Debates on the Judiciary during the Convention and Ratification

Opposition to the Constitution

Essays opposing ratification, written under pen names, began to appear in newspapers and broadsides within a month of the Constitution being submitted to the states for ratification.  In New York, for example, essays by Cato (frequently attributed to Governor George Clinton) and Brutus (probably New York Supreme Court Justice Robert Yates) started in October 1787.  Essays by Centinel (probably Pennsylvanian Samuel Bryan), the Federal Farmer (probably Virginia’s Richard Henry Lee, perhaps in collaboration with New York’s Melancton Smith), and Agrippa (probably Massachusetts jurist James Winthrop), were among the most notable that soon followed.    

An additional reason that ratification might not be easy came to light during the Pennsylvania ratifying convention.  That convention voted to approve the Constitution on December 12, 1787, by a vote of 46-23.  Those who voted against ratification  were irked when the majority refused to send their objections to Congress for its consideration.  The Pennsylvania Minority, as it came to be known, took out newspaper ads in other states explaining their reasons for opposing the Constitution.  The Pennsylvania Minority became part of the cry for a Bill of Rights and other constitutional amendments. 

Heated Debates on the Judiciary during the Ratifying Conventions

Most of the writers opposing the Constitution focused primarily on perceived defects relating to legislative and executive branches.  They warned that the new national government would swamp the states, leading to a consolidated government run by an elite aristocracy or a tyrannical executive.  They objected to the lack of a bill of rights.  Except for Brutus and the Federal Farmer, most writers who opposed ratification gave somewhat short shrift to perceived defects in the judicial branch.  Nonetheless, they identified key issues respecting the federal judiciary that became topics of heated debate in the remaining state ratifying conventions:  

  • The original and potential appellate jurisdiction of the Supreme Court is too broad, particularly with respect to controversies between the states and those involving controversies between citizens of different states.  
  • The Supreme Court’s appellate jurisdiction may allow the government to appeal acquittals in criminal cases, thereby allowing a second hearing by the Supreme Court. Those who have “disobliged” the national government “may be subjected to intolerable oppression,” kept in “long and ruinous confinement,” and be exposed to “heavy and insupportable  charges” to attend a court a great distance from their place of residence.
  • Federal judges will use their powers to defeat the laws and operations of state governments, because they will be biased in favor of the national government.
  • Even if national courts do not destroy the states altogether, they will “eclipse the dignity, and take away the respectability” of state courts.  
  • The Constitution fails to guarantee trial by jury in civil cases, thereby depriving the people of long held rights at common law.
  • The guarantee of trial by jury in criminal cases does not guarantee that the trials will occur close to where the alleged crime was committed. 
  • The Constitution dangerously combines legal and equitable authority in the same judges, rather than maintaining a system of separate courts of law and equity, as in England and in several of the states.  
  • The Constitution gives the Supreme Court appellate jurisdiction over both law and fact, subject to Congressional regulation. There is no assurance that Congress will enact legislation to preserve the common law tradition of allowing no appeal from the facts found by juries.  
  • The Constitution reflects an “improper distrust of the impartiality and justice of the tribunals of the states.”  
  • The administration of justice under the federal judiciary, whose powers will ever increase, will be so costly as to deny justice “to the poor and middling class of people” who “stand in most need of the protection of the law.” 
  • The Constitution makes it unnecessarily difficult to convict federal judges of misconduct.

Brutus and the Federal Farmer Warn Against the Dangers of a National Judiciary

The most detailed objections to the national judiciary came from the Federal Farmer and Brutus.    The Federal Farmer also chastised Americans for not paying sufficient attention to the dangers of a national judiciary.  He claimed Americans had been overly “jealous of the legislature, and especially the executive.”   He warned that the country was “more in danger of sowing the seeds of arbitrary government” in the judiciary than any other branch. 

