Trimming the Least Dangerous Branch: the Anti-Federalists and the Implementation of Article III

37 Pages Posted: 25 Sep 2020

See all articles by Tyler Moore

Tyler Moore

University of Notre Dame, College of Arts & Letters, Department of Political Science

Date Written: August 24, 2020

Abstract

The traditional narrative of events following the ratification debates has connected the Bill of Rights with the Anti-Federalists and the Judiciary and Process Acts of 1789 with the Federalists. Although the scholarly consensus has turned against the Bill of Rights part of this story, most scholars continue to portray the first Congress’s implementation of Article III as a victory for the Federalists. In this article, I trace the development of the Anti-Federalists’ theory of federal/state power and its application to the judiciary in an effort to show why the second part of the above narrative also has it wrong.

Here is the short version. Having adopted the same conception of federalism as an underappreciated faction of delegates at the Constitutional Convention, Anti-Federalist writers like “Brutus” argued that some mechanism was needed to prevent the states from being swallowed up by federal judicial overreach. Despite Alexander Hamilton’s attempts in Federalist Nos. 78-83 to downplay this danger and emphasize the necessity of a robust system of federal inferior courts with general “arising under” jurisdiction, it was the Anti-Federalists’ arguments that continued to resonate in the state ratifying conventions and beyond. Oliver Ellsworth, the Connecticut Federalist who was the primary draftsman of the Judiciary and Process Acts, had shown his sympathy with Brutus all along. And the bare bones, state-dependent inferior court structure he helped create is testimony to this sympathy. Like the Bill of Rights, then, the Anti-Federalists’ influence on the original federal judiciary was a vicarious one. But unlike the Bill of Rights, this victory tracked their theory of federalism and gave them a meaningful structural change that could protect the states against a national consolidation.

Keywords: Judiciary Act of 1789, Federalism, the Anti-Federalists, Oliver Ellsworth, Alexander Hamilton, Article III

Suggested Citation

Moore, Tyler, Trimming the Least Dangerous Branch: the Anti-Federalists and the Implementation of Article III (August 24, 2020). Tulsa Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3679957 or http://dx.doi.org/10.2139/ssrn.3679957

Tyler Moore (Contact Author)

University of Notre Dame, College of Arts & Letters, Department of Political Science ( email )

217 O'Shaughnessy Hall
Notre Dame, IN 46556
United States

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