Why the Founders Feared a Centralized Judiciary
For more than a century before Philadelphia's 1787 convention, American colonists lived under the eyes of Crown-appointed judges who travelled circuit on behalf of a distant monarch. Those magistrates held office during the king's pleasure, drew salaries from London rather than from the colonies they sat in, and could be removed for any reason short of outright impeachment. Many read their commissions as proof that a strong bench could become an instrument of imperial policy, and that suspicion travelled with the delegates into the closed sessions of the Constitutional Convention.
What the framers feared, in essence, was the slow transformation of an independent judiciary into a quiet accomplice of centralised power. The same worry reappears in federations built later, including Australia's. When the High Court of Australia sits in Canberra, it rules on trade, migration, and Commonwealth-State disputes in ways the founders of 1901 could not have foreseen, and its early rulings still echo the same debate the Americans had in 1787 about how much authority a national bench should hold over local affairs.
Colonial courts and the memory of Crown judges
The eighteenth-century colonial judiciary was not, by modern standards, a particularly independent branch. Judges were appointed by the Crown, paid from royal revenues, and removable when the ministry in London decided a verdict had gone the wrong way. The famous Massachusetts circular letter of 1768, drafted in response to the Townshend Acts, expressly complained that colonists were "subject to laws to which they have not given their consent" and to "judges dependent on the Crown alone for their salaries." Patrick Henry and John Adams repeated versions of the same grievance in speeches that still get quoted in Australian law schools and in American lecture halls alike.
That experience shaped two recurring themes at Philadelphia. The first was independence: judges must answer to the law rather than to the executive that appointed them. The second was restraint: judges must not be drawn so close to the central government that they become its administrators. Both themes would resurface, in altered form, when the Australian colonies debated their own Constitution during the 1890s and when Sir Edmund Barton helped draft provisions still studied in constitutional law tutorials from Melbourne to Perth.
State sovereignty under the early republic
Under the Articles of Confederation, the central government had no national bench at all. Disputes between states were settled, when they were settled at all, by ad hoc commissions appointed for the occasion or by state courts applying their own interpretations of the Articles. The result, contemporaries agreed, was uncertainty bordering on chaos. Yet the absence of a federal court also had defenders, including many who feared that any centrally organised judiciary would drain legitimacy from the state benches.
That tension is not purely historical. Even today, Australian readers will recognise the same structural pull between Canberra and the states of New South Wales, Queensland, and Victoria, where Commonwealth statutes regularly tug against state tribunals in matters of industrial relations, criminal procedure, and land law. The same tug-of-war shaped the 1901 federation debates, and the founders who gathered in Philadelphia handled the dilemma by accepting a federal bench but binding it tightly, with mechanisms that still define American litigation today.
The 1787 debates over the federal bench
The Virginia Plan proposed a "national judiciary" with judges appointed for life and vested with authority to strike down state laws that conflicted with federal statutes or treaties. Smaller states objected, partly out of jealousy but also out of sincere worry about concentrating too much power in one institution. The compromises eventually adopted included the famous "case or controversy" requirement, which keeps federal courts from issuing advisory opinions, and the Article III limitation of jurisdiction to enumerated subject matters.
James Madison's notes from the convention record more than fifty speeches on the judiciary alone, more than were given on the presidency combined. The delegates knew that a small bench, if poorly designed, could grow into the very engine of centralised power they were trying to escape. A quick comparison makes the tradeoffs clearer. The columns that follow match the concerns raised in 1787 with the constitutional devices chosen to address them and how those devices still operate when lawyers go into court today.
| Founders' concern | Constitutional safeguard | How it plays out now |
|---|---|---|
| Federal judges might become agents of the Crown rather than of the law | Life tenure during good behaviour, salary protected from diminution | Justices serve for decades; salary rules constrain political bargaining |
| A national bench might overshadow state courts | Limited jurisdiction, supremacy only over enumerated cases | Federal courts still defer to state courts on most state-law questions |
| Judges might overrule the people without accountability | Appointment through shared executive–Senate process; impeachment retained | Removal has happened, but rarely; the threat continues to restrain overreach |
| Distance from litigants could breed indifference | Trial by jury preserved, venue rules tied to where the cause arose | Jury trials remain common in federal criminal and civil cases |
Lifetime tenure and the politics of impeachment
Life tenure during good behaviour was the most original provision the convention adopted for the judiciary, and it remains the one most often misunderstood. The delegates did not invent lifetime appointments to make judges powerful. They invented them to make judges difficult to intimidate. A judge who must face re-appointment every few years, the argument ran, would tailor rulings to please whichever executive was next in line.
