The Activist

by Lawrence Goldstone

  Now a supporter of the amendment process, Madison took the offensive. Always sickly, he nonetheless rode on horseback throughout the district, often in freezing January weather, assuring potential constituents of his commitment to individual liberty. He debated Monroe wherever possible, using the occasions to stress his commitment to amendments to cut the ground from under his opponent. In what must have been an unpleasant irony to Patrick Henry, not only did Madison and Monroe become friends that January, but Madison began to be seen as a champion of the very issues that Henry had for the previous eighteen months claimed as his own. When the election took place on February 2, Madison won by 366 votes.

  The House of Representatives did not achieve a quorum until April 1, 1789, three weeks after Madison arrived, the Senate not until April 6. Even with the required twelve senators in the chamber, only eight of the eleven states were initially represented. Ironically, one of the states with neither senator present was Congress’s home state of New York, whose legislature had yet to appoint either member of the upper house.* With both houses of Congress at that point officially in session, much of their collective first day was spent in joint session, tabulating the electoral votes for president and vice president and preparing communications to the victors. George Washington was confirmed as the first president, receiving all 69 electoral votes, with the new vice president, John Adams, coming in second with 34. 8

  The next day, April 7, the senators confined their business to the appointment of two committees. One consisted of five senators—Oliver Ellsworth of Connecticut, William Maclay of Pennsylvania,9 Richard Bassett of Delaware, Richard Henry Lee of Virginia, and Caleb Strong of Massachusetts—who were charged with preparing rules of procedure, coordinating with the House of Representatives on rules for conference committees, and considering the manner of appointing chaplains. The second committee, which consisted of the same five men plus Paine Wingate of New Hampshire, William Paterson of New Jersey, and William Few of Georgia, was appointed “to bring in a bill for organizing the Judiciary of the United States.”10

  The committee to create a judicial branch, then, had one senator from each of the eight states represented. When Charles Carroll of Maryland and Ralph Izard of South Carolina arrived the following Monday, they were immediately added to the committee so that each state present would continue to be represented. Five of the ten members, therefore, charged with creating the judicial branch of the government—Ellsworth, Bassett, Strong, Paterson, and Few—had been delegates to the Constitutional Convention that had largely abdicated this responsibility. Moreover, the committee roster was noteworthy for the surprising paucity of legal scholarship among the members. Of the ten, only Ellsworth, Paterson, and Strong were sophisticated legal theoreticians, and so these three former delegates immediately took control of the committee.11

  The committee began its work immediately, but left negligible written records of its deliberations. Within three weeks, however, the committee appears to have come to some general agreement as to the outlines of a bill.12 Two weeks after that, on May 11, Maclay reported that the committee had appointed a subcommittee—consisting, naturally, of Ellsworth, Paterson, and Strong—to draft a finished bill. “I do not like it in any part,” Maclay wrote.13

  The Anti-Federalist Maclay’s distaste is not surprising. All three men were staunch northern Federalists. Ellsworth had been one of the key delegates at the Constitutional Convention, with a hand not only in fashioning the Connecticut Compromise, which provided for by-state vote in the Senate, but also in a compromise at the end of August 1787 with the South Carolina rice planters whereby Northern merchants gained assurance of the free flow of commerce in return for extending the slave trade for twenty years. He had returned to Connecticut to lead the battle for ratification. Paterson had arrived in Philadelphia as a leading Anti-Federalist and had authored the small states’ New Jersey Plan. With the adoption of the Connecticut Compromise, however, he had switched allegiance and become a fervent proponent of the new Constitution and brawny central government. Strong had spoken little at the convention but made no secret of his agreement with the other two on all major Federalist tenets.

  Much to Maclay’s chagrin, the three separated themselves from their seven colleagues and proceeded to work privately to draft a judiciary bill, functioning much as had the Committee of Detail in Philadelphia, of which Ellsworth had been a member. Although Ellsworth and Strong wrote letters to colleagues in their respective states to ask for opinions on certain procedural issues with which they were wrestling, none of the three included other committee members in their deliberations. One month later, on June 12, the draft was complete and the full committee met to consider the product. Although there was at least tentative general agreement, the caustic Maclay found the draft bill “long and somewhat confused.”14

  The first sections of the draft bill, in Paterson’s handwriting, were largely concerned with the organization of the judicial branch.15 Paterson delineated the number of Supreme Court justices (six), when the Court would meet (semi-annually), and what constituted a quorum (four).

