N U M U N X V Y O U H A V E T H E F L O O R A P R I L 1 2-1 5, 2 0 1 8 Constitutional Convention in Philadelphia, 1787 JUDICIAL SYSTEM
Introduction One of the core foundations of this nation is maintaining a balance of power between the people and the government, as we otherwise cannot perpetuate the ideals of a representative democracy. Americans are proud to have the ability to elect those in charge, but the balance of powers within our nation evidently must readjust. Throughout this convention, you will discuss vital topics that were not properly fleshed out in the Articles of Confederation. The judicial structure of our country is one of these topics for having too many independent state courts has been tumultuous for our nation. Currently, each state has the right to interpret the laws at their own discretion, and this lack of cohesiveness creates inconsistency in a country that is intended to be united. Beyond the fact that having a national judiciary is a practical necessity for our nation, the moral and philosophical argument that led us to founding the United States can be extended to the judiciary and lawmaking. John Locke s renowned Second Treatise of government, which examines the natural rights of the people in both government and society in general, primarily influenced the founders in prioritizing the rights of individuals. Extended to the role of the judiciaries in the newly founded nation, this prioritization means that the rights of the people being tried were of great significance. The idea of a jury made up of the common people believed to be the ultimate holders of rational thought is rooted in the writings of Aristotle. He put forth the idea that a group of many are more incorruptible than the few like the greater quantity of water which is less easily corrupted than a little, meaning that a group of individuals is more likely to make a sound, fair decision in regards to an issue as opposed to individuals on their own. 1 1 Aristotle. Aristotle's Politics. Oxford :Clarendon Press, 1905. 2
Historical Background The Articles of Confederation poorly address the construction of a comprehensive judicial system, and therefore, a more rigorous discussion about the judiciary must take place at the Constitutional Convention. At the time that the Articles of Confederation were drafted, many Americans were concerned that a strong, federal government would be able to wield too much power over the public, and they did not find an overarching judicial system to be necessary or desirable. However, as a body, we have come to realize that this lack of judicial structure is a pressing issue for our nation, and we need delegates to come up with some framework in order to institute a judicial branch. Currently, a lack of any sort of federal judiciary to interpret the laws is troublesome because independent state judiciaries are often inconsistent. Many founders were hesitant to create a Federal Court because the judiciary body in Great Britain that has had a troubling history. 2 The Star Chamber began hearing cases as early as the 15th century and has settled a plethora of disputes since then. However, those who have studied the history of this body concluded that the Chamber did not always respect individuals rights. Often times, the Chamber compelled testimony from the defendants and forced the accused to have some kind of council in order to mount their own legal defense. 3 In a country as progressive as the United States, we must break these trends in our establishment of our own federal judiciary. Though a controversial issue today, judiciaries are not new to the United States. In fact, a judiciary can be traced all the way back to the House of Burgesses in the Virginia Colony before our nation was founded. This body was the first instance of a representative democracy in the United States and divided the colony into eight counties, where each had an independent judicial system. The judges within this system were appointed by the House, but the public was able to vote to elect 2 The Editors of Encyclopædia Britannica, "Court of Star Chamber," Encyclopædia Britannica, May 14, 2013, accessed January 22, 2018, https://www.britannica.com/topic/court-of-star-chamber. 3 Faretta v. California, 422 United States Report 821 (1975). 3
the House representatives. 4 For many Virginians, the House of Burgesses was a way to voice their political opinion which simply was not possible in Parliament in London. This body did not have a direct election of judges or an overarching judicial system that encompassed the entire colony, but it provides a practical framework that had some early success in a time where the government structure was much less defined. One of the plans proposed prior to the Convention in order to solve this issue was extending the concept of the Council of Revision on a national scale. The Council was first brought to the states in New York, and it was a unique body consisting of a Governor, Chancellor, and two Supreme Court Justices meant to revise all new legislation. The Council of Revisions has been an effective body in the state of New York since 1779 and will likely continue to exist into the near future. 5 The council drew its inspiration from Great Britain, which allowed for many judges to have some say in developing legislation. Dating back to the late 15th century, the English have utilized the Privy Council, which was a powerful body that had both executive and judicial powers. Though it did not last for very long due to British upheaval, it was revived for all of the English colonies in 1640 and retained it s dual role as both the dispenser of sovereign justice and as the final body of approval for legislation. 6 However, we do not envision our nation having an executive branch as powerful as the King of England, or intend to use this system for other provinces, so this Council will not be identical to England s. In theory, this idea would have been extended to the national government with some kind of executive check alongside a national judiciary that could veto any new legislation with good reason. Though the Council of Revisions has been backed by respected politicians such as James Madison, it is far from a flawless body. Many people expect that judges will eventually hold a great 4 Louis D. Rubin, Virginia, a bicentennial history (New York: Norton, 1977). 5 James Sullivan, History of New York State: 1523-1927 (New York u.a.: Lewis History. Publ. Co., 1927). 6 James T. Barry III, "The Council of Revision and the Limits of Judicial Power," The University of Chicago Law Review 56, no. 1 (Winter 1989). 4
