On April 3, 1790, President George Washington said to the Supreme Court the following;

" I have always been persuaded that the stability and success of the National Government, and consequently the happiness of the American people, would depend in a considerable degree on the interpretation and execution of its laws".

It would be very interesting, if President Washington could see just how far the "considerable degree of interpretation and execution of its laws", has veered off course. This is of course the opinion of Guardian Paralegal Service researchers.

Guardian Paralegal in the researching of Our Federal Judicial System, gives credit to The Committee On The Bicentennial Of The Constitution, chaired by Damon J. Keith, and other members to numerous to list, for their publication, The Bicentennial Of The Federal Judicial System. We also would acknowledge a book by Supreme Court Justice, Holmes titled The Common Law, and a book titled Fundamental Liberties Of A Free People, written by Milton R. Konvitz. These works were very instrumental in the production of this writing.

The United States Constitution, which today is an object of praise in these United States has been copied widely around the world. Although troubled, it was the subject of differing degrees and controversy when proposed in 1787. Those who favored a strong national government, the Federalists, argued it was needed for protecting the rights of the American people. The Anti-Federalists feared such a government would take advantage, and ride roughshod over those rights so proposed.

Judicial provisions of the Constitution were especially controversial. Alexander Hamilton claimed, "the judiciary will always be the lest dangerous" branch of the proposed national government. Not so said an Anti-Federalist pamphleteer;

"we are more in danger of sowing the seeds of arbitrary government in this department than any other".

The Constitution as drafted, contains just a few provisions relating to the judicial branch, one was to establish the Supreme Court. The Constitutional framers also took firm steps in keeping federal judges independent, protecting them from reprisals for their decisions.

In particular, the Constitution provided that judges would hold office as long as their behavior was appropriate. This would give the judges a lifetime position rather than a limited term of office. The Constitution also barred Congress from reducing the compensation of federal judges while they remain in office. The Constitution however left it up to Congress to determine whether there would be any federal trial courts.

Some people asked, why do we need any federal courts beside the Supreme Court?, all states have trial courts which could decide the nations legal disputes. Anti-federalists did not want another set of courts, especially courts associated with what they saw as distant national government. These same anti-federalists also realized federal courts would extend national power, precisely what the anti-federalists wanted a limitation put on.

After the Constitution was ratified in 1788, anti-federalists sought to have the Constitution amended, in order to ensure that this newly established national government could not interfere with fundamental issues such as freedom of expression and religion. 

They additionally wanted to ensure that no person would be denied ‘due process of law’, such as traditional protections of criminal procedure, indictment by grand jury before a criminal trial can be held, or the ‘right’ to have a lawyer. This perhaps would be a good time to explain to the reader what the differences are between the words Lawyer and Attorney.

Attorney comes from the word ‘attorn’ (law), which is defined in Funk and Wagnalls, Practical Standard Dictionary as:

"to agree to recognize a new owner of a property or estate and promise payment of rent to him".

"The acknowledgment by tenant of a new lord on the alienation of land; also, the acknowledgment by a bailee that he holds property for a new party".

and; from Black’s Law Dictionary, Revised 4th Edition the definition/s:

"to turn over, to transfer to another money or goods; to assign to some particular use or service. To consent to the transfer of a rent or reversion..."

In order to clearly understand her we are going, we need to take a closer look at the word attorney. In England prior to the Pilgrims leaving Europe (England), the aristocracy held the land, and the lower classes tilled the land. When the land changed from one aristocratic lord to another, a treaty was made between the tenants and the new lord. This was to prevent any uprising between the tenants and the new lord. (This transfer of power with treaty was called attornment).

Attornment was the method of peacefully passing land from one aristocrat to another, without disturbing the class structure. This helped maintain a noble class, and a common class. Therefore in English law, attornment was a method guaranteeing an unequal protection of the law for the rich and poor, but one tolerable to both classes.

An attorney’s role in this system was to provide the ceremony of acquiescence of the poor, and to do so in such a manner to preserve the class structure. The present day attorney is still involved with this process, their role has not changed.

However a ‘lawyer’ is vastly different. A lawyer is learned of the law, one who understands law, and loves law for its’ capacity to rectify an evil society. A lawyer is one who professes and practices ‘liberty and justice for all’, and is therefore the equal protection of the law, lawyers practice law.

The United States Constitution provides over thirty guarantees of equal protection of the law. A lawyer supports these provisions and guarantees, an attorney opposes these provisions.

In these United States, a lawyer obeys the United States Constitution, the Supreme Law of The Land. An attorney does not obey the Constitution of the United States.

EXAMPLE: A lawyer would file criminal charges against a judge in order to protect a citizens rights, an attorney would not.

When and if necessary, a lawyer would act as a substitute and go to jail for a cause they believe in, an attorney would not, they will instead ask to be removed from a case if the going gets sticky. (We consider this as running in to face of the enemy)

We trust the foregoing explanation was sufficient enough for the reader to understand, and perhaps do some additional research on the subject.

