The Defense Against Encroachments

James Varnum. By: John Nelson Arnold.

While during the American Revolution, the judiciary was mostly forgotten, in the interest of controlling gubernatorial power by empower legislatures, that began to change during the 1780s.

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A Conscientious Path of Moderation

Painting of John Marshall, Chief Justice of the Supreme Court of the United States from 1801-1835.

The Constitution, in combination with the Judiciary Act of 1789, created the three-tiered court system that is familiar to modern Americans. However, one of the defining features of the judiciary is the concept of judicial review. Judicial review is the doctrine that permits a court, such as the Supreme Court in Marbury v. Madison, to declare an act of Congress unconstitutional. See Gordon Wood, Empire of Liberty, 442. In 1803, Chief Justice John Marshall was the first to exercise this power of the Supreme Court, setting the precedent for future courts, particularly in the 20th Century, to declare acts of Congress unconstitutional. Id.

Thomas Jefferson declared the following year, in 1804, that granting the courts the power of judicial review “would make the judiciary a despotic branch.” Malone, Jefferson the President: First Term, 155. James Madison explained that judicial review “makes the Judiciary Department paramount in fact to the Legislature, which was never intended and can never be proper.” Madison’s Observations on Jefferson’s Draft of a Constitution for Virginia, 1788, Papers of Jefferson, 6: 315.

Even lesser known Americans who believed the legislatures in the 1780s created unjust laws did “not agree that judges ought to have the authority to declare such legislation void.” Gordon Wood, Empire of Liberty, 444. One such American, Richard Dobbs Spaight, delegate to the Constitutional Convention from North Carolina stated that judicial review “operated as an absolute negative on the proceedings of the Legislature, which no judiciary ought ever to possess.” Richard Spaight to James Iredell, August 12, 1787, in Griffith J. McRee, Life and Correspondence of James Iredell (New York, 1857-1858), 2; 169-70.

Some believed that “the power of the judges alone to declare unconstitutional laws void was too extreme, too exceptional, and too fearful an act to be used against all those ordinary unjust, unwise, and dangerous laws that were nevertheless not ‘so unconstitutional as to justify the Judges in refusing to give them effect.'” Gordon Wood, Empire of Liberty, 446 quoting Farrand, ed., Records of the Federal Convention, 1: 97, 73. Thus, some congressmen in 1792 considering establishing a procedure for federal judges to notify Congress when they would declare a law unconstitutional. Gordon Wood, Empire of Liberty, 446.

It is notable that so many Americans were comfortable with this increasingly powerful judiciary, with the newly created tool of judicial review. Although judicial review was used in Marbury v. Madison, it would not be used again until the Dred Scott decision in 1857. Nonetheless, Americans began to associate the judiciary with being additional representatives of Americans’ collective interests. The fact that the judiciary began to assert itself in more drastic ways into the tripartite government system, combined with most Americans’ desire to have additional representation, permitted the judiciary to become a permanent part of American life.

Further, the importance of the creation of the doctrine of judicial review could hardly be understated. While some were uncomfortable with the idea of the future of democracy occasionally being in the hands of a few judges, it provided a more neutral, reasonable filter for legislation and acts of Congress. Undoubtedly, mistakes have been made and continue to be made by the judiciary, but most Americans would take comfort that as the decades and centuries have progressed, one bad court has been counterbalanced by a good court, leaving America to go down a conscientious path of moderation.

The Assertive Judiciary

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.