Congress Passes the Judiciary Act: September 24, 1789

This text comes from our book, Lands of Hope and Promise.

The first presidential election was a mere formality—all knew that George Washington would be the republic’s first president. He ran unopposed and so became the only president in U.S. history to receive the entire electoral vote.

In his inauguration address delivered April 30, 1789, President Washington expressed his reluctance to accept the presidency. “Among the vicissitudes incident to life no event could have filled me with greater anxieties,” said Washington:

On the one hand, I was summoned by my country, whose voice I can never hear but with veneration and love, from a retreat which I had chosen with the fondest predilection, and, in my flattering hopes, with an immutable decision, as the asylum of my declining years . . . On the other hand, the magnitude and difficulty of the trust to which the voice of my country called me, being sufficient to awaken in the wisest and most experienced of her citizens a distrustful scrutiny into his qualifications, could not but overwhelm with despondence one who (inheriting inferior endowments from nature and unpracticed in the duties of civil administration) ought to be peculiarly conscious of his own deficiencies.

Washington’s task was formidable. He had to turn a written constitution into a working government over a people, many of whom still opposed it. In part to appease the anti-federalists, Washington in his inaugural address hinted that Congress should approve a bill of rights. Accordingly, 12 amendments were presented to Congress, which approved them and sent them on to the states for ratification. By December 15, the required number of states had ratified ten of the 12 amendments, and these became part of the constitution.

A view of Federal Hall, New York City, as it appeared in 1797 (an 1847 lithograph by Henry R. Robinson). It was on the balcony of this hall that Washington was inaugurated president.

The Bill of Rights was seen as a series of checks upon the power of the federal government. Thus, Article I prohibits Congress, but not the states, to make laws that “abridge the freedom of speech, or of the press” or the right to free assembly and petition. It forbids Congress, but not state legislatures, to make a “law respecting an establishment of religion, or prohibiting the free exercise thereof.” Article II protects a state’s right to a militia and so forbids the federal government from infringing on “the right of the people to keep and bear Arms.” Article X enshrines a principle dear to the anti-federalists—the separation of powers in American government, mandating that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Neither this amendment nor any part of the constitution, however, clearly delineates all the respective powers of the federal government or the states—assuring that the question would serve as the grist for many future debates both inside and outside of Congress.

Washington realized his limitations and so attempted to surround himself with a number of talented men upon whom he could rely. Besides John Adams, who was elected vice-president (in those days the candidate who received the second highest number of votes became vice-president), Washington’s first administration included Thomas Jefferson as secretary of state, Alexander Hamilton as head of the treasury department, General Knox as secretary of war, and Edmund Randolph as attorney general. Washington made no important decisions without consulting these officials—who formed what became known as his “cabinet.”

An engraving of George Washington

An important task for Washington was composing the Supreme Court. Although the Constitution established the judiciary as the third branch of government, it did not specify how many justices should sit on the court. Thus, on September 24, 1789, Congress passed the Judiciary Act, setting the number of justices at six—one chief justice and five associates. (The number was later increased to nine). The act also established 13 district courts and three circuit courts.

President Washington, “with the advice and consent of the Senate,” appointed John Jay as the republic’s first chief justice. The “Jay Court” is significant for establishing precedents for what later became known as “judicial review”—the court’s critique of the legal acts of states and the federal government. The first of these precedents was the Supreme Court’s decision that a law passed by the Connecticut assembly was unconstitutional; the second was the court’s refusal to execute a law passed by Congress. In the latter case, the court said that it was unconstitutional for the federal courts to act as the agents of Congress.

Alexander Hamilton became Washington’s most trusted adviser. Hamilton’s goal was to see the new federal government well-established and strong. An admirer of the British government, Hamilton worked to set the financial affairs of the federal government upon principles already established in the mother country. For Hamilton, the wealthy (cultured and established families, prosperous merchants, creditors, and successful financiers) were the solid pillars upon which to erect the federal government. He thought that if the federal government established policies favorable to the wealthy, the wealthy would in turn lend their support to the federal government over state governments, which Hamilton wanted to see weakened.

Hamilton advocated a number of policies to put the new government on a sound financial footing. He promoted repayment of both the foreign and domestic debt. He convinced the president and then Congress that, instead of having each state pay its own debts, the federal government should assume and pay off all state debt. Under Hamilton’s leadership, the federal government by 1795 had paid off the foreign debt. Hamilton also suggested and lobbied for the creation of a federal bank—the Bank of the United States.

Alexander Hamilton, by John Trumbull

Hamilton wanted to foster domestic manufacturing. In 1791 he issued a “Report on Manufactures” that called for federal protection of the United States’ fledgling industries by placing duties on imports of foreign manufactured goods—thus increasing the cost of foreign relative to domestic goods. Hamilton thought import duties would increase the national wealth, encourage the immigration of artisans, spur the invention of new machinery, and create employment for women and children in manufacturing. (Home manufacturing already existed in many states, especially in New England.) But no one favored Hamilton’s report—neither southerners, who depended on foreign manufactures, nor northerners, who were enjoying the benefits of free trade, which import duties would effectively end.

Overall, Hamilton’s policies were a boon for the coastal cities in Massachusetts, Connecticut, New York, Rhode Island, and South Carolina. In Massachusetts, the prosperity of Boston seeped into the western counties, and so the entire state grew quite complacent toward the Washington administration. In the rest of the country, however, people saw little benefit in Hamilton’s policies. Especially in most of the South, they objected to the federal assumption of state debt and opposed the establishment of the Bank of the United States. Patrick Henry well summed up the thoughts of these folk: “to erect, and concentrate, and perpetuate a large monied interest . . . ,” he wrote, “must . . . produce one or other of two evils, the prostration of agriculture at the feet of commerce, or a change in the present for the federal government, fatal to the existence of American liberty . . . ”

As in the Revolution, Henry was the harbinger of a national movement—one that would affect the complexion of American society.