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- John Marshall and the Constitution, - 2/27 -


courts; secondly, that it is supreme law, with which ordinary legislation must be in harmony to be valid; and thirdly--a principle deducible from the doctrine of the separation of powers--that, while the function of making new law belongs to the legislative branch of the Government, that of expounding the standing law, of which the Constitution would be part and parcel, belongs to the Judiciary. The final disposition of the question of insuring the conformity of ordinary legislation to the Constitution turned to no small extent on the recognition of these three great principles.

The proposal to endow Congress with the power to negative state legislation having been rejected by the Convention, Luther Martin of Maryland moved that "the legislative acts of the United States made in virtue and in pursuance of the Articles of Union, and all treaties made or ratified under the authority of the United States, shall be the supreme law of the respective States, and the judiciaries of the several States shall be bound thereby in their decisions, anything in the respective laws of the individual States to the contrary notwithstanding." The motion was agreed to without a dissenting voice and, with some slight changes, became Article VIII of the report of the Committee of Detail of the 7th of August, which in turn became "the linch-pin of the Constitution."* Then, on the 27th of August, it was agreed that "the jurisdiction of the Supreme Court" should "extend to all cases arising under the laws passed by the Legislature of the United States," whether, that is, such laws should be in pursuance of the Constitution or not. The foundation was thus laid for the Supreme Court to claim the right to review any state decision challenging on constitutional grounds the validity of any act of Congress. Presently this foundation was broadened by the substitution of the phrase "judicial power of the United States" for the phrase "jurisdiction of the Supreme Court," and also by the insertion of the words "this Constitution" and "the" before the word "laws" in what ultimately became Article III of the Constitution. The implications of the phraseology of this part of the Constitution are therefore significant:

* Article VI, paragraph 2.

Section I. 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 behavior, and shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office.

Section II. 1. The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States, between a State and citizens of another State, between citizens of different States, between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign states, citizens, or subjects.

Such, then, is the verbal basis of the power of the courts, and particularly of the Supreme Court, to review the legislation of any State, with reference to the Constitution, to acts of Congress, or to treaties of the United States. Nor can there be much doubt that the members of the Convention were also substantially agreed that the Supreme Court was endowed with the further right to pass upon the constitutionality of acts of Congress. The available evidence strictly contemporaneous with the framing and ratification of the Constitution shows us seventeen of the fifty-five members of the Convention asserting the existence of this prerogative in unmistakable terms and only three using language that can be construed to the contrary. More striking than that, however, is the fact that these seventeen names include fully three-fourths of the leaders of the Convention, four of the five members of the Committee of Detail which drafted the Constitution, and four of the five members of the Committee of Style which gave the Constitution its final form. And these were precisely the members who expressed themselves on all the interesting and vital subjects before the Convention, because they were its statesmen and articulate members.*

* The entries under the names of these members in the Index to Max Farrand's "Records of the Federal Convention" occupy fully thirty columns, as compared with fewer than half as many columns under the names of all remaining members.

No part of the Constitution has realized the hopes of its framers more brilliantly than has Article III, where the judicial power of the United States is defined and organized, and no part has shown itself to be more adaptable to the developing needs of a growing nation. Nor is the reason obscure: no part came from the hands of the framers in more fragmentary shape or left more to the discretion of Congress and the Court.

Congress is thus placed under constitutional obligation to establish one Supreme Court, but the size of that Court is for Congress itself to determine, as well as whether there shall be any inferior Federal Courts at all. What, it may be asked, is the significance of the word "shall" in Section II? Is it merely permissive or is it mandatory? And, in either event, when does a case arise under the Constitution or the laws of the United States? Here, too, are questions which are left for Congress in the first instance and for the Supreme Court in the last. Further, the Supreme Court is given "original jurisdiction" in certain specified cases and "appellate jurisdiction" in all others--subject, however, to "such exceptions and under such regulations as the Congress shall make." Finally, the whole question of the relation of the national courts to the state judiciaries, though it is elaborately discussed by Alexander Hamilton in the "Federalist," is left by the Constitution itself to the practically undirected wisdom of Congress, in the exercise of its power to pass "all laws which shall be necessary and proper for carrying into execution"* its own powers and those of the other departments of the Government.

* Article I, section VIII, 18.

Almost the first official act of the Senate of the United States, after it had perfected its own organization, was the appointment of a committee "to bring in a bill for organizing the judiciary of the United States." This committee consisted of eight members, five of whom, including Oliver Ellsworth, its chairman, had been members of the Federal Convention. To Ellsworth is to be credited largely the authorship of the great Judiciary Act of September 24, 1789, the essential features of which still remain after 130 years in full force and effect.

This famous measure created a chief justiceship and five associate justiceships for the Supreme Court; fifteen District Courts, one for each State of the Union and for each of the two Territories, Kentucky and Ohio; and, to stand between these, three Circuit Courts consisting of two Supreme Court justices and the local district judge. The "cases" and "controversies" comprehended by the Act fall into three groups: first, those brought to enforce the national laws and treaties, original jurisdiction of which was assigned to the District Courts; secondly, controversies between citizens of different States*; lastly, cases brought originally under a state law and in a State Court but finally coming to involve some claim of right based on the National Constitution, laws, or treaties. For these the twenty-fifth section of the Act provided that, where the decision of the highest State Court competent under the state law to pass upon the case was adverse to the claim thus set up, an appeal on the issue should lie to the Supreme Court. This twenty-fifth section received the hearty approval of the champions of State Rights, though later on it came to be to them an object of fiercest resentment. In the Senate, as in the Convention, the artillery of these gentlemen was trained upon the proposed inferior Federal Judiciary, which they pictured as a sort of Gargantua ready at any moment "to swallow up the state courts."

* Where the national jurisdiction was extended to these in the interest of providing an impartial tribunal, it was given to the Circuit Court.

The first nominations for the Supreme Court were sent in by Washington two days after he had signed the Judiciary Act. As finally constituted, the original bench consisted of John Jay of New York as Chief Justice, and of John Rutledge of South Carolina, William Cushing of Massachusetts, John Blair of Virginia, James Wilson of Pennsylvania, and James Iredell of North Carolina as Associate Justices. All were known to be champions of the Constitution, three had been members of the Federal Convention, four had held high judicial offices in their home States, and all but Jay were on record as advocates of the principle of judicial review. Jay was one of the authors of the "Federalist", had achieved a great diplomatic reputation in the negotiations of 1782, and possessed the political backing of the powerful Livingston family of New York.

The Judiciary Act provided for two terms of court annually, one commencing the first Monday of February, and the other on the first Monday of August. On February 2, 1790, the Court opened its doors for the first time in an upper room of the Exchange in New York City. Up to the February term of 1798 it had heard but five cases, and until the accession of Marshall it had decided but fifty-five. The justices were largely occupied in what one of them described as their "post-boy duties," that is, in riding their circuits. At first the justices rode in pairs and were assigned to particular circuits. As a result of this practice, the Southern justices were forced each year to make two trips of nearly two thousand miles each and, in order to hold court for two weeks, often passed two months on the road. In 1792, however, Congress changed the law to permit the different circuits to be taken in turn and by single justices, and in the meantime the Court had, in 1791, followed the rest of the Government to Philadelphia, a rather more central seat. Then, in 1802, the abolition of the August term eased the burdens of the justices still more. But of course they still had to put up with bad roads, bad inns, and bad judicial quarters or sometimes none at all.

Yet that the life of a Supreme Court justice was not altogether one of discomfort is shown by the following alluring account of


John Marshall and the Constitution, - 2/27

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