The “Judicial Power” and Contempt of Court: A Historical Analysis of the Contempt Power as Understood by the Founders

This Note focuses on the power of the federal judiciary to hold litigants in contempt of court. In particular, this Note analyzes whether the contempt power of the federal judiciary stems from an inherent grant of power in the Constitution or whether it is derived purely from acts of Congress. The extent to which Congress can limit judges’ power to punish contempt depends on whether judges have an inherent power to punish contempt. Because judges have used the power to punish in ways that abridge individual liberties and civil rights, it is imperative that Congress be aware of whether it can constitutionally limit judicial conduct vis-a-vis contempt. Part I of this Note outlines what judges and scholars have written about an inherent judicial contempt power. Part II of this Note explores whether the drafters and ratifiers of the Constitution intended to vest the judiciary with an inherent contempt power. In doing so, this Note examines the most important sources from the Founding Era. Those sources include texts from pre-revolutionary British legal practice, American colonial practice, revolutionary state practice, the ratification debates, and the actions of the Founders immediately following the ratification of the Constitution. By tracing the history of the contempt power from British practice all the way to constitutional ratification, this Note provides a comprehensive overview of how the thoughts of the framers changed over time and what the framers finally intended with regard to contempt when they drafted the Constitution. This Note argues that the framers did not intend to create an inherent judicial contempt power and that judges’ contempt power is therefore under Congress’s control.

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Introduction

This Note explores the limits of the judicial power to punish contempts. Federal courts in the United States wield a great deal of power to ensure that the law is followed and that courts are respected. When parties refuse to comply with court orders and disrespect the judicial process, courts have used punishment and the threat of punishment to compel parties to follow their commands. This is the contempt power.

Article III of the Constitution grants power to the federal courts by providing that the “judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”[2] Although Article III clearly vests the judicial power in federal judges, there has been debate regarding the exact authority the Founders meant to include by using the words “judicial Power.” Some courts and scholars have interpreted the phrase “judicial Power” to encompass a form of the common law power to punish for contempts of court.[3] Others have questioned whether the contempt power was intended to be inherent to the judiciary at all.[4]

Courts and scholars that interpret the “judicial Power” as including some form of common law power base their findings both on normative ideas of judicial necessity and on the history of the contempt power.[5] Accordingly, judges throughout the country’s history have used their supposed inherent power to punish contempts and compel individuals to comply with court orders.[6] Courts have also used the power to punish when litigants challenge the dignity of the courts,[7] regardless of whether court orders have been disobeyed.[8]

In sum, courts have broad discretion in determining what conduct they consider to be contempt of court.[9] And when punishing parties held to be in contempt, courts have used their authority to detain or fine those parties.[10] Because judges can both determine when a party is in contempt and punish that conduct, judges have broad powers to punish at will.[11]

Sometimes judges have used the contempt power in ways that are unduly oppressive rather than helpful to the justice system. For example, during the trial of the Chicago Seven—a well-known trial that involved a group of Anti-Vietnam War protestors—defendants were held in contempt of court and were imprisoned for months or even years.[12] One defendant, Bobby Seale, lashed out when the court would not allow him to be represented by his attorney; he was subsequently held in contempt, then bound and gagged by order of the court.[13] The contempt charges of all the defendants were eventually “either dismissed by higher courts or dropped by the government.”[14] More recently, judges have used the contempt power to jail litigants who fail to pay fines for fine-only crimes.[15] Notwithstanding the Supreme Court’s decision in Tate v. Short, which held that defendants may not be jailed for crimes for which the only punishment is a fine,[16] judges have used their contempt power to jail individuals who cannot afford to pay.[17]

Despite modern court practice, not all courts and scholars have been convinced that the power to punish contempts is inherent in, or should be exercised by, the judiciary. This has given rise to debate about whether the power is appropriately used by the courts, by Congress, or whether it should be used at all. In the past, Congress has attempted to limit the discretion judges have to hold parties in contempt.[18] Although these attempts have curbed judicial power to some extent, courts have maintained that the power is inherent and cannot be unduly limited.[19]

Whether the Founders thought the ability to punish contempt was part of the “judicial Power” has broad implications for Congress’s ability to limit that power,[20] for the courts’ ability to conduct executive action (i.e., executing the law through punishment rather than determining what the law is),[21] and for the courts’ ability to use the contempt power to control coequal branches of government.[22]

When looking back at the historical record left by the Founders, it is not apparent that they would have considered the ability to hold parties in contempt to be part of the “judicial Power of the United States.” At best, the historical evidence indicates inconsistent practices and beliefs among the states and Founders about whether courts had an inherent contempt power.[23] Despite this equivocal record, the history of the contempt power deserves analysis. Even where the contempt power is not explicitly mentioned, the writings and statements of the Founders about the general judicial power can be used to infer the state of the law vis-a-vis punishment for contempts.

Part I of this Note reviews how courts and scholars have conceived of the contempt power to date. Part II compares those conceptions with early understandings[24] of the judicial contempt power as by those prior to, during, and immediately after the establishment of the Constitution. By methodically tracing the history of the contempt power through the years surrounding constitutional ratification, this Note furthers a more accurate understanding of how the Founders perceived the contempt power, and whether they perceived such a power to be inherent in the judiciary. Although the historical record could be interpreted in multiple ways, the majority of the evidence demonstrates that the Framers of the Constitution did not believe there was an inherent contempt power in the federal courts. Early American history shows that the Framers of the Constitution conceived of contempt as an inherently executive or legislative power, not a judicial one. The implication of this analysis is that Congress may properly limit the judicial contempt power.

I.
Current Understanding of the Contempt Power

For centuries, courts and scholars have claimed that an inherent constitutional contempt power exists independent of any congressional legislation delegating such a power to the judiciary.[25] This claim rests on a theory of inherent authority implicit in the “judicial Power,” and vested in the federal courts by the Constitution. Part I.A reviews what the judiciary has written about its judicial contempt power throughout history. Part I.B then surveys existing scholarly literature on the same.

A. What the Judiciary Has Said About the Judicial Contempt Power

Supreme Court precedent is mixed as to whether the power to punish for contempt is an inherent power vested in the judiciary. An early Supreme Court case refers to the federal courts’ power to hold parties in contempt as an inherent, rather than statutory, power of the courts. In United States v. Hudson, a case involving the contempt power, the Court stated that “[c]ertain implied powers must necessarily result to our Courts of justice from the nature of their institution.”[26] This decision exemplifies that, although there was a statute which authorized the courts to hold parties in contempt,[27] the Supreme Court maintained, shortly after the ratification of the Constitution, that the judiciary has inherent authority to punish contempts.

The Court has continued to assert inherent authority to punish contempts in the modern era as well. Even though Congress has passed further legislation limiting the use of the contempt power in the federal courts,[28] the Supreme Court has continued to claim that the federal courts have an inherent power to punish. In United States v. Barnett, the Court stated that “[t]he power to fine and imprison for contempt . . . . is a power inherent in all courts of record.”[29] Furthermore, the Supreme Court has essentially upheld the power of courts to punish even absent a statutory grant of power. In Willy v. Coastal Corporation, the Court addressed whether a district court could impose Federal Rules of Civil Procedure Rule 11 sanctions on counsel even when the district court lacked subject-matter jurisdiction over a case.[30] The Court purported not to reach the question of whether courts have an inherent authority to punish, but at the same time held that the lower court could punish the litigants despite not having jurisdiction over the parties.[31] Courts only have authority to adjudicate a matter when they have subject-matter jurisdiction. Thus, when the Court stated that the district judge had the power to punish even without subject-matter jurisdiction, it effectively held that courts do have inherent authority to punish, regardless of any statutory grant or jurisdictional limitation.[32] The Court has also said that judges have the power to sanction, even outside of Rule 11. In Chambers v. NASCO, Inc., a case where the district court sat in diversity jurisdiction, the Supreme Court upheld the district judge’s inherent power to award plaintiff’s attorneys’ fees, even when that power had no basis in Rule 11 or state law.[33] Additionally, in Chambers, the Supreme Court upheld the district judge’s use of the contempt power to punish conduct by the litigants exhibited in other courts.[34] Most strikingly in Chambers, the Court implied that the judiciary can use their inherent sanctioning powers even where the legislature has set limitations on sanctions.[35]

However, on other occasions the Court has conceded Congress’s authority to regulate the use of the contempt power by lower courts. For example, in Ex parte Robinson the Court held that a district court’s use of its contempt power to disbar an attorney violated a congressional statute.[36] The Court held that, pursuant to statute, courts could only hold parties in contempt for specific actions and that courts did not have discretion to hold parties in contempt for reasons of their own choosing.[37] The Court thereby recognized that Congress can limit the lower courts’ discretion in punishing contempts. The Court noted that the lower federal courts were only established by an Act of Congress. Therefore, Congress could also exercise control over the powers granted to the lower courts. This explanation has been used to justify jurisdiction-stripping statutes.[38] But it is not clear that jurisdiction-stripping is the same as denying courts the power to punish contempts, as courts have argued that the power to punish contempts is a necessary tool in the judicial process.[39] By contrast, when Congress strips a court’s jurisdiction, the court simply cannot hear the case. Therefore, by conceding that Congress can regulate the contempt power, the Supreme Court has implied that the contempt power is not inherent in the “judicial Power.”

Additionally, the Court has also assented[40] to other restrictions on contempt that have been mandated by Congress, such as the requirement that indirect contempts[41] be tried by jury upon the request of the accused.[42] Furthermore, some justices have seriously questioned the use of the contempt power, at least in its summary form,[43] as inconsistent with the judicial power as conceived by the Framers. Writing for the dissent in Green v. United States, Justice Black stated the following: “[t]he power of a judge to inflict punishment for criminal contempt by means of a summary proceeding stands as an anomaly in the law.”[44] Justice Black went on to note that although the contempt power of the judiciary started off as a trivial power in the courts to preserve order, after the adoption of the Constitution, the power began to expand at the hands of judges who sought to exercise it more freely.[45] Justice Black, therefore, found that the exercise of the contempt power as used after the enactment of the Constitution was contrary to the principles underlying the Constitution and the Bill of Rights.[46]

Thus, there have been mixed opinions in Supreme Court precedent about whether the power to punish for contempt is an inherent power vested in the judiciary or whether it derives from congressional statute and can therefore be limited or stripped by Congress. The cases that have found an inherent power to punish have been mistaken in their understanding of where the courts’ authority to punish derives from. Although the Court has stated that the power is necessary and thus inherent, and that the power has been used by courts in the past, it has failed to tie that claim of authority to accurate analysis of the Founders’ intent in drafting Article III. As shown in Part II, infra, an originalist analysis of Article III demonstrates that no such inherent power exists.

B. What Scholars Have Said About the Judicial Contempt Power

There has also been debate among scholars about whether the contempt power is inherent in the judiciary. Part I.B.1 reviews the argument against an inherent contempt power; Part I.B.2 examines the argument in favor.

1. The Contempt Power Is Not Inherent to the Judiciary

Ronald Goldfarb has concluded that the judicial power to punish contempts, though accepted in early American history, should not be thought of as inherent in the courts. Goldfarb stated that the contempt power has been so accepted in Anglo-Saxon law that its existence or necessity in the judiciary is hardly ever questioned.[47] There has been a paucity of scholarship on the origins, implications, and scope of the contempt power relative to its ability to coerce individual litigants and the government. Yet, to the layperson, the power seems violative of the basic relationship between the government and the people because it allows judges to punish at their discretion with minimal process. Goldfarb related that cases both in England and the United States often treat the contempt power as an inherent one in the judiciary, and one that the judiciary could not function without.[48]

In his article, Goldfarb traced the origins of the contempt power back to the supposed divinity of kings in the medieval period and the idea that disobeying the king’s agents (i.e., judges) was tantamount to disobeying the divinely ordained monarch.[49] Goldfarb argued that, eventually, courts began to claim that the power to punish was inherent in the judiciary itself as an incidental and necessary tool of the judicial role.[50] Goldfarb traced that development back to the English contempt case The King v. Almon, decided by English Chief Justice Wilmot.[51]

Almon suggested that summary contempt was a necessity for the courts, and that disrespect to the judge was effectively disrespect for the law. Courts and scholars inappropriately cited the Almon case to expand the reach of the contempt power. According to Sir John Charles Fox, who thoroughly analyzed Almon, English and American judges used dicta from Almon despite the fact that the opinion was never officially published during Chief Judge Wilmot’s life and did not reflect the law of the time.[52] Fox also noted that the dicta in Almon went further than English courts had ever gone before in asserting that the contempt power was necessary to maintain the dignity of the courts, and that the summary contempt power hadn’t been used in the past. Even though the Almon opinion was anomalous and only posthumously published years after the Almon case was resolved, later English courts adopted Chief Justice Wilmot’s reasoning and expanded the scope of their power to punish contempt even further.[53]

Courts and scholars were mistaken to rely on Almon in determining the scope of the contempt power during the founding. The notes of Almon were not published until after the ratification of the Constitution.[54] If, as Fox asserted, Almon expanded the traditional understanding of contempt,[55] then Almon is not reflective of how the Founders conceived of the contempt power when drafting and ratifying the Constitution and the “judicial Power.” Goldfarb did note that Chief Justice Wilmot and William Blackstone, the famed British jurist and author, were acquainted, and that Blackstone consulted with Wilmot on the law of contempt.[56] This is significant to the originalist understanding of the contempt power because the Founders were heavily influenced by the writings of Blackstone.[57] However, as covered below, Blackstone’s commentaries espouse a far more king-centric conception of the contempt power than the Almon notes do.[58]

Although Goldfarb made compelling normative policy arguments against punishment for contempts, his assertion that the contempt power was accepted by early courts deserves critical examination. Goldfarb’s research frequently referenced an earlier influential article by Justice Felix Frankfurter and Professor James Landis on the power of Congress to regulate criminal contempt proceedings, which bears on the inherent power of the courts to hold parties in contempt.[59] Frankfurter and Landis focused most closely on colonial British practice and the Acts of Congress post-ratification,[60] and found that Congress does have authority to regulate the procedure of contempt trials. However, they did not go so far as to say that Congress has authority to abolish all punishment for contempts of court.[61] They also failed to analyze how states approached the issue after the revolution, as well as in the years leading up to the ratification of the Constitution.[62]

Evidence of the Framers’ conception of the contempt power is limited, but there are clues that suggest the contempt power was not thought of as an inherent power in the courts until several years after the Constitution was ratified.[63] Therefore, the contempt power cannot be accurately described as part of the original meaning of the “judicial Power.”[64]

2. The Contempt Power Is Inherent to the Judiciary

Professor Robert J. Pushaw, Jr. has made the case that punishing contempt is an inherent power of the federal judiciary vested in the specific provisions and general structure of the Constitution.[65] Professor Pushaw argued that the inherent Article III powers of the federal courts are those that are indispensable to the functioning of the courts and are “rooted in historical Anglo-American practice.”[66] Professor Pushaw asserted that those powers cannot be negated or “materially abridg[ed]” by Congress “[b]ecause the Constitution itself gives federal courts implied authority that is essential to their independent exercise of judicial power.”[67] Pushaw asserted that the implied authority derives from the fact that Article III of the Constitution “establishes ‘courts’” and that “[a]ny Anglo-American ‘court,’ to be worthy of that name, must have the ability to maintain its authority . . . . Such control sometimes bears no direct relationship to adjudication . . . . [J]udges must have power to punish misbehavior in their presence.”[68]

However, Professor Pushaw’s thesis with respect to the Founders’ views of contempt and what powers they thought were indispensable to courts is substantially flawed. Similar to Goldfarb, Professor Pushaw traced the original contempt power back to respect for the Crown, but also argued that the power became an inherent one through practice and codification by parliament.[69] However, this argument is flawed because inherent power only truly began taking root in traditional court practice after the Almon case. In addition, codification of the power by parliament did not occur until after the founding.[70] Therefore, it could not have informed the meaning of the Constitution.

