report on the proposed Bill of Rights. The Senate followed
suit the next day, and twelve amendments went to the states for
ratification. Ten of them became part of the Constitution in 1791.
The Federalists made important concessions to get a federal
judicial system. The Judiciary Act bowed to the Anti- Federalists in two
general ways: It restricted federal jurisdiction more than the
Constitution required, and it tied the federal courts to the legal and
political cultures of the states.
The Act limited federal trial court jurisdiction mainly to
admiralty, diversity, and U. S. plaintiff cases, and to federal criminal
cases. There was little dispute about the need to create national
admiralty courts. Even opponents of the Constitution recognized the
importance of maritime commerce and the government’s inability under the
Articles of Confederation to provide an adequate judicial forum for
resolving admiralty disputes. (Pursuant to an authorization in the
Articles of Confederation, the Continental Congress in 1780 had
established a U. S. Court of Appeals in Cases of Capture, but that court
had been undermined by widespread refusal to honor its mandates.) When
proposals to abolish Congress’s Article III authority to establish
federal courts were made in the state ratifying conventions and in the
First Congress, there was usually an exception for courts of admiralty.
A major concession to the Anti- Federalists concerned jurisdiction over
cases arising under the federal Constitution or laws: For the most part,
unless diversity was present, such federal- question cases could be
filed only in state court. The Act made some specific grants to federal
courts: the admiralty jurisdiction, for example, and jurisdiction over
treaty rights cases. Section 14 authorized federal judges to issue writs
of habeas corpus concerning the legality of federal detentions. Congress
added incrementally to federal courts’ federal- question jurisdiction—
starting in 1790 with certain patent cases —but it didn’t grant federal
courts a general federal- question jurisdiction until 1875. The absence
of such a grant meant less in 1789 than it would mean today or in 1875
because federal statutory law was so limited in the early years. Other
provisions of the Act reflected the same fear of overbearing judicial
procedures that was reflected in the Bill of Rights. For example, to
alleviate fears that citizens would be dragged into court from long
distances, section 3 specified places and terms of holding court in each
district, and section 11 provided that civil suits must be filed in the
defendant’s district of residence. Sections 9 and 12 protected the right
to civil and criminal juries in the district and circuit courts, as the
Sixth and Seventh Amendments would later do, and section 29 shielded
juror selection and qualifications from federal judicial control by
directing courts to use the methods of their respective states. Sections
22 and 25 protected jury verdicts from appellate review; these sections
responded to vigorous attacks on Article III’s qualified grant to the
Supreme Court of “appellate jurisdiction, both as to law and fact.” And,
as noted earlier, section 14 authorized federal judges to issue writs of
habeas corpus to inquire into instances of federal detention.
A major nationalist victory in the Act was the
implementation of the constitutional authorization of jurisdiction in
cases “between citizens of different States” and cases involving aliens.
Under section 11, the circuit courts, like the state courts, could hear
suits when “an alien is a party, or the suit is between a citizen of the
State where the suit is brought, and a citizen of another State.” Why
did the Federalists want this federal diversity of citizenship
jurisdiction? It was not simply— perhaps not even mainly— out of fear
that state courts would be biased against out- of- state litigants.
Rather, Federalists worried about the potential for control
over judges by state legislatures, which selected judges in most states
and had the authority to remove them in more than half the states. Given
the influence of debtor interests in state legislatures, the Federalists
worried that state judges might be reluctant to enforce unpopular
contracts or generally to foster the stable legal conditions necessary
for commercial growth. Diversity jurisdiction was necessary to avoid a
return to the conditions under the Articles of Confederation.
Anti-Federalists fought the diversity of citizenship jurisdiction; they
believed it “would involve the people of these States in the most
ruinous and distressing law suits.” To quiet these fears, the Act
established a jurisdictional minimum of $ 500, so that defendants would
not have to travel long distances in relatively minor cases, and made
state laws the rules of decision in the absence of applicable federal
law.
