Beau Bryant Professor Eastman American Political Thought 5/9/2011

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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 Taft The 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 new federal 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 been founded upon democratic principles which encourage precisely this type of informed debate. Heated arguments and passionate speeches eventually lead to compromise, and this compromise embodies the beginnings of the United States itself. Perhaps the most famous of disputes in American 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 and rejection. 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 Office of the President. In both recent and past years, it has been the tendency of the American public to focus primarily upon the Executive Branch; some attribute this to the implicit expansion of the Presidential powers that occurred during Franklin D. Roosevelts time in office, while others point out the fact that it is easier to focus on one figurehead.1 However, there is one branch of
1

See: Stacey L. Kirkland, FDR and the New Deal: Expanding Presidential Power, 2007.

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government that tends to become lost in the debates and conversations the judiciary. This essay will oppose this trend and, in doing so, will focus exclusively on the debate concerning the founding and creation of the Supreme Court and the judiciary. Arguments from both sides of the table will be presented and analyzed in order to gain a fuller comprehension of the political thought 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 carried out, it is first necessary to discuss its predecessor, The Articles of Confederation. The Articles were ratified in 1781 and, at that moment, effectively became the first constitution of the United States. It was not long after the era of the Articles had begun, though, that the country began to question their effectiveness in providing for an efficient governmental system. By 1787, only six years after the official ratification of the document, the opposition to the Articles had grown to a full-fledged fervor. Dr. Benjamin Rush, a popular statesman and author, laid out the case against the Articles by defining the four main problems with the system: These consist in the deficiency of coercive power. 2d. In a defect of exclusive power to issue paper money, and regulate commerce. 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 that the 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 the admiration and envy of the world. In our opposition to monarchy, we forgot that the temple of tyranny has two doors. We bolted one of them by proper restraints; but we left the other open, by neglecting to guard against the effects of our own ignorance and licentiousness. (1, italics added) Rush emphasizes the fact that, because the people of the United States had become so infuriated with Britain, they were entirely unwilling to adopt aspects of the British system of government that may not, in fact, have been so bad. He disagrees with the way in which the Articles place all

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of the power in the hands of the people, and acknowledges that a division of power is necessary regardless of the fact that there is no monarch. Dr. Rushs observations bring up an interesting fact: prior to the ratification of the Constitution, the judiciary of the United States was extraordinarily limited in scope. Bernard Schwartz 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 federal courts 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 committed on the high seas and establishing courts for receiving and determining finally appeals in all cases of captures, provided that no member of Congress shall be appointed a judge of any of the said courts. 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. As mentioned before, the entire country seemed to accept the fact that the Articles were both inefficient and impractical, and the political thinkers of the time became especially involved in the problem.2 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 the meeting 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 the new Constitution were in agreement with Dr. Rush, in that they believed that the new government 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
2

George Washington described the ineffectiveness of the Articles as primarily revolving around the fact that they allocated to the federal government no money (Maier, Pauline. Ratification: the People Debate the Constitution, 1787-1788. 2010).

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James Madison, entitled, The Virginia Plan. The Virginia Plan called for the federal powers to be split up into the three now well-known branches of government: the legislative, the executive, and the judiciary. The latter two branches were completely new additions. Schwartz notes that, because the Framers chose Madisons layout as the foundation for the new government, they also decided, at almost the outset of their deliberations, that there should be a federal judiciary and that it should be supreme, (11). It was during this time that the debates concerning the final form of the American government reached their highest peak. The nations strongest and most well-known political minds were debating every facet of the new government, and it is here that the foundations and development of the judiciary branch truly commenced. The two sides of the argument concerning the judiciary can be viewed, at their most basic level, as those in favor of and those against a federal legal institution. One of the primary sources of the debate over the judiciary comes in the form of AntiFederalist and Federalist opinions. This is really not very shocking, as the arguments between those who supported a stronger national government and those who opposed it would necessarily have to address the judiciary, especially because of its newfound importance delegated by the third article of the Constitution. These opinions, primarily recorded in the infamous Federalist Papers, and the somewhat more disjointed Anti-Federalist Papers, were extremely comprehensive with regard to their topic. The judiciary, though, initially played a relatively small role in the national conversation between the Federalists and Anti-Federalists, instead being overshadowed by the debates concerning the Executive and the Legislative. In fact, Alexander Hamilton, in Federalist 78, famously described the judiciary as the least dangerous branch (483). These debates had as their starting point, the framing of the new Constitution; and the framework for the judiciary as it stands today truly began with the