Professor Pushaw’s article also looked at the historical record of the colonial and post-revolutionary courts. But in drawing his eventual conclusion that courts have an inherent contempt power, he gave far greater weight to the pre-independence courts than he did to the revolutionary courts.[71] In doing so, he focused on a period that has limited relevance to an understanding of how the Founders conceived of the judicial power when the Constitution was written and ratified.[72] Professor Pushaw conceded that the judges in the post-revolution states were “weak and dependent” but asserted that because of that weakness they were “of marginal relevance” in determining the inherent authority of the federal courts.[73] But this statement fails to recognize that the weakness of judges after the revolution is relevant, as it illustrates how the Founders during that time would have thought about the judiciary. The Revolution was an event that entirely reshaped how the government was structured.[74] The Founders intended to weaken the judiciary post-Revolution, as weak courts were more consistent with their views on the separation of powers.[75] Furthermore, under Article III of the Constitution, Congress was not obligated to create lower federal courts. Therefore, the state courts served as the default courts where federal law would be enforced.[76] Thus, the post-revolutionary state courts of limited power should be looked at as having at least those powers the Founders bestowed on the federal judiciary. As such, state court practice is relevant to the inquiry on whether federal courts were thought to possess inherent punishing powers. Their practices should be given equal or greater weight to those of pre-independence courts.

Scholars who asserted that the “judicial Power” encompasses the power to punish contempts either looked at inappropriate sources, such as Almon, or otherwise gave greater weight to historical evidence than that evidence deserved. In light of the confusion among the judiciary and scholars, Part II attempts to methodically trace the different conceptions of the judicial power vis-à-vis contempt throughout early American history, and explain why certain sources and periods are more relevant than others. In doing so, Part II demonstrates that the Founders did not think that courts had inherent authority to punish for actions that the courts considered contempt.

II. Origins of the Contempt Power

There are several key sources this Note focuses on to determine whether the Founders intended the Constitution to grant the federal courts the power to punish contempts. For clarity, Part II addresses the various sources on the meaning and scope of the contempt power in chronological order, beginning with British constitutional history and ending in the period shortly after the U.S. Constitution was ratified. Tracing the meaning of the contempt power over time also provides a perspective on how the Framers’ thoughts regarding the contempt power changed during different periods and how they thought of the contempt power during the constitutional convention and ratification debates.

Part II.A reviews British constitutional history and colonial practice regarding the judiciary’s contempt power. Part II.B moves to the revolutionary period, reviewing state constitutions, common law decisions, and the Articles of Confederation leading up to the Constitution. Part II.C discusses the debates surrounding the Constitution, largely exploring The Federalist and the ensuing state ratification debates. And lastly, Part II.D reviews the early post-ratification views of the President, Congress, and the courts surrounding the judicial contempt power.

A. Conceptions of the Contempt Power During the Colonial Period: British Constitutional History and Colonial Practice

Part II.A demonstrates the influence of the English courts on the thoughts of the Founders and the important differences between those courts and the courts that were later developed under the Constitution in the United States. Crucially, the power of English courts was derived from the King, whereas the American judicial branch is separate and has power independent of the executive branch. The separation of powers is of pivotal importance in determining how the contempt power was allocated among the branches of government under the Constitution. Part II.A.1 reviews British constitutional history and Part II.A.2 reviews early colonial practice.

1. British Constitutional History

In tracing the allocation of the contempt power, it makes the most sense to begin with English constitutional history. English common law and court practice served as the basic framework for the colonial judiciary.[77] Since many of the Founders were learned in the law, they would have been well aware of English practice. Commentaries on the Laws of England by William Blackstone was one of the influential English works on the common law that the Founders relied on, and thus, eventually influenced the framing of the Constitution.[78] During the founding era, Blackstone was one of the more commonly cited sources on English common law.[79] Blackstone’s Commentaries were so important that they were included among the list of books prepared by James Madison in 1783 to “constitute the intellectual nucleus for a library for the Congress.”[80] They were also included among the books offered to Congress by Thomas Jefferson, who contributed a copy from his own collection after the Library of Congress had been burned by the British in 1814.[81] Additionally, the very beginnings of structured legal education in America were based on Blackstone’s Commentaries.[82] Blackstone was so well known to the Founders that he was referred to by name in the The Federalist multiple times.[83]

Blackstone’s work is relevant in understanding the contempt power because the Commentaries referred to contempt in numerous passages and described the different types of contempts at length.[84] It is fair to assume that the Founders were aware of Blackstone’s conception of the power to punish contempt when drafting and ratifying the Constitution. Although Blackstone refers to English courts as having the power to punish contempts, there is reason to believe that the Founders who carefully studied the Commentaries would not have wanted those same powers to inhere in American federal courts. The Founders would not have believed that the phrase “judicial Power” granted federal courts the historical power of English courts because the structure of American government differed fundamentally from that of the English government.[85] English judges served as officers of the executive branch (i.e., the King).[86] However, in America, the Founders separated the executive and judicial branches of government, vesting judges with independent power apart and away from the executive branch.[87] Because American judges were not agents of the Crown, the question arises whether the power to punish contempts remained vested in the judicial branch. If the power to punish stemmed from the King, judges would have no such power absent their connection to the King.

In his Commentaries, Blackstone explained that the justification for the power to punish contempts is based on vindicating the King’s dignitary interests and lawmaking authority.[88] In other words, judges punished contempt because when litigants disrespected the judge, they ultimately disrespected the King. One definition of contempt in the Commentaries defined actions taken “against the king’s prerogative . . . . by disobeying the king’s lawful commands; whether by writs issuing out of his courts of justice” as contempt.[89] The definition further stated that “[d]isobedience to any of these commands is a . . . contempt.”[90] This definition demonstrates that holding a party in contempt of court was a response to individuals indirectly disobeying the orders of the Crown rather than a response to individuals disobeying or disrespecting the judge in his own right.

Furthermore, Blackstone listed several activities that were considered contempts under the common law.[91] Examination of those activities further indicates that it was the King’s dignity rather than the judge’s being vindicated.[92] Because the power to punish was used to vindicate the King’s authority, the power to punish ultimately stemmed from the Crown’s executive authority, and not from any judicial necessity per se.[93] Additionally, because the King was the ultimate lawmaker, disobeying the King’s command was a crime in its own right, which further justified punishing that conduct. Disrespecting the judge, who was often a member of the peerage, was punished not pursuant to contempt of court but rather pursuant to an infraction called scandalum magnatum,[94] which was a separate offense in England, unrelated to contempt. If contempt was about vindicating the judge’s dignity, the separate offense of scandalum magnatum would have been superfluous.

Pushaw and others have argued that although it was the King’s dignity and lawmaking authority being vindicated, it was still the judge’s power which allowed them to punish contempts.[95] In the Commentaries, Blackstone stated that, “[a] power . . . to suppress [] contempts . . . must be an inseparable attendant upon every superior tribunal,” implying that the contempt power was one indisputably given to the courts at the time.[96] Scholars, such as Professor Pushaw, have relied on this statement in the Commentaries to demonstrate that Blackstone believed that English courts had an inherent power to punish contempt.[97] However, this statement in the Commentaries may have been a result of conversations between Blackstone and Justice Wilmot and may therefore not accurately reflect English practice.[98]

Even if Blackstone’s statement in the Commentaries was not an accurate reflection of English practice, the statement still would have been highly influential on the Founders since their information on English practice came from Blackstone’s work.[99] Therefore, one could argue that the Founders may have assumed that even absent the connection with the executive branch, judges would still have the authority to hold parties in contempt consistent with the reasoning of King v. Almon. However, when Blackstone’s statement was read in context it would have been clear to the Founders that any inherent authority in the judges was really an inherent authority in the King. The paragraph specifically refers to the court as the King’s agents and suggests that the authority rests with the King.[100] Taken together, the statement simply stands for the proposition that an indignity to the King’s agents allows those agents (i.e., the judges) to hold the party in contempt. Blackstone made it abundantly clear that only agents of the King had the power to punish.[101] The view of independent judicial powers fundamentally misrepresents how closely connected the judges and the Crown were during Blackstone’s era in England. Judges acted on behalf of the King, were part of the executive branch, and had no powers independent of the King:

A court is defined to be a place wherein justice is judicially administered. And, as by our excellent constitution the sole executive power of the laws is vested in the person of the king, it will follow that all courts of justice, which are the medium by which he administers the laws, are derived from the power of the crown. For whether created by act of parliament, letters patent, or prescription, (the only methods of erecting a new court of judicature) the king’s consent in the two former is expressly, and in the latter impliedly, given. In all these courts the king is supposed in contemplation of law to be always present; but, as that is in fact impossible, he is there represented by his judges, whose power is only an emanation of the royal prerogative.[102]

The Commentaries are explicit in stating that the power of judges derives from the King and that the King is always present in the administration of justice.[103] Judges were considered extensions of the King and so all of their powers were really the King’s powers.[104] It would have been impossible for Blackstone to conceive of a court that didn’t have the contempt power, since all contemporary courts were agents of the Crown.[105]

An earlier source that provides background on how the Founders considered the judicial power is Coke’s Institutes of the Lawes of England, which also references contempt. Like Blackstone’s Commentaries, Coke’s Institutes was among both the list of books recommended for the Library of Congress by James Madison and the books donated to the Library of Congress by Thomas Jefferson.[106] Coke’s Institutes provides another example of the limitations on the English judicial contempt power.

One passage in Coke’s Institutes stated that the power to punish for contempts was temporarily granted to the judiciary pursuant to an act of parliament.[107] The Institutes related a story wherein an act of parliament purported to grant all judges the power to punish people for “contempts” as well as other offenses based simply on information brought before the King.[108] However, the Institutes related that because the statute led to undesirable consequences, it was subsequently repealed.[109] Other references in the Institutes to the power of punishing contempts are all related to contempts against the King’s dignitary interests, such as when individuals left court without the King’s permission, when nobles married without the King’s permission, or when individuals hid information about treason from the King.[110] Coke’s anecdote about the act of parliament indicates, on the one hand, that the power to punish could derive from parliament as well as directly from the King, showing that it was not necessarily an exclusively royal power. On the other hand, the contempts the act was designed to address were all contempts against the King or violations of statutes, rather than conduct which disrespected judges themselves.[111] It is also noteworthy that the Institutes specified that the act was repealed because it gave judges too much power and discretion to imprison parties when the parties had not actually acted in violation of the law.[112] Because the act was repealed, the only authority judges had left to punish for contempts was the authority as the agents of the King.[113]

As such, the Founders, deliberating a century after Coke’s Institutes was published, would not have thought that judges had any inherent power (other than that conferred by the King) to hold parties in contempt.[114] The stories shared by Coke with regard to contempt relate to contempt against the King, oftentimes in parliament or other non-judicial settings, rather than contempt of the King in court or of the court itself.[115] Therefore, Coke’s Institutes would only have highlighted to the Founders that contempt was not a power inherent in the courts but rather a power inherent in the King as executive and lawmaker.

In another source describing the English judiciary, there are examples of English courts punishing contempts in a way that appears to challenge the authority of the royal family and the Crown. In his book about the lives of the Chief Justices of England, Baron John Campbell (himself a Chief Justice) related a story wherein Chief Judge Sir William Gascoigne held the son of King Henry IV in contempt of court for disrespecting a criminal judge.[116] The story exemplifies the power of judges to punish contempt—it was so inherent that it could even be used against the King’s family. However, Chief Judge Gascoigne sat at the King’s pleasure[117] rather than during good behavior[118] like later judges. According to Campbell’s narrative, King Henry IV was pleased, rather than distraught, at the fact that the Chief Judge had followed the law and held the Prince in contempt.[119] The story is striking because the Prince, then held in contempt, would one day become King Henry V. Therefore, even in this extreme example, the King had ultimate authority to remove the judge if the judge exercised his power in a way contrary to the King’s will. Thus, the power to punish still traced back to the Crown.

Because the Founders restructured the government in America into a system of separated powers, it would not have made sense to them to say that judges retained the traditional authority of the executive.[120] Disobeying a judicial command or disrespecting a judge no longer harmed the dignity of the executive or legislative branches because the judiciary represented only itself.[121] Therefore, if the Founders were reading Blackstone and Coke, they would not necessarily have believed that judges continued to exercise an inherent power to punish. Any contempt power they would have thought judges had would have been a power delegated by the other branches of government. Finally, the power to punish contempts was not exclusively exercised by the judiciary, but also by parliament and the King.[122] Therefore, the Founders would have realized that the contempt power was not solely a judicial power.

2. Contempt in the American Colonies

In the colonies, the courts exercised the contempt power on numerous occasions. For example, in Thwing v. Dennie, a Massachusetts colonial court imprisoned a litigant for trying to snatch the documents out of the hands of an opponent in court.[123] However, the historical record indicates that the colonial courts were intimately tied to the executive, even more so than the English courts.[124] There existed a persisting idea that the King was “always present” in the administration of justice through his representation by the colonial judges.[125] Additionally, the court of last resort in the colonies was the English Privy Council, the personal council of the King.[126] Appeal to the Privy Council had ceased in English courts, but the practice continued in the colonies, which frustrated the colonists.[127] During the colonial period, Founders such as John Adams maintained that the administration of justice fell within the executive function.[128] All judicial power in the colonies could be traced back to the King’s prerogative to enforce the law.[129] Therefore, during the colonial era, all judicial power was thought to extend from the powers of the King rather than from independent judicial authority.

