Vol. 2 No. 11 (November, 1992) pp. 181-183

ORIGINS OF THE FEDERAL JUDICIARY: ESSAYS ON THE JUDICIARY ACT OF 1789 by Maeva Marcus (Editor). New York: Oxford University Press, 1992. 312 pp.

Reviewed by Ronald Kahn, Department of Politics, Oberlin College.

This book offers nine essays on the history and doctrinal heritage of the Judiciary Act of 1789 by some of the leading constitutional scholars in our nation. It is based on papers prepared for a conference in honor of the 200th anniversary of the Judiciary Act of 1789 at Georgetown University in cooperation with the Judicial Conference of the United States and the Supreme Court Historical Society.

While the essays are of a high quality and some offer new historical evidence on the Judiciary Act of 1789, it is difficult to find one central theme in this book. Nor do the authors attempt to develop a central theme through an introduction and conclusion. The disciplinary focus is on law and history, not political science. However, political scientists interested in constitutional law, theory, history, and interpretations will find the book of some interest.

In the introductory essay, Maeva Marcus and Natalie Wexler argue that the Judicial Act of 1789 resulted from its authors' political considerations, the search for compromise, practical concerns about the expense of federal courts and fear that federal courts would usurp the role of state courts, not from any deep consideration of constitutional language, theory, and principles. Concern for these practical issues, Marcus and Wexler argue, left little time for the First Congress to engage in what the authors call "interpretive exercises involving the language of Article III."(5) Thus, they argue, "it is hazardous to rely on the Judiciary Act as evidence of the 'original understanding' of Article III."

Akhil Reed Amar and G. Edward White study Article III of the Constitution in order to understand the constitutional imperatives that the Judiciary Act of 1789 was intended to implement. In a quite sophisticated continuation of an analysis begun 1985 and continued in a 1990 UNIVERSITY OF PENNSYLVANIA LAW REVIEW article, Amar maintains that Justice Story's "two-tiered" structure of the Judiciary Act and of Article III is valid. He argues that the mandatory language of "shall" and "all" gives Congress the power to strip federal courts of jurisdiction in one tier, but requires that some federal court be vested with jurisdiction on federal questions. The "political safeguards" analysis, later developed in constitutional law, plus the fact that the Judiciary Act of 1789 is not at odds with the two-tiered thesis means for Amar that federal court supremacy over states is in order. This article offers excellent criticism of Hart and Wechsler's view of Section 25 of the Judiciary Act of 1789. G. Edward White, in perhaps the most original and important of the essays, draws on his 1988 book of the Marshall Court era to argue that an entire dimension of the Marshall Court's constitutional sovereignty cases -- typically characterized as "nationalism" or "states rights" cases -- has been lost or misinterpreted; this is the widely-shared assumption among late- eighteenth-and early-nineteenth-century judges and commentators that in any "effective" government, judicial power would be coextensive with the government's legislative power and, conversely, that legislative power would be coextensive with judicial power. Thus, White argues that because this assumption is alien to modern commentators, who are committed to post-Marshall era separation of powers principles, they misinterpret the role of federal courts as defined in Marshall Court sovereignty cases and view them primarily as questions of national and state power. White argues that a rediscovery of the "coterminous power" assumption will force us to rethink the cosmic reach of Marshall Court cases such as COHENS V. VIRGINIA and MCCULLOCH V. MARYLAND. Finally, the view that extensive legislative power begets extensive judicial power and extensive judicial power begets extensive legislative power, is a forceful argument for a

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strong and growing federal court structure and that the Supreme Court was headed for a consolidation of courts. In such a view, judicial discretion is borne of coterminous power, not separation of power, doctrine. However, White correctly argues that it was destabilizing in the Marshall Court era.

Several essays explore the way in which Article III and the Judiciary Act of 1789 were implemented. In "UNITED STATES V. JOSEPH RAVARA: 'Presumptuous Evidence," "Too Many Lawyers," and a Federal Common Law Crime," John D. Gordan analyzes the April, 1793 trial of the consul general of Genoa to the United States on charges of sending threatening letters. Using recently discovered case files of the U.S. Attorney who prosecuted Ravara, and in providing most interesting appendices of key parts of those files, Gordan provides most interesting insights on interpretations of the Judiciary Act of 1789 and the doctrine of federal criminal common law by Chief Justice Jay and other leaders of the Philadelphia Bar.

