A March of Liberty: A Constitutional History of the United States - Vol. 1

By Melvin I. Urofsky; Paul Finkelman | Go to book overview

8

The Supreme Court:
The First Decade

The Federal Court of Appeals • The Judiciary Act of 1789 •
The Process Act • The Jay Court Convenes • Separation of
Powers • Suing States in Federal Courts • Chisholm v.
Georgia • The Eleventh Amendment • The Debt Cases •
Judicial Review • The Ellsworth Tenure • Circuit Duties •
Conclusion • For Further Reading

ARTICLE III OF the Constitution vests the judicial power of the United States in one Supreme Court and such inferior courts as Congress shall establish. The Judiciary Act of 1789 set out the basic outline of a federal court system, but just as Washington had to fashion the executive branch, so the new courts and justices had to evolve procedures for the judicial arm of the government. Some of the precedents set during this period would last for decades; others would vanish within a few years.


The Federal Court of Appeals

In deciding to create a judicial branch as part of the new constitutional government, the Framers recognized one of the major weaknesses of the Confederation, apparent not only in the absence of a federal court system, but also in the confused record of the only national court created under the Articles. As early as November 1775, George Washington recommended that the Continental Congress authorize a prize court to dispose of captured British cargoes and vessels. Instead of establishing a federal court, however, Congress suggested that each state set up a court, with a right of appeal to the Congress itself. The states accordingly created prize courts, but jealous of their own authority, they generally limited what appeals could be taken to Congress. New Hampshire, for example, permitted appeals only if the capturing ship had been an armed vessel fitted out by order of Congress; a few years later, it restricted appeals even further,

-147-

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A March of Liberty: A Constitutional History of the United States - Vol. 1
Table of contents

Table of contents

  • Title Page iii
  • For Susan and Byrgen—yet Again v
  • Contents vii
  • Preface xiii
  • 1: From the Old World to the New 1
  • 2: Law in Colonial America 17
  • 3: The Road to Independence 39
  • 4: The Revolutionary Era 61
  • 5: The Crisis of Confederation 80
  • 6: A More Perfect Union 93
  • 7: Launching the Great Experiment 120
  • 8: The Supreme Court: the First Decade 147
  • 9: The Changing Face of the Law 165
  • 10: Adams, Jefferson, and the Courts 181
  • 11: The Marshall Court and National Power 207
  • 12: The Marshall Court and Economic Development 229
  • 13: A Law Made for the Times 248
  • 14: Politics, Nationalism, and Competition 271
  • 15: Jacksonian Democracy 296
  • 16: The Taney Court: Change and Continuity 320
  • 17: The Peculiar Laws of America's Peculiar Institution 337
  • 18: A House Dividing 366
  • 19: The Union Sundered 401
  • 20: The Union Unrestored 429
  • 21: Reconstruction 451
  • 22: The Court and Civil Rights 479
  • Appendixes - The Declaration of Independence 501
  • Articles of Confederation 505
  • Constitution of the United States 511
  • Justices of the U.S. Supreme Court 528
  • Case Index 537
  • Subject Index 542
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