Importantly, one should not assume that the Founders incorporated all of the traditional common law powers of the English judiciary into the federal judiciary established by the Constitution. The American public during the colonial and revolutionary eras was far more distrustful of the courts than the English public was of the courts in England, and The American public was unlikely to trust courts with broad powers.[130] It is arguable that the distrust of the colonial judges was tied to the fact that colonial judges did not sit “during good Behaviour” like their English counterparts and were therefore more dependent on the King.[131] Since the colonists primarily harbored mistrust against the King, one could argue that when judges gained independence they were more deserving of public trust. However, as explained below, even after the colonies gained independence, the state governments remained mistrustful of judicial discretion in their now independent courts. Although the Founders saw themselves as continuing common law traditions, the Revolution and eventual establishment of the Constitution led to a significant break with the English system of government and law.[132]

The evidence from Blackstone, Coke, and colonial practice alone are insufficient to show what powers were thought to be inherent in the judiciary after the colonies separated from England. Although the power of the courts was thought to derive from their role as representatives of the King during the colonial era, the courts were given independent power in the structure of government after the Revolution. After the Revolution, almost all of the states broke apart the traditional connection between the courts and the executive and set up a more independent judiciary.[133] The restructuring of government and independent power of the judiciary raise the question of where the contempt power “ended up”: whether it was thought to remain with the executive, the judiciary, or elsewhere. To determine the answer to that question, this Note turns to revolutionary period sources.

B. Conceptions of the Contempt Power During the Revolutionary Period: State Constitutions, Common Law Decisions, and the Articles of Confederation

While the English framework provides an important background, the actions of the states after independence demonstrated new ideas for how governmental powers could be allocated. Because the separation from England caused many changes in both government structure and political ideology, the way in which the early states conducted themselves differently from England is informative of what powers the Founders thought different branches of government should be able to exercise in their new nation.

As noted above, the American public became increasingly wary of the courts over time.[134] After the Revolution, many in the American bar were hostile to England and the common law that came from it.[135] This hostility stemmed, in part, from the clashes between colonial assemblies and the King’s courts which contributed to the friction that sparked the revolution.[136] Therefore, judicial tyranny was one of the grounds for revolt.[137] English law was so reviled that some of the lawyers and judges during the post-revolutionary period advocated for the adoption of French rather than English legal practice,[138] and several states specifically prohibited the citation of English precedent in post-revolutionary courts.[139] Although the suggestion of adopting French law was not accepted in the end, the suggestion demonstrates the prevailing sentiments towards the traditional common law powers of the courts. This is noteworthy because French courts did not exercise an inherent power to punish contempts.[140]

Therefore, in analyzing the contempt power, this Note is cautious of imputing any elements of English court practice to the powers of revolutionary- era state courts. The revolutionary-era states did end up adopting parts of the common law but only insofar as those parts made sense in the local framework. The revolutionaries committed to discarding practices that were incompatible or unwieldy.[141] If any action could be considered judicial tyranny akin to the tyranny of the courts in the colonial period, judicial discretion to punish for contempt would be it. The idea of a judicial power to punish contempts would have been out of place in a society that so distrusted judicial overreach. Therefore, it would make sense for post-revolutionary governments to have stripped the courts of the power to punish contempts at their sole discretion. To assess this hypothesis, Part II.B.1 examines the state constitutions and court decisions during the revolutionary period. Part II.B.2 then explores the Articles of Confederation.

1. Contempt in the Revolutionary State Constitutions and Court Decisions

One group of sources that speaks directly to the allocation of governmental power within the independent states is the early state constitutions, several of which were adopted right after independence was declared. Few of the early state constitutions explicitly mention a power to punish for contempt. The constitutions that do explicitly mention the power to punish for contempt or misbehavior specifically vest the power to punish for contempts in the legislature or executive, rather than the judiciary. The contempt power exercised by those branches closely mirrors the contempt power as used by the modern federal judiciary in both phrasing and application, demonstrating that it is the same power being used.[142] And, the state constitutions were extremely influential on the Federal Constitution.[143]

Maryland serves as an illuminating example of how contempt was exercised during the revolutionary period. The only mention of the contempt power in Maryland’s 1776 Constitution states the following: “That the House of Delegates may punish, by imprisonment, any person who shall be guilty of a contempt in their view, by any disorderly or riotous behaviour . . . or by any obstruction to their proceedings.”[144] The definition of contempt in the Maryland Constitution echoes the definition for modern criminal contempt but gave that power to legislature. This is especially noteworthy because the Maryland Constitution established a judiciary and noted how it was to be structured but made no mention of its powers to compel parties before it.[145]

In the years after the state’s founding, the Maryland legislature passed a series of statutes granting Maryland courts the authority to hold individuals in contempt under certain limited circumstances.[146] The fact that the legislature believed that they needed to grant the courts a contempt power indicates that they did not believe the courts had any inherent contempt power. Additionally, the fact that the legislature mandated that the contempt power only be used in specific circumstances demonstrates that the legislature believed that any contempt powers were subject to legislative approval. Furthermore, despite the fact that the Maryland legislature delegated to the courts a limited contempt power, it appears that the courts did not have an opportunity to use it. The author’s review of published Maryland caselaw between the years following independence and before the ratification of the U.S. Constitution, found no cases in which Maryland courts held a party in contempt.[147] The lack of contempt cases during that period becomes more significant when one considers that there are several cases from only a couple years prior to independence where the provincial court of Maryland did hold parties in contempt.[148]

Individuals were unlikely to have suddenly stopped disobeying and disrespecting courts. The lack of contempt proceedings is noteworthy as the court must have had a good reason to stop holding individuals in contempt. One can infer that the decreased use of the contempt power was due to the fact that the courts were stripped of their pre-independence contempt authority and then legislatively delegated a much more limited power. That the Maryland constitution expressly provided the legislature with a power to punish for contempt without conferring a similar power on the judiciary, that any contempt power of the Maryland courts was circumscribed by the legislature, and that Maryland courts seem to have ceased holding parties in contempt after independence all lead to the conclusion that the Maryland public and government believed courts had no contempt power other than that granted by the legislature.

The 1780 Massachusetts Constitution also expressly vested the power to punish contempts in the legislative branch, stating that “[t]hey shall have authority to punish by imprisonment every person, not a member, who shall be guilty of disrespect to the house, by any disorderly or contemptuous behavior in its presence.”[149] The Massachusetts constitution also provided the same power to the governor but did not confer any power for judges to punish contempts, despite creating a judicial branch.[150] Similar to Maryland, published opinions from Massachusetts’ courts during the revolutionary period do not indicate that the courts exercised any power to punish for contempt.[151] The Massachusetts Constitution also states that “no subject shall be arrested, imprisoned, despoiled, or deprived of his property . . . but by the judgment of his peers, or the law of the land,” further demonstrating that discretionary punishment by the judiciary was not contemplated.[152] “Law of the land” implies a law that applies to all citizens rather than one that is applied in a discretionary manner, such as when judges discretionarily punish contemptuous conduct.[153]

Similar to Maryland and Massachusetts, New Hampshire also vested a power to punish contempt outside of the judiciary in its pre-ratification state constitution.[154] New Hampshire is somewhat unique among the states in that it adopted two successive constitutions, the second of which was adopted only three years before the Constitutional Convention in Philadelphia drafted the United States Constitution.[155] With regard to punishment for contempt, the New Hampshire’s 1784 Constitution states the following:

The house of representatives . . . . shall have authority to punish by imprisonment, every person who shall be guilty of disrespect to the house in its presence, by any disorderly or contemptuous behaviour, or by threatening, or ill treating any of its members; or by obstructing its deliberations; every person guilty of a breach of its privileges in making arrests for debt, or by assaulting any member during his attendance at any session; in assaulting or disturbing any one of its officers in the execution of any order or procedure of the house, in assaulting any witness, or other person, ordered to attend by and during his attendance of the house, or in rescuing any person arrested by order of the house, knowing them to be such. The senate, president and council, shall have the same powers in like cases; provided that no imprisonment by either, for any offence, exceed ten days.[156]

The power to punish for contemptuous behavior in the 1784 New Hampshire Constitution is noteworthy because the conduct that it considers to be contempt is effectively the same as the conduct that courts during the colonial era and courts in the modern era considered contempt.[157] Thus, one can identify the power expressly vested here in the legislature and executive as the same power that courts across the country have since claimed for themselves.[158]

However, despite granting this power to the House of Representatives, and to a lesser extent to the Senate, President, and Council, the New Hampshire Constitution makes no mention of the New Hampshire Judiciary having any punishment power.[159] It would have been exceedingly simple to include the judiciary in the list of other actors that could punish for contemptuous behavior, but the New Hampshire Constitution did not do so. The clause was extremely specific in exactly who could punish for contempts and, under the New Hampshire Constitution, the power was clearly a legislative and executive one.[160] Therefore, we can infer by its absence (à la expressio unius est exclusio alterius) that the power to punish contempt was not thought of as a judicial power in New Hampshire in the years leading up to the ratification of the United States Constitution.[161]

The Constitutions and records of several other states are also informative on the contempt power of the era, though to a lesser extent. South Carolina’s 1778 Constitution does not mention any contempt power in either the legislature or the judiciary.[162] But South Carolina’s 1790 Constitution, enacted only two years after the United States Constitution, explicitly vests the power to punish for contempt in the legislature.[163] Although not as persuasive as the pre-ratification constitutions, that language is still informative on how the Founders of the time thought the power to punish for contempt should be allocated.[164]

The Virginia Constitution also does not mention any contempt power.[165] But, records from the time show that the Virginia legislature, similar to the Maryland legislature, delegated a contempt power to the courts.[166] The fact that the legislature granted the courts a contempt power and set out specific proceedings for its use demonstrates that contempt was not inherent in the state’s tribunals but had to be vested in them by an act of the legislature.[167] An early draft of the Virginia Constitution included a reference to a contempt power in judicial proceedings,[168] but that reference was ultimately dropped in the final version.[169] Therefore, Virginia legislative history during this period demonstrates that contempt was not an inherent judicial power but rather a legislatively delegated power.

Unlike most other revolutionary states, Connecticut did not create a new constitution until 1818, and up until that time its government was formed according to The Fundamental Orders of Connecticut (1638) and The Charter of the Colony of Connecticut (1662), both of which were adopted while the state was an English colony.[170] This may explain the fact that, unlike Maryland and Massachusetts, Connecticut courts exercised a contempt power after independence.[171] Whereas the constitutions of Maryland, Massachusetts, and New Hampshire reflected the fundamental change in judicial authority absent a connection to the King, the Connecticut government did not reallocate the powers of their judiciary, so the judges continued to act as they always had.[172] The Charter of the Colony of Connecticut established the authority of the judges of Connecticut pursuant to the King’s order and therefore it would have made sense that the judges maintained all the traditional powers of English judges.[173] Connecticut was in the minority of states when the Constitution was drafted in that it did not enact a new constitution.

Pennsylvania courts at this time also recognized in themselves a power to punish contempts,[174] but they did so pursuant to a grant of power in the Pennsylvania Constitution. The Pennsylvania Constitution of 1776 stated the following: “The supreme court, and the several courts of common pleas of this commonwealth, shall, besides the powers usually exercised by such courts, have the powers of a court of chancery . . . and such other powers as may be found necessary by future general assemblies, not inconsistent with this constitution.”[175] In 1776, “usually” would have meant colonial practice.[176] By enacting historic practice in their constitution, the Pennsylvania government granted their courts broad powers.[177] Aside from cases in the Connecticut and Pennsylvania state courts, it does not appear that any published state judgments referred to a positive power in the judiciary to hold litigants in contempt.[178]

Although undoubtedly relevant, the practices of the Connecticut and Pennsylvania state courts are not dispositive of whether the Founders thought judges could punish for contempts when enacting the federal Constitution. The Maryland, Massachusetts, and New Hampshire Constitutions organized their respective state governments more similarly to the way the United States Constitution eventually structured the federal government.[179] Therefore, we can infer that those constitutions served as apposite examples for the Founders on how the separation of powers in the U.S. Constitution should be organized.

Similar to the federal Constitution, the Maryland Constitution sought to ensure that the “legislative, executive and judicial powers of government, ought to be forever separate and distinct from each other.”[180] Like the federal Constitution, the Maryland Constitution envisioned specific roles for each branch and specified the role of the judiciary.[181] The Pennsylvania constitution in contrast does not delineate their separation of powers the same way.[182] Although the Pennsylvania Constitution notes that courts should be established, the main separation of power division under the Pennsylvania Constitution is a duality between the legislative and executive branch.[183] Additionally, Pennsylvania judges were more accountable to the people since they were appointed for seven year terms and could be removed for “misbehaviour at any time by the general assembly.”[184] And the separation of powers in the Pennsylvania Constitution was also controversial at the time of the founding.[185] Furthermore, unlike the Pennsylvania Constitution which explicitly adopts the broad powers of English courts, the federal courts under the U.S. Constitution are courts of limited jurisdiction.[186] The federal Constitution does not explicitly purport to delegate traditional English court powers to the federal judiciary.[187] The Connecticut Constitution could not serve as an example because Connecticut did not create a new constitution until many years after the ratification.[188] Therefore, the words “judicial Power” in the Constitution should be read in line with the practices of states like Maryland and Massachusetts, whose constitutions restructured their judicial departments with fewer powers.

The mistrust of courts and preference for vesting discretionary authority in the legislature rather than the judiciary can also be found in the broad structure of the state constitutions and government practice. State legislatures exercised significant control over the judiciary and limited judicial discretion during the revolutionary period.[189] Legislatures exercised so much control over the judiciary that the legislature itself sometimes pronounced judgments with regard to disputes between their constituents.[190] Additionally, in many of the newly independent colonies, judges sat at the pleasure of the legislature (much in the same way colonial judges sat at the pleasure of the King), and the legislature controlled judicial salaries.[191] To a large extent, judges were beholden to the legislature for the use of any of their judicial powers, just as they had been dependent on the King.[192]

Furthermore, at the time, many of the Founders believed judges should not exercise any discretion in the application of law.[193] In a letter from Thomas Jefferson to Edmund Pendleton, Jefferson stated that judges should act only as “machines’’ applying the law and that judges should not have discretion to act eccentrically or whimsically.[194] Jefferson never expressly mentions an inherent ability of judges to punish for contempt, but one can infer from the statement that he would have taken a dim view of judges holding parties in contempt at their discretion. A judicial philosophy where judges act as mere machines applying the law at the behest of the legislature is incompatible with independent judicial authority to discretionarily imprison litigants for contempt. Although Jefferson’s views on the adoption of the common law might have lost in the long run, as an influential member of society his views would have informed the other Founders.[195]

2. Contempt Under the Articles of Confederation

During the revolutionary period the national government was organized under the Articles of Confederation. Therefore, the Articles also provide useful background for determining the power of the federal judiciary in the post-revolutionary period. The government under the Articles of Confederation cannot be used as a direct comparator to the government under the Constitution because under the Articles there was no separation of powers. Instead, the Articles vested all of the powers of the federal government in the Congress of the Confederation.[196] Although the Constitution fundamentally changed the structure of government—and perhaps the powers of the judiciary—the differences and similarities between the Articles and the Constitution remain informative on what powers the Founders thought were inherent in the “judicial Power.”

It was under the Articles of Confederation that a form of the federal judiciary was first established, albeit an extremely limited version.[197] Under the Articles of Confederation, the Congress of the Confederation created tribunals to address only specific situations, and there was no standing judiciary.[198] There do not seem to be any examples of tribunals punishing litigants for contempt.[199] The limited and sporadic nature of the tribunals under the Articles demonstrates the dependence of those tribunals on the Congress and thus lends credibility to the notion that the tribunals did not have inherent contempt powers.

