A History of the American People

confronted by the federal Leviathan? The Bill of Rights went some way. But that depended for
its efficacy on enforcement by the courts. Considering the importance the Founding Fathers
attached to the separation of powers, and their insistence that the judiciary, along with the
executive and legislature, was one of the tripods on which government must rest, the Convention
paid little attention to it. Indeed, perhaps the most important provision in the Constitution dealing
with the judiciary came about by accident, and is a classic example of Karl Popper's Law of
Unintended Effect. Luther Martin, the great states' rights champion, proposed that instead of a
federal veto on state laws, federal laws and treaties should be the supreme law of the individual states,' whose courtsbound thereby in their decisions, anything in the respective laws of the
individual states to the contrary notwithstanding.' This obscure formulation was accepted
unanimously and would have made state courts the authority, in each state, on questions of
federal law. This would have been a decisive victory for the states, and altered the whole course
of American history. But in subsequent wrangling over the judiciary, especially the provisions
for inferior federal courts, the proposal was amended to make state constitutions, as well as law,
subordinate to the federal Constitution and the laws and treaties enacted by Congress. This made
all the difference in the world, though its importance does not seem to have been grasped at the
time.
Indeed the Constitution really left the detailed provision for a judiciary to the first Congress,
which in 1789 enacted the judiciary Act. This law, written mainly by Oliver Ellsworth (1745-
1807), the agile Connecticut lawyer who had earlier put together the `Connecticut Compromise,'
is a remarkable piece of work because it has remained virtually unchanged for over two
centuries. It created a bottom tier of federal district courts, usually matching state lines, and a
middle level of three circuit courts, composed of two Supreme Court justices plus a district
judge, who traveled to hear cases twice a year. They heard appeals from district courts and gave
a first hearing to cases involving different states-a system which endured until 1891. The Act
also formally set up the Supreme Court, as envisaged in the Constitution, with one chief and five
associate justices, nominated by the president and confirmed by the Senate. (It had changed size
repeatedly, being reduced from six to five in 1801, increased to seven in 1807, to nine in 1833, to
ten in 1863, reduced to eight in 1866 and increased to nine in 1869, but otherwise functioning in
the same manner.) But Ellsworth's Act, probably inadvertently, gave the Supreme Court an
additional right of great importance, the executive power of ordering federal officials to carry out
their legal responsibilities.
These aspects of the judiciary's role, however, were little pondered at the time. It is a serious
criticism of the Founding Fathers that they devoted insufficient attention to the role judges might
play in interpreting a written constitution, and took no steps either to encourage or to inhibit
judicial review. The truth is, they were brought up in the English tradition of the common law,
which the judges were constantly modifying as a matter of course, to solve new problems as they
arose. They did not appreciate that, with a written constitution, which had never existed in
England, judge-made law assumed far greater significance, with almost limitless possibilities of
expansion, and should have been dealt with in the Constitution. As it was, and is, the American
federal judiciary have always been, in a sense, a law unto themselves, evolving organically as, in
their wisdom, they saw fit. The process began shortly after the Constitution came into effect. In
England, law and politics had always been closely enmeshed, and America had followed that
pattern. Until the second half of the 16th century, English governments had always been presided
over by the Lord Chancellor, the head of the law, and only gradually had the judiciary and the
government bifurcated, and even then incompletely, with the Lord Chancellor continuing to sit in