By: Mike Maharrey
On this date in 1789, George Washington signed the Judiciary Act into law. This was arguably the first federal exercise of unconstitutional power.
Article III of the Constitution delegated judicial power to the Supreme Court and empowered Congress to “ordain and establish” inferior federal courts.
The Judiciary Act of 1789 was the first enabling legislation for the federal judicial system. The act set up the structure and circumscribed the jurisdiction of the federal court system. It also created the position of attorney general in the executive branch.
Senator Oliver Ellsworth of Connecticut was the principal author of the legislation. The bill passed the Senate 14–6 on July 17, 1789, and it cleared the House by a 37-16 vote on Sept. 17 with amendments. The Senate and House passed the final version of the bill a few days later and it became law with Washington’s signature on Sept. 24.
The Judiciary Act established circuit and district courts throughout the states. It also specified the jurisdiction of the Supreme Court. This is where the act ran afoul of the Constitution.
Section 25 of the Judiciary Act allowed some state court decisions to be appealed to the Supreme Court. Specifically, it gave the Supreme Court appellate jurisdiction over state courts if they held any statute or treaty of the United States invalid. The act also gave the Supreme Court appellate jurisdiction over a state court that held valid any state law or practice that was challenged as being inconsistent with the federal constitution, treaties, or laws; or rejecting any claim made by a party under a provision of the federal constitution, treaties, or laws.
This gave the Court far more power than supporters of the Constitution said it would have during the ratification debates. As historian Brion McClanahan put it, “The original Constitution died with the passage of the Judiciary Act in June of 1789.”
“That should never have happened. But it did, and now we are suffering the consequences. Everything is a ‘national’ issue even if it isn’t.”
During the ratification debates, supporters of the Constitution said that the SCOTUS would have limited jurisdiction and could never invalidate a state law unless it clearly violated Article I, Section 10 of the Constitution. Even then, there was debate about the Supreme Court’s powers relating to constitutional interpretation.
Even ardent nationalist and future Chief Justice John Marshall argued that the Court would have very limited jurisdiction. Addressing an opponent of the Constitution during the Virginia ratifying convention, Marshall assured the delegates that the Supreme Court would only adjudicate federal law.
“Are there any words in this Constitution which exclude the courts of the states from those cases which they now possess? Does the gentleman imagine this to be the case? Will any gentleman believe it? Are not controversies respecting lands claimed under the grants of different states the only controversies between citizens of the same state which the federal judiciary can take cognizance of? The case is so clear, that to prove it would be a useless waste of time. The state courts will not lose the jurisdiction of the causes they now decide. They have a concurrence of jurisdiction with the federal courts in those cases in which the latter have cognizance.”
As McClanahan put it, “Marshall, of course, was being disingenuous. Many of his later rulings smacked down state sovereignty and enlarged the power of the Supreme Court.”
According to the Library of Congress, there isn’t a full record of the debates over the bill. But one senator did take notes.
Maclay’s Journal is one of the few accounts of Senate floor activity in the early Congresses. Senate sessions were closed to the public until 1795. Senator William Maclay from Pennsylvania kept a diary of his experiences in the First Congress. Although an opponent of the bill, Maclay wrote extensively on the Judiciary Act.
On July 7, 1789, Maclay noted his fear that the bill would destroy the federal system:
“The judiciary was taken up for a third reading. I can scarcely account for my dislike for this bill, but I really fear it will be the gunpowder-plot of the Constitution.”
Stretching Supreme Court jurisdiction like this may seem like a minor violation of the Constitution, but as Thomas Jefferson wrote in his 1791 Opinion on the Constitutionality of a National Bank, there is no such thing as a minor usurpation of power.
“To take a single step beyond the boundaries thus specifically drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition.”
Expanding federal court jurisdiction was certainly at least a single step beyond the power of Congress.
And we see the consequences today.
The expansion of Court power in 1789 was the first step in eroding state sovereignty. Today, the Supreme Court has in many ways become the most powerful branch of the federal government, acting as a 9-person super legislature dictating policy across the U.S.
That’s exactly what Sen. Maclay predicted would happen.
“I opposed this bill from the beginning. It certainly is a vile law system, calculated for expense and with a design to draw by degrees all law business into the Federal courts.”
This underscores the importance of stopping government overreach at the very beginning.
As John Adams wrote, “obsta principiis.” This is a Latin phrase meaning withstand beginnings, or resist the first approaches or encroachments. Colloquially, today we would say, “nip it in the bud. That’s exactly the phraseology Adams used.
“Nip the shoots of arbitrary power in the bud, is the only maxim which can ever preserve the liberties of any people.”