Vol. 2 No. 11 (November, 1992) pp. 181-183
ORIGINS OF THE FEDERAL JUDICIARY: ESSAYS ON THE JUDICIARY ACT OF
1789 by Maeva Marcus (Editor). New York: Oxford University Press,
1992. 312 pp.
Reviewed by Ronald Kahn, Department of Politics, Oberlin College.
This book offers nine essays on the history and doctrinal
heritage of the Judiciary Act of 1789 by some of the leading
constitutional scholars in our nation. It is based on papers
prepared for a conference in honor of the 200th anniversary of
the Judiciary Act of 1789 at Georgetown University in cooperation
with the Judicial Conference of the United States and the Supreme
Court Historical Society.
While the essays are of a high quality and some offer new
historical evidence on the Judiciary Act of 1789, it is difficult
to find one central theme in this book. Nor do the authors
attempt to develop a central theme through an introduction and
conclusion. The disciplinary focus is on law and history, not
political science. However, political scientists interested in
constitutional law, theory, history, and interpretations will
find the book of some interest.
In the introductory essay, Maeva Marcus and Natalie Wexler argue
that the Judicial Act of 1789 resulted from its authors'
political considerations, the search for compromise, practical
concerns about the expense of federal courts and fear that
federal courts would usurp the role of state courts, not from any
deep consideration of constitutional language, theory, and
principles. Concern for these practical issues, Marcus and Wexler
argue, left little time for the First Congress to engage in what
the authors call "interpretive exercises involving the
language of Article III."(5) Thus, they argue, "it is
hazardous to rely on the Judiciary Act as evidence of the
'original understanding' of Article III."
Akhil Reed Amar and G. Edward White study Article III of the
Constitution in order to understand the constitutional
imperatives that the Judiciary Act of 1789 was intended to
implement. In a quite sophisticated continuation of an analysis
begun 1985 and continued in a 1990 UNIVERSITY OF PENNSYLVANIA LAW
REVIEW article, Amar maintains that Justice Story's
"two-tiered" structure of the Judiciary Act and of
Article III is valid. He argues that the mandatory language of
"shall" and "all" gives Congress the power to
strip federal courts of jurisdiction in one tier, but requires
that some federal court be vested with jurisdiction on federal
questions. The "political safeguards" analysis, later
developed in constitutional law, plus the fact that the Judiciary
Act of 1789 is not at odds with the two-tiered thesis means for
Amar that federal court supremacy over states is in order. This
article offers excellent criticism of Hart and Wechsler's view of
Section 25 of the Judiciary Act of 1789. G. Edward White, in
perhaps the most original and important of the essays, draws on
his 1988 book of the Marshall Court era to argue that an entire
dimension of the Marshall Court's constitutional sovereignty
cases -- typically characterized as "nationalism" or
"states rights" cases -- has been lost or
misinterpreted; this is the widely-shared assumption among late-
eighteenth-and early-nineteenth-century judges and commentators
that in any "effective" government, judicial power
would be coextensive with the government's legislative power and,
conversely, that legislative power would be coextensive with
judicial power. Thus, White argues that because this assumption
is alien to modern commentators, who are committed to
post-Marshall era separation of powers principles, they
misinterpret the role of federal courts as defined in Marshall
Court sovereignty cases and view them primarily as questions of
national and state power. White argues that a rediscovery of the
"coterminous power" assumption will force us to rethink
the cosmic reach of Marshall Court cases such as COHENS V.
VIRGINIA and MCCULLOCH V. MARYLAND. Finally, the view that
extensive legislative power begets extensive judicial power and
extensive judicial power begets extensive legislative power, is a
forceful argument for a
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strong and growing federal court structure and that the Supreme
Court was headed for a consolidation of courts. In such a view,
judicial discretion is borne of coterminous power, not separation
of power, doctrine. However, White correctly argues that it was
destabilizing in the Marshall Court era.
Several essays explore the way in which Article III and the
Judiciary Act of 1789 were implemented. In "UNITED STATES V.
JOSEPH RAVARA: 'Presumptuous Evidence," "Too Many
Lawyers," and a Federal Common Law Crime," John D.
Gordan analyzes the April, 1793 trial of the consul general of
Genoa to the United States on charges of sending threatening
letters. Using recently discovered case files of the U.S.
