Ch. 1.2. The Creation of Federal Law and the Judiciary Act of 1789
The Creation of Federal Law
Given that no independent federal judiciary and no unified legal system had previously existed in the United States, the Judiciary Act of Sept. 24, 1789, effectively took the first steps to fill a major void in the system of government outlined by the Constitution. The lack of previous “federal” law helps to explain why state and federal law overlapped from the beginning.
In a brief passage, the Judiciary Act explained that the federal courts were to rely on relevant state laws except where the federal Constitution, statute laws, or treaties required or provided otherwise (Section 34). State laws were in fact only one of the two main, “external” sources used by early federal courts to establish the “substantive law,” i.e., the vast majority of the law’s specific rules governing rights, duties, and penalties. For most legal rules federal courts at first turned to both state legal traditions and English Common Law. It would have taken a massive legal code to even begin the process of creating a new body of substantive law, and the Judiciary Act made no such attempt. Instead, it focused just on establishing a system of courts and on specifying a few details of “procedural law,” i.e., the norms governing how the legal process was supposed to work, such as the rules that required the use of jury trials in most cases.
The Federal Court System
The Judiciary Act is best known for its establishment of a three-tiered system of federal courts that is still in place today, though at first there were many fewer courts at each level and fewer judges in each court. This act provided for: thirteen district courts, most of which had boundaries that at first corresponded to those of the states (sections 2-3); three “circuit” courts of appeal, which at first were based on the country’s northern, middle, and southern regions (sec. 4-5); and a Supreme Court staffed by six justices (sec. 1).
It also established the U.S. Marshals as the police arm of the federal courts (sec. 27-28), and assigned to each federal court a U.S. Attorney, led by the Attorney General at the Supreme Court. All the U.S. Attorneys defend federal interests and prosecute federal cases (sec. 35).
Federal Jurisdiction
Just as if not more important than the details of the court system, the Judiciary Act also expanded on the principles stated in Article III concerning federal legal jurisdiction, i.e., the types of cases that could be heard in the federal courts. It gave the district courts original jurisdiction over such obviously federal matters as ambassadors, overseas trade, and maritime jurisdiction, and over less serious criminal charges brought under federal law, which carried penalties of a prison term of six months or less. It also gave the district courts jurisdiction, concurrently with the state courts, of civil cases brought under federal law or involving the U.S., or involving parties from different states, and which concerned claims of between $100 and $500 (sec. 9).
The circuit courts were made the principal trial courts in the federal system with jurisdiction over all serious criminal cases, as well as civil suits in which more than $500 was at stake and the United States was a plaintiff or petitioner; an alien was a party; or a citizen of the state where the suit was brought was adverse to a citizen of another state–though here too the state courts had concurrent jurisdiction over these civil suits. The circuit courts were also granted appellate jurisdiction from the district courts (sec. 11, 21, 22).
The Supreme Court was of course made the highest court of appeal for the lower federal courts, and it was also given exclusive jurisdiction over most civil suits in which a state was a party (sec. 13, 24).
Federal Appellate Jurisdiction from State Courts. In what was the Judiciary Act’s most controversial provision at the time, the Supreme Court was also granted appellate jurisdiction for cases in which the highest court of a state had ruled a federal law to be invalid; had upheld a state law that had been challenged as violating the U.S. Constitution; or had ruled against a right claimed under the U.S. Constitution, a federal law, or a treaty (sec. 13, 25). Both Antifederalists and then many Democratic-Republicans argued that the ambiguity of these principles left too much room for federal encroachment on state jurisdiction.
Today the above provisions are usually seen as just spelling out what the Constitution had granted by including within federal judicial power all cases “arising under” the Constitution, federal laws, and treaties (C3.2.1), otherwise known as “federal question” jurisdiction. In fact, the Judiciary Act restricted the ability to appeal from state to federal courts by stipulating that: only defendants could file for “removal” (from state to federal court), they had to do so at the outset of the legal proceedings, and the situations in which the defendant had this right were very limited.
Congress later granted the federal circuit courts the full range of such jurisdiction allowed by Article III in the Jurisdiction and Removal Act of 1875, which made it easier for plaintiffs or defendants in cases filed in state courts to “remove” the case to the appropriate federal circuit court. And although federal power certainly expanded after the Civil War and through the twentieth century, state courts remain a vital part of the American legal system, handling well over 90% of all legal cases.
Sources: some of the above material was drawn from the Federal Judicial Center’s webpage on the Judiciary Act of 1789; and Ballotpedia’s webpage on the Jurisdiction and Removal Act.