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Judiciary Act of 1789

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The Judiciary Act of 1789 established the lower federal courts. Under Article III, Section 1, of the U.S. Constitution, "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." In the Judiciary Act, the first Congress created federal trial courts and federal appeals courts to comply with this provision.

The first Congress engaged in considerable debate over the Judiciary Act. This was not surprising: the Constitutional Convention, which had ended a year and a half earlier, had revealed a deep division between Federalists and Anti-Federalists. Federalists promoted federal powers to protect against local bias and ensure federal supremacy. Anti-Federalists opposed a strong federal government and preferred to leave as much power as possible to the states. Although the debate over the Judiciary Act was not conducted entirely by Federalists and Anti-Federalists, these groups represented the opposing viewpoints.

Many concessions were made to Anti-Federalists in the Constitution. However, the ratification of the Constitution was a victory for Federalists because it created the potential for considerable federal powers. The bill for the Judiciary Act—the first bill to be considered in the first Congress—provided another opportunity for Anti-Federalists to present their arguments against strong federal powers.

On April 7, 1789, the Senate ordered itself to create a committee to draft a bill organizing a federal judiciary. By the end of May, a committee led by oliver ellsworth, of Connecticut, william paterson, of New Jersey, and Caleb Strong, of Massachusetts, had devised a detailed, complex proposal. The committee envisioned a small, unintrusive federal judiciary with exacting jurisdictional requirements. This meant that a case would have to have certain characteristics before it could be heard by a federal court. Remembering criticisms made by the Anti-Federalists at the Constitutional Convention, the committee was careful to avoid giving the federal courts too much authority.

Despite the restrictions on jurisdiction, Anti-Federalists opposed the bill on the grounds that a federal judiciary in any form would deprive states of the right to exercise their own judicial powers. They argued that state courts were more than capable of deciding federal issues. Furthermore, the provision in Article III, Section 1, of the Constitution did not require Congress to create lower federal courts: it merely suggested that Congress do so.

The Anti-Federalists, led by Richard Henry Lee and William Grayson, both of Virginia, submitted amendments to limit the scope of the act. Samuel Livermore, a congressman from New Hampshire and an Anti-Federalist, moved the House to limit the jurisdiction of inferior federal courts to questions of admiralty. Lee did the same in the Senate. Another proposal consisted of creating no lower federal courts and expanding the jurisdiction of the Supreme Court. All the amendments were voted down. Senator William Maclay, of Pennsylvania, wrote in his diary, "I opposed this bill from the beginning…. The constitution is meant to swallow all the state constitutions, by degrees; and this to swallow, by degrees, all the State judiciaries" (Clinton 1986, 1531).

The Federalists, led by James Madison, of Virginia, insisted that a reasonable reading of Article III, Section 1, required Congress to establish lower federal courts. According to the Federalists, federal courts were necessary to ensure the supremacy of federal law. The supremacy of federal law over state law had, after all, been established in Article VI of the Constitution, which stated, in part, that "[t]his Constitution, and the Laws of the United States … shall be the supreme Law of the Land."

The Federalists argued further that federal courts provided a venue that would be less susceptible to bias than that of state courts. The Federalists declared that several types of cases were appropriate only in federal court, including cases involving disputes between states; aliens, or noncitizens; and crimes against the United States.

Under the proposed act, federal juries would comprise persons from all over the region, decreasing the potential for the jury bias that can exist in closely knit state courts. Also, federal judges would have no allegiance to any particular state because they would have judicial responsibility for several states at once, and thus would be less prone to bias than were state judges.

Eventually, the Federalists won enough support to pass the act. The House approved the bill submitted by the Senate without a recorded vote, and President George Washington signed the act into law on September 24, 1789.

The act established two sets of federal courts to operate below the U.S. Supreme Court. On one level, the act created thirteen federal districts. Each of these districts contained a federal trial court that had jurisdiction over minor criminal cases, admiralty and maritime cases, and civil actions on federal matters.

On another level, the act created three federal circuit courts. The circuit courts were given trial court jurisdiction over serious criminal cases and three categories of civil cases: cases where the United States was a plaintiff; cases where at least one of the parties was alien to the United States; and cases between parties of different states, or "diversity" cases, if the amount at issue exceeded $500. Circuit court jurisdiction over diversity cases was made concurrent with state court jurisdiction. This meant that a federal trial was not mandatory, and a plaintiff could sue in either a state or federal court. Also, if a defendant from another state was being sued in state court for more than $500, she or he could have the case moved to the federal circuit court.