Instead, it was the Articles of Confederation Congress that punished parties for contempt of its authority.[200] On June 12, 1777, the Congress of the Confederation made a motion where it “[r]esolved that it is the Right and the Duty of this Congress, to vindicate its own Authority from Contempts, And the Priviledges of all its Members.”[201] But even though the Congress punished contempts of its authority, it only used those powers in its legislative, not judicial, function.[202] Thus, we can infer from the fact that the contempt power was exercised by the Congress of the Confederation, acting as a legislature, not as a court, that it was the legislature that had the power to punish contempts and that the contempt power was thought to be an inherent legislative power.

The legislature was the governmental body with the most authority during the revolutionary era.[203] And so, just as the contempt power was part of the King’s prerogative as ultimate sovereign in the colonial era, we can infer that during the revolutionary era, the power to hold people in contempt for disrespect to the authority of the State rested ultimately with the legislature.[204] This view is consistent with later developments where state legislatures enacted statutes authorizing courts to hold parties in contempt.[205] By authorizing the courts to hold parties in contempt, the legislatures replaced the king as the source of the contempt power but granted the courts those powers they deemed necessary for efficient judicial function.[206]

C. Conceptions of the Contempt Power During Constitutional Formation and Ratification: Ratification Debates

Although the state legislatures were the ultimate source of political power in the revolutionary period, the years leading up to the ratification of the Constitution saw a marked change in political philosophy. Indeed, the allocation of governmental powers between the branches differed in the U.S. Constitution from that of the state practices and the Articles of Confederation. Tracing this evolution in the context of the contempt power, Part II.C.1 reviews The Federalist and The Anti-Federalist, and Part II.C.2 discusses the state ratification debates.

1. The Federalist and The Anti-Federalist

Both the The Federalist and The Anti-Federalist reveal what the Founders and ratifiers thought of the new system of government under the Constitution, and an analysis of each suggests that the Framers did not intend for the judiciary to have an inherent power of contempt.

The Federalist Nos. 48 and 78

The Constitution was established as a response to the unsatisfactory situation under the Articles of Confederation and the supremacy of individual states.[207] The Federalist, written by John Jay, James Madison, and Alexander Hamilton, are a good source for capturing the sentiments of the ratifiers of the Constitution.[208] The Federalist were specifically written to try to convince the public to accept the new constitution and thus serve as a guide to how the ratifiers were thinking about the meaning of the Constitution’s provisions.[209] Additionally, because The Federalist were written in part by Alexander Hamilton and James Madison, who were both influential in authoring the Constitution,[210] their thoughts are especially relevant on the meaning of the text. From the text of The Federalist, it is possible to determine that the ratifiers intended to give the legislature and the executive a greater share of power than the judiciary even while protecting the latter’s independence.

In The Federalist No. 48, James Madison cautioned against vesting too much power in the legislative branch since doing so could lead to tyranny just as easily as if the power were in the hands of a king.[211] The Federalist No. 48 advocates for strong protections against encroachment by one branch on the powers of another branch.[212] Furthermore, in the years leading up to the Constitutional Convention, there was a backlash in the states due to the marginalization of the judicial role.[213] Legislative interference with individual adjudication created uncertainty in the law and undermined the legitimacy of the legislature.[214] As a result, many citizens at the time advocated for greater judicial independence.[215] In response to these concerns, the Philadelphia Convention decided that the Constitution should provide for judicial tenure during “good Behaviour” and a fixed judicial salary and vest the entire “judicial Power” in the federal courts.[216]

Although, as noted above, some courts have understood the phrase “the judicial Power of the United States” to encompass the traditional common law contempt power,[217] The Federalist caution otherwise. The Federalist No. 48 provides initial clues as to the proper place of the contempt power in the allocation of federal powers. In the paper, Madison remarks that “[i]t is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments.”[218] Therefore, we can assume that if the contempt power was inherently vested in one branch of the government, it should not be vested in another branch.[219] The history of different states during this period demonstrates that the courts, the legislature, and the executive were thought by various constituencies to have the power to punish for contempt.[220] But The Federalist implies that it would be either the legislative or executive branches, but not both, that would exercise a contempt power.[221]

The best evidence that the Founders conceived of a judiciary without an inherent contempt power can be found in The Federalist No. 78. In The Federalist No. 78, Hamilton wrote that the judiciary “may truly be said to have neither FORCE nor WILL, but merely judgment.”[222] The contempt power falls squarely into an action of force against the parties since the judge essentially mandates the party be fined or imprisoned.[223] Therefore, when a judge holds a party in contempt, especially in a summary proceeding, they are exercising force and demonstrating will.[224] When Hamilton contemplated judges protecting the people from unwise and unconstitutional legislation, he specifically wrote that the judiciary would “ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”[225] That is to say, judges would be able to make decisions about whether a law was valid or not but could not enforce their judgment without the executive branch. If the power to hold parties in contempt and jail them is inherent in the judiciary, it implies a power in judges to enforce their judgments absent any other authority in contravention of how Founders like Hamilton conceived of the judiciary’s place in the separation of powers.[226]

Even though The Federalist No. 78 begins by contemplating that federal judges would have greater powers than judges had in the past, Hamilton envisioned mechanisms other than the contempt power would drive that increased role. He stated “[i]t is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.”[227] Hamilton’s assertion that the judiciary is meant to protect the people from overreaching by the legislature implies that judges may have the power to control legislative action, which could be understood to implicate the contempt power. Additionally, Hamilton states that “all possible care is requisite to enable [the judiciary] to defend itself against” the other branches of government.[228] However, in The Federalist No. 78, when Hamilton refers to the courts as a bulwark against the legislature, he is referring to judicial review, the power of the courts to review laws when they are in conflict with the Constitution.[229] Furthermore, when writing about the need to provide the courts with a way of defending themselves against other branches of government, Hamilton refers specifically to tenure during good behavior[230] and a non-diminishing salary.[231] Hamilton’s assertions therefore should not be read to imply the courts have a power to punish contempts. For Hamilton, judicial review, fixed salary, and life tenure are the scope of protections that the judiciary needs to protect themselves and the liberties guaranteed in the Constitution.

Other parts of The Federalist No. 78 show that Hamilton thought the judiciary lacked an inherent contempt power. Hamilton regarded the judiciary as “the weakest of the three departments of power” and that the judiciary “can take no active resolution whatever.”[232] It is difficult to imagine that Hamilton would assert that judges who were able to summarily imprison parties at their discretion are the weakest branch of government if federal judges indeed held power to punish contempts. Therefore, we can infer that the Federalists did not believe that such a vast power existed in judges. Moreover, The Federalist No. 78 also undermines any assertion that the judiciary could use the contempt power against coordinate branches of government. Hamilton states that the judiciary “can never attack with success either of the other two” branches of government.[233]

The Federalist No. 48 further supports that the judiciary lacks an inherent contempt power because it would inappropriately be an “overruling influence” on the political branches; Madison stated that “[i]t is equally evident, that none of [the branches of government] ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers.”[234] Thus, the contempt power should not be used in a way that leads to an overruling influence over another branch.[235] Under this logic, it would have made more sense for the Founders to place the contempt power in the legislative branch, not the judicial branch. Coordinate branches, especially the executive, appear as parties in front of the courts, and history has demonstrated that the courts do rule in ways which “overrul[e]” the executive in the administration of its powers and thus implicitly threaten contempt.[236] As a matter of consistency and separation of powers, it is likely that the Founders would have placed the inherent contempt power in a branch where its exercise was limited with respect to the other branches (i.e., the legislature).

The Anti-Federalist

The Anti-Federalist also support the conclusion that the federal judiciary was not considered to have an inherent power to punish contempts. These papers provide additional insight into the Constitution’s meaning during the ratification.[237] The Anti-Federalists were a group who sought to convince the public not to accept the Constitution.[238] One of the Anti-Federalists’ fears in the new Constitution was that the courts would be given too much power.[239] Although the Anti-Federalists failed in their goal of rejecting the Constitution, their writings are still relevant in understanding what many in the public thought about the Constitution’s provisions at the time. Because the Federalists and Anti-Federalists were so often at odds, when the two sets of papers agree on a provision’s meaning or on what the allocation of powers would be under the Constitution, it is strong evidence that that meaning was generally accepted at the time.[240] The Anti-Federalist explicitly mention the power to punish contempts, but one can infer from their writings that even they seemed to acknowledge that courts were not the branch with authority to unilaterally and discretionarily punish contempts.

The chief fear of the Anti-Federalists was that an overly powerful Congress would subvert individual liberty.[241] Referring to the powers of Congress, the famous Anti-Federalist Brutus wrote that, like state legislatures,[242] Congress “has as absolute and perfect powers to . . . declare offences, and annex penalties, with respect to every object to which it extends, as any other in the world.”[243] By so writing, Brutus warned the public against the accumulation of too much power in the legislature and that the legislature would have the power to punish them at will. Brutus wrote that “[t]he powers of the general legislature extend to every case that is of the least importance . . . . It has authority to make laws which will affect the lives, the liberty, and property of every man in the United States.”[244] The fact that there was consensus among the Federalists[245] and Anti-Federalists[246] that it was the legislature, not judiciary, that had the power to assign punishment demonstrates how both sides of the political spectrum agreed that judges did not have an inherent punishing authority.[247]

By contrast, the main powers the Anti-Federalists feared from the judicial branch was its ability to review the constitutionality of duly enacted congressional and state statutes[248] and its finality in declaring what the Constitution and the laws required.[249] In describing his fears of the judicial branch, Brutus wrote:

The supreme court then have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away. If, therefore, the legislature pass any laws, inconsistent with the sense the judges put upon the constitution, they will declare it void; and therefore in this respect their power is superior to that of the legislature.”[250]

Exemplified in the quote above, the Anti-Federalists primarily saw the role of the judiciary as one in which judges interpreted the Constitution and federal laws. The role of the courts was adjudication of disputes, not enforcement, the latter of which was left to the executive and legislative branches. There is no indication in their records that the Anti-Federalists ever even considered that courts had authority to unilaterally punish parties in front of them at the judge’s discretion. We can therefore infer that the Anti-Federalists would have recognized that the branches that could possibly punish contempts were the legislature or executive, not the judiciary. The Anti-Federalists thought that with regard to the enforcement of law or punishment, the judiciary was only a vehicle giving effect to Congress’s decisions and construing federal law. In terms of punishment, what the Anti-Federalists feared was that the courts would assist Congress in overstepping Congress’s constitutional boundaries and allow Congress to punish for various actions.[251]

2. Ratification Debates in the States

Other vital sources on the meaning of the judicial power are the ratification debates in the state conventions. Although Founders like Hamilton and Madison wrote the Constitution, it was enacted through the actions of the state ratifying conventions. Therefore, the meaning the state ratifying conventions gave to the words is eminently important. This sub-Section reviews informative statements from Virginia and Connecticut, as the conventions in those states contain statements relevant to analyzing the contempt power.[252]

First, several informative statements can be found in the records of the debates in the Commonwealth of Virginia. Although Virginia was not necessary to the official ratification of the Constitution, since it was ratified without Virginia, several of the most influential founders, such as James Madison, Edmund Pendleton, and George Mason were present at the Virginia Convention.[253] In the days leading up to the ratification, Edmund Pendleton, the President of the Virginia Convention, made the following statement: “I mentioned the necessity of making a judiciary an essential part of the government. It is necessary, in order to arrest the executive arm, prevent arbitrary punishments, and give a fair trial.”[254] Echoing Hamilton’s rhetoric, Pendleton contended that although the judiciary is necessary to serve as a check on the executive, its reason for doing so is to prevent arbitrary punishments and provide for fair trials.[255] Because punishing for contempt was a discretionary practice, often without trial, contempt is the very type of conduct that Pendleton thought the judiciary should be guarding against.[256] One can infer from Pendleton’s statement that he did not believe that judges ought to exercise an inherent power to arbitrarily punish but rather the power to control the executive or legislature by preventing them from punishing. This was done in the Virginia courts under Pendleton during his tenure as the presiding judge when he declared conduct unconstitutional.[257] Pendleton, like Hamilton, believed that judicial review was the means by which courts should control the other branches.[258]

Pendleton’s statement is authoritative for two reasons. First, Pendleton was so well respected at the time that the other delegates voted unanimously to appoint him as president of the Virginia ratifying convention.[259] The fact that he was appointed unanimously gives some indication that his views were highly respected by the other members of the convention. Second, Pendleton served as the presiding judge of the Court of Chancery established after independence, and when Virginia established a Supreme Court in 1778, Pendleton was its first president.[260] Therefore, if any member of the delegation had an understanding of what the judicial power did and should entail, it would be Pendleton. Furthermore, his stature and influence as a judge likely shaped the way the Virginia bar, many of whom were present for the convention, understood judicial power.[261] Members of the Virginia ratifying convention, such as future Supreme Court Justice John Marshall, practiced in front of Pendleton and would therefore have been influenced by how he behaved as a judge.[262] Aside from John Marshall, John Blair, one of the judges who sat with Pendleton on the Virginia Supreme Court, would also later go on to become a Justice on the United States Supreme Court.[263]

When looking at additional conversations in the Virginia convention between George Mason, Edmund Pendleton, and James Madison, it is clear that the power that was contemplated for the judiciary, and feared by the influential Anti-Federalist George Mason,[264] was the power of adjudication and appellate review, not punishment.[265] Looking at Mason’s argument, he feared adjudication by federal judges, not any inherent power to punish.[266] When referring to judicial powers during the convention, Pendleton also specifically noted that essentially all of the powers in the lower federal courts are regulatable by Congress, demonstrating Congress’s superior power.[267]

Subsequent statements from the Virginia debates further support a conclusion that the judiciary lacked the contempt power. For example, Patrick Henry, another delegate to the Virginia convention, stated the following: “It would ease my mind, if the honorable gentleman would tell me the manner in which money should be paid, if, in a suit between a state and individuals, the state were cast. The honorable gentleman, perhaps, does not mean to use coercion, but some gentle caution.”[268] His statement was a response to James Madison’s defense of the federal judiciary and its power to adjudicate claims between states and individuals.[269] In making the statement, Henry characterized Madison’s view of the federal judiciary as able to enforce debt judgments against states by declaring a judgment rather than through judicial coercion (e.g. punishment), thereby indicating that Founders like Madison did not believe judges had inherent power to punish non-compliance.[270] Further supporting this belief, John Marshall, then a delegate to that convention, also queried: “What is the service or purpose of a judiciary, but to execute the laws in a peaceable, orderly manner, without shedding blood, or creating a contest, or availing yourselves of force?”[271] His statement indicates that in enforcing their judgments, the federal courts were not intended to use force, like punishing for contempt, but rather to enforce their judgment by declaration.

