Inquiry Into the Origin and Course of Political Parties in the United States

by Martin Van Buren

With such a demonstration before them it became the Supreme Court and its supporters, before it committed itself more deeply in the attempt it had entered upon to control the action of the aroused democracy of the country represented in the executive and legislative departments of the Federal Government, to survey, with more care than had perhaps been hitherto used, the means of offense and defense with which the Constitution had invested each.

The result of such a scrutiny could not have failed to satisfy sensible men that the President elect, the new Senate, and the new House of Representatives,—who in their respective positions had frustrated the effort of the late President to subject his successor to a dependence during his entire official term, for the performance of a highly important part of his official duties in the Federal District, upon a magistracy not of his own selection, and had thus far also defeated an attempt, springing from the same spirit and upon an enlarged scale, to saddle the country with an uncalled-for and enormous addition to the existing judicial corps, clothed with extensive authority, and to all substantial purposes irresponsible to the people,—were also invested by the Constitution with ample power not only to defeat a new effort to carry into effect before the appropriate tribunal the hostile views indicated by the proceedings in the case of Marbury v. Madison, but to reduce the power and dignity of the Supreme Court itself to a standard far inferior to those it then possessed.

The Federal Constitution declares, that "all the appellate jurisdiction conferred on the Supreme Court shall in all cases be subject to such exceptions and under such regulations as Congress shall make." Thus by the words of the Constitution the whole subject is placed under the revision of Congress and is made subject to its action. If any attempt had been made to set up anew the importance that had been constructively attached, in the case of Marbury v. Madison, to the words "or persons holding office" in the Judiciary Act, that body would instantly have relieved that act and its authors from the preposterous aspersions which had been cast upon them.

But there was matter in the background of far greater moment.

The original jurisdiction of the Supreme Court was limited to cases affecting ambassadors and those in which a State was a party. This branch of its jurisdiction has, it is well known, occupied but little of the time of the court, and has been withal very unimportant either in its character or consequences. Deprived of the influence and éclat it has derived from the exercise of its appellate jurisdiction, the court would have stood as a pageant in the federal system of but little account for good or evil. With the addition of that obtained from appeals and writs of error from the inferior tribunals of the United States, its position before the country would still have been one of little consideration.

Both branches of the jurisdiction in these respects taken collectively, their results would not have been any thing like the power and influence and dignity which the Supreme Court of the United States derived from a single clause in the Judiciary Act of 1789, extending its appellate jurisdiction to the decisions of the State courts. The assemblage of cases for its application arrayed in that pregnant section, aided by the power derived from the construction given to the provision in the Federal Constitution prohibiting the passage of State laws violating the obligation of contracts—a provision always understood to have been introduced to prevent State obstructions to the collection of British debts, but now made to override the insolvent systems of the States, etc.,—gave the Supreme Court the supervision and control of the most valuable and hitherto the most cherished portion of the legislation and jurisprudence of the State governments. To secure this control was an object always near to Hamilton's heart. He attempted it openly in the Convention by his proposition for a negative upon State laws, etc. But in the hands of the court the control of the Federal Government over State legislation was equally effective, less likely to become obnoxious, and infinitely more secure; for if it had been placed, as he proposed, in the hands of the President, or of the President and Senate, or of Congress, it would still have been deposited in places accessible to the people, and at short and stated periods liable to be overruled by their will. But here it was in the only sanctuary in a republican government he deemed safe against popular inroads, and it was this provision in the Judiciary Act which, more than all other things combined, made that department—which Montesquieu described as next to nothing in point of power, and upon the weakness of which Hamilton, before the passage of that act, descanted so freely—the most formidable and overshadowing branch of the government. The section bears the impress of his mind, and if not the work of his pen was beyond all doubt the result of his suggestions. Hamilton was not a member then, but we have seen that he made speeches in Congress through another, and I have not a doubt that, if the truth could now be known, it would appear that but few things were said or done on one side, in either branch of that body, of which he did not make a part in some form. Is it not passing strange that not a word is to be found in the Constitution to authorize Congress to confer such a jurisdiction upon the Supreme Court? Can it be for a moment supposed that such a power,—one so nearly akin to the proposition to place a veto in the hands of the Federal Government upon State legislation, one so eminently calculated to alarm the State-rights party,—would have been allowed, if it had been by anybody believed to be in the Constitution, to pass the State Conventions sub silentio? What is said in the Constitution about the appellate jurisdiction of the Supreme Court is not only satisfied by referring it to the inferior courts which Congress were authorized to "ordain and establish," but is, by the terms employed, fairly confined to them. The place in the Constitution where the authority is given to establish inferior courts to exercise those parts of the judicial power of which no original jurisdiction was given to the Supreme Court, and which were to constitute the basis for the operation of that which was to be appellate only, would have been, one would suppose, the very place in which the authority to extend that jurisdiction to the State courts would have been inserted if it was intended to be given. Again, the whole judicial power of the United States is by the Constitution vested in the Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. That the words used embrace, and seem intended to embrace, the whole power, is apparent from the face of the Constitution, and was, besides, demonstrated by Hamilton in the first number of his "Pacificus." Madison said in the Virginia Convention, that it would be in the power of Congress to vest the inferior Federal jurisdiction in the State courts; and Pendleton and Mason intimated an expectation that this would be done; whilst Grayson said that State judges formed the principal defense of the rights of the States, and that Congress should not take from them their "only defensive armor;" and Patrick Henry, who in the days of his political orthodoxy could snuff danger to State rights in almost every breeze, apprehended that "by construction the Supreme Court would completely annihilate the State courts." Had Congress invested the inferior Federal jurisdiction in the State courts, and had they accepted the extension, the appellate jurisdiction of the Supreme Court to those courts in the cases enumerated would have been in all respects proper. But the Congress, a majority of whose members were Hamiltonian Federalists, were not, for reasons it is now unnecessary to consider, willing to admit the State courts to a participation in the administration of the judicial power reserved to the Federal Government, and proceeded at once to ordain and establish inferior courts of their own. These consisting of district courts, circuit courts and the one Supreme Court named in the Constitution, completed the organization of the Federal judiciary. Their respective jurisdictions were wisely separated and accurately defined. A small portion of that which was original was, for well-understood reasons, vested in the Supreme Court. The residue was separated and distributed among the inferior tribunals, subject to an appellate jurisdiction and supervisory power in the Supreme Court over all their proceedings. The system thus arranged was not only complete but harmonious in all its parts. The courts were clothed with the entire judicial power of the Government; were only authorized to act upon one class of subjects—those which appertained to the judicial power of the United States. The judges received their appointments from the same source, and were responsible for their conduct to one head. Looking only to judicial objects this might well be regarded as the judicial system designed by the framers of the Constitution.