deal of lawmaking power in the near future once the concept of judicial review is finalized. It is also likely that judges may have an inherent bias if they are involved in the lawmaking process, for they are also expected to interpret the laws. 7 This convention is being called to order to attempt to fix some of the issues with the Articles of Confederation, and the checks and balances within different branches of government will likely be a topic of debate. Clearly, creating a dedicated body that would incorporate both the legislative and executive branch is complex, yet that does not mean it cannot be incorporated in some fashion. Moreover, the Writs of Assistance case of 1761 was a hallmark for establishing judicial review. The case questioned the legality of search warrants issued by the British Parliament in the name of the king and made it apparent that the American people were aggravated with Britain s usurpations of power. Within this case, Bostonian lawyer James Otis had argued for the need for a governing body to be able to declare governmental acts void on the basis of their merit. While he ultimately lost the case, this ideal had a ripple effect on the states and integrated the idea of judicial review within the state courts. 8 Going forward, the concept of judicial review will be paramount in deciding the power of judges as well as the overall structure of the nation s judiciary. In this time period, other nations have judicial systems which quite differ from the conceptions of American judicial systems. In the United Kingdom, the Magna Carta had some notions of judicial review, and it was put into practice when the King was scrutinized by the citizenry in an attempt to limit his powers over the colony. It was determined that a declaration of concrete law in general was necessary in establishing a good relationship between the king and his people, and the judicial system was their way of affirming that. 9 7 Emily Rose, "Countdown to the Constitution - Council of Revision," Bill of Rights Institute, July 22, 2011,, accessed January 22, 2018 https://www.billofrightsinstitute.org/countdown-to-the-constitution-council-of-revision/. 8 Lee Epstein and Thomas G. Walker, Constitutional law for a changing America: institutional powers and constraints(washington, D.C: CQ Press, 2016). 9 History.com Staff, "Magna Carta," History.com, 2009,, accessed January 22, 2018, http://www.history.com/topics/british-history/magna-carta. 5
Current Situation While the United States does not have a federal judiciary, many states have their own supreme courts established by their individual constitutions. Furthermore, at least seven of the 13 states supreme courts have judicial review meaning the court has the power to invalidate statutes that they believe violate the state s constitution. 10 The concept of judicial review is also not unfamiliar to many of the delegates to this Constitutional Convention. A handful of the delegates have previous experience as lawyers in these state courts and thus have had the opportunity to see judicial review manifest itself. These state supreme courts are also appellate, so they only hear cases that have already been ruled on in a lower court and are only heard at a higher level once one or more of the parties has appealed the decision. Because of how much power supreme courts have on a state-level, the Articles of Confederation does not establish a federal supreme court from the fear that a strong, federal judiciary would lead to tyranny. However, state supreme courts only have the ability to settle disputes that are intrastate; no court currently exists to settle interstate disputes. Also, no system is currently in place that is able to restrict the power of Congress and the laws it creates. Currently, the state of Virginia has delineated expressed rights of individuals when being subject to trial. These include the right to a speedy trial by jury, moderate bail and humane punishment as assigned by the courts. Heeding the example set by Virginia, by 1780 many states added important concepts to their constitutions like jury trials in criminal cases and the due process of law. In addition, many state constitutions established that judges had to be appointed by the chief executive, the legislature, or by both working together. The state of Massachusetts constitution has detailed the role of the judiciary in a similar construction to that of Virginia, with a few key differences. Akin to the articles outlined in Virginia, Massachusetts has specified that the appointment and term of judges is contingent upon the 10 Saikrishna B. Prakash and John C. Yoo, "The Origins of Judicial Review, The University of Chicago Law Review 70, no. 3 (2003): 887 982. 6
