By Douglas V. Gibbs
Congress passed the Judiciary Act in 1789, which established the lower courts of the federal judiciary system. The law created 13 judicial districts in the states, establishing a circuit and district court in each. The act set the number of Supreme Court Justices, at the time, at six, with one Chief Justice and five associate justices.
The Office of the U.S. Attorney General was established on September 24, 1789, when the Judiciary Act of 1789 was signed into law by President George Washington. The act, in addition to creating the inferior federal judiciary system, also established the position of Attorney General as a part of the executive branch.
The position was designed to serve as the chief legal officer of the federal government and the head of the Department of Justice (though the Department of Justice as we know it today wasn’t formally established until 1870). The first Attorney General was Edmund Randolph, who was appointed by President Washington and took office on September 26, 1789.
Initially, the Attorney General’s role was quite limited compared to today. Randolph was essentially a one-person operation who provided legal advice to the President and heads of executive departments. He didn’t even have a dedicated staff or office space initially. The position was considered part-time, and Randolph continued his private law practice while serving as Attorney General.
The creation of this office was a crucial development in the formation of the American government, establishing the principle that the executive branch needed legal counsel to navigate constitutional issues and ensure the lawful execution of federal laws. Over time, the role has expanded significantly, with the Attorney General now overseeing a vast department with numerous divisions and responsibilities.
While the Judiciary Act of 1789 was important, and necessary in many ways, unfortunately it laid the groundwork for what would become judicial review and judicial tyranny when the branch was originally supposed to be the weakest of the branches – so weak that John Jay turned down a second opportunity to be chief justice in 1801 for exactly that reason.
The Judiciary Act of 1789, while establishing necessary court structures, unfortunately contained provisions that would later enable the expansion of judicial power beyond what the Framers of the Constitution intended.
The early Supreme Court was so insignificant that it heard few cases, and justices were required to “ride circuit” – traveling to preside over trials in various regions, a grueling duty that many found beneath their dignity.
The concept of judicial review was rejected by the Framers of the Constitution during the Convention of 1787. The Federalist Papers are silent on judicial review because it was never authorized by the Constitution. Hamilton briefly suggested in Federalist No. 78 that the judiciary might have the power to strike down unconstitutional laws – but even this was presented as a limited defensive power and it did not align with the express enumerated powers in the Constitution.
According to the legal world, the power of Judicial Review was codified by Marbury v. Madison (1803), a claim that essentially says that the judges gave the power to themselves. The timing supports the fact that judicial review wasn’t considered an established principle of the new government, but rather an innovation of the Marshall Court.
The Anti-Federalists had warned about potential judicial overreach during the ratification debates. Brutus (likely Robert Yates) argued that the judiciary would inevitably expand its power because “few can be expected to have the virtue to resist such an insidious attack on their liberties.”
This perspective reminds us that the Judiciary Act, while perhaps necessary, contained within it the seeds of what became judicial overreach – a transformation from what was supposed to be “the least dangerous branch” into what some would call judicial tyranny.
— Political Pistachio Conservative News and Commentary