  The federal judiciary would be divided into three layers. Directly under the Supreme Court would be a tier of three circuit courts (eastern, middle, and southern), and, under the circuit courts, thirteen federal district courts. This organization demonstrates that the three Federalists were certainly cognizant of philosophical strife and tried to walk a middle ground. While they stopped short of the Anti-Federalist notion of using state courts as inferior federal courts, they did create a sufficient number of district courts to “bring the judiciary to the people.” The mid-layer circuit courts would be staffed not with their own judges but rather with a district court judge and two Supreme Court justices, who would ride circuit twice a year in between sessions of the high court.16

  William Paterson

  Circuit-riding was not new, of course, but rather an established feature of the British court system. Judges regularly ventured from Westminster into the countryside to dispense justice, thereby, according to Sir Matthew Hale in his History of the Common Law, ensuring “a consonancy, congruity, and uniformity” in the administration of the law.17 By emulating this system and manning the circuit courts with existing judges, the bill could also help obviate another pressing problem with Anti-Federalists. Funding for all those new judges promised to be a strain on an already overburdened treasury, to say nothing of the uproar that would certainly emanate from many quarters of the citizenry at the prospect of diverting scarce resources to a court system that many did not want in the first place. Using Supreme Court and district court judges as circuit court judges would at least help keep the expenditures down.

  But circuitriding in what was largely a frontier nation like the United States would prove to be quite a different phenomenon than that in settled, domesticated England. “In the early decades of the Supreme Court’s history, riding circuit for its justices meant bouncing thousands of miles over rutted, dirt roads in stagecoach, on horseback, and in stick gigs to bring the federal judiciary system to the American communities strewn along the Eastern seaboard.”18 As the nation expanded, the situation would only get worse. Further exacerbating the disagreeability of circuitriding was that the justices were not young men and, with lifetime tenure, were not likely to get younger. Circuit-riding was to engender a series of problems of its own and contribute in no small way to the crisis that was to threaten the Republic twelve years later.

  Also included in the bill was Section 13, which included innocent-enough phrasing, or so it seemed at the time:

  The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases hereinafter specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority
of the United States.

  The draft judiciary bill was first debated in the Senate on Monday, June 22, and Anti-Federalists immediately tried to minimize the jurisdiction of federal courts. Richard Henry Lee proposed “That the jurisdiction of the Federal courts should be confined to cases of admiralty and maritime jurisdiction.”19 Federalists countered. “Elsworth [sic] answered them, and the ball was kept up until past three o’clock.”20 The Anti-Federalist Maclay on this occasion supported Ellsworth, whom he loathed:

  I rose and begged to make a remark or two. The effect of the motion was to exclude the Federal jurisdiction from each of the States except in admiralty and maritime cases. But the Constitution expressly extended it to all cases, in law and equity, under the Constitution and laws of the United States; treaties made or to be made, etc. We already had existing treaties, and were about making many laws. These must be executed by the Federal judiciary. The arguments which had been used would apply well if amendment to the Constitution were under consideration, but certainly were inapplicable here.21

  Wrangling over the bill continued for the remainder of the week, into the next and eventually to July, Maclay more than once characterizing a speech as “harangue.” “The lawyers were in a rage for speaking,” he said at one point.22 Debate once again centered on jurisdiction—just how many cases would come to federal court rather than being decided in state court. Lee and his cohorts, insisting that federal courts should hear almost no cases, moved to limit the number of district courts and eliminate circuit courts entirely. Ellsworth, of course, opposed both motions, although he was careful to couch his arguments in the need for a national judiciary rather than discuss the tendency of a national judiciary to overpower the states. In all the debates, however, careful attention was paid by both sides to ensure that the final version conformed to the Constitution. Hundreds of minor changes were proposed and dozens were made. In endless hours of parsing and revision, however, no one, it appears—not one of all those “lawyers” Maclay complained about—thought to question whether the expansion of the Supreme Court’s original jurisdiction in Section 13 violated the Constitution.

  The bill, after additional changes in language (but again none in the salient phrase of Section 13) finally passed the Senate on July 17 by a vote of 14–6, Maclay and Lee being among the losers. Maclay, although he supported Ellsworth on some constitutional questions, left no question as to his sentiments for the man or the bill. “This vile bill is a child of his, and he defends it with the care of a parent, even with wrath and anger. He kindled, as he always does, when it is meddled with.”23 The bill was then passed on to the House three days later.

  With such a vital bill finally reaching its chamber, members of the House might have been expected to begin at once to debate the organization of the judiciary. Instead, they did not take up the bill for more than five weeks. Robert Morris, growing impatient with the delay, wrote angrily to a friend in early August that the House “had been amusing themselves with proposing Amendments to the Constitution.”24

  Those amendments—which would become the Bill of Rights—were, of course, the product of James Madison’s conversion from Federalist to proto-Republican.25

  By the time Madison took his seat in Congress on March 14, 1789, he was a man transformed. Not only would he refuse to recant his conversion to a bill of rights to amend the Constitution, he would become its most passionate and effective champion. By the time the First Congress adjourned two years later, James Madison had abandoned virtually all the theories with which he had arrived in Philadelphia in May 1787 and replaced them with Jeffersonian decentralization.

