1. Establishing an Independent Judiciary for the New Nation

At the Constitutional Convention of 1787, the delegates shared a commitment to an independent judiciary. They agreed that an indispensable part of any well-organized republican government was a separate and co-equal judicial branch that would serve alongside the executive and legislative branches. But the delegates did not arrive in Philadelphia with a fully developed plan for the federal judiciary. Most were more concerned with the provisions for a national legislature and the executive or with the balance of federal and state authority. The constitutional outline of the nation's court system emerged over the summer, often in response to decisions the delegates made about the structure of the executive and legislative branches. As the Convention delegates proceeded with their work, the importance of the federal judiciary became more and more evident, although much of the institutional organization we think of as central to the federal court system was not defined until the First Congress convened in 1789.

2. Models for the Federal Judiciary

The delegates to the Federal Convention, like many Americans, accepted certain values associated with the British judicial system. Since the late-seventeenth century, independence of judges in Great Britain had been secured through provisions for service "during good behavior," which generally meant lifetime tenure.

Beginning in 1776, the newly independent states dismantled the colonial court systems that were generally under the control of royal governors and established in their place judiciaries that would be important models for the Federal Convention. Virginia's constitution was the first to establish the judiciary as one of three independent branches of government. Some states provided for judges to serve during good behavior and some mandated a fixed salary for judges. In the 1780s, several state courts asserted the authority to judge state laws in violation of the state constitution, and legal writers proposed ways to make the judiciaries more independent of the legislature as well as the executive. The framers would look to the experience of the state courts for lessons about the best ways to make a judiciary independent and to ensure a proper separation of powers.

The framers of the Constitution had no practical model of a court to serve the whole nation. The only court established under the Articles of Confederation, which served as the first national government, was the Court of Appeals in Cases of Capture. This body had very limited jurisdiction; it dealt only with the capture of enemy ships and had no enforcement powers. The proper role of an independent, national judiciary was a largely unexplored topic when the Federal Convention convened.

3. Proposals at the Federal Convention

The Federal Convention began its discussion of a new constitution with consideration of the so-called Virginia Plan submitted by Edmund Randolph and drafted by James Madison. Madison proposed that the legislature be authorized to establish one or more supreme courts (perhaps with different jurisdiction) that would hear appeals of cases of national interest, and inferior courts that would serve as trial courts for national issues. Judges of these courts would hold office during good behavior, be appointed by the Congress, and receive a fixed salary that could not be increased or decreased during their service. A council of revision, made up of the executive and some federal judges, would review state and federal laws and veto those they believed violated the Constitution or even those they considered harmful.

4. Defining the Judiciary

Early in the Convention, delegates agreed that there would be a single supreme court and one or more inferior courts, but that decision about inferior courts was soon reversed. During the remaining three months of the Convention, the delegates engaged in recurring debates on questions related to the federal judiciary: who would appoint judges? what would be the term of office for judges? what provisions would be made for judges' salaries? who would exercise judicial review of state and federal laws? and what would be the relationship between federal and state courts?

Appointment-Some delegates, like James Wilson of Pennsylvania, recommended appointment by the executive as a protection against the intrigues associated with a large legislature. Many more supported appointment by the legislature or by the Senate alone. John Rutledge of South Carolina, who later served as a Supreme Court justice, feared that concentrating the appointment power in the hands of a single executive would lead to monarchy. Roger Sherman of Connecticut thought appointment by the Senate would ensure that judges were drawn from every part of the country. Madison feared that many members of the full Congress would not have the experience to assess the qualifications for a judge, and he initially preferred appointment by the more exclusive membership of the Senate.

Nathaniel Gorham, a delegate from Massachusetts, suggested the mode of judicial appointment that his state had used since the colonial period: nomination by the executive and approval by the smaller branch of the legislature. Once the convention decided that the Senate would represent states equally, Madison suggested that the President be authorized to appoint judges but that the Senate be given the right to veto the appointment by a vote of two-thirds of the members. Only in the final two weeks of the convention did the delegates agree that federal judges, like ambassadors and other appointed officers, would be appointed by the President with the advice and consent of the Senate.

Tenure and removal-The delegates generally agreed that judges should have tenure with good behavior, but it was more difficult to decide what was the proper standard of good behavior and who would determine when judges did not meet that standard. Many of the early state constitutions followed the British model and provided for the removal of judges by the executive branch upon recommendation of the legislature. When John Dickinson of Delaware proposed a similar removal process for federal judges, several delegates worried that the judges would then be vulnerable to political pressures. Gouvernor Morris of New York thought removal of judges for violation of a standard of good behavior required some form of trial. With no further debate in the full convention, the authors of the final draft of the Constitution inserted a provision for removal of judges only through impeachment by the House of Representatives and conviction of "high crimes and misdemeanors" in a trial conducted by the Senate.

