Debates on the Judiciary during the Convention and Ratification

Defending the Constitution

Advocates of ratification, who came to be known as Federalists, went to work immediately after the Convention to assure approval in the various state ratifying conventions.  They circulated petitions urging that the Constitution be adopted as quickly as possible. Political heavyweights such as Benjamin Franklin, James Wilson, Alexander Hamilton, Robert Livingston, James Madison, John Jay, Rufus King, John Marshall, and Francis Dana spoke passionately in defense of the Constitution.  Some supporters also wrote essays urging ratification, using pen names.  They included Letters from a Landholder (Connecticut’s Oliver Ellsworth),  Alfredus (New Hampshire’s Samuel Tenny), Marcus (North Carolina’s James Iredell), and Aristides (probably Maryland’s Alexander Contee Hanson).

The idea to mount both a systematic, detailed defense of the Constitution and a response to its opponents came from Alexander Hamilton. A series of 85 essays advocating ratification were published in various New York newspapers under the pseudonym Publius between October 1787 and August 1788.  (Hamilton probably wrote 51of the essays; James Madison, probably 26; John Jay, probably 5; and Hamilton and Madison probably collaborated on between 8 and 20.)   Only twenty-four of the essays appeared in newspapers outside New York during the ratification controversy.

Federalists on the Separation of Powers

In Federalist No. 9, written in November 1787, Publius (probably Hamilton) argued that the proposed Constitution reflected a “great improvement” in the science of politics. The central elements of this improvement were separation of powers; judges holding office during good behavior; legislative checks and balances; representation of the people (not just the states) in the national legislature; and an “expanded orbit” in which the national government would operate.  At least two of the elements of the “new science of politics”—separation of powers and lifetime appointments–had significant implications for the proposed national judiciary.  

By 1787, Montesquieu’s admonition that the legislative, executive and judicial departments of government ought to be separate had become well accepted.  Indeed, one of the objections raised by opponents of the Constitution was that it threatened political liberty because it did not go far enough in keeping the three branches separate and distinct. 

Madison and “Parchment Barriers”

In a series of Federalist Papers addressing separation of powers (Nos. 47-51), Publius (probably Madison) chided his own state of Virginia for believing that separation of powers could be achieved merely by placing “parchment barriers” in a constitution directing the three branches to remain separate. Neither, he argued, was it practical to repeatedly refer claims that one branch had overstepped its bounds for decision by the people.  Instead, the interior structure of the government needed to be such that the branches would keep one another in their proper constitutional places.  Madison contended that the Constitution achieved that goal through separating major functions but blending them just enough to make each department jealously guard its prerogatives against the others:

[T]he great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. . . . Ambition must be made to counteract ambition.  The interest of the man must be connected with the constitutional rights of the place.   

What did this theory mean for the judiciary?

Federalist Approaches to the Judiciary and Antifederalist Concerns

The old way of thinking about courts was that they were not and should not be distinct from the legislature or the executive.  In England, recall, the House of Lords, a branch of Parliament, sat as the top appellate court.  Common-law courts were known as “Crown courts” because the judges were appointed by the crown and represented the Crown’s presence in judicial matters. Appeals from admiralty courts went to the Privy Council, the Crown’s a body of legislative advisers.

States after the Revolution looked to their English and colonial roots in deciding how to structure their court systems.  They were tenacious in guaranteeing the right of trial by jury, but they were not as mindful to create judicial institutions that were independent of the other two branches.  Some states allowed judges to serve in legislative or executive capacities. Even states like Virginia–whose constitution of 1776 paid lip service to the doctrine of separation of powers by demanding that the three branches be separate and independent–did not create a judicial department.  Under that state’s original constitution, judging was intermixed with legislative and executive functions.  Tenure during “good behavior” for judges who were not independent from the other two branches was one thing because judicial decisions could easily “corrected.”  But the proposed Constitution of the United States contained a scheme for maintaining a system of separated powers that suggested a high degree of judicial independence from the executive and legislative branches.  An independent national judiciary, along with lifetime appointments, was a recipe for unprecedented judicial power.  

It is little wonder then, that the Federal Farmer and Brutus viewed the federal courts as threats to liberty and republicanism.  Brutus was spot on when he observed that the national courts were not like the “good old way of administering justice.”  Publius’ challenge, then, was to defend a novel and untried way of thinking about the judicial branch. 

Hamilton Defends the National Judiciary

It is believed that Hamilton alone wrote Federalist Nos. 78-83 defending the national judiciary.  These papers appeared between June 14 and July 5, 1788, several months after Brutus’ formidable attacks.  By the time Federalist No. 78 went to press, however, eight states already had given their approval.   New Hampshire became the ninth on June 21, meaning the Constitution had been ratified.  From one perspective, then, proponents of the new Constitution already had won:  The new national government was to begin operationon March 4, 1789.  Why were any more arguments in its favor necessary?  

The answer is that, when the Constitution went into effect, two of the four states that still had not ratified were crucial to the success of the new national government: Virginia (the state with the greatest population and territory, including what is now West Virginia and Kentucky) and New York (a state with huge commercial clout).  As a practical matter, confirmed by glancing at a map of the thirteen states, a United States that did not include Virginia and New York was not a United States at all.