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affirming and dissenting opinions that were expressed by the delegates of the Constitutional Convention. The Convention is meticulously recorded in the form of transcripts and texts that completely fill three volumes which, when combined, amount to more than 1500 pages.3 Yet, if one were to read the records in their entirety, something peculiar would be observed: Max Farrand points out this peculiarity when he notes, there is surprisingly little on the subject [of the judiciary] to be found in the records of the convention, (Framing 154). This lack of debate concerning the judiciary, during a convention that debated for over three months, demonstrates the initial absence of controversy surrounding the judiciary.4 What little can be found, however, is very important because of the effect that it had upon later arguments. During the Convention, there arose two schools of thought: there were those who supported Article III as it is now written, and there were those who believed that it ought to be redacted. James Madison, by being one of the primary drafters of the third article, firmly believed in the establishment of one supreme Court as well as such inferior Courts as the Congress may from time to time ordain and establish, (Art. III I). Madison, therefore, acknowledged the need for the separation of powers and supported the creation of a third branch, that of the judiciary, in order to balance out the Legislative and Executive. When this proposal was first put forward during the Convention there was very little dissent. Schwartz notes that during the convention The only serious objection was that to the inferior federal courts, which some saw as an encroachment upon the states, (11). This objection was raised by a delegate named John Rutledge of South Carolina, who would later go on to become the second Chief Justice of the Supreme Court (Carson 148). Rutledges objection,
3

The enterprising reader can view these records in Max Farrands work, The records of the Federal convention of 1787, Volumes 1-3. 4 See: Beeman, Richard R. "The Constitutional Convention of 1787: A Revolution in Government."

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in which he moved that that part of the clause for establishing inferior tribunals should be expunged and described the establishment of inferior courts as being an unnecessary encroachment on the jurisdiction (of the States), and creating unnecessary obstacles, would lead to a compromise where the inferior courts would not be mandated, though Congress would have the power to create them if it felt the situation warranted it (Farrand 124, italics original). Further debate concerning the judiciary during the Convention can be found within James Madisons personal recordings of the Conventions meetings. As with the official records, the material is scarce, but very important. Madisons notes show that the delegates heavily discussed the specific role of the judiciary in the new government (Ketcham 122). Some argued that a check being necessary on the legislature, the question was in what hands it should be lodged, (122). The debate bounces from one side to the other, finally settling on the judiciary as the ultimate check. There was also some concern over the election of the judges (Ketcham 125-127), but the overwhelming majority of the delegates eventually decided in favor of Madisons proposal for judicial appointments. Though these objections were relatively small and occupied very little of the delegates time, they marked the beginning of what would later become the primary topic of debate between Federalists and Anti-Federalists: the judiciarys power relative to the other branches of government. After several months of debate in the Constitutional Convention, the final draft of the Constitution emerged with the judiciary branch being practically unchanged from its original setup described in the Virginia Plan (Schwartz 12). The legal institutions that were established by the Constitution were, like the rest of the new federal institutions, strongly supportive and representative of a much more powerful form of government than that which had existed under the Articles. Although there may not have been too much debate on this specific branch during

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the Convention, when the final draft was presented to all of the delegates and the public in the end of the year 1787, the criticism began to grow. First, there were the objections of three delegates within the Convention itself. These three men, George Mason, Elbridge Gerry, and Edmund J. Randolph, gave speeches to the other delegates which directly addressed the issues that they had with the final form of the judiciary. Mason expressed a resentment towards any reference whatever of the power to make [judicial] appointments to either branch of the legislature, (Ketcham 171). He did not object to the establishment of a federal court system as a whole, but was wary of the potential power that the other two branches of government had to control the courts. Following this, he echoes Rutledges argument concerning the power of the federal judiciary over the States when he says, The Judiciary of the United States is so constructed and extended, as to absorb and destroy the judiciaries of the several States, (Ketcham174). Randolph adopts this argument to a degree, declaring that he would like a more definite boundary between [] the General and State Judiciaries, (174). Like Mason, Randolph is specifically concerned with the power of the federal judiciary over the State courts. Finally, Gerry is worried that the Legislature has too much control over the laws, and therefore the power of the courts ought to be increased (175). These men withheld their names from the Constitution and their arguments became further foundation for future dissent. Those who opposed the Constitution as a whole rarely failed to note the problems that they discerned in the new judiciary that was established by it. These arguments became focused, as pointed out earlier, in a collection of works known as The Anti-Federalist Papers. Though today scholars have organized these writings based on their common disapproval of the new Constitution, the original texts were not released as one single entity; instead, they were

