All the plans submitted at the Constitutional Convention envisioned a national government stronger than the one existing under the Articles of Confederation, and all provided for some form of national judiciary with judges serving terms for “good behavior.” Debates over the judicial branch were less extensive than over Congress and the Presidency, but they were more succinctly focused. Early in their deliberations the delegates agreed that the new national government should have one Supreme Court and one or more inferior courts, but they disagreed over whether the Constitution should describe the organization and jurisdiction of the inferior courts. The longest debate was over the council of revision proposed in the Virginia Plan. Those opposed to such a council argued that it violated separation of powers; that judicial participation in the formation of policy would undermine judges’ credibility and neutrality when they subsequently decided cases involving laws that had been before the council; and that judges should not issue advisory opinions. James Madison, on the other hand, was so committed to the council of revision as a check on potential legislative excesses that he re-introduced the proposal twice after the other delegates had voted to reject it.
Other topics of debate about the national judiciary included:
Mode of appointment. Two primary methods were debated: appointment by the legislature as a whole or by just the Senate, or appointment by the executive. State models existed for both approaches. The advantage of appointment by the Senate was to help assure that federal judges came from every part of the country. Those opposed to legislative appointment feared legislators would be too little personally responsible to make good judicial choices. Those in favor of executive appointment pointed to the benefits of holding one person accountable. Opponents responded that concentrating the appointment power in a single executive would lay the foundation for monarchy.
The meaning of “good behavior.” Although generally agreeing that federal judges should serve terms of “good behavior,” the delegates did not agree on the standard for good behavior. Some delegates expressed concern that judges could be vulnerable to political pressures if removal from office were left to the elected branches. Others thought some form of trial was appropriate before removal.
Salary. Everyone agreed that judges needed to be paid an adequate and regular salary and that protection against a salary reduction was essential to independence. But some contended that a prohibition on pay increases, as under the Virginia and New Jersey Plans, also could make judges dependent on the legislature and that some method for adjusting judicial salaries to at least reflect the cost of living was necessary. Adequate salaries also were said to be necessary to attract “men of the first talents” to the federal courts.
Jurisdiction. The range of cases to be heard by federal courts was the most difficult issue, as the extent of federal judicial powers would be almost as important to the future of the states as the range of Congressional powers. The Virginia Plan contemplated a muscular, permanent system of national courts superior to the existing state courts. That plan proposed a system of inferior federal trial courts, with appeals to at least one supreme tribunal from which there would no further appeal. A jurisdiction that included “questions which may involve the national peace and harmony,” however, suggested that federal courts might have power to hear virtually any case. Delegates committed to maintaining state sovereignty voiced strong objections. They would not agree to a system of national courts that could (and undoubtedly would) intrude on the power of state courts. Some believed that state courts should be trusted to try all cases and enforce national laws in the first instance. Others contended that inferior federal courts were necessary to affirm in all cases the authority of federal laws over state laws whenever the two conflicted.
Combining law and equity. As previously explained, England, and several states, had developed parallel systems of courts of law and equity. The proposal to extend federal judicial power to cases in both law and equity met with approval from the delegations of at least five states, but two objected, contending that these two powers should not be united in the same court. Two abstained from voting on the question; at least three were absent.
Jury trials. Near the close of the Convention, the delegates briefly debated whether the proposed federal judiciary adequately protected the right to trial by jury. A proposal was made to add the guarantee of jury trial in both civil and criminal cases in federal courts. That proposal met with the objection that there was so much diversity among the states in the conduct of civil jury trials that attempting to establish a uniform rule for such trials in federal courts “would be pregnant with embarrassments.”
As was true with other contentious issues at the Convention, it fell to committees—particularly the Committee of Detail and Committee of Style—to work out many of the differences. In the end, the delegates left several important questions about the structure and jurisdiction of the federal courts to Congress to decide should the Constitution be ratified. The decision to leave unresolved significant matters relating to the national judiciary provided ammunition for those who opposed the Constitution in the ratification debates that were to follow. The decision also created important challenges for the First Congress, which convened in March 1789.