Continuing; The anti-federalists also wanted to make it very clear, that parties to a civil suit as well as criminal actions could demand jury trials, and that higher courts could not overrule a trial jury’s factual decision/verdict. They argued, the country did not need a set of federal courts, it needed a Bill of Rights.

Article III, Section I United States Constitution states:

" The judicial power of the United States, shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish".

Alexander Hamilton, a leader of the federalists agreed that state courts were ‘the great cement of society’. The federalists however were not willing to have a judicial system almost exclusively ‘state courts’. They argued, a federal court system would create conditions for this new nations commercial growth which the Articles of Confederation had not been able to provide.

All factions agreed with the goal in the Constitution’s preamble; " to establish justice", however, they disagreed as to the best way to accomplish the goal. John Jay, the first Chief Justice of the United States stated;

" The expediency of carrying justice to every man’s door was obvious, but how to do it in an expedient manner was far from apparent".

Framers had left the controversial questions of whether and how to set up lower level federal courts to the First Congress.

THE ESTABLISHMENT OF THE FEDERAL COURT SYSTEM:

When it convened in the spring of 1789, the First Congress did two things. The House of Representatives immediately set to drafting constitutional amendments, limiting powers of the government. These proposed amendments eventually became The Bill of Rights, the first ten amendments to the constitution.

The Senate began working at the same time, on its first piece of legislation, Senate Bill 1, which became, ‘An Act To Establish The Judicial Courts Of The United States. President George Washington signed this first Judiciary Act into law on September 24, 1789, creating the first federal court system.

Most of the provisions originally adopted in the Judiciary Act, have either been replaced or modified. However, the present federal court system still embodies the Act’s basic principles.

For those in favor of National Power, the ‘Act’ was a compromise which created federal courts in addition to the Supreme Court. Three circuit courts for major trials, and thirteen district courts for less important cases were created. It was possible to appeal some circuit court decisions to the Supreme court.

The ‘Act’ authorized district courts to resolve disputes arising on the high seas. Maritime commerce at this time was the lifeblood of the new nations economy. Even anti-federalists agreed that federal courts should decide admiralty cases.

The ‘Act’ established diversity of citizenship, a jurisdictional issue which anti-federalists feared. It permitted suits between citizens of different states to be brought into federal court, and authorized federal courts to try persons accused of certain federal crimes. It allowed the hearing of petitions from federal prisoners asking federal courts to issue writs of habeas corpus.

The ‘Act’ authorized the United States government to bring lawsuits into federal court and gave the Supreme Court jurisdiction to hear appeals from state court cases involving Constitutional issues or federal laws.

The 1789 Judiciary Act however, was not a total victory for federalists. The ‘Act’ limited federal courts in many ways, which were not requirements of the Constitution. It did not grant district and circuit courts (what is now known as) the federal question of ‘jurisdiction’.

Cases based on the Constitution or most civil statutes passed by Congress, would be decided in state courts. States were an important point of reference for the new federal court system.

The ‘Act’ directed federal courts to use state laws in the absence of federal law to the contrary, and used state boundaries for district and circuit courts. Under the design of the Constitution as complemented by the first Judiciary Act, federal courts would try federal crimes, admiralty cases, lawsuits by the United States, lawsuits between citizens of different states, and a few other matters.

State courts would continue to do the great bulk of judicial work, the Supreme court would be used to correct errors in federal courts, and state courts in certain kinds of cases. With some important changes along the way, the courts we have today operate in this same basic profile.

Chief Justice John Jay was 44 years of age in February 1790, when he convened the opening of the United States Supreme Court. Justice Jay had an already impressive career, having represented New York in the Continental Congress at the time war was declared on Great Britain and King George.

In conjunction with Benjamin Franklin, and John Adams, Justice Jay negotiated the Treaty of Paris, a treaty which ended the war. Justice Jay was Secretary of Foreign Affairs under the Articles of Confederation, however, he was a strong supporter of using the Constitution as the replacement for the Articles of Confederation, which he considered a weak element of government.

REORGANIZATION OF THE SYSTEM:

The early judicial system may seem anomalous today, Example:

It required that the justices of the Supreme Court must also serve as circuit court judges, thus the circuit riders. In order to accomplish this mandate, justices had to travel to and around their assigned circuits. They tried cases in tandem with circuit court judges. Congress thought this, the allowing of the highest judges in the land to be seen by the people, would accomplish not only good public relations, but would give the justices an education into the workings of the state court system.

As most government employees do, the justices started complaining. They complained that they had to travel and it was very difficult, accommodations were often uncomfortable, they were separated from their families for long time periods, and sometimes their decisions may have been inadequate. They did not however mention the fact that they would have lifetime positions within this system.

The justices grew louder as the country grew and circuit duty became more difficult. However, Congress was slow to change the system. (Sounds familiar does it not) Congress did make one concession to the justices, it created an additional circuit and added another justice to the Supreme Court. The Supreme Court grew as the country grew, and in 1862 there were ten Supreme Court Justices, one more that we presently have.

Circuit riding by the justices was gradually curtailed as the work load increased for the Supreme Court justices. Case backlogs at all levels of the federal court system grew to alarming proportions, and after the civil war, constitutional amendments and additional federal laws were passed for the protection of the newly freed slaves.

