Historians sometimes talk about the constitutional convention of 1787 as “the miracle of Philadelphia.” Why? This is Part FIVE of the answer.
In addition to the structure of the legislative and executive branches of the national government, the convention had to decide what to do about a national judiciary. Madison’s Virginia Plan contemplated that there would be a “supreme tribunal” and such other courts as the Congress might decide to create. That concept made it into the final draft of the constitution. Madison initially proposed that judges be elected by Congress. Federal courts would have limited jurisdiction, leaving the vast majority of cases to state courts. Only admiralty and piracy cases, diplomatic disputes, and other matters of obviously national import could be decided in federal court, including the impeachment of federal officers. However, delegates eventually allowed the jurisdiction of the lower courts to be expanded by Congress, also reassigning to Congress the power to impeach judges and other federal officers.
Also, the Virginia Plan’s proposal that federal judges be elected by the entire Congress seemed unwieldy to many delegates. Some defenders of states’ rights, such as Luther Martin of Maryland, felt such a system would give large states and the federal congress too much power. Politicians like Martin who wanted a weak national government and more power in the states are often referred to as “anti-federalists.” Martin suggested that the Senate, where each state had an equal voice, should appoint federal judges. Federalists like Hamilton and Madison, advocates of a stronger national government and a strong president, preferred giving the president the power to appoint judges.
The convention considered different proposals and ultimately compromised by deciding the president should have the power of appointment but only with the “advice and consent” of the Senate. Federal judges would be appointed for life, as long as exhibiting “good behavior,” a term left undefined, and as with the president, if behaving badly, they would be subject to impeachment by the House and removal by 2/3rds vote of the Senate.
“History of Our Freedoms” is produced by KEDT-FM in Corpus Christi. Dr. Bill Chriss is a historian and legal scholar. For more on history and the constitution, check out his blog at DrBillChriss.substack.com.
