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Published online by Cambridge University Press: 05 August 2009
ALTHOUGH the dynamics of American politics demand perpetual and creative alterations in the constitutional system, the building of the original complex of arrangements on the foundation provided by the framers was probably the most precarious undertaking in America's history. It was the task of Congress to turn the blueprint for a government into an operating reality, and all at one time. Any structural weakness might have brought down the entire edifice or, at least, would have forced some rebuilding at a later time under new stresses and strains. The establishment of the Supreme Court was peculiarly significant since, paradoxically, the Constitution deemed it as coordinate and co-equal with the Presidency and the Congress, and yet the Court was a creature of Congress in the sense that its detailed form and substance depended upon a statutory enactment. Had the framers spelled out in Article III the precise structure of a federal judicial system, prescribed the detailed nature of the Supreme Court's appellate jurisdiction, and explicitly authorized judicial review, much of the conflict which continues to this day might have been avoided. Instead, the Constitution left these important questions open to legislative discretion and the stage was set for frequent legislative-judicial altercations which at times have almost reached an irreparable constitutional crisis.
1 Chisholm v. Georgia, 2 Dallas 419 (1793)Google Scholar.
2 As quoted in Loth, David, Chief Justice John Marshall and the Supreme Court (New York, 1949), p. 162Google Scholar.
3 de Tocqueville, Alexis, Democracy In America (New York, 1948), I, 151Google Scholar.
4 Ten of the twenty Senators and eight members of the House had been among the fifty-five members of the Constitutional Convention and five Senators and twenty-six Representatives had been members of the state ratifying conventions.
5 Committee members who had been at the Convention were Ellsworth (Conn.), Paterson (N.J.), Strong (Mass.), Bassett (Del.), and Few (Ga.). The remaining members were Maclay (Pa.), Lee (Va.), and Wingate (N.H.).
6 Voting against the Judiciary Bill were Pierce Butler (S.C.), Richard Henry Lee and William Grayson (Va.), John Langdon and Paine Wingate (N.H.), and William Maclay (Pa.).
7 Journal of William Maclay (New York, 1927), p. 114Google Scholar.
8 Ibid.
9 Annals of Congress, I, 814.
10 Ibid., 813. See also the arguments of Jackson, James (Ga.), Annals of Congress, 832–833Google Scholar; Edanus Burke (S.C.), ibid., 843; and Michael Stone (Md.), ibid., 854–859.
11 Richardson, James, Messages and Papers of the Presidents, I (Washington, 1896), 289Google Scholar.
12 Rutledge to Hamilton, January 10, 1801, as quoted in Beveridge, Albert, Life of John Marshall (New York, 1944), II, 550Google Scholar.
13 The House passed the bill on January 20 by a vote of 51–43 (Annals of Congress, X, 915) and the Senate approved the bill on February 7 by a vote of 16–4 (ibid., 741–742).
14 Bassett, John Spencer, The Federalist System, 1789–1801 (New York, 1906), p. 293Google Scholar.
15 Farrand, Max, “The Judiciary Act of 1801,” American Historical Review, V (1900), 682–686CrossRefGoogle Scholar.
16 Acts of 1809, 1875, and 1891.
16 Frankfurter, and Landis, , The Business of the Supreme Court (New York, 1927), pp. 24–25Google Scholar.
18 The message read: “The judiciary system of the United States, and especially that portion of it recently erected, will of course present itself to the contemplation of Congress; and that they may be able to judge of the proportion which the institution bears to the business it has to perform, I have caused to be procured from the several States, and now lay before Congress, an exact statement of all the causes decided since the first establishment of the courts, and of those which were depending when additional courts and judges were brought in to their aid.” (Ford, Paul Leicester (ed.), The Writings of Thomas Jefferson (New York, 1892, VIII, 123)Google Scholar.
19 Annals of Congress, XI, 90, 91, 77.
20 Ibid., 92.
21 Uncertain of this newly taken position, the Republicans enacted a bill which put off the next session of the Supreme Court until February, 1803, the August term in 1802 being omitted. (Act of April 29, 1802, Annals of Congress, XI, 1332–1342.)
