“The Historical Foundations of the American Judiciary”

William E. Nelson, JD, PhDProfessor of Law, New York University

Chapter 1 InThe Judicial Branch

Kermit L. Hall and Kevin T. McGuire, Eds.

Mark J. Gabrielson LSTU E-107

Mark J. Gabrielson LSTU E-107

Principal Chapter Themes

1. Foundations: English common law and late 18th and early 19th century developments

2. “Law-Finding” powers of juries vs. justices

3. Two Visions of Democracy: Republicans vs. Federalists

Mark J. Gabrielson LSTU E-107

Principal Chapter Themes (cont’d)

4. Instituting the Rule of Law: Four Part Federalist Programa) Enabling Precedent (States and Federal)b) Judicial Seizure of Power From Juries (litigation

arising from Sedition Act 1798) c) Formalizing Legal Educationd) Judicial Review of Legislation (Marbury v. Madison)

5. Brown v. Board of Education “changed everything”

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American Judiciary – Historical Foundations

• Common law of England• Article III very brief– Drafters under time pressure to complete

• State and federal constitutions do not:– Specify the role of the judiciary in the overall

polity– Explain what courts and judges do– Specify the relationships among the several

branches

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Colonial (English) Juries

• Judges and courts the only officers of central government that colonists interacted with

• 18th century colonial juries considerably more powerful than now– Determined both facts and applicable law

• Jury system introduced a “mixture of popular power” (p. 5) into colonial courts

Two Visions of Democracy in Late 18th Century

“Majoritarian Democracy”

– Local and state-wide institutions should possess power to declare the will of popular majorities to be law

Republicans

“Deliberative Democracy”– Legal rights preexist popular

will– Checks and balances,

divided powers– People can change law, but

obstacles need to be placed in the path to change

Federalists

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Jefferson

Madison Hamilton

Adams

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Politics in Late 18th Century

• Decisive battle was Presidential election of 1800 won by Jefferson– Federalists “fled” back to the few states where

they retained electoral majority (mostly in New England)

– Federalist focused on judiciary• “Developed a deliberate alternative to majoritarian

democracy” (p. 9)

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Instituting the Rule of Law

• Federalist four-part judicial program1. Organize courts and publish body of case law to

support precedent2. Deprive juries of power to determine law and

confer that authority exclusively on judges3. Cultivate conception of law as a science

requiring formal education4. Give the judiciary broad power of judicial review

on policy grounds

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1. Enabling Precedent - States• New York (Federalist)

– James Kent – developed bodies of case law to enable precedent

• Massachusetts (Federalist)– Theodore Sedgwick – imitated Kent

• New Hampshire (Federalist)– Jeremiah Smith – judicial control of the

law• Kentucky (Republican)

– Judiciary decentralized and powers limited

• Ohio (Republican)– Strong judiciary delayed until 1820’s

• Pennsylvania (Moderate Republicans and Federalists)– Gradually strengthened judiciary

Kent

Sedgwick

Smith

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1. Enabling Precedent - FederalChief Justice John Marshall

(Federalist)• Circuit-riding still in effect• Justices should communicate with

each other by letter• Board and dine together in the same

inn when possible• Abolished in seriatim opinions *;

rather formulate a single opinion in private, then issue as opinion of all• Discouraged dissent

* Each judge proffers individual opinion

John Marshall

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2. Judicial “Seizure of Lawfinding Power” From Juries

• Alien and Sedition Acts of 1798– Made criticism of the (Federalist) government a

crime• Republicans insisted Sedition Act was unconstitutional

under the First Amendment• Federalist judges began instructing juries that “…legal

issues about the constitutionality of the Sedition Act were solely for the courts” (p. 15)

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2. Judicial Seizure of Lawfinding Power From Juries (cont’d)

• Federal Justice William Paterson– 1798 – instructed jury that Sedition

must be treated as constitutional until “declared null and void by a tribunal competent for the purpose” (p.15)

• Federal Justice Samuel Chase – 1800 – issued prepared opinions

forestalling consideration of the constitutionality of the Sedition Act

– Thought the ability of a petit jury to declare a statute of Congress void was “absurd” (p. 17)

William Paterson

Samuel Chase

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3. Professional Legal Education

• 1790s – 1820s - Tapping Reeve (Federalist, CT) Litchfield School of Law– Vision:

• Seize the law from juries• Recast the law into a technical body

of precedent• Accessible only to lawyers and

judges with the education necessary to understand and manipulate it

• 1820s – Justice Joseph Story; Dane Professor of Law at Harvard

Tapping Reeve

Joseph Story(in Langdell Hall)

Litchfield Law School

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4. Judicial Review of Constitutionality of Legislation

• Stuart v. Laird – Federalist test case challenging the constitutionality of the Judiciary Act of 1802– Federalists lost

• Marbury v. Madison – Judiciary Act of 1801 created DC courts– William Marbury (Federalist) appointed to DC court by lame

duck Adams– New Secretary of State James Madison refused to deliver

Marbury’s commission– Marbury sued in Supreme Court

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4. Judicial Review of Constitutionality of Legislation (cont’d)

• Marbury v. Madison (cont’d)– Important for what Court did not do: did not challenge the validity

of legislation– Established the concept of demarcation between law and politics– Granted Marbury’s commission on grounds of his individual

rights, not politics• Issuing a writ of mandamus instructing the Executive Branch to deliver

the commission would have been violating this separation

– A “nuanced” precedent of judicial review of legislative constitutionality

– Judicial review in the restrained form established by Marbury became widely accepted

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Brown v. Board of Education• Decision did not:– Resolve constitutional ambiguity– Defer to political branches and take

constitutional law in new direction demanded by the people

• Made a policy judgment that Jim Crow had to end– A judicially-created constitutional

doctrine independent of the people and other branches

– Achieved an aspiration of the High Federalists

Warren Court 1954

“The Historical Foundations of the American Judiciary”

William E. Nelson, JD, PhDProfessor of Law, New York University

Chapter 1 InThe Judicial Branch

Kermit L. Hall and Kevin T. McGuire, Eds.

Mark J. Gabrielson LSTU E-107