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“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”
Mark J. Gabrielson LSTU E-107
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
Mark J. Gabrielson LSTU E-107
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
Mark J. Gabrielson LSTU E-107
Jefferson
Madison Hamilton
Adams
Mark J. Gabrielson LSTU E-107
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)
Mark J. Gabrielson LSTU E-107
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
Mark J. Gabrielson LSTU E-107
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
Mark J. Gabrielson LSTU E-107
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
Mark J. Gabrielson LSTU E-107
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)
Mark J. Gabrielson LSTU E-107
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
Mark J. Gabrielson LSTU E-107
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
Mark J. Gabrielson LSTU E-107
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
Mark J. Gabrielson LSTU E-107
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
Mark J. Gabrielson LSTU E-107
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