Additionally, statements made at the Connecticut convention also support the conclusion that the federal courts were not intended to have an inherent contempt power. During the Connecticut debate, the Federalist Oliver Ellsworth, a state judge and future Chief Justice of the Supreme Court, stated the proper role of the judiciary in the following way:

This Constitution defines the extent of the powers of the general government. If the general legislature should at any time overleap their limits, the judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made independent, will declare it to be void. On the other hand, if the states go beyond their limits, if they make a law which is a usurpation upon the general government, the law is void; and upright, independent judges will declare it to be so.”[272]

Ellsworth stated what the role of judges was and what the “judicial Power” meant: the role and power of the federal judges was to determine what the law was and apply it, not to discretionarily mete out punishments.[273] During these same remarks, Ellsworth noted that the coercive powers of the government are vested in Congress.[274] Ellsworth’s remarks were made in defense of placing all of the coercive power, both the “sword” and the “purse” in Congress rather than in other governmental bodies.[275] Ellsworth recognized the need to “show that a power in the general government to enforce the decrees of the Union is absolutely necessary.”[276] But, his remarks clarified that that power is one dependent on congressional authority.[277] Ellsworth made a distinction between coercion through declaration of law and coercion through use of force and stated that the Constitution provides for the former.[278] Ellsworth’s statements are important in the inquiry on the meaning of the judicial power because he was a member of the Federalist party, was present at the Philadelphia Convention, and was one of the proponents of the Constitution.[279] Furthermore, as a judge, he would have understood what the federal judiciary required and what their powers should be. Lastly, as one of the first two U.S. senators for Connecticut, he authored and helped pass the Federal Judiciary Act of 1789, which bears directly on the judicial contempt power.[280]

Taken together, the papers of the Federalists, the Anti-Federalists, and the notes of the various state conventions demonstrate that the people who wrote and informed Article III believed that judicial power referred to power of adjudication. The federal judiciary clearly had the power to adjudicate claims between parties. Those sources also indicate that the federal judiciary as a branch did not have the power to punish or force other branches or individuals. Therefore, the Founders and ratifiers of the Constitution did not intend to vest the federal judiciary with an inherent contempt power.

D. Conceptions of the Contempt Power Post-Ratification: Early Congress, Courts, and President

Although events and statements that took place post-ratification could not inform the debates in the ratifying states or convention, the events are informative of how individuals who had been present during the drafting and ratification thought of the judicial power. One may assume that early governmental actors conformed their actions to their beliefs about what powers the Constitution granted the various branches of government. Accordingly, those events serve as a helpful guide to further clarify whether judges had an inherent contempt power. In Part II.D, I review (1) early congressional actions, (2) executive branch understanding, (3) post-ratification state understanding, and (4) early Supreme Court cases to reveal the original public meaning of the judicial powers at the time of ratification.

1. Early Congressional Actions

An important source of the judiciary’s contempt power was the Federal Judiciary Act of 1789. The Act is relevant for two reasons. First, it explicitly vests the federal judiciary with the power to hold parties in contempt.[281] Second, it establishes the United States Marshal service to act at the direction of the Courts to enforce court orders.[282] The fact that the Act confers a power to punish contempts on the federal courts is noteworthy because if the first Congress thought that federal courts had an inherent power to punish for contempt, it would have been unnecessary to confer the same power on them again. Indeed, Congress could simply have established inferior courts pursuant to Article III and they automatically would have had the power to hold parties in contempt. In other words, conferring the power to punish would be redundant if the power already existed.

One could argue that Congress merely enacted the Judiciary Act to clarify the powers already inherent in the courts, but that is unlikely. Congress itself exercised an inherent authority to punish contempts with no statutory basis until 1857, and the courts recognized this as Congress’s inherent contempt authority.[283] Thus, if Congress thought it was necessary to clarify powers that the branches inherently exercised, they would likely have enacted a statute clarifying their own contempt power as well. Furthermore, as Madison noted in The Federalist No. 48, the powers of one branch are exclusive of other branches, so if early Congress members exercised a contempt power, it would not have made sense for the judiciary to also exercise an inherent contempt power, especially since Congress punished for contempts before the judiciary ever addressed the issue.[284] Therefore, it is unlikely that members of the early Congress thought the courts had an inherent power to punish contempts.

The views of members of the early Congress are important because many of those members were also constitutional Founders. The 1789 Judiciary Act provides a reflection of what the authors of the Constitution thought about the judiciary because the Act was authored by Oliver Ellsworth, who was one of the main drafters of the judiciary section of the Constitution.[285] If Ellsworth believed the judiciary section of the Constitution had conferred an inherent power in the judiciary to punish for contempt, he would have seen no reason to have Congress also grant them that power.

2. Early Executive Branch Understanding

There is evidence that members of the executive branch believed that punishing contempts was a power of Congress. In 1789, Henry Knox, then Secretary of War, wrote to President Washington and informed him that the treaties made by Congress were not being upheld and that Congress should consider taking some action to punish those contempts of the authority of the United States.[286] And in 1807, the Sixth Attorney General of the United States, Caesar Augustus Rodney, wrote a memo about the ability of the federal courts to punish for contempts in which he effectively stated that the power was limited to those which the Congress had delegated to them through the Federal Judiciary Acts of 1789 and 1793.[287] This further demonstrates that the courts had no inherent power to punish contempts other than those powers derived from the Congress. And so, it is evident that members of the executive branch thought the legislature, not the courts, was the governmental authority with inherent power to punish contempts.

The opinion that federal courts should not be able to compel parties by using the threat of contempt was also shared by at least one early president. Thomas Jefferson, who served first as Secretary of State under Washington, as Vice President under Adams, and then finally as president in his own right, expressed a view that the courts could not order the executive branch to comply with their instructions.[288] Although he did not use the word contempt, President Jefferson expressed the view that, despite the Judiciary Act of 1789, courts should not be able to punish a president for violating court orders.[289] Jefferson based his argument on the need for the executive to be independent of the courts.[290] In an 1807 letter between then President Jefferson and George Hay, Jefferson said the following: “[W]ould the executive be independent of the judiciary, if he were subject to the commands of the latter, & to imprisonment for disobedience . . . ?”[291] Therefore, at the very least, Jefferson conceived of the contempt power as one that fell short of being applicable to the president. But the implications of Jefferson’s statement reach beyond the President. The Constitution states that the judicial power extends to controversies in which the United States (and by implication, the president) is a party.[292] If one conceives of the power to punish as part of the greater judicial power, one must concede that the judicial branch could hold the executive in contempt. However, because Jefferson denied the judiciary such power, he effectively contended that the power to punish is not an inherent part of the judicial power described in Article III.

Jefferson did not deny that the legislative branch had a power to punish for contempt. During his tenure as Vice President and President of the Senate, Jefferson held one editor-printer in contempt of the Senate.[293] Thus, it is possible to infer that although Jefferson likely did not believe in an inherent judicial authority to punish contempts, he did believe in an inherent legislative authority to do so.

Lastly, although he only became President in 1809, James Madison’s views on the contempt power are informative. James Madison’s report on the Virginia Resolution, which, challenged the constitutionality of the Alien and Sedition Act, specifically questions the use of broad judicial discretion. In the report, Madison wrote:

A discretion of this sort has always been lamented as incongruous and dangerous, even in the colonial and state courts, although so much narrowed by positive provisions in the local codes on all the principal subjects embraced by the common law . . . . [I]t is manifest that the power of the judges over the law would, in fact, erect them into legislators.[294]

Although the report on the Virginia Resolution was only written in 1798, several years after the Constitution was ratified and before Madison was president, it is noteworthy that Madison, one of the most important Founders in terms of writing and ratifying the Constitution and eventual president, noted that judges were not meant to have broad discretion.[295] Madison wrote the Virginia Resolution itself as a response to what he considered incorrect constitutional interpretation.[296]

3. Post-Ratification State Understanding

Many states thought that their state judges did not have an inherent power to punish for contempts in the years following the ratification. In his dissenting opinion in Green v. U.S., Justice Black expounds on some of the early post-Constitution history of contempt. He wrote that in 1804, justices of the “Pennsylvania Supreme Court were actually impeached for sentencing a person to jail for contempt . . . . While the Justices were narrowly acquitted this apparently only aggravated popular antagonism toward the contempt power.”[297] If the contempt power was inherent in the judiciary, it would have been odd for the state of Pennsylvania to impeach justices for using such power. State judges, especially in Pennsylvania, have also long been thought to exercise far more common law power than the federal courts[298] of more limited jurisdiction. The fact that the use of the contempt power by state law judges was contested casts doubt on whether that power was thought to have existed at all in federal judges. As noted earlier, Article III, section 1 of the Constitution suggests that Congress may have chosen not to establish lower federal courts. In fact, some members of Congress specifically argued that the state courts were sufficient, and that inferior federal courts should not be established.[299] That implies that all necessary powers of the court system existed in the state courts. Thus, if there were questions about the power of state courts to hold individuals in contempt, those doubts should apply equally to the federal courts, if not more so.

4. Early Supreme Court Cases

The first Supreme Court case in which the Court addressed whether the judiciary has an inherent power to punish contempts was decided more than two decades after the Constitution was ratified.[300] Hudson was decided after misconceptions about the historical underpinnings of the contempt power had begun to proliferate in England and in the U.S. through the publication of the English Chief Justice Wilmot’s notes.[301] Because the erroneous dicta and history contained in Almon began to burgeon in the years between the Constitution’s ratification and the Hudson decision, it is likely that the Supreme Court at the time misunderstood how the power to punish for contempt was historically tied to the English executive and mistakenly assumed that there was an independent judicial branch with its own powers.[302] Furthermore, it may be noteworthy that Justice Johnson authored the majority opinion in Hudson.[303] Justice Johnson was the first justice on the Court who was not a member of the Federalist party,[304] and his views on the judicial power likely did not reflect the views of those in the Federalist party who were the initial proponents of the Constitution.[305] Those misunderstandings, and a focus on inapposite sources, entrenched the idea of an inherent judicial power to punish contempt where one most likely did not exist during the years the Founders wrote and ratified the Constitution.[306] This early misunderstanding of the history of the contempt power and the contempt power’s connection to the executive and law-making authorities set the stage for a judicial usurpation of the contempt power. Ever since these early cases, courts have erroneously held that the judiciary is free to exercise an inherent power to punish contempts even though the evidence suggests that the Founders would not have thought so.[307]

Conclusion

The historical record from the years leading up to the framing of the Constitution provides mixed evidence with regard to the extent of the judicial power. Different states had different practices and different Founders had different conceptions of the powers that judges should wield. However, based on the contemporaneous overwhelming impetus to limit judicial discretion and the then-prevailing practices and political ideology, there is strong reason to believe that the Founders did not intend for the judiciary to wield the power to punish contempts that judges exercise today as an inherent power. This Note does not seek to make any normative judgments on the advisability of the judicial power to punish contempt—it only seeks to illuminate how the Founders did not intend to vest the Judiciary with an inherent constitutional power to sanction with contempt. Evidence from the founding demonstrates there is no inherent judicial contempt power in the federal judiciary, and that if Congress so desired it could limit or eliminate the power altogether without infringing on the separation of powers and the grant of power to the judiciary in Article III. This remains relevant today because despite the minimal limits placed on the judiciary by Congress, judges still exercise broad discretion in defining and punishing contempts and sometimes do so in ways which seem to infringe on due process rights and the equal protection of law. Congress may wish to assess whether to place further limits on the exercise of the judicial contempt power.[308]

DOI: https://doi.org/10.15779/Z38HM52K8B.

Copyright © Emile J. Katz, J.D. 2021, University of California, Berkeley School of Law. I wish to thank all of the incredible editors at the California Law Review who worked on this piece and improved it far beyond imagining. I would also like to thank Hannah Feldman, Michael David Harris, Professor John Yoo, Shams Hirji, Alan Spellberg, and Lila Englander all of whom provided critical advice and feedback without which this Note would not have been written or published. Finally, I am indebted to Howard and Marlene Kaplan who helped me discover and pursue my passion for studying the law. ↑

2. U.S. Const. art. III, § 1. ↑

3. See Ex parte Robinson, 86 U.S. (19 Wall.) 505, 510 (1874) (“The power to punish for contempts is inherent in all courts . . . .”); Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450 (1911) (“[T]he power of courts to punish for contempts is a necessary and integral part of the independence of the judiciary, and is absolutely essential to the performance of the duties imposed on them by law.”); Robert J. Pushaw, Jr., The Inherent Powers of Federal Courts and the Structural Constitution, 86 Iowa L. Rev. 735, 741–42 (2001) (stating that the power to sanction is an “implied indispensable power” of courts under Article III). ↑

4. See, e.g., Green v. United States, 356 U.S. 165, 193 (1958) (Black, J., dissenting) (stating that summary contempt is “an anomaly in the law”); Ronald Goldfarb, The History of the Contempt Power, 1961 Wash. U. L.Q. 1, 2 (arguing that contempt power seems “violative of basic philosophical approaches to the relations between government bodies and people”). ↑

5. Goldfarb, supra note 3, at 6. ↑

6. In this Note, the phrase “inherent power” is used to mean powers derived from the Constitution, specifically the judicial grant of power in Article III. ↑

7. Such as by being rude to the judge by using an “argumentative tone and [having a] disrespectful attitude.” Debra Cassens Weiss, Longtime Prosecutor is Fired After Judge Finds Him in Contempt for Alleged Disrespect, A.B.A.J. (October 25, 2019), https://www.abajournal.com/news/article/longtime-prosecutor-is-fired-after-judge-finds-him-in-contempt-for-disrespect [https://perma.cc/693T-LYBM]. ↑

8. Contempt has been split into two categories: civil and criminal. Civil contempt occurs when a party fails “to obey a court order that was issued for another party’s benefit,” while criminal contempt is an “act that obstructs justice or attacks the integrity of the court.” Contempt, Black’s Law Dictionary (11th ed. 2019). ↑

9. See 18 U.S.C. § 401. ↑

10. See Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 443 (1911); United States v. Barnett, 376 U.S. 681, 699–700 (1964); see also 18 U.S.C. § 401. ↑

11. This Note refers to both the power to discretionarily determine what conduct counts as contempt as well as the power to punish said conduct together as “the power to punish contempts.” ↑

12. See Robert Davis, The Chicago Seven Trial and the 1968 Democratic National Convention, Chi. Trib., (Sept. 15, 2008), https://www.chicagotribune.com/nation-world/chi-chicagodays-seventrial-story-story.html [https://perma.cc/A2NZ-YGY9]; Chicago Seven, Encyc. Britannica (Sept. 17, 2020), https://www.britannica.com/event/Chicago-Seven-law-case [https://perma.cc/9N96-YMWV] (noting defendants were held in contempt for dastardly behavior such as “eating jelly beans, making faces, blowing kisses, wearing outlandish clothing, and cracking jokes” and explaining Judge Hoffman at one point had a defendant “bound and gagged for allegedly calling the judge a ‘fascist dog,’ a ‘pig,’ and a ‘racist’”); see also Michelle Theriault Boots, He Tested Positive for the Coronavirus. One Day Later, a Federal Prison Flew Him Home to Alaska., Anchorage Daily News (May 27, 2020), https://www.adn.com/alaska-news/crime-courts/2020/05/26/he-tested-positive-for-the-coronavirus-two-days-later-a-federal-prison-flew-him-home-to-alaska/ [https://perma.cc/DF88-SZQT] (describing how a judge held a man released from prison in contempt of the court for failing to follow Alaska’s fourteen-day quarantine). ↑

