Wednesday, September 24, 2014
The Judiciary Act of 1789 was enacted two hundred twenty-five years ago today. It was a monumental achievement for the First Congress. Among other things, the Act gave concrete institutional shape to a judiciary left open-ended in Article III. (Remember the "Madisonian compromise"? The biggest fight surrounding the first Judiciary Act centered on the need for an extensive system of lower federal courts.) The Act also began the process of working out the relationship between state and federal judiciaries, advancing a process of constitutional liquidation anticipated by Hamilton in Federalist No. 82. And Section 25 of the Act, which provided for Supreme Court review of state decisions via writ of error, explicitly contemplated judicial determinations of the constitutionality of statutes. (This is the practice we now call "judicial review," although that term did not emerge in connection with this practice until the early twentieth century.)
September 24 is also John Marshall's birthday; today would have been his 259th (b. 1755, d. 1835). It is fitting that Chief Justice Marshall and the federal judiciary share the same birthday. Perhaps the coincidence can remind us to be grateful not only for the Great Chief Justice, but also for Oliver Ellsworth, the father of the Judiciary Act and our third Chief Justice.