John Marshall and the Constitution, A Chronicle of the Supreme Court | Page 5

the Government of
which it is one of the three coordinate branches. That earlier tribunal,
the Court of Appeals in Cases of Capture, was, on the other hand, a
purely legislative creation; its jurisdiction was confined to a single field,
and that of importance only in time of war; and the enforcement of its
decisions rested with the state governments.
In the Federal Convention of 1787 the idea of state coercion required
little discussion; for the members were soon convinced that it involved
an impracticable, illogical, and unjust principle. The prevailing view
was voiced by Oliver Ellsworth before the Connecticut ratifying
convention: "We see how necessary for Union is a coercive principle.
No man pretends to the contrary.... The only question is, shall it be a
coercion of law or a coercion of arms? There is no other possible
alternative. Where will those who oppose a coercion of law come
out? ...A necessary consequence of their principles is a war of the
States one against the other. I am for coercion by law, that coercion
which acts only upon delinquent individuals." If anything, these words
somewhat exaggerate the immunity of the States from direct control by
the National Government, for, as James Madison pointed out in the

"Federalist," "in several cases ...they [the States] must be viewed and
proceeded against in their collective capacities." Yet Ellsworth stated
correctly the controlling principle of the new government: it was to
operate upon individuals through laws interpreted and enforced by its
own courts.
A Federal Judiciary was provided for in every Plan offered on the floor
of the Federal Convention. There was also a fairly general agreement
among the members on the question of "judicial independence." Indeed,
most of the state constitutions already made the tenure of the principal
judges dependent upon their good behavior, though in some cases
judges were removable, as in England, upon the joint address of the
two Houses of the Legislature. That the Federal judges should be
similarly removable by the President upon the application of the Senate
and House of Representatives was proposed late in the Convention by
Dickinson of Delaware, but the suggestion received the vote of only
one State. In the end it was all but unanimously agreed that the Federal
judges should be removable only upon conviction following
impeachment.
But, while the Convention was in accord on this matter, another
question, that of the organization of the new judiciary, evoked the
sharpest disagreement among its members. All believed that there must
be a national Supreme Court to impress upon the national statutes a
construction that should be uniformly binding throughout the country;
but they disagreed upon the question whether there should be inferior
national courts. Rutledge of South Carolina wanted the state courts to
be used as national courts of the first instance and argued that a right of
appeal to the supreme national tribunal would be quite sufficient "to
secure the national rights and uniformity of judgment." But Madison
pointed out that such an arrangement would cause appeals to be
multiplied most oppressively and that, furthermore, it would provide no
remedy for improper verdicts resulting from local prejudices. A
compromise was reached by leaving the question to the discretion of
Congress. The champions of local liberties, however, both at
Philadelphia and in the state conventions continued to the end to urge
that Congress should utilize the state courts as national tribunals of the
first instance. The significance of this plea should be emphasized
because the time was to come when the same interest would argue that

for the Supreme Court to take appeals from the state courts on any
account was a humiliation to the latter and an utter disparagement of
State Rights.
Even more important than the relation of the Supreme Court to the
judicial systems of the States was the question of its relation to the
Constitution as a governing instrument. Though the idea that courts
were entitled to pronounce on the constitutionality of legislative acts
had received countenance in a few dicta in some of the States and
perhaps in one or two decisions, this idea was still at best in 1787 but
the germ of a possible institution. It is not surprising, therefore, that no
such doctrine found place in the resolutions of the Virginia plan which
came before the Convention. By the sixth resolution of this plan the
national legislature was to have the power of negativing all state laws
which, in its opinion, contravened "the Articles of Union, or any treaty
subsisting under the authority of the Union," and by the eighth
resolution "a convenient number of the national judiciary" were to be
associated with the Executive, "with authority to examine every act of
the national legislature before it shall operate, and every act of a
particular legislature before