Depiction of the Old Congressional Building. 1800s.

In the early years of the Republic, there was an itching for reformation of the systems and processes that had come to define colonial life. This reformation began with “enactment of an increasing number of laws.” Gordon Wood, Empire of Liberty, 405.

Thomas Jefferson and James Madison led this movement of reformation. While they and their like-minded Republicans had hoped to have comprehensive reform quickly, “[u]nstable, annually elected, and logrolling democratic legislatures broke apart” those plans. Id. One individual in South Carolina complained that “every new law . . . acts as rubbish, under which we bury the former.” Rudiments of Law and Government, Deduced from the Law of Nature (Charleston, SC, 1783), 35-37. Likewise, St. George Tucker, a jurist, explained that in Virginia, the legislature attempted to provide clarity and organization to the state’s laws, but bred “perplexities . . . [by] the re-enaction, omission, or suspension of former acts, whose operation is thus rendered doubtful, even in the most important cases.” St. George Tucker, Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government and of the Commonwealth of Virginia (Philadelphia, 1803) I, pt. 1, xiii.

This confusing, complex jungle of laws had to be sorted out by someone other than the legislatures. The judiciary took up that responsibility, which ironically also happened in England with William Blackstone and Lord Mansfield carving out “a huge interpretive role for British judges as they sought to bring the law into accord with equity, reason, and good sense. David Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (Cambridge, UK, 1989), 13, 28.

Americans craved reasonable, equitable law that only the judiciary could provide through its interpretation, after the legislatures’ numerous, laborious attempts to clarify the laws had failed.

These early years foreshadow the events in the coming decades and centuries that shape the modern governmental structure. The chaotic and confused work of the early legislatures created an opening for the judiciary that did not exist immediately after the Revolution. The judiciary did not just step into this opening, it seized this opening and drastically expanded it over the course of the next two centuries, as illustrated by the decision of Marbury v. Madison, which is another topic for discussion and analysis.

At least to some extent, the judiciary cleaned up the laws of the United States and paved the way for clearer, more accessible codes, regulations, and laws. It is difficult to understate the value of the judiciary’s actions and its reverberating consequences for the courts, for the legislatures, and for the wellbeing of the most important subjects of the laws: American citizens.