Concerning the structure of the federal judiciary little need be said
here. It was framed with very little disagreement among the delegates.
The work was chiefly done in committee by Ellsworth, Wilson, Randolph,
and Rutledge, and the result did not differ essentially from the scheme
laid down in the Virginia plan. It was indeed the indispensable
completion of the work which was begun by the creation of a national
House of Representatives. To make a federal government immediately
operative upon individual citizens, it must of course be armed with
federal courts to try and federal officers to execute judgment in all
cases in which individual citizens were amenable to the national law.
But for this system of United States courts extended throughout the
states and supreme within its own sphere, the federal constitution could
never have been put into practical working order. In another respect the
federal judiciary was the most remarkable and original of all the
creations of that wonderful convention. It was charged with the duty of
interpreting, in accordance with the general principles of common law,
the Federal Constitution itself. This is the most noble as it is the
most distinctive feature in the government of the United States. It
constitutes a difference between the American and British systems more
fundamental than the separation of the executive from the legislative
department. In Great Britain the unwritten constitution is administered
by the omnipotent House of Commons; whatever statute is enacted by
Parliament must stand until some future Parliament may see fit to repeal
it. But an act passed by both houses of Congress, and signed by the
president, may still be set aside as unconstitutional by the supreme
court of the United States in its judgments upon individual cases
brought before it. It was thus that the practical working of our Federal
Constitution during the first thirty years of the nineteenth century was
swayed to so great an extent by the profound and luminous decisions of
Chief Justice Marshall, that he must be assigned a foremost place among
the founders of our Federal Union. This intrusting to the judiciary the
whole interpretation of the fundamental instrument of government is the
most peculiarly American feature of the work done by the convention, and
to the stability of such a federation as ours, covering as it does the
greater part of a huge continent, it was absolutely indispensable.