Center for the Study of the American Constitution
Department of History

The Debate Over the Judicial Branch

Antifederalists viewed the federal judiciary as a source of danger to individual liberty, the state judiciaries, and the future existence of the states themselves. The Constitution guaranteed jury trials in criminal cases, but it said nothing about civil cases. Thus, Antifederalists were concerned that the judicial power of the United States would compromise the right to jury trials in civil cases. They also noted that in criminal cases, juries of vicinage (local juries) were not guaranteed. This meant that individuals might need to travel distances of hundreds of miles to federal courts placing undue hardship on them. In cases that would come before the Supreme Court, travel could entail thousands of miles. Additionally, Antifederalists worried that the jurisdiction of the federal courts was too broad, and as federal power grew, which they believed was inevitable, more cases would be taken to federal courts rather than state courts, thus reducing the importance of state judiciaries. Since federal judges would be the interpreters of the ambiguities of the Constitution, the federal courts would accrue more power as they allowed federal power to expand at state expense.

Federalists responded that of the three branches, the judicial branch was “least dangerous,” because it only had the power of judgment. They denied that jury trials were always necessary or were endangered, either by the silence of the Constitution on civil cases or by the appellate jurisdiction of federal courts in matters of fact. They defended the jurisdiction of the federal courts as the only means to provide justice in foreign and interstate cases, and impose uniform obedience to the Constitution and federal law.

Federalists viewed the courts as the intermediary between the people and Congress and the Presidency. The courts, through judicial review, would uphold the Constitution against attempts by Congress or the President to enlarge their powers. As such, the judiciary was a protector of the people, not a danger to their liberties.

Among the issues that were not heavily debated, was judicial review since both recognized the judiciary would exercise this power under the new Constitution. The precedents of courts exercising the power of judicial review were well known to the Founders. In England the Law Lords served as a court of last resort. In America both in the Colonial Era and Post-Revolutionary Period, legislative councils continued this tradition.

The concept of judicial review was argued in the New York case of Rutgers v. Waddington in 1784 which centered over the provisions of New York’s Trespass Act passed in March 1783. The act provided that Patriots returning to territory that had been occupied by the British army could sue people who had occupied their abandoned property under the rule of the British authorities. Alexander Hamilton, in defense of Waddington who had occupied property owned by Rutgers, argued that the Trespass Act was null and void because it violated both the law of nations and the Treaty of Peace of 1783. The law of nations, which was recognized by New York as part of the common law, allowed occupying forces to use property under their authority without compensation to the owner, while the Treaty of Peace protected Loyalists from postwar prosecutions. The case was presented in the Mayor’s Court in New York City on 29 June 1784 presided over by Mayor James Duanne and four aldermen. In a divided decision handed down on 17 August 1784, Mayor Duane ruled that the defendant should be liable to pay only £800 for rent of the property before the British occupied New York City—not the full amount of £8,000 demanded for the entire seven-year period of British occupation.

A meeting of concerned New Yorkers in September 1784 appointed a committee chaired by Melancton Smith to draft a report condemning Mayor Duane’s decision. The committee’s report, published as an address to the people of New York, considered whether the court could “consistently with our constitution and laws” make a decision “contrary to the plain and obvious meaning of a statute.” The report denounced the Court’s “assumption of power” that was “inconsistent with the nature and genius of our government, and threatening to the liberties of the people.” The committee felt that such a judicial power to “controul the supreme legislative power” was “absurd in itself. Such power in courts would be destructive of liberty, and remove all security of property. The design of courts of justice in our government, from the very nature of their institution, is to declare laws, not to alter them. Whenever they depart from this design of their institution, they confound legislative and judicial powers.” The committee did not want to limit the “independency” of the courts, but the courts should stay within the limits of the law. Furthermore, the court’s decision would likely serve as precedent that would endanger “every citizen of this state” and consequently “merits the attention of us all” so that “judicial tyranny” would not overturn the state’s “excellent constitution.” It was felt that the principle in the decision was “dangerous to the freedom of our government, and that a perseverance in that principle would leave our Legislature nothing but a name, and render their sessions nothing more than an expensive form of government.” This decision would be “a hasty and ill-judged revolution” that “put to the hazard all that we now enjoy.”

The New York legislature then censured the Rutgers v. Waddington decision and passed an act implementing the Court of Impeachments and Errors that had been provided for in the state’s constitution of 1777 but had never been implemented. The court was to consist of the deputy governor (as president of the state Senate), the chancellor, the three judges of the Supreme Court, and all twenty-three of the state senators. The chancellor and the judges were forbidden to sit on their own impeachment or on cases that they had presided over. In essence, the court of impeachment and errors was to serve as a legislative court of last resort similar to the role occupied by the British House of Lords and the New Jersey legislative council.

Thus, the idea of judicial review was not a new or radical idea during the Founding Period. However, during the ratification period, the debate centered on whether judicial review was synonymous with judicial supremacy. Federal courts in the proposed Constitution were uniquely independent from the other branches of government. This independence when coupled with the power of judicial review was central in the debates between Federalists and Antifederalists. Publius in The Federalist 78 suggested that having judicial review was advantageous because it afforded federal judges “an essential safeguard against the effects of occasional ill humours in the society.” Antifederalist Brutus argued that federal judges would be “independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.”

(F) Federalist Essays/Speeches
(AF) Antifederalist Essays/Speeches

Criminal Cases

Decisions Not Reviewable

Equity Powers

Inferior Courts

Judicial Independence

Jurisdiction

Jury Trials

Location and Access to Courts

Organization of the Judiciary

Review Powers

Tenure