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Debates on the Judiciary: The Establishment of the Third Branch of American Government

Debates on the Judiciary: The Establishment of the Third Branch of American Government

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Published by Beau Bryant
This essay details the historical origins and debate of the U.S. federal court system. It pays particular attention to the debate concerning the Supreme Court.
This essay details the historical origins and debate of the U.S. federal court system. It pays particular attention to the debate concerning the Supreme Court.

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Published by: Beau Bryant on Jul 15, 2013
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Beau BryantProfessor EastmanAmerican Political Thought5/9/2011
 Debates on the Judiciary: The Establishment of the Third Branch of Government 
“Presidents come and go, but the Supreme Court goes on forever.”- William Howard TaftThe establishment and subsequent development of the government of the United States of America has been one mired in debate. It would be difficult to point to the creation of some newfederal program or institution that was unencumbered by opposition and unaided by supporters.Of course, this should not come as any surprise; the entire U.S. system of government has beenfounded upon democratic principles which encourage precisely this type of informed debate.Heated arguments and passionate speeches eventually lead to compromise, and this compromiseembodies the beginnings of the United States itself. Perhaps the most famous of disputes inAmerican history was that concerning the ratification of the Constitution. When the final draft of the Constitution was released for public commentary in 1787, it was met with both approval andrejection. The arguments on both sides covered each and every aspect of the new government,discussing everything from the number of representatives within the new Congress to the Officeof the President. In both recent and past years, it has been the tendency of the American public tofocus primarily upon the Executive Branch; some attribute this to the implicit expansion of thePresidential powers that occurred during Franklin D. Roosevelt’s time in office, while others point out the fact that it is easier to focus on one “figurehead.”
However, there is one branch of 
government that tends to become lost in the debates and conversations – the judiciary. This essaywill oppose this trend and, in doing so, will focus exclusively on the debate concerning thefounding and creation of the Supreme Court and the judiciary. Arguments from both sides of thetable will be presented and analyzed in order to gain a fuller comprehension of the politicalthought and opinion that centered on the beginnings of the third branch of government.Before any analysis of the third article of the Constitution can be productively carriedout, it is first necessary to discuss its predecessor, The Articles of Confederation. The Articleswere ratified in 1781 and, at that moment, effectively became the first constitution of the UnitedStates. It was not long after the era of the Articles had begun, though, that the country began toquestion their effectiveness in providing for an efficient governmental system. By 1787, only sixyears after the official ratification of the document, the opposition to the Articles had grown to afull-fledged fervor. Dr. Benjamin Rush, a popular statesman and author, laid out the case againstthe Articles by defining the four main problems with the system: “These consist in the deficiencyof coercive power. 2d. In a defect of exclusive power to issue paper money, and regulatecommerce. 3d. In vesting the sovereign power of the United States in a single legislature: and,4th. In the too frequent rotation of its members,” (1). Rush then describes why exactly it was thatthe drafters of the Articles were unwilling to extend powers beyond a single legislature:We detested the British name, and unfortunately refused to copy some things in the
administration of justice
and power, in the British government, which have made it theadmiration and envy of the world. In our opposition to monarchy, we forgot that thetemple of tyranny has two doors. We bolted one of them by proper restraints; but we leftthe other open, by neglecting to guard against the effects of our own ignorance andlicentiousness. (1, italics added)Rush emphasizes the fact that, because the people of the United States had become so infuriatedwith Britain, they were entirely unwilling to adopt aspects of the British system of governmentthat may not, in fact, have been so bad. He disagrees with the way in which the Articles place all
of the power in the hands of the people, and acknowledges that a division of power is necessaryregardless of the fact that there is no monarch.Dr. Rush’s observations bring up an interesting fact: prior to the ratification of theConstitution, the judiciary of the United States was extraordinarily limited in scope. BernardSchwartz refers to this issue in his comprehensive work,
 A History of the Supreme Court 
,wherein he states: “In the Confederation, there was no separate Executive and the only federalcourts were those the Congress might set up for piracy and felony on the high seas and for appeals in prize cases,” (11). Schwartz is drawing on Article IX of the original Articles, which provides Congress the right of “appointing courts for the trial of piracies and felonies committedon the high seas and establishing courts for receiving and determining finally appeals in all casesof captures, provided that no member of Congress shall be appointed a judge of any of the saidcourts.” This lack of a powerful federal judiciary, however, would not last for very long.Dr. Rush, of course, was not alone in his opposition to the Articles of Confederation. Asmentioned before, the entire country seemed to accept the fact that the Articles were bothinefficient and impractical, and the political thinkers of the time became especially involved inthe problem.
The situation became so bad, in fact, that the Congress under the Articles had“virtually ceased trying to govern,” (Wood 359). This crisis and realization prompted themeeting of the Constitutional Convention in 1787, which began deliberating on a new form of government to replace that which had been established under the Articles. The Framers of thenew Constitution were in agreement with Dr. Rush, in that they believed that the “newgovernment they were creating should be based upon the separation of powers,” (Schwartz 11).Because of this, they started working with a blueprint for government that had been drafted by

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