The Australian solution is more blunt. Justices of the High Court must retire at seventy, and the constitution allows a parliamentary majority to legislate around politically inconvenient rulings through the referendum process, however slowly that mechanism moves in practice. Both systems take seriously the founders' conviction that a judge's job is structural, not electoral. They are both wrestling with the same question, and the Australian bar has been characteristically direct in calling that a "fair go" of the founders' own concern.
Federalist anxieties about judicial reach
The Federalist Papers, especially numbers 78, 79, and 81, are unusually candid about these worries. Hamilton conceded that the judiciary had "neither force nor will but merely judgment," and yet that bare judgment, if unchecked, could prove the most dangerous of the three. He answered the critics by pointing to impeachment, to the difficulty of constitutional amendment, and to the modest scale of the federal docket in 1788, all of which he expected to keep the bench modest.
Those expectations did not survive the nineteenth century. By the time of Dred Scott and beyond, federal judges had begun to exercise powers the founders had not imagined, including striking down economic regulation in ways that shocked contemporaries. Yet the founders' deeper instinct, that judicial power must be hedged and modest, remains good advice for any federal system today, including Australia's, where the High Court's growing docket draws regular commentary from practitioners and from legal academics in Sydney and Brisbane watching how federations balance their courts. Comparable analysis across European jurisdictions is gathered at broader European legal commentary, where the question is asked in slightly different vocabulary but with the same underlying structure.
The Australian reflection: a different federation, similar fears
Australian lawyers and legal scholars have spent decades comparing the Commonwealth Constitution with the American model, partly because the framers in 1901 had the American experience in mind and partly because the structural parallels are tempting. Section 109 of the Australian Constitution, which invalidates state laws inconsistent with Commonwealth statutes, mirrors, in compressed form, the Supremacy Clause of Article VI. The interaction between the High Court and the state Supreme Courts resembles in many ways the relationship between the federal circuits and the state benches.
Australian barristers, briefed by solicitors in the familiar split between trial and appellate counsel, also feel the concentration of judicial authority in a single trial judge. A single docket entry can shape a case the way a Supreme Court ruling shapes a statute. Yet the Australian framers were no less wary of concentrated judicial authority than their American counterparts. They refused to give the High Court the power to strike down Commonwealth statutes on substantive due-process grounds, a power the American bench assumed for itself in the late nineteenth century and that the High Court has never claimed.
Australians who read about the American controversy over Roe v. Wade will recognise, beneath the partisan noise, an older question: how much constitutional authority should rest in an appointed bench that cannot be turned out of office by an election cycle. The American founders offered one answer. The Australians offered another. Both continue to shape litigation in real practice today, and both show up in the daybook of every practitioner who appears before the bench in Martin Place or in the Federal Court in Melbourne.
Modern echoes: documents, discovery, and judicial risk
It is a long journey from the 1787 debates to a modern discovery dispute over a leaked email, but the founders' core worries about judicial power still speak to the daily work of a trial lawyer. When a court takes a sprawling case under its wing, that court shapes not only the legal rule but also the litigation itself: what discovery will be permitted, what sanctions will follow, what remedies will be ordered. The very concentration of authority that Hamilton feared now operates at the trial level, where a single judge can effectively decide who wins and who pays.
Readers who want a worked example of how internal business records drive that concentration can look at email and document risks, where Edward Mannino walks through the way a single careless message becomes an exhibit in a motion for summary judgment. It is, in a small way, the kind of risk the founders worried about: a bench with a great deal of quiet authority, dealing with the contents of documents that were never meant for it.
Step into the archive
The founders left us no neat answers. They left us a structure for arguing about judicial power across generations, and they left us a bench capable of surprising us. That bench has, in the main, become more powerful than Hamilton predicted and less accountable than the Anti-Federalists feared. Reading the original sources against the modern caselaw is one of the few ways to keep that balance in honest view, and readers who want to follow this work as it continues can browse Edward Mannino's other writings on lender liability, banking litigation, and the long history of the American trial bar at his personal site, where new essays on courtroom practice, federal courts, and American legal history appear regularly.