The Historical Foundations of the American Judiciary

The Historical Foundations of the American Judiciary

Description

The federal Constitution of 1787 and state constitutions written both before and after its adoption did not create the American judicial system that exists today. The judiciary’s foundations lie elsewhere—in the common law of England stretching as far back as the Middle Ages and in the societal needs that arose when the polity created by independence and the new federal and state constitutions superseded older eighteenth-century forms of governance. Even on subjects other than the judiciary, most of today’s constitutional law and practice stems not from constitutional texts themselves but from pre-constitutional precedents or post-constitutional developments. A few familiar examples from federal constitutional law will illustrate. The Constitution’s prohibition on bills of attainder and its adoption of impeachment as the sole device for congressional removal of officials can only be understood against the background of earlier English history. Another example is the scope of the Commerce Clause, which was understood to give Congress much narrower authority to regulate economic affairs in 1787-1788 than it does today. Members of the first Congress and of George Washington’s administration disagreed, for example, over whether Congress had the power to establish a national bank or even to build lighthouses to aid seaborne traffic. In contrast, even after the recent Supreme Court cases that have cut back on the breadth of the commerce power, no one doubts the authority of Congress to build an interstate highway system or of the Federal Reserve Board to regulate even purely intrastate banking transactions. In similar fashion, the Constitution of 1787 says nothing about presidential term limits. Nonetheless, when President George Washington refused to run for a third term, he established an important constitutional practice. For nearly a century and a half, no president sought a third term, and when President Franklin D. Roosevelt successfully did so in 1940, many viewed his reelection as a violation of the Constitution. They then proceeded to write their understanding of constitutional law into text with the adoption of the Twenty-second Amendment. Racial segregation offers a final illustration. Few scholars believe that the men who drafted and ratified the Fourteenth Amendment had definitively resolved the issue of whether their language would outlaw de jure segregation. Nor does anyone seriously deny that Brown v. Board of Education (1954) created novel constitutional law when it ruled that the Fourteenth Amendment outlaws separate but equal facilities mandated by state law. Similarly, the Constitution of 1787 speaks only in minimal fashion of the national judiciary. Article III, which is the portion of the Constitution dealing with courts, itself is very sparse, containing less than five hundred words. Section 1 merely creates the Supreme Court, authorized Congress to create lower courts, and gives federal judges life tenure. Section 2 provides for jury trial in criminal cases and specifies the jurisdiction of federal courts: in essence, it authorizes federal courts to hear cases arising under federal law and cases involving citizens from more than one state and remits most other cases to state courts. Article III’s final section defines and limits the applicability of the crime of treason. The pressures under which the framers of the Constitution were operating explain the brevity of Article III. It is important to realize that after the framers had drafted Articles I and II, dealing with the legislative and executive branches, they wished to finish their job quickly and get their document ratified. They were tired, they wanted to get home before winter, and above all, they needed to let the public know what they had been doing. They had readily agreed about some matters, such as the necessity of a Supreme Court and of granting life tenure to judges, and they incorporated their agreements into Article III. But other issues, especially whether lower federal courts should exist and how extensive they should be, were controversial issues for resolution by Congress and the courts in the future. Thus, it is necessary to understand the constitutional foundations of the federal courts as a product of development over time. The original Constitution for the most part did not create foundational law, but only the most basic of institutions. Thereafter, Congress and the courts had to work out the law under which the federal judiciary continues to function today. State constitutions were no different. Provisions dealing with state judiciaries are more terse than provisions dealing with the other branches of state government. Moreover, they tend to dal mainly with matters of housekeeping and to ignore larger issues about the role of courts in the polity. None of the original thirteen state constitutions, for example, made any mention of judicial review—the power of state courts to hold acts of their state legislatures unconstitutional. Mention of judicial review remains rare even today. Of course, like Article III of the federal Constitution, state constitutional provisions on the judiciary are not entirely irrelevant. Some of the housekeeping rules they establish are important, such as the rule in most states that judges hold office for fixed terms or until a stated retirement age, whereas federal judges hold office for life, unless they resign, retire, or are impeached. But the key point bears repetition: federal and state constitutions do not specify the role of the judiciary in the overall polity, do not explicate precisely what it is that courts and judges do, and do not untangle the relationship between the countermajoritarian judicial branch of government and the more democratic executive and legislative branches. To understand these matters it is necessary to turn to history—especially the history of the eighteenth century and the early decades of the nineteenth.

Source Publication

The Judicial Branch

Source Editors/Authors

Kermit L. Hall, Kevin T. McGuire

Publication Date

2005

The Historical Foundations of the American Judiciary

Find @ NYU

Share

COinS