Each of the circuit courts comprised a federal district court judge and two Supreme Court justices. This composition was a concession to Anti-Federalists. The general idea was that requiring Supreme Court Justices to sit on circuit courts, or "ride circuit," would force them to keep in touch with local concerns. Theoretically, this would prevent the development of the elite judicial aristocracy feared by the Anti-Federalists.

The Judiciary Act also identified the precise jurisdiction of the Supreme Court: The Supreme Court could hear appeals from the federal district and circuit courts. The Supreme Court could also hear appeals from state courts in cases involving federal treaties or statutes, state statutes that were repugnant to the federal Constitution or to federal laws or treaties, and the interpretation of any clause of the Constitution or of federal laws or treaties. In any case, the decision of a state court would be reviewed by the Supreme Court only if it was against federal interests.

The act gave the Supreme Court trial court jurisdiction over controversies between two or more states and between a state and citizens of another state. The Supreme Court was also given trial court jurisdiction to hear cases against ambassadors, public ministers, and consuls or their domestics, with the adjunct that district courts could also hear cases against consuls or vice consuls. (Consuls and vice consuls were government officers living in another country and responsible for the promotion of U.S. business in that country).

The Judiciary Act fixed the number of justices on the U.S. Supreme Court at six. As the nation grew in size, new circuits were added to the original three, and justices were added to the court along with the circuits. By 1863, the number of justices on the Supreme Court had grown to ten. In 1866, Congress reduced the number of justices to seven. In 1869, the figure was set at nine, where it has remained.

In many sections of the act, federal trial court jurisdiction was made concurrent with state court jurisdiction. This meant that federal courts did not have exclusive jurisdiction over many matters involving federal law. One notable exception was that the federal courts were given exclusive jurisdiction to hear cases involving prosecution for the violation of federal criminal laws.

The Judiciary Act did not provide for federal question jurisdiction. That is, it did not grant federal courts broad authority to hear all cases that arose under the Constitution or federal law. This may have been because no federal laws were on the books at the time the act was established. Whether intentionally or owing to a lack of foresight, Congress chose to identify in the first Judiciary Act the specific cases that could be heard in federal court. Congress did pass a statute authorizing federal question jurisdiction in 1875. However, to this day, Congress usually grants federal court jurisdiction over new laws in a separate statute or clause.

The creators of the Judiciary Act understood it to be a work-in-progress. On the night before its final passage, Madison, an ardent proponent of the act, wrote that it was "defective both in its general structure, and many of its particular regulations" (Clinton 1986, 1539).

The structure of the federal judiciary has changed dramatically since the passage of the first Judiciary Act. The federal judiciary is now more streamlined. The federal district courts handle all federal trials. The circuit courts are now called U.S. courts of appeals, and they are exclusively appeals courts: they no longer have trial court jurisdiction over any cases. Supreme Court justices no longer have to ride circuit. Despite these changes, the Judiciary Act's idea of creating two levels of federal courts beneath the Supreme Court has remained intact.

The act's concern with establishing limits to federal court jurisdiction now seems quaint. In the more than two centuries since the passage of the act, statutes passed by Congress and decisions issued by the Supreme Court concerning the jurisdiction of federal courts have effectively expanded the reach of federal courts. Federal courts have also increased in number: there are now eleven federal circuits, each containing an appeals court and several federal district courts.

Further Readings

Bourguignon, Henry J. 1995. "The Federal Key to the Judiciary Act of 1789." South Carolina Law Review 46.

Clinton, Robert N. 1986. "A Mandatory View of Federal Court Jurisdiction: Early Implementation of and Departures from the Constitutional Plan." Columbia Law Review 86.

Freedman, Eric M. 2000. "Just Because John Marshall Said It, Doesn't Make It So: Ex parte Bollman and the Illusory Prohibition on the Federal Writ of Habeas Corpus for State Prisoners in the Judiciary Act of 1789." Alabama Law Review 51 (winter): 531–602.

Low, Peter W., and John C. Jeffries, Jr. 1994. Federal Courts and the Law of Federal-State Relations. 3d ed. Westbury, N.Y.: Foundation Press.

Pfander, James E. 2001. "Marbury, Original Jurisdiction, and the Supreme Court's Supervisory Powers." Columbia Law Review 101 (November): 1515–612

Wells, Michael L., and Edward J. Larson. 1995. "Original Intent and Article III." Tulane Law Review 70.

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