hybrid appellate courts structure of the new federal government to grand juries.15 The charges given to grand juries at the opening of each circuit court often covered issues not strictly legal, for the justices realized that they were the only federal officials ever seen by citizens in these far-flung locations.16 Chief Justice John Jay, for instance, took the opportunity, when presiding at his first circuit court, to discuss why and how the national government had been formed, the theoretical basis for its organization, the obstacles with which it had to contend, and the difficulties it would face. He emphasized that, “A judicial Controul, general & final, was indispensable.” But he admitted that, “The Manner of establishing it, with Powers neither too extensive, nor too limited; rendering it properly independent, and yet properly amenable, involved Questions of no little Intricacy.”17 “A judicial Controul, general & final” – that is, judicial review. Of course, nowhere in the Constitution could the judges find those words. As Court of Appeals Judge Richard Posner observed, “Although the Constitution does not say explicitly that a court can invalidate a statute or any other official act that violates the Constitution, such a power is implicit in the text, and it has been assumed, affirmed, and exercised for the last two hundred years or so.”18 Supporters and opponents of the new government alike believed that the judiciary was invested with this authority.19 Judicial review entails two distinct functions, one involving the states, the other concerning the executive and legislative branches of the federal government.With regard to the states, if national interests were to be 15 Lerner, Ralph 1967; Marcus, Maeva – Tassel, Emily van 1988 pp. 32-33. 16 See the many grand jury charges published in Marcus, Maeva (ed.) 1988 and 1990. The grand juries themselves understood the political nature of the process in which they were involved, because not only did they use their presentments to express their intentions with regard to indicting people, but they also raised issues that they wanted the government to address. See, e.g., Presentment of the Grand Jury of the Circuit Court for the District of Georgia, October 18, 1791, in Marcus, Maeva 1988 pp. 224-25. 17 John Jay’s Charge to the Grand Jury of the Circuit Court for the District of New York, April 12, 1790, in Marcus, Maeva 1988 p. 27. 18 Posner, Richard A. Posner 1999 p. 37. 19 See, for example, Kaminski, John – Saladino, Gaspar (eds.) 2001 p. 433. Alexander Hamilton, trying to allay the fears of those who saw the potential for a strong judiciary, defend200
RkJQdWJsaXNoZXIy MjYyNDk=