John Marshall and the Constitution, A Chronicle of the Supreme Court | Page 7

articulate members.*
* The entries under the names of these members in the Index to Max
Farrand's "Records of the Federal Convention" occupy fully thirty
columns, as compared with fewer than half as many columns under the
names of all remaining members.
No part of the Constitution has realized the hopes of its framers more
brilliantly than has Article III, where the judicial power of the United
States is defined and organized, and no part has shown itself to be more
adaptable to the developing needs of a growing nation. Nor is the
reason obscure: no part came from the hands of the framers in more
fragmentary shape or left more to the discretion of Congress and the
Court.
Congress is thus placed under constitutional obligation to establish one
Supreme Court, but the size of that Court is for Congress itself to
determine, as well as whether there shall be any inferior Federal Courts
at all. What, it may be asked, is the significance of the word "shall" in
Section II? Is it merely permissive or is it mandatory? And, in either
event, when does a case arise under the Constitution or the laws of the
United States? Here, too, are questions which are left for Congress in
the first instance and for the Supreme Court in the last. Further, the

Supreme Court is given "original jurisdiction" in certain specified cases
and "appellate jurisdiction" in all others--subject, however, to "such
exceptions and under such regulations as the Congress shall make."
Finally, the whole question of the relation of the national courts to the
state judiciaries, though it is elaborately discussed by Alexander
Hamilton in the "Federalist," is left by the Constitution itself to the
practically undirected wisdom of Congress, in the exercise of its power
to pass "all laws which shall be necessary and proper for carrying into
execution"* its own powers and those of the other departments of the
Government.
* Article I, section VIII, 18.
Almost the first official act of the Senate of the United States, after it
had perfected its own organization, was the appointment of a
committee "to bring in a bill for organizing the judiciary of the United
States." This committee consisted of eight members, five of whom,
including Oliver Ellsworth, its chairman, had been members of the
Federal Convention. To Ellsworth is to be credited largely the
authorship of the great Judiciary Act of September 24, 1789, the
essential features of which still remain after 130 years in full force and
effect.
This famous measure created a chief justiceship and five associate
justiceships for the Supreme Court; fifteen District Courts, one for each
State of the Union and for each of the two Territories, Kentucky and
Ohio; and, to stand between these, three Circuit Courts consisting of
two Supreme Court justices and the local district judge. The "cases"
and "controversies" comprehended by the Act fall into three groups:
first, those brought to enforce the national laws and treaties, original
jurisdiction of which was assigned to the District Courts; secondly,
controversies between citizens of different States*; lastly, cases brought
originally under a state law and in a State Court but finally coming to
involve some claim of right based on the National Constitution, laws,
or treaties. For these the twenty-fifth section of the Act provided that,
where the decision of the highest State Court competent under the state
law to pass upon the case was adverse to the claim thus set up, an
appeal on the issue should lie to the Supreme Court. This twenty-fifth
section received the hearty approval of the champions of State Rights,
though later on it came to be to them an object of fiercest resentment.

In the Senate, as in the Convention, the artillery of these gentlemen was
trained upon the proposed inferior Federal Judiciary, which they
pictured as a sort of Gargantua ready at any moment "to swallow up the
state courts."
* Where the national jurisdiction was extended to these in the interest
of providing an impartial tribunal, it was given to the Circuit Court.
The first nominations for the Supreme Court were sent in by
Washington two days after he had signed the Judiciary Act. As finally
constituted, the original bench consisted of John Jay of New York as
Chief Justice, and of John Rutledge of South Carolina, William
Cushing of Massachusetts, John Blair of Virginia, James Wilson of
Pennsylvania, and James Iredell of North Carolina as Associate Justices.
All were known to be champions of the Constitution, three had been
members of the Federal Convention, four had held high judicial offices
in their home States, and all but Jay were on record as advocates of the
principle of judicial review. Jay was one of the authors of the
"Federalist", had achieved a great diplomatic reputation in the