The Federalists achieved their goal of establishing a
federal trial judiciary rather than leaving all trials in the state
courts. But the federal courts that the Act created were not designed to
be completely free of the influence of their states’ politics and legal
culture. The federal judiciary’s fierce independence in protecting
national legal rights against occasional state encroachment has been
sustained by factors other than the geographic structure of the national
court system. It seems axiomatic today that no district or circuit
boundary should cross a state line, because (with one minor exception 28
) none does. The 1789 Judiciary Act set this precedent, just as it
required the district judges to reside in their districts. These
requirements create inevitable relationships between federal courts and
the states in which they are located. But state boundaries are not the
only way that federal court boundaries could be defined. The creators of
the federal judiciary might have established separate judicial
administrative divisions that would ensure roughly equal allocation of
workload and would be subject to realignment to maintain the allocation.
In 1800, a last- gasp Federalist bill to revamp the judicial system
would have divided the United States into nine circuits and twenty-nine
districts, each district with a distinctive name and bearing no direct
relation to state boundaries. For example, in the northern part of what
is now the Second Circuit there would have been the district of
Champlain, and in the western part of what is now the Fourth Circuit
would have been the district of Cumberland. Whatever administrative
sense this arrangement might have made, it ran counter to the strong
preference that federal courts have ties to the states in which they are
located.
To observers today, the most curious aspect of the 1789
Judiciary Act was Congress’s decision to create a major federal trial
court but not to create any separate judgeships for it. The Act directed
the two Supreme Court justices assigned to each circuit to travel to the
designated places of holding circuit court, to be joined there by the
district judge. This requirement, along with a sparse Supreme Court
caseload in the early period, meant that the early Supreme Court
justices spent most of their time serving as trial judges. Circuit
riding was common in the states. It was attractive to Congress for three
reasons. First, it saved the money a separate corps of judges would
require. In 1792, the Georgia district court judge reported that
Congress declined to create separate circuit judgeships partly because
“the public mind was not sufficiently impressed with the importance of a
steady, uniform, and prompt administration of justice,” and partly
because “money matters have so strong a hold on the thoughts and
personal feelings of men, that everything else seems little in
comparison.” Second, circuit riding exposed the justices to the state
laws they would interpret on the Supreme Court and to legal practices
around the country— it let them “mingle in the strife of jury trials,”
as a defender of circuit riding said in 1864. Third, it contributed to
what today we call “nation building.” It would, according to Attorney
General Edmund Randolph, “impress the citizens of the United States
favorably toward the general government, should the most distinguished
judges visit every state.” (In fact, they did more than visit. The
justices’ grand jury charges explained the new regime to prominent
citizens all over the country, winning praise from the Federalist press
and barbs from the Jeffersonian press. Whatever logic supported circuit
riding, the justices themselves set about almost immediately to abolish
it. They saw themselves as “traveling postboys.” They doubted, in the
words of a Senate ally, “that riding rapidly from one end of this
country to another is the best way to study law.” Furthermore, they
warned President Washington, trial judges who serve also as appellate
judges are sometimes required to “correct in one capacity the errors
which they themselves may have committed in another . . . a distinction
unfriendly to impartial justice.” The 1789 Act prohibited district
judges from voting as circuit judges in appeals from their district
court decisions but placed no similar prohibition on Supreme Court
justices. The justices themselves agreed to recluse themselves from
appeals from their own decisions unless there was a split vote (a rare
occurrence). Congress’s only response to their complaints was a 1793
statute reducing to one the number `of justices necessary for a circuit
court quorum.
Nowdays many things that the First Judiciary Act required
have been swept aside. But other features it provided are so intrinsic
to US system of justice that the Americans rarely give them a second
thought: a separate set of courts for the national government, arranged
geographically according to state boundaries, deciding matters of
national interest. When the Act was approaching its third year, Chief
Justice John Jay, sitting as a judge of the Circuit Court for the
Eastern Circuit, undertook in his charge to the grand juries of that
circuit to describe something of this new system of federal courts.
Those who created the federal courts faced a formidable task, he
observed, because “no tribunals of the like kind and extent had
heretofore existed in this country.” In that environment of
experimentation, Jay reminded the grand jurors— and his words could well
be a charter for contemporary efforts— that “the expediency of carrying
justice, as it were, to every man’s door, was obvious; but how to do it
in an expedient manner was far from being apparent.”
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