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distributed by individual authors who held individual opinions. Because of this, the AntiFederalist writings, though powerful, lost some degree of their effectiveness (Ketcham 181). The papers, like the national debates as a whole, chiefly addressed the role of the Executive and Legislative branches of government; however, unlike the small arguments that took place during the convention, the Anti-Federalists bring up very interesting questions concerning the role and power of the new judicial institutions. The essays of a Dutch Anti-Federalist who wrote under the pseudonym of John DeWitt, are described by Ralph Ketcham, editor of The Anti-Federalist Papers and the Constitutional Convention Debates, as being the most effective early Anti-Federalist argument denying the need for a more energetic central government, (189). The effectiveness of the essays probably comes from the way that they were written as a direct appeal to the citizens of the States. With regard to the judiciary, DeWitt lays out an interesting scenario in order to demonstrate the possible problems of a federal Supreme Court: That should an insurrection or an invasion, however small, take place, in Georgia, the extremity of the Continent, it is highly expedient they should have the power of suspending the writ of Habeas Corpus in Massachusetts, and as long as they shall judge the public safety requires it: -- You must also say, that your present Supreme Judicial Court shall be an Inferior Court to a Continental Court, which is to be inferior to the Supreme Court of the United States: -- that from an undue bias which they are supposed to have for the citizens of their own States, they shall not be competent to determine title to your real estate, disputes which may arise upon a protested Bill of Exchange, a simple note of hand, or book debt, wherein your citizens shall be unfortunately involved with disputes of such or any other kind, with citizens either of other States or foreign States: In all such cases they shall have a right to carry their causes to the Supreme Court of the United States, whether for delay only or vexation; however distant from the place of your abode, or inconsistent with your circumstances: -- That such appeals shall be extended to matters of fact as well as law, and a trial of the cause by jury you shall not have a right to insist upon. (Ketcham 198) Although at first glance this sequence of events may appear to be both complicated and unlikely,

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DeWitt is, in fact, masterfully capturing several arguments against the establishment of a Supreme Court and simultaneously justifying them with concrete examples. He notes that the Supreme Court of the United States, if its opinion is influenced by events within one state (e.g. Georgia), may perhaps create laws applying to other states (e.g. Massachusetts) regardless of if those laws are beneficial to the citizens of those states. In addition, he points out the fact that citizens of the States will be forced to appeal to a Supreme Court that may not have a particular understanding of their specific circumstances, whereas a State court might. Thus, in adopting the new Constitution, citizens of the States are, in effect, rendering their current Supreme Courts as inferior or subordinate to the Supreme Court of the United States. Finally, he notes the simple inconveniences which the federal Supreme Court may cause. He suggests that it may not be in a persons best interest to appeal to the Supreme Court because that person may then have to travel long distances only to deal with an inefficient court that will delay their case and will be oblivious to their circumstances. Arguments such as these help imbue DeWitts writing with a powerful Anti-Federalist justification, and it becomes easy to see how this might appeal to the people living within the states. DeWitt, of course, was not the only spokesman for the early Anti-Federalists. Another strong voice of opposition could be found in Patrick Henry, famous for his political contributions and the quote widely attributed to him, Give me liberty or give me death, (Cohen 717). Henry became an avid opponent of the new constitution and had plenty of things to say about the new judiciary. In his speeches before the Virginia Ratifying Convention, Henry provided what Ketcham calls, the most moving, eloquent denial by the Anti-Federalists of the need for a more energetic government, (Ketcham 199). The speeches are about the same length as the DeWitt essays, and they also address Anti-Federalist concerns about the judicial branch. He states:

Bryant 10 I beseech gentlemen, at all hazards, not to give up this unlimited power of taxation. The honorable gentleman has told us that these powers, given to Congress, are accompanied by a judiciary which will correct all. On examination, you will find this very judiciary oppressively constructed; your jury trial destroyed, and the judges dependent on Congress. (June 5, 1788)

