Debates on the Judiciary during the Convention and Ratification

New York Proposes Amendments to the Ratified Constitution

No one knows whether Publius persuaded any of the delegates at the New York ratifying convention who initially had opposed the document to vote for ratification.  On July 26, however, the convention voted 30-27 to approve.  Several delegates had indicated before the New York convention convened that they did not wish to stay out of the union unless Virginia also stayed out.  Receiving the news that Virginia had ratified may have been what convinced enough opponents to give up the fight.  George Clinton, Robert Yates, and John Lansing, however, remained unpersuaded and voted against ratification.  

New York’s approval, like approval in other states, was accompanied by a long list of items for a bill of rights and proposals for 31other amendments to the Constitution.  The proposed bill of rights contained several provisions aimed at limiting the power of the federal judiciary:     

  • That no Person ought to be put twice in Jeopardy of Life or Limb for one and the same Offence, nor, unless in case of impeachment, be punished more than once for the same Offence.
  • That the trial by jury in the extent that it obtains by the Common Law of England is one of the greatest securities to the rights of a free People, and ought to remain inviolate.
  • That all Appeals in Causes determinable according to the course of the common Law, ought to be by Writ of Error and not otherwise.
  • That the Judicial Power of the United States in cases in which a State may be a party, does not extend to criminal Prosecutions, or to authorize any Suit by any Person against a State.
  • That the Judicial Power of the United States as to Controversies between Citizens of the same State claiming Lands under Grants of different States is not to be construed to extend to any other Controversies between them except those which relate to such Lands, so claimed under Grants of different States.
  • That the jurisdiction of the Supreme Court of the United States, or of any other Court to be instituted by the Congress, is not in any case to be increased [sic], enlarged or extended by any Fiction, Collusion or mere suggestion;–And That no Treaty is to be construed so to operate as to alter the Constitution of any State.

With Virginia and New York joining the Union, the new national government had a greater chance of succeeding.  But that does not mean that opponents were suddenly sanguine about the future. Now the focus shifted to Congress and how it would fill in the constitutional sketch of the national judiciary.