Presentation Transcript

1. “The Historical Foundations of the American Judiciary”

   William E. Nelson, JD, PhD Professor of Law, New York University Chapter 1 In The Judicial Branch Kermit L. Hall and Kevin T. McGuire, Eds. Mark J. Gabrielson LSTU E-107
2. Principal Chapter Themes Foundations: English common law and late 18th and early 19th century developments “Law-Finding” powers of juries vs. justices Two Visions of Democracy: Republicans vs. Federalists Mark J. Gabrielson LSTU E-107
3. Principal Chapter Themes (cont’d) Instituting the Rule of Law: Four Part Federalist Program Enabling Precedent (States and Federal) Judicial Seizure of Power From Juries (litigation arising from Sedition Act 1798) Formalizing Legal Education Judicial Review of Legislation (Marbury v. Madison) Brown v. Board of Education “changed everything” Mark J. Gabrielson LSTU E-107
4. 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
5. 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 Mark J. Gabrielson LSTU E-107
6. 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 Jefferson Adams Madison Hamilton Mark J. Gabrielson LSTU E-107
7. 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
8. Instituting the Rule of Law Federalist four-part judicial program Organize courts and publish body of case law to support precedent Deprive juries of power to determine law and confer that authority exclusively on judges Cultivate conception of law as a science requiring formal education Give the judiciary broad power of judicial review on policy grounds Mark J. Gabrielson LSTU E-107
9. 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
10. 1. Enabling Precedent - Federal Chief 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 John Marshall * Each judge proffers individual opinion Mark J. Gabrielson LSTU E-107
11. 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
12. 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
13. 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 Litchfield Law School Tapping Reeve Joseph Story (in Langdell Hall) Mark J. Gabrielson LSTU E-107
14. 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
15. 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
16. 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 Mark J. Gabrielson LSTU E-107

17. “The Historical Foundations of the American Judiciary”

    William E. Nelson, JD, PhD Professor of Law, New York University Chapter 1 In The Judicial Branch Kermit L. Hall and Kevin T. McGuire, Eds. Mark J. Gabrielson LSTU E-107