Brutus developed that theme.  Robert Yates, to whom authorship of the powerful Brutus papers is usually attributed, was a trial judge in New York.  He, John Lansing, and Alexander Hamilton had been New York’s delegates to the Constitutional Convention.  However, Yates and Lansing both left the Convention in early July, already dissatisfied with its direction but before serious attention had turned to the third branch.  Their departure left Hamilton as New York’s sole delegate and deprived him of the right to vote on proposals on behalf of the state.  That was so, because a Convention rule required a majority of a state’s delegation to agree on the state’s position on each proposal in order to cast a vote.  

After leaving the Convention, Lansing and Yates teamed with New York Governor George Clinton to oppose ratification.  Beginning in October 1787, Brutus wrote sixteen essays in the New York Journal urging his state not to ratify.   He issued a dire warning: 

If. . .this form of government contains principles that will lead to the subversion of liberty—if tends to establish a despotism, or, what is worse, a tyrannic aristocracy; then, if you adopt it, this only remaining asylum for liberty will be shut up, and posterity will execrate your memory.  

Brutus on the Accountability of Judges

Brutus was particularly concerned about the nature and extent of the judicial power of the United States because “those who are to be vested with it, are to be placed in a situation altogether unprecedented in a free country.”   The proposed national judiciary did away with “the good old way of administering justice.”  Brutus argued that, under the new system of federal courts, judges would be insufficiently accountable  because of their lifetime tenures and guaranteed salaries.  

Brutus contrasted the powers of English judges with those of federal judges under the proposed Constitution.  He argued that no matter how powerful English judges were, they were less dangerous than American federal judges would be because they were “under the control of the legislative.”  By contrast, “the judges under this constitution will control the legislature.”  That was so, he predicted, because federal judges, and ultimately the Supreme Court, would have the final say about the meaning of the Constitution:  

The supreme court then have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away.  If therefore, the legislatures pass any laws, inconsistent with the sense of the judges put upon the constitution, they will declare it void; and therefore in this respect their power is superior to that of the legislature. 

The Judiciary and the Ability to Mold the National Government

In construing the Constitution, he argued, federal judges would use both their legal and equitable powers, which would allow them to interpret the document not by applying fixed or established rules but, rather, “according to what appear[ed] to them, the reason and spirit of the constitution.”  Their interpretation of the constitution would be final, he maintained, because the Constitution provided no means for correcting their errors.  The Constitution gave judges the ability to mold the national government into “almost any shape they please.”  

Moreover, Brutus warned, federal judges would interpret the Constitution to authorize Congress to subvert the legislative, executive, and judicial powers of the individual states.  It would accomplish this goal by looking to the words of the Preamble to justify giving Congress “general and unlimited powers of legislation in all cases.”  The consequence, he warned, was that states would “become so trifling and unimportant as to not be worth having.”  

Dire Warnings of the “Death of the States”

Brutus saved his harshest salvo against the power of the national judiciary to interpret the Constitution for the fifteenth of his papers, published on March 20, 1788.  By then, six states had ratified.   However, opposition was strong in New Hampshire, Virginia and New York.  

In No. 15, Brutus accused the drafters of the Constitution of conceiving the national judicial power to “facilitate the abolition of the state governments” through interpretation of the Constitution.  The death of the states might be gradual, he conceded, but judicial precedents would accumulate case by case.  Eventually, the states would “melt down” into “one entire government, for every purpose as well internal and local, as external and national.”  Brutus concluded his fifteenth essay with a dire prediction:

Had the construction of the constitution been left with the legislature, they would have explained it at their peril; if they exceed their powers, or sought to find, in the spirit of the constitution, more than was expressed in the letter, the people from whom they derived their power could remove them and do themselves right. . .  [B]ut when this power is lodged in the hands of men independent of the people, and of their representatives, and who are not, constitutionally, accountable for their opinions, no way is left to control them but with a high hand and an outstretched arm.

In other words, Brutus warned, revolution would be the only recourse available to the people to control the national judiciary and its interpretations of the Constitution.  Brutus believed strongly that the Constitution should not be ratified.