governor and his council. In addition, the state has the ability to require the opinions of the justices of their supreme court, meaning that when called upon, the judges must contribute their assessments about any discussion the executive wants to engage in concerning law. This seems like a worthy compromise to the Council of Revision brought up earlier, as it allows for the judges to have input into the legislation, but no decision making power. Most of these additions within state constitutions can be attributed to the transgressions that the colonists felt in regards to their treatment from the King, as the loss of trial by jury and the prominence of biased judges with salaries controlled by the King made the people feel that their rights were violated. Notably, these rights enumerated in the state constitutions were all still at the hands of the people, emphasizing the key point that the power of these state judiciaries was heavily limited. No judiciaries could declare state laws unconstitutional, and state-level judges either served terms or were subject to removal if they failed to uphold good behavior. The judges could be impeached and removed from office entirely if they were to abuse their power. Above all, the need for a federal judiciary also has immense political ramifications. As of now, every state has the right to interpret the law in whichever way they see fit, which causes numerous inconsistencies across the nation. It is simply not feasible to develop a national foreign policy when states begin conflicting with one another. In fact, we have seen this failure in practice rather recently. Even though the Treaty of Paris dictated the removal of all British military from the US, many British forts remained in the Great Lakes area after 1783. In turn, the French and Native Americans have begun to perceive our new nation as weak, and rightfully so. If the nation had a unified foreign policy, it is unlikely this is a problem we would continue to have to deal with. Yet, we 7
look disorganized and fragile to the rest of the world because even members within our own country struggle to agree. 11 An even bigger political blunder that captures the issue with the current structure may be the Longchamps Affair. In 1784, a French soldier named Charles de Longchamps was in Pennsylvania to gather documents and got into a physical altercation with the French Consulate General, leading to him being detained. The French requested Congress to extradite Longchamps back to France for a trial, but the Articles of Confederation failed our nation yet again. It turned out Congress had no jurisdiction within the state of Pennsylvania, which prompted the Supreme Court of Pennsylvania to rule that Longchamps could not be sent back to France, creating an international incident. 12 Events like this show the incompetence of the current structure, and making changes to the national judicial system is likely the best way to solve these types of problems. In closing, it is up to you, the delegates, to decide on what our judicial branch becomes. Perhaps some sort of blend between the Virginia and Massachusetts respective state plans would be the best decision for the nation going forward. Yet, it s apparent that there will be delegates who staunchly oppose this viewpoint, as they may fear the United States central government would be too strong with a national judiciary. It s also likely that the Council of Revision can be adapted to be a feasible judicial structure that allows for judges to have a say in lawmaking. But again, even the thought of borrowing a British idea may be too much for delegates to handle. Ultimately, the lack of a national judiciary is a pressing issue that shows how problematic it is in different ways, which should be an added incentive for you all to find a solution. 11 Joshua Clark. "United States Diplomatic Negotiations Under the Articles of Confederation." The Eagle Feather 10 (2013): n. pag. Web. 5 February 2018 12 Alfred Rosenthal, The Marbois-Longchamps Affair, The Pennsylvania Magazine of History and Biography, Vol. 63, No. 3 (Jul., 1939), pp. 294-301, 5 February 2018. 8
Bloc Positions Federalists Federalists support a strong national government, especially after seeing the failure of the Articles of Confederation. To combat the Anti-Federalists argument that a centralized, federal government could become too powerful, they highlight limited government through powers enumerated in a constitution, separation of powers into three branches, and checks and balances amongst these three branches. Federalists include: Oliver Ellsworth (CT), William S. Johnson (CT), Roger Sherman (CT), Richard Bassett (DE), Gunning Bedford, Jr. (DE), Jacob Broom (DE), John Dickinson (DE), George Read (DE), William Few (GA), Daniel Carroll (MD), Daniel of St. Thomas Jenifer (MD), James McHenry (MD), Nathaniel Gorham (MA), Rufus King (MA), Caleb Strong (MA), Nicholas Gilman (NH), John Langdon (NH), David Brearly (NJ), Jonathan Dayton (NJ), William Livingston (NJ), William Paterson (NJ), Alexander Hamilton (NY), William Blount (NC), William R. Davie, Richard Spaight (NC), George Clymer (PA), Thomas Fitzsimons (PA), Jared Ingersoll (PA), Thomas Mifflin (PA), Gouverneur Morris (PA), Robert Morris (PA), James Wilson (PA), Pierce Butler (SC) [often crossed party lines], Charles Pinckney (SC), Charles Cotesworth Pinckney (SC), John Rutledge (SC)m John Blair (VA), James Madison (VA), Edmund Randolph (VA) Anti-Federalists Anti-Federalists fear that a strong national government would take power away from state and local governments. They also believe that a strong, central government will be too far removed from the public, thus the citizens will not be able to hold it accountable. Due to the vastness and diversity of the United States, the Anti-Federalists advocate for more power vested in the state and local governments, which are most likely to hear the concerns of individuals in their constituencies. 9
Anti-Federalists include: Abraham Baldwin (GA), Luther Martin (MD), John F. Mercer (MD), Elbridge Gerry (MA), John Lansing (NY), Robert Yates (NY), Alexander Martin (NC), Hugh Williamson (NC), George Mason (VA), George Wythe (VA), William Houstoun (GA), William Pierce (GA), Independents Benjamin Franklin (PA), George Washington (VA) [leaned Federalist], James McClurg (VA) Questions to Consider 1. Why is it important to institute a federal judicial system even if there are independent state courts already in use? 2. What are the advantages and disadvantages of giving federal judges the power of judicial review? 3. What previous experience do you have with working with the law, and dissecting legal documents? 4. How would a federal judiciary function alongside the other branch(es) of the government? 5. What are your philosophical beliefs regarding how the law should be interpreted? 6. What are the beliefs of your party regarding the formation of a federal judicial system, and why is this so? 10