Introduction to the Federal Judiciary

Proposals for a National Judiciary at the Constitutional Convention

Two Proposals for Government: The Virginia Plan and The New Jersey Plan

The Virginia Plan for a new national government, introduced on May 29, 1787, contained several bold proposals, including those related to establishment of a judicial branch:  

A national judiciary to consist of one or more “supreme tribunals” with appellate (and final) jurisdiction over cases tried by lower national courts

  • Tribunals inferior to the supreme tribunal(s) with power to try cases involving matters of international significance (piracies, felonies on the high seas, and captures from an enemy), as well as broad powers over cases involving domestic matters (“cases in which foreigners or citizens of other States applying to such jurisdictions may be interested, or which respect the collection of the National revenue; impeachment of any National officers, and questions which may involve the national peace and harmony”)
  • Supreme tribunal(s) and inferior tribunals to by chosen by the national legislature
  • Judicial tenure during “good behavior” 
  • Salary guarantees 
  • Participation of a “convenient number” of national judges in a Council of Revision, giving judges a say with the executive in a limited veto over proposed national laws and any decisions of Congress to invalidate state laws

The Virginia Plan contemplated a national judiciary with extensive powers over the states, just as, under that plan, the national legislature would have had power to legislate on all matters on which “the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.” Such extensive national powers were more than advocates of state sovereignty could bear. 

The New Jersey Plan was submitted to the Convention on June 15 as a counter to the Virginia Plan.  The New Jersey Plan envisioned a national judiciary in keeping with its modest proposals for strengthening the national legislature, but leaving most governing powers with the states:  

  • One supreme tribunal (no inferior national tribunals) with power to try impeachments of federal officers and hear appeals in cases involving federal laws, treaties, and cases in which foreigners may be interested
  • Supreme tribunal appointed by the executive
  • Judges to serve for “good behavior” 
  • Judges to receive a “fixed compensation” with “no increase or diminution” during service
  • Trials in all cases of alleged violations of laws enacted by Congress (except impeachment of federal officers) to occur in state courts, with appeals for correction of errors of law and fact to the federal judiciary

Hamilton Suggests an Alternative

Alexander Hamilton offered yet a third proposal on June 18 which, for all practical purposes, would have reduced the states to administrative units of the national government.  His plan laid out extensive powers for a national executive, complemented by legislative and judicial branches.  The legislature would have power “to institute Courts in each State for the determination of all matters of general concern.”  A “supreme Judicial authority” consisting of judges appointed by the executive and approved by the Senate,  holding office during “good behavior,” and  receiving adequate and permanent salaries, would have authority to try cases of capture and to hear appeals “in all causes in which the revenues of the general Government or the Citizens of foreign Nations are concerned.”