Attorney who prosecuted Ravara, and in providing most interesting
appendices of key parts of those files, Gordan provides most
interesting insights on interpretations of the Judiciary Act of
1789 and the doctrine of federal criminal common law by Chief
Justice Jay and other leaders of the Philadelphia Bar.
In "UNITED STATES V. CALLENDER: Judge and Jury in a
Republican Society," an analysis of an important Sedition
Act case that was tried in 1800, Kathryn Preyer offers important
information on legal theories about the nature of union and
republican society which unfold in the context of primarily
political conflicts and debates about the role of localism versus
nationalism between bench and bar and federal and state authority
in this case.
Mark Tushnet's "Dual Office Holding and the Constitution: A
View from Hayburn's Case" is an excellent article. He uses
historical analysis in light of liberal and civic republican
theory to demonstrate that MISTRETTA V. UNITED STATES (1989) --
which upheld the constitutionality of a law requiring federal
judges to sit on the United States Sentencing Commission -- was
in line with concepts of dual office holding by judges at the
time of the Judiciary Act and the early 19th century. Judges as
lawyers and citizens, not legislators or members of the
executive, were permitted in the early years of the republic to
hold dual offices, a judgeship and some other federal position.
Tushnet argues that dual office holding was not viewed as a
violation of separation of powers or founding principles about
the abuse of power by the Founders and drafters of the Judiciary
Act of 1789 because of functional and pragmatic considerations
about the effects of life tenure of judges and the professional
discipline of members of the bar, as compared to the general
citizenry. This analysis builds on important theoretical
arguments made in Tushnet's 1998 book RED, WHITE, AND BLUE: A
CRITICAL ANALYSIS OF CONSTITUTIONAL LAW on the effects of the
inability of the founders to resolve tensions between civic
republican and liberal principles. In "MURDOCK V. MEMPHIS:
Section 25 of the 1789 Judiciary Act and Judicial
Federalism," William M. Wiecek concludes that MURDOCK has
been improperly read as a foundation of the independent state
grounds doctrine that authorizes a constricted Supreme Court
appellate jurisdiction over questions of state law.
In Gerhard Casper's "The Judiciary Act of 1789 and Judicial
Independence," it is argued that sections of the Act
providing for civil juries, restricting Supreme Court review to
errors of law, and limiting equity jurisdiction should be viewed
as implementing separation-of-powers notions in light of concerns
about congressional control of the judiciary. This finding is
derived from a comparison of American and French constitutional
theory of the Founding Period and provides a counter argument, at
least in part, to the position of G. Edward White.
Finally, Michael Kammen offers an original essay explaining why
costly and elaborate "Temples of Justice" (courthouses)
were built around the nation in the early years of the republic.
Kammen offers insights on how changing perceptions of "doing
justice" from the frontier days through the 20th century
inform the building and architecture of courthouses. He argues
that these edifices fit with new definitions of the need by the
state to "do justices" in a "temple of
justice," in contrast to prior legal
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visions of seeking consent as to what constitutes justice among
all parties. When Kammen speaks in terms of masks, symbols, and
anthropology, without offering any deep scholarly insights on the
subject, he leaves me. However, as a review of court architecture
and the politics of why court houses were constructed -- to be
the county seats -- this pictorial essay is quite informative.
This book is an important contribution because of the overall
quality and depth of its essays. It provides valuable and quite
various insights into a wide range issues: the politics and
thought of the Founding Period and of the Judiciary Act of 1789,
the relationship, or lack thereof, between the principles behind
the Judiciary Act of 1789 and constitutional principles of
national and state sovereignty, and the place of the federal
courts and common law in our legal process, through the 19th and
20th Centuries.
Several of the essays, are particularly enlightening because they
draw on recently discovered material on the Judiciary Act of 1789
and the formative period of Supreme Court by documentary history
projects on the First Federal Congress, 1789-1791 and the Supreme
Court, 1789-1800. While the range of disciplines that inform
these essays is limited to history and law, and the collection
could have been improved by the inclusion of the work on judicial
politics and constitutional law by political scientists, this
collection of essays will be of some importance to political
scientists who are expert in constitutional law and jurisprudence
primarily in suggesting that many of the contemporary
characterizations of federal courts, separation of powers, the
supremacy of the Constitution and federal courts, and
federal-state relations do not conform with the history and
politics of the late eighteenth century.
Copyright 1992