University of Wisconsin–Madison

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 both the Colonial Era and Post-Revolutionary Period, legislative councils continued this tradition. In New York, the Court of Error and Impeachment had review power. 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

(AF) Agrippa V, Massachusetts Gazette, 11 December 1787 (pdf)

Decisions Not Reviewable

(AF) Brutus XI, New York Journal, 31 January 1788 (pdf)
(AF) A Well-Wisher to Good Government, Virginia Independent Chronicle, 18 June 1788 (pdf)

Equity Powers

(AF) Dissent of the Minority of the Pennsylvania Convention, Pennsylvania Packet, 18 December 1787 (pdf)
(AF) Brutus XIII, New York Journal, 21 February 1788 (pdf)
(AF) George Mason Speech in the Virginia Convention, 19 June 1788 (pdf)

Inferior Courts

(F) Cassius II: To Richard Henry Lee, Esquire, Virginia Independent Chronicle, 9 April 1788 (pdf)
(F) Edmund Pendleton Speech in the Virginia Convention, 20 June 1788 (pdf)
(AF) Brutus I, New York Journal, 18 October 1787 (pdf)

Judicial Independence

(F) Publius: The Federalist 78, Book Edition II, 28 May 1788 (pdf)
(F) Publius: The Federalist 81, Book Edition, 28 May 1788 (pdf)
(AF) Brutus XI, New York Journal, 7 February 1788 (pdf)
(AF) Brutus XV, New York Journal, 20 March 1788 (pdf)

Jurisdiction

(F) Aristides: Remarks on the Proposed Plan, 31 January 1788 (pdf)
(F) Hugh Williamson: Speech at Edenton, N.C., New York Daily Advertiser, 25-27 February 1788 (pdf)
(F) Publicola: An Address to the Freemen of North Carolina, State Gazette of North Carolina, 20 March 1788 (pdf)
(F) John Marshall Speech in the Virginia Convention, 20 June 1788 (pdf)
(F) Publius: The Federalist 80, Book Edition II, 28 May 1788 (pdf)
(F) Publius: The Federalist 81, Book Edition II, 28 May 1788 (pdf)
(F) James Madison Speech in the Virginia Convention, 20 June 1788 (pdf)
(AF) A Democratic Federalist, Pennsylvania Herald, 17 October 1787 (pdf)
(AF) Centinel II, Philadelphia Freeman’s Journal, 24 October 1787 (pdf)
(AF) Boston American Herald, 7 January 1788 (pdf)
(AF) Luther Martin: Genuine Information X, Baltimore Maryland Gazette, 1 February 1788 (pdf)
(AF) Brutus XIII, New York Journal, 21 February 1788 (pdf)
(AF) Brutus XIV, New York Journal, 28 February 1788 (pdf)
(AF) George Mason Speech in the Virginia Convention, 19 June 1788 (pdf)
(AF) Patrick Henry Speech in the Virginia Convention, 20 June 1788 (pdf)

Jury Trials

(F) An American Citizen IV: On the Federal Government, Philadelphia, 21 October 1787 (pdf)
(F) One of the Middling-Interest, Massachusetts Centinel, 28 November 1787 (pdf)
(AF) An Old Whig III, Philadelphia Independent Gazetteer, 20 October 1787 (pdf)
(AF) Centinel II, Philadelphia Freeman’s Journal, 24 October 1787 (pdf)
(AF) Federal Farmer: An Additional Number of Letters to the Republican, New York, 2 May 1788 (pdf)

Location and Access to Courts

(AF) Patrick Henry Speech in the Virginia Convention, 7 June 1788 (pdf)

Organization of the Judiciary

(F) A Landholder V, Connecticut Courant, 3 December 1788 (pdf)
(F) Cassius II: To Richard Henry Lee, Esquire, Virginian Independent Chronicle, 9 April 1788 (pdf)
(AF) Federal Farmer, Letters to the Republican, c. 8 November 1787 (pdf)
(AF) Agrippa V, Massachusetts Gazette, 11 December 1787 (pdf)

Review Powers

(F) James Wilson Speech in the Pennsylvania Convention, 1 December 1787 (pdf)
(F) Oliver Ellsworth Speech in the Connecticut Convention, 7 January 1788 (pdf)
(AF) Brutus XI, New York Journal, 31 January 1788 (pdf)

Tenure

(F) Publius: The Federalist 78, Book Edition II, 28 May 1788 (pdf)
(F) Publius: The Federalist 79, Book Edition II, 28 May 1788 (pdf)
(AF) Brutus XV, New York Journal, 20 March 1788 (pdf)