Here, Henry brings up a new and incredibly interesting point. In his opinion, the judicial branch and the Supreme Court, or at least the judges employed within it, are uniquely dependent upon the other branches of government for their own continuation. Although this can be viewed as a check on the judiciarys power, Henry suggests that it may in fact only be promoting an excess of power vested in Congress. The oppressive construction of the judiciary, he argues, will cause the judges decisions to be decidedly biased in favor of the federal system, because they are dependent upon that very system for their livelihood. Continuing the viewpoint of the Anti-Federalists is Samuel Bryan, who wrote under the name of Centinel. The Centinel essays, eighteen in total, were written in late 1787 to counter the elaborated denial that the new Constitution would be tyrannical on the part of Federalists, and were perhaps the first organized, widely-distributed papers published by the Anti-Federalists (Ketcham 227). In Centinel 1, after quoting Article III of the new Constitution, Centinel launches a harsh attack on the planned form of the judiciary. He disputes the text of the article, claiming that the definition of the jurisdiction of the federal judiciary is so ambiguous that it is more than probable that the state judicatories would be wholly superceded, (Ketcham 233). He then goes on to say that because the Constitution claims itself to be the supreme law of the land,[] the judges in every State shall be bound thereby, rendering State laws totally useless. Like both Rutledge and Mason before him, Centinel decries the supreme power of the federal judiciary and loathes the fact that in contests about jurisdiction, the federal court, as the most powerful, would ever prevail, (Levy 146). His argument captures what, by this point, had

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become an integral point for the Anti-Federalist mindset: the idea that the federal judiciary, by its very existence, would erode the power of the State courts until they were simply unable to function. Another excellent source of Anti-Federalist opinion can be found in the Constitutional amendments that were proposed by several of the State Ratification Conventions. These amendments, unlike the criticisms of the other Anti-Federalists, were distinct proposals that, upon ratification, would be satisfactory additions to the new Constitution and would win over several moderate Anti-Federalists. Many of the Conventions that proposed these amendments shared similar ideas, and many of the proposed amendments would later become ratified. In addition, though the proposed amendments addressed many of the qualms concerning the new Constitution, there was often agreement concerning the changes that ought to be applied to the judiciary (Ketcham 217). The Massachusetts Convention, in its sixth proposed amendment, asked that no person shall be tried for any Crime by which he may incur an infamous punishment or loss of life until he first be indicted by a Grand Jury, (Ketcham 218); this sentiment was echoed in the Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents, which similarly called for the right of trial by jury [] in the federal courts as in those of the several States, (Levy 153). The Massachusetts Convention also demanded that The Supreme Judicial Federal Court shall have no jurisdiction of Causes between Citizens of different States, (Ketcham 218). These proposed amendments addressed significant concerns about the judiciary that, while certainly held by the Anti-Federalists, were also recognized by others (including some Federalists) ; and because of the ardent persuasiveness

 of the dissenters, they would eventually become official amendments within the new Constitution.5

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Finally, there are the essays of Brutus, which comprised the Anti-Federalists most united front and response to the threat that came from The Federalist Papers. Like The Federalist Papers, the essays of Brutus spend significant time analyzing each and every clause of the new Constitution, most especially those which their author believes are the most harmful to the nation. The writings of Brutus, perhaps more than all the aforementioned authors, lay out a very well developed argument against the new judicial branch. The commentaries are much longer and provide the most comprehensive argument against the new federal judiciary. Brutus first addresses his concerns about the appellate jurisdiction of the Supreme Court. He writes: the operation of the appellate power in the supreme judicial of the United States, would work infinitely more mischief than any such power can do in a single state, (Essay XIV). His primary problem with the appellate jurisdiction centers on the supposition that, in any case except in the few instances in which the Supreme Court will have original jurisdiction, anyone party either a State or Federal trial will have the ability to appeal to the Supreme Court; in the opinion of Brutus, this ability to appeal is as unnecessary as it is unfair (Essay XIV). The winners of a trial would thus be forced to retry any case that is appealed to the Supreme Court, which can render them stuck in long and ruinous confinement, and exposed to heavy and insupportable charges, to procure the attendence of witnesses, and provide the means of their defence, at a great distance from their places of residence, (Essay XIV). After this, he then addresses the ability of the court to implement something now known as judicial review, which would later be definitively established in the landmark case of
5 th

The right to no indictment for high crimes unless by Grand Jury was established in the 5 amendment in 1791, th while the limitations on the judiciary would later be ratified in the 11 amendment in 1795.