22 See Annals of Congress, XI, 179–180.
23 Annals of Congress, X, 101. See Warren, Charles, Congress, the Constitution and the Supreme Court (rev. ed.: Boston, 1935), pp. 99–127Google Scholar, for a comprehensive discussion of the early congressional debates and the question of judicial review.
24 See Miller, John C., The Federalist Era: 1789–1801 (New York, 1960), p. 125Google Scholar.
25 Haines, Charles Grove, The Role of the Supreme Court in American Government and Politics, 1789–1835 (Berkeley, 1944), p. 333Google Scholar.
26 6 Wheaton 264 (1821).
27 8 Wheaton I (1823).
28 5 Granch 115 (1809).
29 Penhallow v. Doane's Administrators, 3 Dallas 54 (1795)Google Scholar.
30 U.S. v. Judge Peters, supra.
31 See Johnson, Allen (ed.), Readings in American Constitutional History (Boston, 1912), p. 254Google Scholar.
32 See Schmidhauser, John, The Supreme Court as Final Arbiter in Federal-State Relations, 1789–1957 (Chapel Hill, 1958), p. 39Google Scholar.
33 1 Wheaton 304 (1816).
34 6 Cranch 87 (1810).
35 4 Wheaton 518 (1819).
36 7 Cranch 164 (1812).
37 4 Wheaton 122 (1819).
38 4 Wheaton 316 (1819).
39 8 Wheaton 464 (1823).
40 8 Wheaton 1 (1823).
41 9 Wheaton 723 (1824).
42 With the single exception of the slavery controversy, there has never been a cooperative spirit among the states to protect an abstract doctrine of states' rights. In general a state which had a grievance against the national government (any or all of its branches) had to stand in isolation. In this instance Kentucky, in protesting against encroachments of the federal judiciary, was following the position taken by Virginia after the Hunter's Lessee and Cohens decisions. But Virginia supported the Supreme Court in Green v. Biddle. As Charles Warren pointed out, state opposition to judicial action depended upon a particular interest aided or injured and not upon a political theory held by the states. Warren, Charles, The Supreme Court in United States History (new ed.: Boston, 1926, I, 642)Google Scholar.
43 For the text of the amendment, see XXXVIII, Annals of Congress.
44 See Annals of Congress, XXXVIII, 68–91 for Senator Johnson's remarks.
45 Ibid., 114.
46 Ibid., XXXIX, 1682.
47 Ibid., XLI, 28.
48 Ibid., 336.
49 In the House the bill was debated January 4, 5, 6, 9, 10, 11, 12, 18, 19, 21, 23, 24, 25; April 17, 24, 28; May 7; in the Senate, April 7, 10, 11, 12, 13, 14, 15; May 3, 28.
50 See 2 Register of Debates in Congress 1086.
51 5 Stat. 176. For a history of the bill, see 3 Congressional Globe 10, 27, 51, 185, 197, 209, 243, 251, 280.
52 Brown v. Maryland, 12 Wheaton 419 (1827)Google Scholar.
53 2 Peters 449 (1829).
54 Peters 410 (1830).
55 Letter of Oct. 15, 1830, as quoted in Warren, , History, I, 727Google Scholar.
56 See 6 Register of Debates in Congress 22–452.
57 7 Register of Debates in Congress 532.
58 Ibid., 542.
59 Ibid., 540.
60 See Cherokee Nation v. Georgia 5 Peters 1 (1831)Google Scholar.
61 Worcester v. Georgia 6 Peters 515 (1832)Google Scholar.
62 See Warren, , The Supreme Court, I, 764–765Google Scholar; see also Schmidhauser, , op. cit., pp. 33–36Google Scholar.
63 See Kelly, Alfred H. and Harbison, Winfred A., The American Constitution (New York, 1955), p. 303Google Scholar.
64 See Longaker, Richard P., “Andrew Jackson and the Judiciary” Political Science Quarterly, LXXI, 363Google Scholar.
65 See 9 Register of Debates in Congress 1903.
66 McCloskey, Robert G., The American Supreme Court (Chicago, 1960), p. 72Google Scholar.