13. Davis, supra note 11. ↑

14. Id. ↑

15. See Joseph Shapiro, As Court Fees Rise, the Poor Are Paying the Price, NPR (May 19, 2014), https://www.npr.org/2014/05/19/312158516/increasing-court-fees-punish-the-poor [https://perma.cc/2NLS-MKQ4]; Ed Spillane, Opinion, Why I Refuse to Send People to Jail for Failure to Pay Fines, Wash. Post (April 8, 2016), https://www.washingtonpost.com/posteverything/wp/2016/04/08/why-i-refuse-to-send-people-to-jail-for-failure-to-pay-fines/ [https://perma.cc/76ZQ-UW5H]. ↑

16. Tate v. Short, 401 U.S. 395, 398–401 (1971). ↑

17. See Spillane, supra note 14. ↑

18. See Bloom v. Illinois, 391 U.S. 194, 203 (1968). ↑

19. See United States v. Barnett, 376 U.S. 681, 699–700 (1964). ↑

20. The Supreme Court has stated that because the contempt authority is inherent in the judiciary, Congress is limited in its ability to restrict that power. Michaelson v. United States ex rel. Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 266 U.S. 42, 65­–66 (1924); see also Felix Frankfurter & James M. Landis, Power of Congress Over Procedure in Criminal Contempts in Inferior Federal Courts: A Study in Separation of Powers, 37 Harv. L. Rev. 1010, 1019–24 (1924). ↑

21. Generally speaking, it is the executive branch that enforces the law, through prosecutors who bring suit against individuals. In the case of contempt, the court itself brings suit against individuals. ↑

22. In the past, a President has been held in contempt of court for lying under oath. John M. Broder & Neil A. Lewis, Clinton Is Found to Be in Contempt on Jones Lawsuit, N.Y. Times, Apr. 13, 1999, at A1, https://www.nytimes.com/1999/04/13/us/clinton-is-found-to-be-in-contempt-on-jones-lawsuit.html [https://perma.cc/F2JV-3M8N]. ↑

23. In general, the different states had different forms of government in the years leading up to ratification. See infra Part II.B. ↑

24. This Note utilizes both original intent and original public meaning analysis. “Original intent and original public meaning are generally thought to be opposing camps within originalism. Both theories assert that the meaning of a constitutional provision was fixed at the time it was enacted. But they disagree fundamentally on the nature of interpretation. Original intent asserts that the meaning sought is that intended by the Constitution’s enactors. Original public meaning asserts that the meaning sought is that revealed by the text as reasonably understood by a well-informed reader at the time of the provision’s enactment.” John O. McGinnis & Michael B. Rappaport, Unifying Original Intent and Original Public Meaning, 113 Nw. Univ. L. Rev. 1371, 1371 (2019). ↑

25. Congress delegated the federal judiciary a contempt power in the first session of Congress in 1789. An Act to Establish the Judicial Courts of the United States, ch. 20, § 17, 1 Stat. 73, 83 (1789) (“And be it further enacted, That all the said courts of the United States shall have power . . . to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same . . . .”). This Note does address the contempt power of the courts granted by congressional statute but only seeks to determine whether there is a separate power to hold parties in contempt of court granted in the Constitution as an inherent judicial power. ↑

26. United States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812). ↑

27. See An Act to Establish the Judicial Courts of the United States, ch. 20, § 17, 1 Stat. 73, 83 (1789). ↑

28. See 18 U.S.C. §§ 401–402 (stating the conduct for which courts may hold a person in contempt); 18 U.S.C. § 3691 (explaining the process by which courts may hold a person in contempt). ↑

29. United States v. Barnett, 376 U.S. 681, 699–700 (1964); see also Michaelson v. United States ex rel. Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 266 U.S. 42, 65–66 (1924) (“That the power to punish for contempts is inherent in all courts, has been many times decided and may be regarded as settled law. It is essential to the administration of justice. The courts of the United States, when called into existence and vested with jurisdiction over and subject, at once become possessed of the power.”). ↑

30. Willy v. Coastal Corp., 503 U.S. 131, 139 n.5 (1992) (“Our conclusion that the District Court acted within the scope of the Federal Rules and that the sanction may constitutionally be applied even when subject-matter jurisdiction is eventually found lacking makes it unnecessary for us to consider respondent’s alternative contention that the sanction may be upheld as an appropriate exercise of the District Court’s ‘inherent powers.’”). ↑

31. Id. ↑

32. See id. ↑

33. Chambers v. Nasco, Inc., 501 U.S. 32, 42–44 (1991). ↑

34. Id. at 57. ↑

35. See id. at 50–51. ↑

36. Ex parte Robinson, 86 U.S. (19 Wall.) 505, 511 (1874). ↑

37. Under the original congressional grant of authority in 1789, courts could effectively hold parties in contempt for any reason. See Goldfarb, supra note 3, at 14. ↑

38. Richard H. Fallon Jr., John F. Manning, Daniel J. Meltzer & David L. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 295–­303 (7th ed. 2015). ↑

39. See United States v. Barnett, 376 U.S. 681, 699–700 (1964). ↑

40. See Bloom v. Illinois, 391 U.S. 194, 203–04 (1968). ↑

41. Indirect contempts are acts of contempt which occur outside of the courtroom. 7A Francis M. Dougherty & Robert B. McKinney, Federal Procedure § 17:3 (Laws. ed. 2021). ↑

42. See 18 U.S.C. § 3691. ↑

43. Summary contempt proceedings are proceedings in which the court adjudicates whether the person is in contempt of court without pleading, affidavit, or formal charges. Courts have limited the instances in which summary contempt can be used, but have not eliminated the power altogether. Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 830 (1994) (“[T]he Court has erected substantial procedural protections in other areas of contempt law, such as . . . summary contempts.” (internal citations omitted)); 7A Francis M. Dougherty & Robert B. McKinney, Federal Procedure § 17:3 (Laws. ed. 2021) (“[S]ummary adjudication of indirect contempts—that is, those occurring out of court—is prohibited.”). ↑

44. Green v. United States, 356 U.S. 165, 193 (1958) (Black, J., dissenting). ↑

45. Id. at 207–08. ↑

46. Id. at 208–10. ↑

47. Goldfarb, supra note 3, at 1. ↑

48. Id. at 2. ↑

49. Id. at 7–8. ↑

50. Id. at 8. ↑

51. Id. at 11. ↑

52. John C. Fox, The History of Contempt of Court: The Form of Trial and the Mode of Punishment 5–16 (1927). ↑

53. Frankfurter & Landis, supra note 19, at 1046–47, 1049 n.139. ↑

54. Id. ↑

55. Fox, supra note 51, at 5–16. ↑

56. Goldfarb, supra note 3, at 13. ↑

57. See discussion infra Part II.A. ↑

58. See discussion infra Part II.A. ↑

59. *Frankfurter & Landis, supra note 19, at 1023. * ↑

60. See id. at 1018, 1047. ↑

61. See id. at 1020–22. ↑

62. See id. at 1010 n.3. Other scholars like Professor Louis Raveson have ignored the history of the contempt power but instead argued that such power interferes with individual rights guaranteed by the Constitution. See generally Louis S. Raveson, Advocacy and Contempt: Constitutional Limitations on the Judicial Contempt Power, 65 Wash. L. Rev. 477 (1990) (arguing the Constitution should limit the contempt power so that it may only be used to punish actual obstructions of the administration of justice). Raveson also cited an article by Ronald Goldfarb for the proposition that commentators have challenged “courts’ frequent declarations that the contempt power has always been an inherent power of common law courts.” Id. at 485 n.22. ↑

63. See discussion infra Part II. ↑

64. See discussion infra Part II. ↑

65. Pushaw, supra note 2, at 741–42. ↑

66. Id. ↑

67. Id. at 742. ↑

68. Id. ↑

69. Id. at 800, 806, 815–16. ↑

70. See supra Part I.B.1 (discussing the timeline of Almon). ↑

71. See Pushaw, supra note 2, at 821. ↑

72. See discussion infra Part II.A–B. ↑

73. *Pushaw, supra* note 2, at 821. ↑

74. See Gordon S. Wood, The Creation of the American Republic 1776–1787, at 136–61 (1998). ↑

75. See id. at 155–56, 161. ↑

76. 1 The Records of the Federal Convention of 1787, at 125 (Max Farrand ed., 1911); see also Martin H. Redish & Curtis E. Woods, Congressional Power to Control the Jurisdiction of Lower Federal Courts: A Critical Review and New Synthesis, 124 U. Penn. L. Rev. 45, 52–56 (1975) (discussing the Madisonian compromise). ↑

77. See Wood, supra note 73, at 10. ↑

78. See id.; Dennis R. Nolan, Sir William Blackstone and the New American Republic: A Study of Intellectual Impact, 51 N.Y.U. L. Rev. 731, 767–68 (1976). ↑

79. *Wood, supra* note 73, at 10, 14. Blackstone was also referenced during the ratification debates in the states. 3 The Debates in the Several State Conventions, on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia, in 1787, at 544 (Jonathan Elliot ed., 2d ed., Philadelphia, J.B. Lippincott & Co. 1866) [hereinafter Elliot’s Debates]; 2 Elliot’s Debates 424. ↑

80. List of Books Prepared by James Madison in 1783 to Constitute the Intellectual Nucleus for a Library for the Congress (photograph), Libr. of Congr. (1783), https://www.loc.gov/item/2002707211/ [https://perma.cc/RUZ3-HEDC]; Report on Books for Congress, [23 January] 1783, Founders Online, https://founders.archives.gov/documents/Madison/01-06-02-0031 [https://perma.cc/HV27-STHN]. ↑

81. Catalogue of the Library of the United States 73–74 (Jonathan Elliot, ed. 1815); Luther H. Evans, Foreword to 1 Catalogue of the Library of Thomas Jefferson, at vii, vii–viii (E. Millicent Sowerby ed., 1952); Thomas Jefferson to Samuel H. Smith, in 7 The Papers of Thomas Jefferson Retirement Series 681, 681–84 (J. Jefferson Looney ed., Princeton Univ. Press 2010) (1814). ↑

82. See John H. Langbein, Blackstone, Litchfield, and Yale: The Founding of the Yale Law School, in History of the Yale Law School: The Tercentennial Lectures 17, 20–23 (Anthony T. Kronman ed., 2004). ↑

83. See The Federalist Nos. 69, 84 (Alexander Hamilton). ↑

84. 4 William Blackstone, Commentaries *119–26. ↑

85. See Wood, supra note 73, at 136, 148–50. ↑

86. 3 William Blackstone, Commentaries 23–24; 4 William Blackstone, Commentaries 122; see also Wood, supra note 73, at 154 (noting Americans feared “royally controlled judges”). ↑

87. The founders were influenced by Montesquieu’s Spirit of Laws, which espoused a government based on the separation of powers. Wood, supra note 73, at 152; see also The Federalist No. 78 (Alexander Hamilton) (citing Montesquieu’s Spirit of Laws). ↑

88. 3 William Blackstone, Commentaries 24–25 (“All courts of record are the king’s courts, in right of his crown and royal dignity*, and therefore no other court hath authority to fine or imprison; so that the very erection of a new jurisdiction with power of fine or imprisonment makes it instantly a court of record.”) (emphasis added). ↑

89. 4 William Blackstone, Commentaries *122. ↑

90. Id. ↑

91. Id. at *121–26 (“Contempts against the king’s prerogative . . . . Contempts and misprisions against the king’s person and government . . . . Contempts against the king’s title . . . . Contempts against the king’s palaces or courts of justice.”). ↑

92. Id. ↑

93. See id. at *122. ↑

94. Scandalum Magnatum, Black’s Law Dictionary (11th ed. 2019); see also Goldfarb, supra note 3, at 11. ↑

95. Pushaw, supra note 2, at 806, 813–14, 813 nn.415 & 417, 817. ↑

96. 4 William Blackstone, Commentaries *282. ↑

97. Pushaw, supra note 2, at 814. ↑

98. Eberhard P. Deutsch, Liberty of Expression and Contempt of Court, 27 Minn. L. Rev. 296, 300 (1943) (“Wilmot and Blackstone, as friends, unquestionably discussed this opinion . . . . And while the earlier authorities were directly to the contrary, as already demonstrated, it was on the basis of this ‘opinion,’ never even rendered, that Blackstone referred, in his Commentaries, published later in the same year, to ‘the method, immemorially used by the superior courts of justice, of punishing contempts by attachment.’”). ↑

99. See Nolan, supra note 77, at 768. ↑

100. 2 William Blackstone, Commentaries *284–88. ↑

101. *3 William Blackstone, Commentaries 24 (“All courts of record are the king’s courts, in right of his crown and royal dignity, and therefore no other court hath authority to fine or imprison; so that the very erection of a new jurisdiction with the power of fine or imprisonment makes it instantly a court of record. A court not of record is the court of a private man, whom the law will not [e]ntrust with any discretionary power over the fortune or liberty of his fellow-subjects.”). ↑

102. *3 William Blackstone, Commentaries 23–24. ↑

103. 1 William Blackstone, Commentaries *257 (“[T]he king is considered . . . the fountain of justice . . . . And hence it is, that all jurisdictions of courts are either mediately or immediately derived from the crown, their proceedings run generally in the king’s name, they pass under his seal, and are executed by his officers.”). ↑

104. Id.; 3 William Blackstone, Commentaries *23–24. ↑

105. 1 Willian Blackstone, Commentaries 257; 3 William Blackstone, Commentaries 23–24. ↑

106. Report on Books for Congress, supra note 79; 1 Catalogue of the Library of Thomas Jefferson, supra note 80, at vi–viii. ↑

107. 2 Edward Coke, The Institutes of the Laws of England 50 (London, M. Flesher & R. Young 1642). ↑

108. Id. at 51. ↑

109. Id. ↑

110. Id. at 49. ↑

111. Id. at 51. ↑

112. Id. ↑

113. Id. ↑

114. See id. ↑

115. See id. at 49–51. ↑

116. 1 John Campbell, The Lives of the Chief Justices of England 128 (Jersey City, Fred D. Linn & Co.1881). ↑

117. Meaning the King could remove him at will for any reason. ↑

118. Meaning the King could only remove a judge for misbehavior. ↑

119. 1 Campbell, supra note 115, at 128. ↑

120. See Wood, supra note 73, at 160–61. ↑

121. See, e.g., U.S. Const. art. III. ↑

122. 1 William Blackstone, Commentaries 160 (“To assault by violence a member of either house, or his menial servant, is a high contempt of parliament, and there punished with the utmost severity.”); id. at 257. ↑

