The Supreme Court in the Early Republic: The Chief Justiceships of John Jay and Oliver Ellsworth

1. Creating the Court

1 CREATING THE COURT There was a fundamental ambivalence among the delegates who converged upon Philadelphia in the summer of 1787 to consider a new constitutional order for their loosely confederated states. Almost all of them wanted to create a more powerful general government. For example, virtually everyone at the Constitutional Convention agreed that under the Articles of Confederation, the Continental Congress lacked sufficient legal authority and fiscal stability to deal effectively with foreign affairs. Similarly, most of the delegates believed that the general government needed more power to remedy domestic problems implicating significant national interests. At the same time, however, many-probably most-of the delegates feared that a new and more powerful general government might abuse its new authority. After the Convention, James Madison-with characteristic elegance and insight-forthrightly described the delegates' dilemma: If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls or government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.l The delegates were especially concerned about the general government's greatly expanded legislative authority and spent most of the summer 1. FEDERALIST No. 51 at 349 (T. Madison). 4 CREATING THE COURT 5 searching for appropriate "auxiliary precautions" against the abuse of this new power. Obvious examples are the Grand Compromise, apportioning representation in the House and Senate, the provision securing the importation of slaves until 1807, and the abortive attempt to require a super majority vote for legislation regulating commerce. When the delegates considered the new government's judicial powers, the search for auxiliary precautions intensified. Indeed, the need for precautions against judicial abuse was especially acute because the federal judges' life tenure effectively negated Madison's "primary control"- periodic election by the people. As a result, much of the Convention 's deliberations on the judiciary involved a search for auxiliary precautions against judicial abuse. THE FEDERAL COURTS' SUBJECT.MATTER JURISDICTION The most significant issues regarding the judiciary involved the extent of the national courts' authority to adjudicate cases. In particular, there was significant disagreement among the delegates about the answer to two questions: what specific categories of judicial cases should be entrusted to federal determination, and should there be an extensive system of federal trial courts distributed throughout the nation? Everyone agreed that there should be a Supreme Court, and there was a consensus that the federal judiciary's authority should extend to certain types of cases. But a serious effort was made to prevent the creation of an extensive federal judicial system with trial courts in each state. There was also significant initial disagreement over the specific categories of cases that should be entrusted to federal determination-what twentieth-century attorneys call federal subject-matter jurisdiction. This legal concept ofjurisdiction, then and now, does not refer to the substantive rules of law that are used to regulate society and to determine who wins or loses lawsuits. Instead, jurisdiction is a technical concept concerning the courts' power to adjudicate particular categories of cases. As Alexander Hamilton explained, the word jurisdiction "is composed ofJUS and DICTO,juris, diction, or a speaking or pronouncing of the law."2 In other words, a court without jurisdiction is without authority to speak or pronouncejudgment in a case. Ifa claim is filed in a court withoutjurisdiction over that particular type ofclaim, the litigation must be dismissed for lack ofjurisdiction. Such a dismissal is not necessarily a 2. FEDERALIST No. 81 at 551 (A. Hamilton). 6 THE SUPREME COURT IN THE EARLY REPUBLIC victory for the defendant; the dismissing court has simply refused to decide the case one way or another. The claim ordinarily may then be refiled in some other court that does have jurisdiction. Althoughjurisdiction is an esoteric legal concept, it had enormous implications at the Philadelphia Convention because it involved the new federal government's power to act directly upon American citizens. To the extent that the federal courts lacked jurisdiction to adjudicate cases implicating a national interest, the cases would have to be determined by state courts. Therefore questions ofjurisdiction directly involved the...