Relations between the Federal and State Courts

By Mitchell Wendell | Go to book overview

CHAPTER II
BUILDING RESPECT FOR THE FEDERAL COURTS

IN 1789 our federal system was new and untried; there was little assurance that it would prove to be a workable plan of government. Despite the attempts of Hamilton and Madison to discover historic and contemporary examples of federally organized countries,1 the plain fact was that the Constitution outlined a system of national-local relationship quite different from anything then known in governmental experience. Would it be possible to keep the states and the national government in balance so that they could operate together with a minimum of friction? That was the all important question.

The ability of the states to maintain their virility and power, although it has become a question of some seriousness today, was not then open to genuine doubt. Even in 1789 the original thirteen states had long histories behind them. They had existed as colonies for a century and a half or more and as virtually independent states since the Revolution. The people were already accustomed to think of Massachusetts, New York or Virginia as the governments to which they owed allegiance; state patriotism and obedience to state laws were an established fact. It might be challenged, as indeed it was in Shays' Rebellion, but the legal power of a state to put down insurrection was undoubted. The strength of the Federal Government on the other hand was not so obvious. It had been granted a number of powers not possessed by the preceding Confederation, but the ability of the national government to bring these powers into practical operation was: still to be demonstrated. The Constitution had been adopted by a narrow margin and only after the bitterest of struggles. The numerous opponents of a strong

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1
See Hamilton and Madison, The Federalist, Nos. 18, 19, 20.

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