123. Thwing v. Dennie, Quincy (Mass.) Rep. 338 (1772). ↑

124. See Wood, supra note 73, at 159. ↑

125. Id. ↑

126. Id. ↑

127. Id. ↑

128. Id. ↑

129. Id. at 159–60. ↑

130. Id. at 298. ↑

131. Id. at 294. ↑

132. See id. at 136–61. ↑

133. Id. ↑

134. See id. at 298 (“[C]olonists [had] a profound fear of judicial independence and discretion, reflected in their repeated resort to written charters and to legislative intervention either by direct interference in the process of adjudication or by the correction and amendment of court-administered law by statute.”). ↑

135. Id. at 300–01; 7 New Jersey Historical Society, Collections of the New Jersey Historical Society 309 (Newark, Martin R. Dennis & Co. 1872); see also Van Ness v. Pacard, 27 U.S. ( 2 Pet.) 137, 143–44 (1829); Roscoe Pound, The Spirit of the Common Law 116 (1921) (“After the Revolution the public was extremely hostile to . . . all that was English and it was impossible for the common law to escape the odium of its English origin.”); James R. Maxeiner, A Government of Laws Not of Precedents 1776–1876: The Google Challenge to Common Law Myth, 4 Brit. J. Am. Legal Stud. 137, 144–48, 154–55 (2015). ↑

136. Pushaw, supra note 2, at 820. ↑

137. See The Declaration of Independence paras. 11–12 (U.S. 1776). ↑

138. William Kent, Memoirs and Letters of James Kent, LL.D. 117–118. (Cambridge, Little, Brown, & Co. 1898). ↑

139. For example, New Jersey adopted the following statute: [T]hat no adjudication decision or opinion made, had, or given in any court of law or equity in Great Britain or any cause therein depending, nor any printed or written report or statement thereof, nor any compilation, commentary, digest, lecture, treatise, or other explanation or exposition of the common law, made, had, given, written, or composed since the fourth day of July, in 1776, in Great Britain, shall be received or read in any court of law or equity of this State, as law, or evidence of the law, or elucidation or explanation thereof, any practice, opinion, or sentiment of the said courts of justice, used, entertained, or expressed to the contrary hereof notwithstanding. 7 New Jersey Historical Society, supra note 134, at 90–91; see also id. at 309 (“[A]ct of Assembly passed in 1779 . . . forbade the reading in our courts of any adjudication, decision, digest, or book, made in Great Britain after the year 1776.”). Another example can be found in a Kentucky statute which stated that, “All reports and books containing adjudged cases in the kingdom of Great Britain, which decisions have taken place since the 4th of July 1776, shall not be read, nor considered as authority in any of the courts of this commonwealth, any usage or custom to the contrary notwithstanding.” 1 William Littell, Reports of Cases at Common Law and in Chancery, Decided by the Court of Appeals of the Commonwealth of Kentucky, at iv (Louisville, Geo. G. Fetter Printing Co. 1898). Virginia had similar laws, such as the Act of December 27, 1792. See George L. Haskins & Herbert A. Johnson, Foundations of Power: John Marshall, 1801–1815; 2 The Oliver Wendell Holmes Devise: History of the Supreme Court of the United States, at vii, 562 (Stanley N. Katz, ed., 2010). New Hampshire also adopted a rule against English precedent. See Charles R. Corning, The Highest Courts of Law in New Hampshire, 2 The Green Bag 469, 470 (1890). And John Dudley who sat in the Superior Court of New Hampshire in the last decade of the eighteenth century used to say, "They would govern us by the common law of England. Trust me, gentlemen, common sense is a much better guide for us . . . . It is our business to do justice between the parties, not by any quirks out of the law out of Coke and Blackstone, books that I never read, and never will." A New Hampshire Judge of the Olden Time, 17 Littell’s Living Age 55, 55 (1870); see also Pound, supra note 134, at 116. ↑

140. Michael Chesterman, Contempt: In the Common Law, but Not the Civil Law, 46 Int’l & Comp. L.Q. 521, 557 (1997). ↑

141. Wood, supra note 73, at 299–301; see also Van Ness v. Pacard, 27 U.S. (2 Pet.) 137, 144–45 (1829) (“The common law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situation.”); William B. Stoebuck, Reception of English Common Law in the American Colonies, 10 Wm. & Mary L. Rev. 393, 424–25 (1968). ↑

142. The state legislatures with explicit contempt powers could use those powers in a broad array of situations to punish conduct that obstructed their proceedings or affronted their dignity. See generally 1 The Federal and State Constitutions: Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America (Francis Newton Thorpe ed., 1909) [hereinafter Thorpe’s State Constitutions]. Cf. 18 U.S.C. § 401. ↑

143. See Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era 187 (2001). ↑

144. 3 Thorpe’s State Constitutions, supra note 141, at 1693 (Constitution of Maryland 1776). ↑

145. Id. at 1703. ↑

146. Hanson’s Laws of Maryland, 203 Archives of Md. 1, 180, 221, 223, 227, 318 (2018), https://msa.maryland.gov/megafile/msa/speccol/sc2900/sc2908/000001/000203/html/index.html [https://perma.cc/9F55-MZ8R]. ↑

147. These records may be incomplete because court records from this time period are sparse. ↑

148. See, e.g., Christie v. Goldsborough, 1 H. & McH. 540, 540 (Md. 1774) (sheriff held in contempt for disobeying a court writ); Scott v. Watts, 1 H. & McH. 458, 458 (Md. 1772); West v. Stigar, 1 H. & McH. 247, 247 (Md. 1767). The first recorded case where a Maryland court held a party in contempt after independence was in 1792, five years after the Constitution was ratified. State v. Stone, 3 H. & McH. 115 (Md. 1792). ↑

149. 3 Thorpe’s State Constitutions, supra note 141, at 1899 (Constitution of Massachusetts 1780). ↑

150. Id. (“[T]he governor and council shall have the same authority to punish in like cases.”). ↑

151. Sources from this period are limited, but the lack of court cases in which judges held litigants in contempt during this period indicates that the courts lacked a common law contempt power independent of the Massachusetts constitution. ↑

152. 3 Thorpe’s State Constitutions, supra note 141, at 1891 (Constitution of Massachusetts 1780). ↑

153. Id. ↑

154. 4 Thorpe’s State Constitutions, supra note 141, at 2462 (Constitution of New Hampshire 1784). ↑

155. Id. See generally David O. Stewart, The Summer of 1787: The Men Who Invented the Constitution 41 (2007) (describing the Philadelphia Convention). ↑

156. *4 Thorpe’s State Constitutions, supra note 141, at 2462 (Constitution of New Hampshire 1784).* ↑

157. Compare id., with 18 U.S.C. § 401 (“A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as— (1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice . . . (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.”), and Thwing v. Dennie, Quincy (Mass.) Rep. 338 (1772) (party held in contempt assaulted another attorney). ↑

158. See, e.g., United States v. Barnett, 376 U.S. 681, 700 (1964). ↑

159. 4 Thorpe’s State Constitutions, supra note 141, at 2462 (Constitution of New Hampshire 1784). ↑

160. Id. ↑

161. “Expressio unius est exclusion alterius” is a traditional canon of textual construction. Expressio Unius Est Exclusio Alterius, Black’s Law Dictionary (11th ed. 2019). There is evidence that it was used during this period in American history. See, e.g., Pirate v. Dalby, 1 U.S. (1 Dall.) 167, 168 (1786) (“[T]he maxim which declares that expression unius, eft exclufio alterius, must be applied to the plaintiff’s case . . . .”). ↑

162. See 6 Thorpe’s State Constitutions, supra note 141, at 3248–58 (Constitution of South Carolina 1778). ↑

163. 6 Thorpe’s State Constitutions, supra note 141, at 3260 (Constitution of South Carolina1790). ↑

164. Charles Pickney, who was governor of South Carolina when both the United States and South Carolina constitutions were ratified, was also an influential member of the Philadelphia Convention. Pickney presided over the ratifying convention in South Carolina. Pickney would have been well aware of the form of the United States government and endorsed that form of government. Pickney was also trained as a lawyer and would have been familiar with the intricacies of the legal process and the powers vested in the courts. Charles Pickney, Encyc. Britannica (Oct. 25, 2020), https://www.britannica.com/biography/Charles-Pinckney [https://perma.cc/2NPH-245T]. ↑

165. See 7 Thorpe’s State Constitutions, supra note 141, at 3813–19 (Constitution of Virginia 1776). ↑

166. See 1 The Papers of Thomas Jefferson, 1760–1776, at 610–20 (Julian P. Boyd ed., 1950) (“II. Bill for Establishing a High Court of Chancery [25 November 1776]”); 2 The Papers of Thomas Jefferson, 1777 to 18 June 1779, at 155–67 (Julian P. Boyd ed., 1950) (“II. Bill for Settling Titles to Unpatented Lands [14 January 1778]”); id. at 592–99 (“101. A Bill for Regulating Proceedings in Courts of Equity”). ↑

167. See generally sources cited supra note 165. ↑

168. 1 The Papers of Thomas Jefferson, supra note 165, at 356–65 (“III. Third Draft by Jefferson, [before June 1776]”). ↑

169. See 7 Thorpe’s State Constitutions, supra note 141, at 3813–19 (Constitution of Virginia 1776). ↑

170. See 1 Thorpe’s State Constitutions, supra note 141, at 536–57 (Connecticut Constitutions). ↑

171. See, e.g., Allen v. Broom, 2 Kirby 11, 11 (Conn. 1786) (person who carries off court documents should be held in contempt); Barker v. Wilford, 1 Kirby 232, 235 (Conn. 1787); In re Strong, 1 Kirby 345, 347 (Conn. 1787). Court records from this time period are limited. ↑

172. See Adams, supra note 142, at 53; 3 Thorpe’s State Constitutions, supra note 141, at 1691–1703 (Constitution of Maryland 1776); id. at 1888–1922 (Constitution of Massachusetts 1780); 4 Thorpe’s State Constitutions, supra note 141, at 2453–70 (Constitution of New Hampshire 1784); 1 Thorpe’s State Constitutions, supra note 141, at 536–57 (Connecticut Constitutions). ↑

173. 1 Thorpe’s State Constitutions, supra note 141, at 536–57 (Connecticut Constitutions). ↑

174. See Mifflin v. Bingham, 1 U.S. (1 Dall.) 272, 274 (Pa. 1788); see also Letter from Thomas Jefferson to Thomas Lee Shippen, in 13 The Papers of Thomas Jefferson, March to 7 October 1788, at 642, 642–43 (Julian P. Boyd ed., 1956). ↑

175. 5 Thorpe’s State Constitutions, supra note 141, at 3088 (Constitution of Pennsylvania 1776) (emphasis added). ↑

176. Samuel Johnson, A Dictionary of the English Language in Which the Words Are Deduced from Their Originals, Explained in Their Different Meanings (3d ed. 1768) (defining “usual” as what is customary). ↑

177. See Pushaw, supra note 2, at 799–800, 799 n.335. ↑

178. Case law from this period is sparse. ↑

179. See Adams, supra note 142, at 172. ↑

180. 3 Thorpe’s State Constitutions, supra note 141, at 1687 (Constitution of Maryland 1776); see also The Federalist No. 47 (James Madison) (“Maryland has adopted the maxim in the most unqualified terms; declaring that the legislative, executive, and judicial powers of government ought to be forever separate and distinct from each other.”). ↑

181. *3 Thorpe’s State Constitutions, supra* note 141, at 1691–1703 (Constitution of Maryland 1776). ↑

182. See 5 Thorpe’s State Constitutions, supra note 141, at 3081–92 (Constitution of Pennsylvania 1776). ↑

183. See id. ↑

184. Id. at 3088. ↑

185. See Adams, supra note 142, at 172. ↑

186. The Federalist No. 45 (James Madison) (“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”). ↑

187. See U.S. Const. art. III. ↑

188. See Adams, supra note 142, at 53. ↑

189. Wood, supra note 73, at 155–56. ↑

190. Id. ↑

191. Id. at 161. ↑

192. See id. at 160–61. ↑

193. Id. at 161, 301. ↑

194. Letter from Thomas Jefferson to Edmund Pendleton, in 1 The Papers of Thomas Jefferson, 1760–1776, at 503, 505–06 (Julian P. Boyd ed., 1950). ↑

195. See Jeff Broadwater, Jefferson, Madison and the Making of the Constitution 157–58 (2019) (noting that, during the writing of the Constitution, people “solicited Jefferson’s views, and he expressed himself in letters that circulated among his friends and admirers”). ↑

196. See The Federalist No. 38 (James Madison) (“Congress [under the Articles of Confederation], a single body of men, are the sole depositary of all the federal powers.”). ↑

197. See Articles of Confederation of 1781, art IX; Saturday, January 15, 1780, in 16 J. Cont’l Cong. 1774–1789, at 59, 61 (1910) (establishing a limited tribunal “for the trial of all appeals from the courts of admiralty in these United States, in cases of capture, to consist of three judges, appointed and commissioned by Congress”). ↑

198. See Articles of Confederation of 1781, art IX. ↑

199. Case law from the time period is limited, but a diligent search did not uncover any examples of those courts using a contempt power. See generally J.C. Bancroft Davis, Federal Courts Prior to the Adoption of the Constitution, in 131 U.S. app., xix, xix–lxii (1889). ↑

200. See 5 Elliot’s Debates, supra note 78, at 10. ↑

201. Motion on Gunning Bedford, in 5 Papers of John Adams 223, 224 (Robert J. Taylor ed., 1983). ↑

202. Id. Although under Article IX of the Articles of Confederation the Congress had authority to set up limited tribunals, it did not do so when punishing the contempt of Gunning Bedford. Instead, the Congress punished for contempt in its usual session. Additionally, when it was proposed that the Congress of the Confederation create a court with contempt authority, the proposal did not gain enough votes to succeed. See Richard P. McCormick, Ambiguous Authority: The Ordinances of the Confederation Congress, 1781–1789, 41 Am. J. Legal Hist. 411, 423 (1997). ↑

203. Wood, supra note 73, at 409. ↑

204. See generally id. (explaining the shift in attitude towards the legislature during the revolutionary era). ↑

205. See, e.g., supra note 145 and accompanying text. ↑

206. See Wood, supra note 73, at 160–61. ↑

207. See The Federalist No. 38 (James Madison). ↑

208. See Federalist Papers, Encyc. Britannica (Jan. 26, 2020), https://www.britannica.com/topic/Federalist-papers [https://perma.cc/Y6TN-N85F]. ↑

209. Id. ↑

210. See Alexander DeConde, Alexander Hamilton, Encyc. Britannica (Oct. 22, 2020), http://www.britannica.com/biography/Alexander-Hamilton-United-States-statesman [https://perma.cc/QPF8-BM2D]; Presidents: James Madison, The White House (2006), http://www.whitehouse.gov/about-the-white-house/presidents/james-madison/ [https://perma.cc/N22J-VH84] (“In later years, he was referred to as the ‘Father of the Constitution.’”). ↑

211. The Federalist No. 48 (James Madison) (“The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.”); Wood, supra note 73, at 407–08. ↑

