Establishing the National Legal Order: The Federalist Persuasion

"We are all Republicans, we are all Federalists," newly elected President Thomas Jefferson proclaimed in his 1801 inaugural address. ²⁶ But these words of reconciliation concealed powerful differences that had split the Federalists of the Philadelphia convention into rival political groups, something that the framers had hoped to prevent. Parties appeared because the kinetic form of government adopted by the framers begged for leadership, both to organize the internal actions of government and to forge ties between the citizenry and their representatives. The Federalist party and its Jeffersonian Republican opposition developed from the top down; conflict over the conduct of the national government carried over into the states where local issues fueled political division. As the party in power, the Federalists viewed the growing Jeffersonian Republican opposition as a threat not only to themselves but, given their view of the pervasiveness of human self-interest, to the existence of the republican government.

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This suspicion of opposition meant that law and the courts (the instruments of government coercion and of the protection of individual rights, respectively) were central to the outcome of the political struggle between Federalists and Jeffersonian Republicans. Political skirmishing over judicial and legal authority took place across a broad front, involving national and state courts and the law, and culminated in precedents of enduring significance for the legal system of the United States.

Judiciary Act of 1789

A Senate committee headed by Oliver Ellsworth of Connecticut drew the Judiciary Act of 1789. It established a federal court organization that lasted almost unchanged for a century, and its outlines remain quite recognizable today. Yet the act was a product of its times. It was framed in a "political context as an instrument of reconciliation . . . to quiet still smoldering resentments." ²⁷

The act embodied two policy decisions that made it politically acceptable. First, Congress exercised its powers to create lower federal courts, something that the Federalists had wanted; however, it lodged the new courts squarely in the states. The 1789 act divided the country into thirteen districts and made the boundaries of the courts in these districts coterminous with those of the states. ( Massachusetts and Virginia received two each, Rhode Island and North Carolina none because they were still not members of the Union.) The district courts in the coastal states became especially important through the exercise of their jurisdiction over admiralty and maritime cases. They also heard civil cases and some minor criminal matters. The act also divided the country into three circuits in each of which a circuit court, consisting of two justices of the Supreme Court and one district judge in the circuit, sat twice a year. The circuit courts entertained appeals from the district courts below and held jury trials involving the most serious criminal and civil cases involving the federal government.

The act made Supreme Court justices into republican schoolmasters whose presence in the circuits symbolized the authority of the remote national government. Circuit riding also exposed the justices, in their capacity as trial judges on circuit, to local concerns. The inculcation of republican virtue exacted a stiff price from members of the Court. Horseback and stage riding made Justices Samuel Chase and Oliver Ellsworth martyrs to gout and renal stones. Justice William Paterson suffered so extensively while traveling the Vermont circuit in the spring of 1794 that he complained to a fellow justice that " [I] nearly went out of my head." ²⁸

The 1789 act also confirmed Congress's full control over lower federal court jurisdiction, which the act set in limited terms. It consisted of admiralty cases (allotted exclusively to the district courts) and cases concerning the diversity of citizenship, with a limited appellate jurisdiction in the circuit courts over district court decisions. Federalists indeed succeeded in section 25 of the act in allowing federal courts to review state court decisions involving federal laws and the Constitution. That provision stirred controversy for the next forty years as first Jeffersonian Republicans and then Jacksonian Democrats sought, in the name of states' rights, to have it repealed.

Local influence remained pervasive in the decentralized federal courts. District judges, for example, not only lived among the people they served, but section 34 of the 1789 act directed that on comparable points of law federal judges had to regard the decisions of state courts as the rule of decision in the federal courts.

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Date: 2015-01-29; view: 783