After declaring independence, all the former colonies became sovereign, independent states. According to the last paragraph of the Declaration of Independence, each state had full powers to do all “Acts and Things which INDEPENDENT STATES may of right do.” Therefore, each state needed to draft a constitution. With the exception of Rhode Island and Connecticut (which revised their corporation charters to provide for their self-governance) each state drafted its own constitution. did so. All of the state constitutions provided for court systems. That is to say, they adhered to the English tradition of making established courts part of their governing structures. And they rejected Montesquieu’s suggestion that it was unnecessary to have established tribunals for the administration of justice. Some states, like New York and Delaware, established separate courts of law and equity. Other states, like, Pennsylvania and Massachusetts, vested their courts with both legal and equitable powers. A brief examination of the constitutions of three states—Virginia, New York, and Massachusetts—demonstrates similarities and important differences in states’ views about the judicial power.
Virginia Constitution (1776):
Recognition of three separate “departments,” (“legislative, executive and judiciary”) but no description of a judiciary department. [Note: Article 5 of the Virginia Constitution of 1830 filled in that gap]
Two provisions calling for separation of legislative, executive and judiciary departments, “so that neither exercise[s] the Powers properly belonging to the other” but providing that “the Justices of the County Courts shall be eligible to either House of Assembly.”
Legislative appointment of “judges of the supreme Court of Appeals, and General Court, Judges in Chancery, Judges of Admiralty”
Judicial tenure for “good behavior” but subject to impeachment
Gubernatorial appointment of County justices of the peace
Assurance of “fixed and adequate Salaries”
Section 7 of the Bill of Rights at the beginning of the Virginia Constitution provided:
That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights and ought not to be exercised.
Some understood Section 7 as prohibiting the state’s highest court from invalidating acts of the legislature on the grounds that the statute violated the constitution. Notwithstanding that provision, however, Article 6, Section 2 of the Virginia Constitution for many years has specified that “no law shall be declared unconstitutional under either this Constitution or the Constitution of the United States except on the concurrence of at least a majority of all justices of the Supreme Court.”
New York Constitution (1777):
Two kinds of judicial powers: judges for common-law courts and a chancellor for cases in equity
Gubernatorial appointment of judges with “advice and consent” of a council of senators appointed by assembly
Judicial tenure for term of “good behavior” or until age 60, but subject to impeachment
Judges prohibited from holding any other office except Delegate to general Congress.
A council of revision consisting of the governor, chancellor and judges, explained as follows:
And whereas laws inconsistent with the spirit of this constitution, or with the public good, may be hastily and unadvisedly passed: Be it ordained, that the governor for the time being, the chancellor, and the judges of the supreme court, or any two of them, together with the governor, shall be, and hereby are, constituted a council to revise all bills about to be passed into laws by the legislature. . . And that all bills which have passed the senate and assembly shall, before they become laws, be presented to the said council for their revisal and consideration; and if, upon such revision and consideration, it should appear improper to the said council, or a majority of them, that the said bill should become a law of this State, that they return the same, together with their objections thereto in writing, to the senate or house of assembly (in which soever the same shall have originated) who shall enter the objection sent down by the council at large in their minutes, and proceed to reconsider the said bill. But if, after such reconsideration, two-thirds of the said senate or house of assembly shall, notwithstanding the said objections, agree to pass the same, it shall together with the objections, be sent to the other branch of the legislature, where it shall also be reconsidered, and, if approved by two-thirds of the members present, shall be a law.
Massachusetts Constitution (1780):
A discrete chapter (Chapter 3) describing judiciary power
Gubernatorial appointment of judges with advice and consent of council (consisting of nine members of the senate )
Judicial tenure for “good behavior”, with the exception that the governor, “with consent of the council, may remove them upon the address of both houses of the legislature”
Justices of the Supreme Judicial Court to receive “permanent and honorable salaries”
Legislative power to create “judicatories and courts of record or other courts”
Legislature (both houses), and governor and council permitted “to require the opinions of the justices of the supreme judicial court upon important questions of law, and upon solemn occasions”
These summaries reveal that the states structured their judiciaries somewhat differently, yet the judiciaries had some features in common. All constitutions provided for appointment, rather than election, of judges. (Beginning with Georgia in 1812, some states began to provide for popular election of some or all judges and substituted terms of service for a period of years for “good behavior.”) Those states that called for gubernatorial appointment of judges prevented the executive from controlling the judiciary by calling for the “advice and consent” of at least one house of the legislature or by spelling out judicial powers in a separate article or chapter of the constitution. All early state constitutions also assured at least some level of judicial independence by creating terms of “good behavior” for judges and salary guarantees.
As the above examples demonstrate, the states took considerably different approaches to judicial involvement in the work of the legislative and the executive. Virginia demanded a rigorous separation of powers and prohibited branches from exercising powers “properly” belonging to another branch. New York gave the judges of both law and equity courts a say in proposed legislation through its council of revision. And Massachusetts required judges to provide advisory opinions (that is, opinions about the meaning of the law without adjudicating a specific case) to either the legislative or executive branches.