Salary-The delegates understood that the salary provisions for judges would be a key to protecting judicial independence, and the Virginia Plan proposed that judges would receive a fixed, regular salary that could not be increased or reduced. No one challenged the provision to protect judges from any reduction in salary, which was seen as an essential protection against political pressure from the legislature. But the absence of pay increases also could make the judges dependent, warned Gouvernor Morris, who believed that judicial salaries must be regulated by the costs of living, or, as he put it, "the manners & the style of the living in a Country." Benjamin Franklin wanted the option of increasing judges' salaries if the business of the courts increased. Charles Cotesworth Pinckney of South Carolina argued that large salaries would be necessary to attract "men of the first talents." Madison feared that if a pay raise for judges were pending before the Congress, judges might be reluctant to rule against the government or the interests of individual members of Congress. Madison suggested judicial pay might be pegged to the price of a familiar commodity like wheat, but a large majority of state delegations insisted on leaving open an option for judicial pay raises.

Judicial Review-The Convention's longest debate involving the judiciary focused on Madison's proposal for a council of revision. Following the model of the New York state constitution, Madison envisioned a council made up of the President and a group of judges who would review all legislation and have the authority to suggest revisions or to veto an act. The council would also have had authority to review Congress's recommendation for the disallowance of state legislation. Madison, who believed that the natural tendency of a republican legislature was "to absorb all power into its vortex," thought it was essential to bring the executive and judicial branches together as a check on improper or unjust legislation. He so strongly advocated this role of the judiciary that he brought the motion up twice after the Convention had rejected it.

Many delegates thought it would violate the separation of powers to join the executive and the judicial in this way. Judges should not have a role in the formation of policy, said Nathaniel Gorham. Caleb Strong of Massachusetts feared that the judges' role on a council of revision would undermine their credibility when they reviewed laws that were challenged in court. John Rutledge thought judges should never give an opinion on legislation until it was law. The Convention repeatedly rejected Madison's proposal and left the President with the sole authority to veto legislation. Although the Constitution made no reference to judicial review, the debate on the council of revision made clear that many delegates believed the council was unnecessary because they expected the federal judiciary to exercise the power of judicial review to declare laws invalid.

Organization and Jurisdiction-The proposed Constitution defined the potential jurisdiction of the Supreme Court and the federal judiciary, but left unanswered many of the questions that had divided the delegates. Madison's original plan proposed a series of inferior federal courts to serve as trial courts, but many delegates, like William Paterson, proposed that the state courts serve as the courts of first instance, or trial courts, in cases raising federal issues. After the delegates rejected a proposal to establish inferior federal courts, they accepted the proposal of Madison and James Wilson to give the Congress authority to establish inferior courts, thus leaving open the option that state courts might serve as trial courts for many questions arising under federal laws or the Constitution. It would be up to the new Congress to organize the court system.

The Constitution's grant of jurisdiction to federal courts extended to all cases "in law and equity" arising under the Constitution, federal laws, and treaties. Federal jurisdiction also included cases related to foreign diplomats, admiralty and maritime issues, disputes between states, and disputes between citizens of different states. With little recorded debate, the delegates in the closing days of the Convention accepted language that guaranteed a trial by jury in criminal trials, but the delegates rejected pleas to extend the guarantee of jury trials to civil cases. Also with little debate, the delegates accepted a provision for appeals to the Supreme Court "both as to Law and Fact." By defining the range of federal jurisdiction, the Convention implicitly recognized that state courts would retain full jurisdiction over many legal questions.

5. Public Debates on the Proposed Constitution

Once the proposed Constitution was presented to the states for ratification, critics of the charter, known as the Anti-Federalists, offered the public a critique of the proposed judiciary, which they feared would weaken the authority of states and undermine legal rights secured by the establishment of independent state governments. The supporters of the Constitution, known as Federalists, responded with explanations of how important an independent judiciary would be for the success of a national government.

For opponents of the Constitution, the judiciary symbolized the expansive power of a national government that they feared would soon overwhelm the states. Anti-Federalists frequently warned that the federal judiciary would "absorb" or "swallow" the state courts, even the states themselves. The Constitution's broad definition of federal jurisdiction would allow judges and lawyers to expand the reach of the courts as far as they wished. Federal jurisdiction over suits between citizens of different states was seen as particularly threatening to state courts. The power and independence of the judges, who could not be removed for errors of decision or judgment, was, in the words of a leading Anti-Federalist writer, "unprecedented in a free country."

The outline of the federal judiciary seemed to remove the courts from the local connections that many Americans believed were essential to the preservation of civil liberties. Even if a federal trial court were established in each state and the Supreme Court met in various locations, according to Anti-Federalists, the remoteness of federal courts would deprive most citizens of justice. The distance to a federal court would make legal proceedings too expensive and render justice "unattainable by a great part of the community," according to George Mason. Jury trials protected the rights of defendants only if the jury were drawn from the local community, and this would be impractical in a federal court.