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Marbury v. Madison.6 Brutus anticipated this case by about fifteen years when he pointed out the unique ability of the court to interpret the Constitution: for the supreme court are authorized in the last resort, to determine what is the extent of the powers of the Congress. They are to give the constitution an explanation, and there is no power above them to set aside their judgment; because of this, he notes, the judges under this Constitution will control the legislature, (Ketcham 305). Here Brutus develops one of the stand-out arguments of the Anti-Federalists against the judiciary. He refers to the appointment process of the judges and says that, because of the fact that removing them from power is relatively difficult, the judges will become independent of the people, of the legislature, and of every power under heaven, (305). In these writings Brutus successfully develops, to the fullest extent, some of the arguments against the judiciary. Unfortunately for Brutus, the Anti-Federalist cause eventually fails to overcome the strong Federalist agenda and the incredibly persuasive Federalist Papers. The initial blueprint laid out by Madison in Article III of the Constitution becomes largely accepted by the States and officially put into action by the Judiciary Act of 1789, and the judiciary becomes what it is today.7 Many attribute the success of the Federalists to the widely read and incredibly wellwritten texts of The Federalist Papers. These essays were composed by Alexander Hamilton, James Madison, and John Jay, and are almost universally accepted as the best example of a new American science of politics, (Levy 106). Hamilton addresses concerns about the judicial branch in several of his Federalist writings. He begins his essay, Federalist 78, by stating that there is no dispute concerning the establishment and necessity of a judiciary branch, but rather,
6

"Marbury v. Madison." Encyclopdia Britannica. Encyclopdia Britannica Online. Encyclopdia Britannica, 2011. Web. 08 May. 2011. <http://www.britannica.com/EBchecked/topic/364059/Marbury-v-Madison>. 7 "1789 Judiciary Act." Encyclopdia Britannica. Encyclopdia Britannica Online. Encyclopdia Britannica, 2011. Web. 08 May. 2011. <http://www.britannica.com/EBchecked/topic/307569/1789-Judiciary-Act>.

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there is only dispute regarding the form of that judiciary. In saying this, Hamilton casually sets aside one of the arguments of the Anti-Federalists in favor of an entirely Federalist viewpoint; however, he does it so subtly that he is able to focus the attention of his reader entirely on the benefits of a new judiciary. He suggests in Federalist 78, that there are two main concerns about the judiciary, and he provides answers for each of them: 1st. The mode of appointing the judges. 2d. The tenure by which they are to hold their places, (Hamilton). In regards to the first question, Hamilton points out that any judges which are appointed by representatives that have been elected by the people are being indirectly appointed by the people themselves; because of this, the appointment process, though it may appear to contradict democratic values, is actually upholding them (Ibid). With regard to the second question, Hamilton argues that the provision that judges are allowed to retain their positions so long as they maintain good behavior is certainly one of the most valuable of the modern improvements in the practice of government, (Ibid). This, in Hamiltons opinion, is because Nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security. (Ibid). This independence from both the Executive and the Legislative branches will enable the judges to focus solely on the law, regardless of the opinions of the other branches. This will occur because the judges do not have to worry about having their jobs compromised if they go against the President or the Congress. In addition, it is necessary that the appointments of judges not be temporary because the fact that by nature of a free, democratic society, the records of [the laws] must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them, (Ibid). Because of this, Hamilton argues, temporary

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appointments will not suffice because they will not be lucrative enough to attract those men in society who have both the capability and integrity to hold such positions. Hamilton, within Federalist 78, also discusses why he believes that that the third branch of government is beyond comparison the weakest of the three departments of power, (Ibid). Ironically, in his argument as to why the judiciary is weak, he lays the rhetorical foundation for the establishment of judicial review in Marbury v. Madison which subsequently expands, to a great degree, the power of the Court.8 Hamilton argues that the judiciary has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever, (Ibid). This is because the judiciary, due to the limits laid out in the Constitution, must define itself by its defense against the other two branches. In order to make sure that both the other branches abide by the Constitution as well, it becomes the Courts duty to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing, (Ibid). For Hamilton, the Courts legitimize the rights that have been granted to the people by defending those very rights. Without an institution in place to keep guard, the rights become nothing more than ideals. In arguing this, Hamilton essentially bestows upon the Court the right to judicial review and designates it as the final interpreter of the Constitution; he does not regard this particular power as being harmful to the other branches, though, because he believes that it simply forces all the branches of government to abide by the Peoples rule, which is specifically laid out in the Constitution. In this way, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents, (Ibid). These arguments put forward in The Federalist Papers, because of their wide audience and eloquent
8