212. The Federalist No. 48 (James Madison). ↑

213. Wood, supra note 73, at 455–56. ↑

214. Id. at 454 (“‘When the assembly leave the great business of the state, and take up private business, or interfere in disputes between contending parties,’ men now increasingly argued, ‘they are very liable to fall into mistakes, make wrong decisions, and so lose that respect which is due to them, as the Legislature of the State.’ The evils of this legislative meddling were ‘heightened when the society is divided among themselves; —one party praying the assembly for one thing, and the opposite party for another thing . . . . In such circumstances, the assembly ought not to interfere by any exertion of legislative power, but leave the contenting parties to apply to the proper tribunals for a decision of their differences.’”). ↑

215. Id. at 455–56. ↑

216. U.S. Const. art. III, § 1. ↑

217. See Michaelson v. United States, 266 U.S. 42, 60, 65–66 (1924). ↑

218. The Federalist No. 48 (James Madison). ↑

219. See Wood, supra note 73, at 450–52 (discussing the separation of powers). ↑

220. See supra Part II.B.1. Also note that in the years following the Constitution both the legislature and the judiciary held parties in contempt but that the legislature held parties in contempt before the Supreme Court ever held that contempt was an inherent judicial power. See S. Journal, 6th Cong., 1st Sess. 55–56 (1800); United States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812). ↑

221. The Federalist No. 78 (Alexander Hamilton). ↑

222. Id. ↑

223. See Contempt, Black’s Law Dictionary (11th ed. 2019) (“Conduct that defies the authority or dignity of a court or legislature. Because such conduct interferes with the administration of justice, it is punishable by fine or imprisonment.”). ↑

224. Id.; Proceeding, Black’s Law Dictionary (11th ed. 2019) (Defining a summary proceeding as a “nonjury proceeding that settles a controversy or disposes of a case in a relatively prompt and simple manner”); id. (quoting A.H. Manchester, Modern Legal History of England and Wales, 1750–1950, at 160 (1980) (“Summary proceedings were such as were directed by Act of Parliament, there was no jury, and the person accused was acquitted or sentenced only by such person as statute had appointed for his judge. The common law was wholly a stranger to summary proceedings.”)). ↑

225. **The Federalist No. 78 (Alexander Hamilton). ↑

226. Both Hamilton and the Constitution make clear that it is the executive’s, and not the judiciary’s, role to “to take care that the laws be faithfully executed” and that the President is the branch with the powers most analogous to those of the King. The Federalist No. 69 (Alexander Hamilton). ↑

227. The Federalist No. 78 (Alexander Hamilton). ↑

228. Id. ↑

229. See id. (“The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.”). ↑

230. Id. (“[T]hat as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.”). ↑

231. See The Federalist No. 79 (Alexander Hamilton). ↑

232. The Federalist No. 78 (Alexander Hamilton) (emphasis added). Despite that statement, judges have historically held members of other branches of government in contempt. This demonstrates that current use of the contempt power is incompatible with Hamilton’s conception of the judicial power. See, e.g., United States v. Barnett, 376 U.S. 681, 681 (1964). ↑

233. *The Federalist No. 78 (Alexander Hamilton). * ↑

234. The Federalist No. 48 (James Madison). ↑

235. See id. ↑

236. See United States v. Nixon, 418 U.S. 683, 713 (1974) (holding presidential privilege does not prevail over “the fundamental demands of due process of law in the fair administration of criminal justice”); see also Knight First Amend. Inst. v. Trump, 302 F. Supp. 3d 541 (S.D.N.Y. 2018), aff’d 928 F.3d 226 (2d Cir. 2019), vacated as moot sub nom.; Biden v. Knight First Amend. Inst., 141 S. Ct. 1220 (2021); Saleh v. Bush, 848 F.3d 880 (9th Cir. 2017); Trump v. Mazars USA, LLP, 140 S. Ct. 2019 (2020); Trump v. Vance, 140 S. Ct. 2412 (2020); Broder & Lewis, supra note 21. ↑

237. See Farah Peterson, Expounding the Constitution, 130 Yale L.J. 2, 31–32 (2020); Akhil Reed Amar, Anti-Federalists, The Federalist Papers, and the Big Argument for Union, 16 Harv. J.L. & Pub. Pol’y, 111, 117 (1993) (“The arguments in these papers were accepted because both Anti-Federalists and Federalists could agree with them.”). ↑

238. See Anti-Federalists, Encyc. Britannica (Mar. 19, 2020), http://www.britannica.com/topic/Anti-Federalists [https://perma.cc/C598-JCXA]. ↑

239. See Essays of Brutus, No. I, N.Y. J. (Oct. 18, 1787), reprinted in 2 The Complete Anti-Federalist 363, 365 (Herbert J. Storing ed., 1981). ↑

240. See Amar, supra note 236, at 117. ↑

241. *Essays of Brutus, No. I, supra *note 238, at 365. ↑

242. Brutus specifically refers to the Massachusetts government and, as explained above, Massachusetts was one state with a Constitution that explicitly vested a power to punish contempt in branches other than the judiciary. Id. ↑

243. Id. (emphasis added). ↑

244. Id. ↑

245. See The Federalist No. 78 (Alexander Hamilton) (“FORCE nor WILL”). ↑

246. See Essays of Brutus, No. I, supra note 238, at 365. ↑

247. See Consider Arms, Malichi Maynard, and Samuel Field: Dissent to the Massachusetts Convention, Hampshire Gazette (Apr. 9, 1788), https://www.consource.org/document/consider-arms-malachi-maynard-and-samuel-field-dissent-to-the-massachusetts-convention-1788-4-9/ [https://perma.cc/HC5Z-WUF4] (“We could not then, we still cannot see, that because people are many times guilty of crimes, and deserving of punishment, that it from thence follows [Congress] ought to have power to punish them when they are not guilty, or to punish the innocent with the guilty without discrimination, which amounts to the same thing. But this we think in fact to be the case as to this federal constitution.”); Essays of Brutus. No. II, N.Y. J. (Nov. 1, 1787), reprinted in 2 The Complete Anti-Federalist, supra note 238, at 372, 374 (“The powers vested in the new Congress extend in many cases to life; they are authorised to provide for the punishment of a variety of capital crimes . . . .”). ↑

248. See Richard Henry Lee, Letter III, in Observations Leading to a Fair Examination of the System of Government Proposed by the Late Convention; and to Several Essential and Necessary Alterations in It 15, 25 (New York, Thomas Greenleaf 1787) (“There are some powers proposed to be lodged in the general government in the judicial department, I think very unnecessarily, I mean powers respecting questions arising upon the internal laws of the respective states.”). ↑

249. Essays of Brutus, No. XV, N.Y. J. (Mar. 20, 1788), reprinted in 2 The Complete Anti-Federalist, supra note 238, at 437, 440. ↑

250. Id. (emphasis added). ↑

251. See Montezuma, A Consolidated Government Is a Tyranny, Independent Gazetteer (Oct. 17, 1787), http://resources.utulsa.edu/law/classes/rice/Constitutional/AntiFederalist/09.htm [https://perma.cc/LYT3-LSQU]; Essays of Brutus, No. I, supra note 238, at 367 (“The powers given by this article are very general and comprehensive, and it may receive a construction to justify the passing almost any law.” (emphasis added)). ↑

252. Records from the state conventions are sparse. ↑

253. See David L. Pulliam, The Constitutional Conventions of Virginia from the Foundation of the Commonwealth to the Present Time 36 (1901). ↑

254. 3 Elliot’s Debates, supra note 78, at 517 (emphasis added). ↑

255. Id. ↑

256. See supra Part II.A. ↑

257. W. Hamilton Bryson, Edmund Pendleton (1721–1803), in 2 Great American Judges: An Encyclopedia 602, 604–05 (John R. Vile ed., 2003). ↑

258. Id. at 605. ↑

259. 6 George Bancroft, History of the United States of America, from the Discovery of the Continent 426 (New York, D. Appleton & Co. 1888). ↑

260. Bryson, supra note 256, at 604. ↑

261. Id. ↑

262. Id.; 2 Albert J. Beveridge, The Life of John Marshall 18 (1916). ↑

263. Bryson, supra note 256, at 604. ↑

264. See Jeff Broadwater, George Mason, Forgotten Founder 200 (2009). George Mason also wrote the first draft of the 1776 Virginia constitution. Adams, supra note 142, at 56. ↑

265. See 3 Elliot’s Debates, supra note 78, at 518–26, 534, 538. ↑

266. Id. ↑

267. Id. at 518–21. ↑

268. Id. at 542. ↑

269. Id. at 541–42. ↑

270. Id. ↑

271. Id. at 554 (emphasis added). ↑

272. 2 Elliot’s Debates, supra note 78, at 196. ↑

273. Id. ↑

274. Id. ↑

275. Id. at 190–97. ↑

276. Id. at 190. ↑

277. See id. ↑

278. Id. at 197. ↑

279. William R. Casto & John F. Kennedy, Oliver Ellsworth, Encyc. Britannica (Apr. 25, 2021), http://www.britannica.com/biography/Oliver-Ellsworth [https://perma.cc/B39N-23TA]. It has been asserted that Ellsworth, along with five others, drafted the structure of government laid out in the Constitution. 3 The Records of the Federal Convention of 1787, at 397 (Max Farrand ed., 1911). ↑

280. William Garrott Brown, The Life of Oliver Ellsworth 196–98 (1905). ↑

281. An Act to Establish the Judicial Courts of the United States, ch. 20, § 17, 1 Stat. 73, 83 (1789) (“And be it further enacted, That all the said courts of the United States shall have power . . . to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same.”). ↑

282. Although the Marshal service is now organized under the Justice Department, 28 U.S.C. § 566 still vests the judiciary with the power to direct the Marshals: “It is the primary role and mission of the United States Marshals Service to provide for the security and to obey, execute, and enforce all orders of the United States District Courts.” 28 U.S.C. § 566. See also Emile J. Katz, Grand Unified (Separation of Powers) Theory: Examining the United States Marshals (June 30, 2021) (unpublished manuscript) (on file with author) (discussing the establishment and constitutionality of the US Marshal Service with a focus on separation of powers concerns). ↑

283. Goldfarb, supra note 3, at 27; S. Journal, 6th Cong., 1st Sess. 60 (1800) (“‘WM. DUANE.’ is guilty of a contempt of said order, and of this House, and that, for said contempt, he, the said Wm. Duane, be taken into the custody of the Sergeant-at-Arms attending this House, to be kept subject to the further orders of the Senate.”); H.R. Journal, 4th Cong., 1st Sess. 390(1795) (“[S]ufficient evidence of a contempt to, and breach of the privileges of, this House, in an unwarrantable attempt to corrupt the integrity of its members.”); Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821) (holding that Congress has an inherent contempt authority to punish nonmembers as well as members). ↑

284. See Letter to George Washington from Robert Randall, in 19 The Papers of George Washington, 360, 361–62 (David R. Hoth ed., 2016); From John Adams to John Quincy Adams, Founders Online, https://founders.archives.gov/documents/Adams/99-03-02-1624 [https://perma.cc/2QQF-6M44]; The Federalist No. 48 (James Madison). ↑

285. See Brown, supra note 279, at 196–98. It has been asserted that Ellsworth, along with five others, drafted the structure of government laid out in the Constitution. 3 The Records of the Federal Convention of 1787, supra note 278, at 397. ↑

286. See Letter to George Washington from Henry Knox, in 3 The Papers of George Washington 134, 137 (Dorothy Twohig ed.,1989). ↑

287. See To Thomas Jefferson from Caesar Augustus Rodney, Founders Online, https://founders.archives.gov/documents/Jefferson/99-01-02-6385 [https://perma.cc/8FPU-J3JC]. It is noteworthy that Caesar Augustus Rodney also questioned the historical practice of attachments or contempts in British judicial history as a relatively new phenomenon. This provides additional support for the earlier assertion that British courts had begun to use the contempt power in a new way that did not reflect historical practice and did not align with the way the founders would have thought about contempt. See List of Batture-Related Papers Sent to Thomas Jefferson, in 2 The Papers of Thomas Jefferson Retirement Series 439, 444 (J. Jefferson Looney ed., Princeton Univ. Press 2005) (1807) (“[T]he doctrine of contempt of court has been extended further than law or precedent would warrant.”). ↑

288. Letters from Thomas Jefferson to George Hay, in 10 The works of Thomas Jefferson 394, 404 (Paul Leicester Ford ed., 1905). ↑

289. Id. ↑

290. Id. ↑

291. Id. (emphasis added). ↑

292. U.S. Const. art. III. ↑

293. See Letter to Thomas Jefferson from William Duane, in 31 The Papers of Thomas Jefferson 466, 466 (Barbara B. Oberg ed., Princeton Univ. Press 2004) (1800). ↑

294. 4 Elliot’s Debates, supra note 78, at 566. ↑

295. Id. ↑

296. See Virginia Resolutions, in 17 The Papers of James Madison185, 185–91 (David B. Mattern, J. C. A. Stagg, Jeanne K. Cross & Susan Holbrook Perdue eds., 1991). ↑

297. Green v. United States, 356 U.S. 165, 213 n.29 (1958) (Black, J., dissenting). ↑

298. Under the Judiciary Act of 1789, Congress granted federal district courts only limited jurisdiction. An Act to Establish the Judicial Courts of the United States, ch. 20, 1 Stat. 73 (1789). State courts were long the main forum for disputes absent diversity jurisdiction. Fallon, Jr. et al., supra note 37, at 779–81 (“[A]bsent diversity jurisdiction, private litigants in the antebellum period generally had to look to the state courts in the first instance for the vindication of federal claims, subject to limited review by the Supreme Court . . . . Until the second half of the nineteenth century, Congress made no important additions to the original jurisdiction of the federal courts.”). ↑

299. 1 Annals of Cong. 813 (Joseph Gales ed., 1790) (“Mr. Tucker was . . . against dividing the United States into districts for the purpose of instituting inferior Federal courts. He said the state courts were fully competent to the purposes for which those courts were to be created.”). ↑

300. See United States v. Hudson, 11 U.S. (7 Cranch) 32, 32 (1812). ↑

301. Id.; see supra Part I.B. ↑

302. See supra Part I.B. ↑

303. See Hudson, 11 U.S. at 32. ↑

304. See Irwin F. Greenberg, Justice William Johnson: South Carolina Unionist, 1823–1830, 36 Pa. Hist.: J. Mid-Atlantic Stud. 307, 307 (1969). ↑

305. Justice Johnson often disagreed with other members of the Court and was thus given the epithet “the first dissenter.” Id. ↑

306. See supra Part II. ↑

307. See supra Part II. ↑

308. Although the focus of this Note is on the judiciary, because the power to punish contempts likely belongs to Congress as an inherent constitutional power, Congress should be free to use the power to punish contempts at its complete discretion. As noted above, Congress has historically held individuals in contempt. That power may be useful to Congress when members of other branches of government fail to comply with congressional subpoenas (a recent example can be found in the actions of certain officers of the executive branch who refused to testify in front of the House of Representatives). ↑