The Original Compromise: What the Constitution's Framers Were Really Thinking

By David Brian Robertson | Go to book overview

12
The Courts and a Bill of Rights

The delegates agreed that the national government required a judiciary.1 The New Jersey Plan, like the Virginia Plan, proposed a new, national Supreme Court. But how strong and independent would the delegates make the national judiciary? As the Convention proceeded, the delegates were willing to invest the national courts with more independence so that the judiciary could serve as an additional check on the political system. How many courts would there be? Broad nationalists wanted a strong system of national courts that could establish a presence across the nation. But narrow nationalists resisted this idea, because if the national court system included courts located in the states, these courts could draw power from the existing state judicial systems. The delegates evaded this problem by allowing Congress to decide the issue. Who would choose the judges? As with other offices, selection implied dependence, and the judicial branch required as much independence as possible. Ultimately, the delegates compromised and required the president and the Senate to share this power, as they shared the power of executive appointments. The Convention added explicit protections for the rights of accused criminals and for contracts, but refused to provide a more explicit and comprehensive Bill of Rights that could alarm citizens about the new government’s potential powers.


The National Courts’ Authority

What kinds of legal disputes would the national courts have the authority, or the jurisdiction, to judge? The narrower the courts’ jurisdiction, the narrower the courts’ influence and policy role. In mid-June, the Convention agreed to extend national judicial authority to impeachments, the collection of national revenue, and “questions which involve the national peace and harmony.”2 The New Jersey Plan protected the states’ court systems by authorizing a single national supreme court, with only the authority to judge appeals from state courts on national issues, such as piracy, treaties, trade, or national taxes. The New Jersey Plan

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