For more information on this, see: Schwartz, Bernard. A History of the Supreme Court. New York: Oxford UP pp. 10-15

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persuasiveness, successfully overshadowed those texts which did not agree with the new Constitution. Hamilton, in Federalist 78, definitively removes any fear of the power of the federal judiciary and explains away the problems raised by the Anti-Federalists and in so doing reaffirms the decisions of the other Framers of the Constitution. Through the advantage of over two centuries of history it becomes easy to see that the Federalist arguments, in the end, prevailed. The Supreme Court and the judiciary have been established for many, many years, and they have maintained their roles according the outlines of Madison, Hamilton, and the other supporters of the Constitution. The Constitution itself has remained virtually unaltered, with several of the additions concerning the judiciary having been in place since the ratification of the Bill of Rights in 1791. The political debates concerning the third branch of government have, of course, continued throughout the years; but never have they approached the level of these original arguments. Although the Anti-Federalists failed to prevent the ratification of the new Constitution, their arguments and writings played a significant role in the founding of the nation. They caused leading political thinkers, such as Hamilton, to carefully analyze the new Constitution and, in some cases, forced the Federalists to alter a few aspects of the new government. The addition of the Bill of Rights can, in fact, be attributed in part to the dissent of the Anti-Federalists. Because of this, to understand the early foundation of the judicial branch of government it becomes essential to take into account not only the writings of those whose ideas were successfully adopted, but also the arguments of those who were in opposition. The judiciary, as it stands today, is a product of intelligent debate and compromise; and because of it, the rights of the citizens of the United States are forever recognized and respected.

 Works Cited

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Kirkland, Stacey L. FDR and the New Deal: Expanding Presidential Power, 2007. Retrieved from: http://www.thepresidency.org Rush, Benjamin. "The defects of the Confederation." Defects of the Confederation (2009): 1. Academic Search Premier. EBSCO. Web. 8 May 2011. Schwartz, Bernard. A History of the Supreme Court. New York: Oxford UP, 1993. Print. "The Articles of Confederation." Articles of Confederation (2009): 1. Academic Search Premier. EBSCO. Web. 9 May 2011. Wood, Gordon S. The Creation of the American Republic, 1776-1787,. Chapel Hill: Published for the Institute of Early American History and Culture at Williamsburg, Va., by the University of North Carolina, 1969. Print. Maier, Pauline. Ratification: the People Debate the Constitution, 1787-1788. New York: Simon & Schuster, 2010. Print. Virginia Plan." Virginia Plan of Union (2009): 1. Academic Search Premier. EBSCO. Web. 9 May 2011. Hamilton, Alexander. "The Federalist papers." Federalist Papers (Great Neck Publishing) (2009): 1.Academic Search Premier. EBSCO. Web. 9 May 2011. Farrand, Max. The Framing of the Constitution of the United States,. New Haven: Yale UP; 1913. Print. Farrand, Max. The Records of the Federal Convention of 1787,. New Haven: Yale UP, 1966. Print.

 Beeman, Richard R. "The Constitutional Convention of 1787: A Revolution in

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Government." Phi Kappa Phi Forum 86.3 (2006): 35-38. Academic Search Premier. EBSCO. Web. 8 May 2011. The Constitution of the United States (1787)." Constitution of the United States (1787) (2009): 1.Academic Search Premier. EBSCO. Web. 9 May 2011. Carson, Hampton L. The History of the Supreme Court of the United States with Biographies of All the Chief and Associate Justices. Philadelphia: P.W. Ziegler and, 1902. Print. Ketcham, Ralph Louis. The Anti-Federalist Papers ; And, the Constitutional Convention Debates. New York: New American Library, 1986. Print. Cohen, Charles. "The Liberty or Death Speech: A Note on Religion and Revolutionary Rhetoric". The William and Mary Quarterly 38 (4). (1981): 702717 Levy, Michael B. Political Thought in America: an Anthology. Homewood, IL: Dorsey, 1982. Print. "Marbury v. Madison." Encyclopdia Britannica. Encyclopdia Britannica Online. Encyclopdia Britannica, 2011. Web. 08 May. 2011. http://www.britannica.com/EBchecked/topic/364059/Marbury-v-Madison "1789 Judiciary Act." Encyclopdia Britannica. Encyclopdia Britannica Online. Encyclopdia Britannica, 2011. Web. 08 May. 2011. http://www.britannica.com/EBchecked/topic/307569/1789-Judiciary-Act