The Virginia ratifying convention convened on June 2, 1788. Its delegates included James Madison and lawyer-legislator John Marshall, both of whom were staunch proponents of ratification. It also included fiery opponents such as George Mason and Patrick Henry. At the outset, the delegates apparently were about evenly divided over whether to ratify. On June 20, Marshall delivered a long speech responding to arguments that Mason had made attacking the jurisdiction of the federal courts. Overall, Marshall contended,
This part of the plan before us, is a great improvement on that system from which we are now departing. Here are tribunals appointed for the decision of controversies, which were before, either not at all, or improperly provided for.–That many benefits will result from this to the members of the collective society, every one confesses. Unless its organization be defective, and so constructed as to injure, instead of accommodating the convenience of the people, it merits our approbation.
During the course of the debates, several delegates who initially had opposed ratification changed their minds. The recommendation that “subsequent amendments” be submitted to the First Congress may have been the decisive factor that persuaded the states’ delegates to “ratify now, amend later.” The Virginia proposals for amendments included limitations on the federal judiciary:
With the proposal for amendments, Virginia ratified by a vote of 89-79 on June 25, 1788.
The New York ratifying convention met from June 17 to July 26, 1788. Governor George Clinton, who already had published essays opposing the Constitution, was elected to preside. John Lansing, Robert Yates (of Brutus fame), and Melancton Smith (who may have collaborated with Richard Henry Lee in writing the papers from the Federal Farmer) also were delegates. Their opposition was well known when the ratifying convention convened.
Other delegates to the New York ratifying convention were solid proponents of ratification, although at the outset they were outnumbered by opponents. Robert Livingston, Secretary of Foreign Affairs under the Articles of Confederation and New York’s Chancellor, put the prestige of his name and office behind ratification. In the opening speech of the ratifying convention he asked the delegates to analyze the document systematically, provision by provision (the approach Publius had been taking in the Federalist Papers). Alexander Hamilton and John Jay also were delegates. They had been writing as Publius for several months. By the time the New York Convention began, they already had published (with Virginia’s James Madison) 80 of the 85 Federalist papers. Hamilton wrote and published four more papers during the ratifying convention, all focused on the judiciary. (He wrote a concluding essay in August 1788, after both Virginia and New York had ratified. Perhaps Hamilton did so in the belief that his most important audience was those who would read The Federalist in the future.)
The Federalist Papers that defended the national judiciary addressed the narrow but politically crucial state of New York. It was the last opportunity during the ratification process to take on critics of the new federal judiciary in general, and Brutus’s arguments in particular.
Defense of the judicial branch was difficult in part because the states always had resisted creation of a system of national courts, even during the Revolutionary War and even just one national court with a jurisdiction limited to prize cases. Moreover, Article III provided a mere sketch of the federal courts. Opponents already had warned that the judiciary could evolve in ways that would corrupt republican government and destroy the rights of the people.
Federalist No. 78 is the most famous of the judicial papers. It confronted head on Brutus’ contention that the power of federal judges to interpret the Constitution would destroy the states and be dangerous to political liberty.
Publius agreed with Brutus that federal judges, and ultimately the Supreme Court, would declare the meaning of the Constitution. Indeed, he argued, the judiciary had a duty to do so. Why? The people would declare their sovereign will by ratifying the Constitution. The Constitution then would be the nation’s “fundamental law.” In a country with a fundamental law, the legislative power is limited. Indeed, the Constitution “contains certain specified exceptions to the legislative authority.” The purpose of courts is to be “an intermediate body between the people and the legislature in order to keep the latter within the limits assigned to their authority.” Constitutional limitations on legislative authority “can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.”
Publius responded to the claim that the power to declare the meaning of the Constitution would raise the judicial branch above the legislative. He contended that, under America’s system of separation of powers, the judiciary would always be the weakest of the three departments and “the least dangerous” branch:
The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
Publius concluded that judicial independence was essential if judges were to guard the Constitution and individual rights from occasional “ill humors” in the society and the “arts of designing men” against the principles of republican government. Should the people disagree with judicial interpretations of the Constitution, they could amend the Constitution. However,
[u]ntil the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collective, as well as individually, and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act.
Publius continued to advocate for judicial independence under the Constitution’s system of separated powers in Federalist No. 81. He dismissed as a “phantom” the fear that the judiciary would encroach on legislative authority, noting again that the only power that federal judges would wield was that of judgment. Moreover, he noted, the legislative branch exercised important constitutional controls over the judiciary, including the power of impeachment.
Publius addressed other objections that had been raised against the judiciary.
Objection: Jurisdiction of the federal courts is too broad, particularly over the states.
Response: The Constitution prohibits the states “from doing a variety of things, some of which are incompatible with the interests of the Union, and others with the principles of good government.” Maintaining the boundary between national and state powers could have been achieved in one of two ways: giving Congress (or a council of revision) a direct negative over state laws, or giving federal courts the power to overrule states laws that violate the Constitution. The Convention rejected the former proposal. The latter method “appears to have been thought by the convention preferable to the former, and, I presume, will be most agreeable to the States.” The reasonableness of giving national courts jurisdiction “over cases in which the State tribunals cannot be supposed to be impartial, speaks for itself.”
Objection: State courts should have equal power with federal courts
Response: If there are such things as political axioms, the propriety of the judicial power of a government being coextensive with its legislative, may be ranked among the number. Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed.
Objection: Federal judges should not be permitted to exercise the power of both law and equity.
Response: Federal judges would be unable to do justice without having both legal and equitable powers . [NOTE: Publius ignored the Convention’s decision not to create separate courts of law and equity, as had been the practice in England and in several states. Neither did he address the impact that the exercise of equity jurisdiction could have on jury trials.]
Objection: The Supreme Court will re-examine facts found by juries.
Response: Federal courts probably will follow the tradition of state appellate courts, which also have jurisdiction over law and fact. Those courts do not find facts on appeal. It is more likely that appellate courts will remand (or send back) cases for a second trial if they find reversible error. Moreover, legislative power over the Supreme Court’s appellate jurisdiction “puts it out of all doubt that the supposed abolition of the trial by jury. . .is fallacious and untrue.”
Objection: Federal courts ultimately will usurp and destroy state courts.
Response: States retain all their pre-existing judicial powers except over the narrow range of cases that are enumerated by the Constitution as belonging only to the federal courts. Federal courts, therefore, are courts of limited trial jurisdiction, as spelled out in the Constitution, and their appellate jurisdiction depends on Congress. States, on the other hand, remain courts of general jurisdiction. When Congress organizes the judiciary, it probably will choose to give state courts concurrent trial jurisdiction, with appeal to the Supreme Court of the United States, or perhaps, to lower federal courts, over at least some federal causes. Indeed, Congress might even choose to give state courts “entire charge” of federal causes with appeals to federal courts. The power of the federal courts will depend greatly on Congress.
Objection: The Constitution abolishes jury trials in civil cases in federal courts.
Response: The Constitution’s silence on jury trials in civil cases does not mean that the Constitution abolishes jury trials. The drafters of the Constitution confronted the practical difficulty that there are so many differences among the states with respect to the conduct of jury trials in civil cases that it was impossible for them to agree on a constitutional rule applicable to all varieties of civil cases. (Publius canvassed each of the states to demonstrate the point, noting that differences among the states regarding courts of law and equity complicated the matter.) The drafters had no choice but to leave to Congress resolution of the role of juries in civil trials.