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Thursday, August 12, 2021

Justice Washington on the Constitutionality of Circuit Riding

The repeal of the Judiciary Act of 1801 was a major constitutional controversy at the dawn of the Republic. One of the issues that flowed from that dispute was whether the Justices could be compelled to hold circuit courts as was done from 1789-1801 and again starting in 1802. The Justices acquiesced in the restoration of circuit riding reluctantly, as many of them had constitutional doubts but felt they had choice but to comply.

I've come across a letter from Justice Washington (written years later) indicating that he shared the view that circuit riding was unconstitutional.  Writing in 1818 about a bill that would reform the federal court system, he stated: "Our present system is worse than being imperfect, as it is very obvious that the Judges of the Supreme Court have & can have no constitutional authority to hold the Circuit Courts." His decision to acquiesce in 1802, therefore, was probably political or pragmatic.

Posted by Gerard Magliocca on August 12, 2021 at 11:56 AM | Permalink


Justices repeatedly cited the fact the they had the power to strike something down on constitutional grounds (some Jeffersonians WANTED Federalist judges to do so on the carriage tax deemed to some as an unconstitutional direct tax or Alien & Sedition Acts laws) if only in very clear cases in cases before Marbury.

Posted by: Joe | Aug 12, 2021 3:09:23 PM

Marbury v Madison did not come down until 1803. It's not clear how a justice would have imagined striking down a law as unconstitutional the previous year, especially one that directly involved the responsibilities of the justices as set by Congress.

Posted by: PaulB | Aug 12, 2021 12:08:12 PM

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