  Madison’s metamorphosis was one of the great turnabouts in political history. He became as passionate, as scholarly, as reasoned, and as ruthless a Republican as he had previously been as a Federalist. In the process, he went from friend and intimate of Alexander Hamilton to bitter enemy.26 Although it would have been unthinkable at the Philadelphia Convention or the Virginia ratifying convention, in the great battle to come between the Federalist ideal of a powerful central government—with judiciary to match—and Republican determination to dilute both, Madison would be the defendant in the case that would determine the winner. Even more unthinkable, Madison would misread the results of that case, thinking himself the winner when, in actuality, he had been the loser.

  Although Robert Morris had not been completely fair in his denunciation— the House dealt with myriad other bills during that five weeks—Madison had certainly attempted to coerce his fellow representatives into enacting what had become his pet measure.

  On June 8, Madison had presented rambling draft amendments to the House. His notion was to incorporate the amendments by revising the text of the document that had emerged from Philadelphia and had just endured the ratification process.27 Although critical organization and revenue business had been dominating the early sessions, Madison asked that the legislators put these aside and immediately discuss his proposal. Madison blithely assured his colleagues that the amendments could be approved that very same day.28 There was immediate protest. Not everyone was pleased with the idea of amendments at all, and even supporters believed that Madison’s notion of completing the business so quickly was ludicrous. One representative pointed out that amending the Constitution before a judiciary had been created to enforce its provisions seemed to have things backwards.29 After a number of long speeches objecting to the waste of a day, Madison pointed out that if the speeches had been on the question at hand “we might have rose and resumed the consideration of other business before this time.”30

  Madison’s measure was effectively tabled, but he reintroduced his amendments on July 21, the day after the judiciary bill had been transmitted from the Senate. “Mr. Madison begged the House to indulge him in further consideration of amendments to the constitution, and, as there appeared in some degree, a moment of leisure, he would move to go to a Committee of the whole on the subject, conformably to the order of the 8th of last month.”31 “Moment of leisure” was something of an overstatement, but by this time the House had disposed of enough pressing legislation—although it had tabled the judiciary bill—that Madison was successful in initiating debate on the amendments. Ultimately the matter was referred to an eleven-man committee, of which Madison was a member.

  The following week, the committee presented its report. Some Anti-Federalists, dissatisfied with Madison’s emphasis on civil liberties, had succeeded in adding a number of amendments that would have watered down the power of the central government with respect to the states. In the interim, debate on the judiciary bill had again been postponed so that the House could finalize other legislation on government organization. Although the committee had also pared down Madison’s language, feeling on the floor remained extreme and the amendments were recommitted. Finally, on August 13, after even further machinations, discussion began. The House did little else for the following ten days (thus prompting Robert Morris’s complaint).32

  During the discussion, Madison realized that Anti-Federalists were attempting to hijack the amendment process to alter the very fundaments of government that the Constitution had created. “But while I approve of these amendments [his own] I should oppose the consideration at this time of such as are likely to change the principles of government.”33

  On Saturday, August 22, the House voted to approve twelve amendments to the Constitution, to be appended as a supplement.34 At the next session, on August 24, the House sent the amendments on to the Senate. During that same session, discussion of the judiciary bill was finally begun.

  Fresh from the acrimony over amendments, bickering about the courts began instantly. Anti-Federalists once again proposed countless alterations, everything from reducing the number of Supreme Court justices to changing the definition of a quorum to limiting district courts to admiralty cases to eliminating district courts entirely to not empaneling a Supreme Court and, finally, to simply eliminating the legislation entirely. Virtually every clause tha
t either granted the new national judiciary what was seen as sweeping power or provided advantage to the federal courts over those of the states was attacked.35 In defense, Federalists were reduced to mouthing the same assurances as they had in the ratifying conventions. After that unproductive beginning, the judiciary bill was tabled for another five days.

  When debate resumed on Saturday, August 29, the discussion was more focused.36 Although objections still came in many forms, most, at their core, centered on the potential of federal district courts to usurp jurisdiction that Anti-Federalists were convinced rightly belonged to the states. Except for certain specific types of cases, opponents of the bill were, in effect, attempting to eliminate a national court system entirely. As Egbert Benson of New York noted, “If the House decided in favor of the present question, it would involve a total abandonment of the judicial power, excepting those cases the honorable gentlemen mean to provide for, namely, the Courts of Admiralty and the Supreme Courts.”37 In any case, jurisdiction of the federal system was being defined as narrowly as possible. Some of the proposals to limit breadth were substantive, many were trivial. William L. Smith of South Carolina was so exhaustive in his objections that Madison replied, “He was inclined to amend every part of the bill, so as to remove the gentleman’s jealousy, providing it could be done consistently with the constitution.”38