This added additionally to the system, along with other new federal laws to promote business growth between the several states now unified at least commercially. In 1867, Congress extended federal court jurisdiction to hear Habeas corpus petitions from state prisoners, who contended that their constitutional rights had been violated at trial by the state courts.

In 1875, Congress finally gave federal courts ie: ‘general federal question’, jurisdiction. This change increased the federal court caseload still further. No longer would most cases arising under federal statutes have to be tried at the state level, as they were under the 1789 Judicial Act.

The United States Supreme Court was overloaded with appeals from federal and state trial courts. Many persons complained that federal trial courts exercised an unbridled brand of power, because as a practical matter, there were few opportunities to have these court decisions reviewed by the Supreme court.

Congress did not act until 1891, 12 years later, when it relieved the Supreme Court justices of their obligation to ride circuits, thus they began to reduce categories of cases the court was required to decide. Congress further significantly reorganized federal courts with the creation of a separate set of courts.

The court of appeals would hear appeals from federal trial courts. District Courts became the major federal trail court, and the old circuit courts created in 1789 by the Judicial Act were phased out. Thus a three tiered system was created, District Courts, Appellate Courts, and the Supreme Court. This structure remains as the federal judicial court system of today.

HISTORY OF AMERICAN FEDERAL COURTS:

Since the Judicial Act of 1789, the federal judiciary has grown from a starting number of 13 district court judges and 6 Supreme Court justices, to well over 550 district court judges, 160 court of appeal judges, and 9 Supreme Court justices. In 1861 in his first message to Congress, President Abraham Lincoln stated:

"The country has outgrown our present judicial system".

In 200 years, federal courts have played a very vital role in this nations life by developing important legal principles in the course of resolving individual disputes.

Nineteenth century decisions by circuit courts and the Supreme Court justices helped to create a climate of investments, commercial enterprises, and the start of industrialization.

Before the civil war, federal courts were involved in controversies over slave issues, and whether slaves could be returned to their owners in those states from which they had been fled. After the civil war, federal courts were called upon to interpret civil rights statutes that were passed to protect citizens (slaves) newly freed from their slavery.

Federal courts today decide all types of cases, cases involving economic, regulatory, statutes, and/or orders issued through and by administrative agencies/agents. They hear cases based on charges of racial or other arbitrary discrimination, disputes over bankruptcy issues, patents, copyrights, and admiralty matters.

Their court dockets also cover a whole range of federal criminal law, as they have for 200 plus years, deciding cases involving state law, and issues between citizens of different states.

As the founders of our Constitution had anticipated, federal judges insulated from public reprisal has allowed them to make unpopular yet just decisions as is required by our Constitution. These decisions often times protecting the rights of minorities, and/or the expression of what some may consider unorthodox.

Federal courts have been arbiters between branches of government, i.e.: Executive, and Legislative, holding each to their Constitutional mandated sphere. By carrying out judicial responsibilities, federal courts reflect the inherent commitments made to the American people through rules of law. Justice Hugo Black stated from a 1940 case, Chambers v Florida the following:

" Courts stand...as havens...for those who might suffer because they are helpless, weak, outnumbered, or...victims of prejudice and public excitement".

Guardian Paralegal Service offers an opinion about "public excitement" and how Congress was used to pass the Crime Bill of 1987, based purely on "public excitement". One can see where Justice Black’s stance and statement is very much prevalent in today’s society, especially as to "public excitement".

The crime bill of 1987 and its relationship to drugs was based on ‘excitement’, so Congress passed a bill which has not reduced drug use or sales. Granted more persons are incarcerated in the United States, than any other country. This however, has not slowed the drug trafficking into the United States from foreign sources, more drugs are available than ever before. " Public excitement " as used was a bust, and the ‘new’ sentencing guidelines as structured are the result of "public excitement".

The Judicial Act of 1789 we are sure was based on a need to improve a system which was ineffective and outdated. The present system enacted by "public excitement", and to whom Congress listened to is not based on a need to improve.

The present stance judges must deal with concerning ‘sentencing guidelines’, leaves them virtually handcuffed. There position as judges is no more than clerks, the ‘sentencing guidelines’ passed by Congress, mandate the punishment, judges have no say whatsoever.

It would seem, that another Judicial Act similar to the 1789 ‘Act’, needs to be considered. America has and is continuing to loose a generation of its youth to incarceration, with no thought of correcting and helping to rehabilitate them. The answer it appears is lock them up and forget them.

We are not advocating nor suggesting criminal acts should not be punished, but we are suggesting that alternative solutions need consideration, as what we presently have is not working. The three strikes issue only enforces more strenuously the present method which does not work.

References: The Business of The Supreme Court, Felix Frankfurter & James Landis; Julius Goebel, Jr. The Judiciary Act of 1789; Herbert J. Storing, What The Anti-Federalists Were For; Hartford Van Dyke, Constitutional Bonding i.e.: Attorney/Lawyer; The Common Law, Justice Oliver Wendell Holmes Jr.; and personal research by Research Information Resource Associates