Anti-Federalists saw in the proposed Constitution two grave threats to the right to a trial by jury, which they saw as the most important means of insuring popular participation in the judicial process and protecting individual liberties. Despite the guarantee of a jury trial in criminal cases, the absence of any reference to jury trials in civil cases raised the specter of a civil law system in which "a few judges . . . possess all the power in the judiciary." The provision for appeals to the Supreme Court on the basis of challenges to the facts as well as the law raised additional fears of the possible retrial of criminal cases without a jury. The Constitution's failure to explicitly protect traditional rights to a jury trial became one of the most compelling criticisms raised by the Anti-Federalists.

The Federalist essays of Alexander Hamilton offered the most notable defense of an independent judiciary and a persuasive answer to many of the Anti-Federalist criticisms of the proposed court system. In his famous phrase, the judiciary would be the branch of government "least dangerous to the political rights of the constitution." The judges had no means of coercion, like the executive control of the military or the Congress's power over spending, and the judiciary would in practice be dependent on the executive for the enforcement of its decisions. What appeared to the Anti-Federalists as a virtually unchecked judicial authority was, Hamilton argued, absolutely essential to protect the liberties of the people under a government with constitutionally limited powers. The Constitution, once ratified by the states, would be the ultimate expression of the popular will, and it was the judiciary's responsibility to enforce that popular will when it was violated by legislation that was contrary to the Constitution. Only with the twin protections of tenure during good behavior and salaries that could not be reduced would judges be able to enforce the Constitution free of pressure from the other branches of government or temporary popular majorities.

Hamilton addressed specific Anti-Federalist criticisms about federal jurisdiction over suits between citizens of different states and over equity cases, in which judges based their decisions not on a body of law but on broad principles of fairness. The range of the jurisdiction granted to the federal courts, Hamilton argued, was required to ensure the supremacy of federal law, the protection of equal rights for citizens in each state, and the government's ability to deal with foreign nations.

Hamilton and other Federalists assured skeptical critics that the most highly qualified individuals would serve as federal judges and that the new Congress would organize the nation's court system in ways that protected traditional liberties, such as the trial by jury. Yet even many who supported ratification of the Constitution remained concerned that the provisions for the judiciary failed to provide institutional protections of established legal rights and procedures.

6. Ratification

In several states, the conventions voting to ratify the Constitution passed resolutions suggesting amendments that should be added to the Constitution. Those related to the judiciary aimed to protect the right to a jury trial, to forbid appeals to the Supreme Court based on the facts rather than the law in a case, and to restrict the jurisdiction of the federal courts so as to protect citizens from distant court appearances in suits regarding small amounts of money. Virginia's convention wanted an amendment that limited the jurisdiction of any lower federal courts to admiralty matters and left for the state courts most federal questions. Several of the conventions incorporated their proposed amendments in a bill of rights that they wanted to attach to the Constitution.

7. Judiciary Act of 1789

When Congress turned early in its first session to the organization of the federal courts, the ratification debates had a significant impact on the proposals for the federal judicial system. The Judiciary Act of September 1789 represented a compromise that established a three-part system of federal courts with broad jurisdiction that at the same time allowed the state courts to share jurisdiction over many matters arising under federal law and the Constitution. In addition to a Supreme Court, the federal judiciary included district courts that exercised jurisdiction over admiralty cases and minor criminal cases and civil suits, and circuit courts that served as the principal trial courts with jurisdiction over most federal crimes, disputes between citizens of different states, suits involving the government, and some appeals from the district courts. The procedures to be used in the federal courts, including rules for jury selection, would generally follow the practices of the state in which the federal court met. The provisions for the federal circuit courts, with the often-burdensome requirement that Supreme Court justices regularly preside in these regional courts, were a response to the pervasive fears that a federal judiciary would be too remote from most citizens and would eradicate regional legal customs.

8. The Bill of Rights

The defined structure of the federal judiciary was not enough to eliminate the doubts raised by the Anti-Federalists and shared by many other Americans. As the Senate considered the proposed judiciary bill, James Madison in the House of Representatives presented a draft of a bill of rights that would guarantee many of the legal protections demanded by critics of the Constitution. Madison's proposed amendments emphasized civil liberties and the rights of criminal defendants rather than the restructuring of the judiciary that had been advocated by some of the draft bills of rights. The amendments, ten of which were ratified in 1791, directly responded to debates on the proposed judiciary by affirming through the Sixth and Seventh Amendments the right to criminal and civil jury trials, with provision for criminal juries to be drawn from the district in which the crime was committed, and by prohibiting reexamination of facts determined by a jury. Debates would continue, and go on even today, about the proper organization of the federal courts and the reach of federal jurisdiction, but the Judiciary Act of 1789 and the Bill of Rights combined to secure a measure of public confidence in the new Constitution and the unprecedented system of federal courts.