If ours had been a consolidated government these provisions would have embraced the whole subject, and satisfied the wants of the whole country. But in the actual state of things in that regard they were inadequate to the accomplishment of that end. Instead of one consolidated government ours was a confederacy of sovereign States, presided over by a Federal Government which they had themselves created and clothed with such powers as they deemed necessary to its efficiency and usefulness, and as would be most likely to conduce to the freedom, prosperity, and happiness of all.

With no other bond of union during the first years of the Revolutionary contest than common danger, and obliged to struggle with a defective Federal organization, these States succeeded in constructing for themselves republican constitutions, and in several instances, before the establishment of our Independence, sustained the brunt of that struggle and came out of it with institutions fully adequate to all the purposes of good government, including systems of jurisprudence and competent tribunals for their administration. The administrators of these institutions, driven to desperation by great public and private distress,—the direct results of the oppression of the mother country,—may in a few cases, and for a short period, have forgotten that interests liable to sequestration in war were inviolable in peace, and failed to interpose with sufficient alacrity a judicial barrier against the attempts of some of the State legislatures to throw obstructions in the way of the collection of British debts. But those were limited and temporary aberrations, which would soon have yielded to proper treatment on the part of the Federal Government. At the period of the passage of the Judiciary Act the judges who presided in most of the State courts might be compared without discredit to those who filled the benches of the Federal courts, and this relative equality has ever since been well maintained. Such has certainly been the case in the State of New York. The name of Chancellor Livingston, who was then at the head of our equity system, would lose nothing from a comparison with Chief Justice Jay, when the latter was placed at the head of the Federal courts. Our equity and common-law courts have since been graced by Chancellor Lansing, Chief Justices Lewis and Kent, and Judges Brockholst Livingston, Smith Thompson, Ambrose Spencer, Wm. W. Van Ness, and others, all men of great talents and acquirements. Nor have the courts of our sister States been wanting in this regard. The names of Theophilus Parsons of Massachusetts, Tappan Reeves of Connecticut, and Pendleton, Wythe and Roane of Virginia, with numerous others, might be added to the list. It would not be an easy matter to match these by selections from the bench of the Supreme Court of the United States, highly distinguished as its incumbents have been.

The State courts had, for nearly fifteen years before the passage of the Judiciary Act of 1789, performed, as well in peace as in war, most of the duties which the new Constitution devolved upon the Federal judiciary. The Federal Government was authorized, by the articles of Confederation, to establish inferior courts for the trial of piracies and felonies committed on the high seas, and courts for the trial of Admiralty cases, yet these powers had been carried into effect through the State judiciaries. But all at once the State courts were deemed unworthy of trust. Whence this change? Had the State courts degenerated? No such thing; they were constantly improving, the supineness of a few in respect to the interests of the mother country, blamable as it certainly was, to the contrary notwithstanding. No, the State courts had not become worse, but the implacable opponents of those whose judicial power they represented had become stronger! The old Anti-Federal party, the inflexible and powerful champion for the rights of the States, had been overthrown—forever demolished, at least in that array. The State governments were for a season helpless. Those who were always hostile to their power—who, in the language of Hamilton after the Convention, and in the act of foreshadowing the effects of such an administration as actually succeeded, were desirous of a "triumph altogether over the State governments, and to reduce them to an entire subordination"—were all powerful in Congress. Nor was their power confined to Congress or to any particular branch of the Government. The result of the question of ratification in the different State Conventions, and the idea present to every mind that material prosperity, public and private, would be much promoted by that result, produced a great change in public sentiment adverse to the authority and influence of the State governments. It was made fashionable to deride them. The organization of the Federal judiciary was the very first opportunity that was afforded after the adoption of the Constitution to make the States feel the power which their inveterate opponents had acquired by that event, and most unsparingly was that power exercised.

The few members of that Congress who had not been entirely carried away by this current, and had the boldness to stand by the States and their tribunals—among whom that firm and incorruptible republican, James Jackson of Georgia, was by far the most effective—were willing that a right to supervise and reverse the decisions of the State tribunals in all matters of Federal jurisdiction, should be conferred on the Supreme Court of the United States, provided only that the State courts were intrusted, as they had hitherto been, with the administration of the inferior Federal jurisdiction in lieu of the inferior Federal courts which the Bill proposed to establish. This they contended would make the system an harmonious and consistent one, and preserve the respect and consideration which was due to the State tribunals.