In "UNITED STATES V. CALLENDER: Judge and Jury in a Republican Society," an analysis of an important Sedition Act case that was tried in 1800, Kathryn Preyer offers important information on legal theories about the nature of union and republican society which unfold in the context of primarily political conflicts and debates about the role of localism versus nationalism between bench and bar and federal and state authority in this case.

Mark Tushnet's "Dual Office Holding and the Constitution: A View from Hayburn's Case" is an excellent article. He uses historical analysis in light of liberal and civic republican theory to demonstrate that MISTRETTA V. UNITED STATES (1989) -- which upheld the constitutionality of a law requiring federal judges to sit on the United States Sentencing Commission -- was in line with concepts of dual office holding by judges at the time of the Judiciary Act and the early 19th century. Judges as lawyers and citizens, not legislators or members of the executive, were permitted in the early years of the republic to hold dual offices, a judgeship and some other federal position. Tushnet argues that dual office holding was not viewed as a violation of separation of powers or founding principles about the abuse of power by the Founders and drafters of the Judiciary Act of 1789 because of functional and pragmatic considerations about the effects of life tenure of judges and the professional discipline of members of the bar, as compared to the general citizenry. This analysis builds on important theoretical arguments made in Tushnet's 1998 book RED, WHITE, AND BLUE: A CRITICAL ANALYSIS OF CONSTITUTIONAL LAW on the effects of the inability of the founders to resolve tensions between civic republican and liberal principles. In "MURDOCK V. MEMPHIS: Section 25 of the 1789 Judiciary Act and Judicial Federalism," William M. Wiecek concludes that MURDOCK has been improperly read as a foundation of the independent state grounds doctrine that authorizes a constricted Supreme Court appellate jurisdiction over questions of state law.

In Gerhard Casper's "The Judiciary Act of 1789 and Judicial Independence," it is argued that sections of the Act providing for civil juries, restricting Supreme Court review to errors of law, and limiting equity jurisdiction should be viewed as implementing separation-of-powers notions in light of concerns about congressional control of the judiciary. This finding is derived from a comparison of American and French constitutional theory of the Founding Period and provides a counter argument, at least in part, to the position of G. Edward White.

Finally, Michael Kammen offers an original essay explaining why costly and elaborate "Temples of Justice" (courthouses) were built around the nation in the early years of the republic. Kammen offers insights on how changing perceptions of "doing justice" from the frontier days through the 20th century inform the building and architecture of courthouses. He argues that these edifices fit with new definitions of the need by the state to "do justices" in a "temple of justice," in contrast to prior legal

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visions of seeking consent as to what constitutes justice among all parties. When Kammen speaks in terms of masks, symbols, and anthropology, without offering any deep scholarly insights on the subject, he leaves me. However, as a review of court architecture and the politics of why court houses were constructed -- to be the county seats -- this pictorial essay is quite informative.

This book is an important contribution because of the overall quality and depth of its essays. It provides valuable and quite various insights into a wide range issues: the politics and thought of the Founding Period and of the Judiciary Act of 1789, the relationship, or lack thereof, between the principles behind the Judiciary Act of 1789 and constitutional principles of national and state sovereignty, and the place of the federal courts and common law in our legal process, through the 19th and 20th Centuries.

Several of the essays, are particularly enlightening because they draw on recently discovered material on the Judiciary Act of 1789 and the formative period of Supreme Court by documentary history projects on the First Federal Congress, 1789-1791 and the Supreme Court, 1789-1800. While the range of disciplines that inform these essays is limited to history and law, and the collection could have been improved by the inclusion of the work on judicial politics and constitutional law by political scientists, this collection of essays will be of some importance to political scientists who are expert in constitutional law and jurisprudence primarily in suggesting that many of the contemporary characterizations of federal courts, separation of powers, the supremacy of the Constitution and federal courts, and federal-state relations do not conform with the history and politics of the late eighteenth century.