The Judicial Bookshelf

Abstract

The Judicial Bookshelf DONALD GRIER STEPHENSON, JR. The absence of a national judiciary, declared Justice Story in his Commentaries on the Constitution of the United States, “was one of the vital defects of the confeder­ ation. And every government must, in essence, be unsafe and unfit for a free people, where such a department does not exist.” Without courts, he continued, “the govern­ ment must either perish by its own imbecility, or the other departments of government must usurp powers, for the purpose ofcommanding disobedience, to the destruction of liberty. The will of those who govern, will become, under such circumstances, absolute and despotic; and it is immaterial, whether power is vested in a single tyrant, or in an assembly of tyrants. In every well organized govern­ ment, therefore, with reference to the security both of public rights and private right, it is indispensable that there should be a judicial department to ascertain, and to decide rights, to punish crimes, to administerjustice, and to protect the innocent from injury and usurpa­ tion.”1 Thus, the provision within the Consti­ tution for a system of national courts was intended, Story maintained, to serve two objectives “of paramount importance” and “fundamental to a free government.” The first is “a due execution of the powers of the government; and the second is a uniformity in the interpretation and operation of those powers, and of the laws enacted in pursuance of them.”2 In service of those objectives, the “universal sense of America has decided that, in the last resort, the judiciary must decide upon the constitutionality ofthe acts and laws ofthe general and state governments, so far as they are capable ofbeing made the subject of judicial controversy.”3 Story’s suggestion that inclusion of a national judiciary was practically a foregone outcome at the Philadelphia Convention anticipated Justice Robert H. Jackson’s much later but similar claim about the commerce power denied Congress under the Articles of Confederation but then given to Congress at the federal Convention in 1787: “The desire of the Forefathers to federalize regulation of foreign and interstate commerce stands in sharp contrast to their jealous preservation of the State’s power over its internal affairs. No other federal power was so universally assumed to be necessary. No other state power was so readily relinquished.”4 THE JUDICIAL BOOKSHELF 445 Story’s view was similarly echoed in thoughts that Justice Stephen J. Field expressed in 1897, toward the end of his then record­ setting High Court tenure ofnearly thirty-five years.5 For him, in the judiciary’s power to declare the law “is found the safeguard which keeps the whole mighty fabric of government from rushing to destruction. This negative power, the power of resistance, is the only safety of a popular government.”6 Yet determination to institutionalize a system of national courts also required a decision on how judges would be selected. The method chosen—nomination by the President coupled with confirmation by the Senate—yielded blended responsibility and was the outgrowth ofthe competing proposals at Philadelphia. There the Virginia Plan called for selection ofjudges by the lower house ofa bicameral legislature, and the New Jersey Plan called for a unicameral legislature (as did the Articles of Confederation) and assigned judicial selection to the executive.7 As one study has argued, many of the “framers did not want the power of appointment to be vested solely in the hands of the president. Their colonial experience cautioned them against such an institutional arrangement because royal governors had abused their appointment power by giving offices to personal supporters, and because judges so appointed had felt no connection with the people whose law they were entrusted with administering.” Similarly, experience after 1776 had taught them that placing selection solely in legislative hands “was equally troublesome, as battles ensued over patronage and no clear lines of responsibility were drawn.”8 Or, as Delaware delegate John Dickinson advised at Philadelphia, “Experi­ ence must be our only guide. Reason may mislead us.”9 Still, the widely held expecta­ tion that George Washington would be the new nation’s first chiefexecutive surely eased formation of the eventual consensus toward placing such significant appointing authority...