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.”
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.
In sum, courts have broad discretion in determining what conduct they consider to be contempt of court.
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.
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.
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,
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.
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
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.
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.”
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,
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.
Additionally, the Court has also assented
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Furthermore, Blackstone listed several activities that were considered contempts under the common law.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.”
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.
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.”
Similar to Maryland and Massachusetts, New Hampshire also vested a power to punish contempt outside of the judiciary in its pre-ratification state constitution.
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.
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.
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.
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.
The Virginia Constitution also does not mention any contempt 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.
Pennsylvania courts at this time also recognized in themselves a power to punish contempts,
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.
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.”
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.
Furthermore, at the time, many of the Founders believed judges should not exercise any discretion in the application of law.
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.
It was under the Articles of Confederation that a form of the federal judiciary was first established, albeit an extremely limited version.
Instead, it was the Articles of Confederation Congress that punished parties for contempt of its authority.
The legislature was the governmental body with the most authority during the revolutionary era.
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.
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.
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,
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.”
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.”
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.”
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.”
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.
The chief fear of the Anti-Federalists was that an overly powerful Congress would subvert individual liberty.
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
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.”
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.
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.
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.
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.
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,
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.”
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.”
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.”
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.
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.
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. ↑
- U.S. Const. art. III, § 1. ↑
- 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). ↑
- 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”). ↑
- Goldfarb, supra note 3, at 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. ↑
- 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]. ↑
- 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). ↑
- See 18 U.S.C. § 401. ↑
- 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. ↑
- 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.” ↑
- 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). ↑
- Davis, supra note 11. ↑
- Id. ↑
- 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]. ↑
- Tate v. Short, 401 U.S. 395, 398–401 (1971). ↑
- See Spillane, supra note 14. ↑
- See Bloom v. Illinois, 391 U.S. 194, 203 (1968). ↑
- See United States v. Barnett, 376 U.S. 681, 699–700 (1964). ↑
- 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). ↑
- 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. ↑
- 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]. ↑
- In general, the different states had different forms of government in the years leading up to ratification. See infra Part II.B. ↑
- 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). ↑
- 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. ↑
- United States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812). ↑
- See An Act to Establish the Judicial Courts of the United States, ch. 20, § 17, 1 Stat. 73, 83 (1789). ↑
- 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). ↑
- 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.”). ↑
- 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.’”). ↑
- Id. ↑
- See id. ↑
- Chambers v. Nasco, Inc., 501 U.S. 32, 42–44 (1991). ↑
- Id. at 57. ↑
- See id. at 50–51. ↑
- Ex parte Robinson, 86 U.S. (19 Wall.) 505, 511 (1874). ↑
- 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. ↑
- 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). ↑
- See United States v. Barnett, 376 U.S. 681, 699–700 (1964). ↑
- See Bloom v. Illinois, 391 U.S. 194, 203–04 (1968). ↑
- 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). ↑
- See 18 U.S.C. § 3691. ↑
- 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.”). ↑
- Green v. United States, 356 U.S. 165, 193 (1958) (Black, J., dissenting). ↑
- Id. at 207–08. ↑
- Id. at 208–10. ↑
- Goldfarb, supra note 3, at 1. ↑
- Id. at 2. ↑
- Id. at 7–8. ↑
- Id. at 8. ↑
- Id. at 11. ↑
- John C. Fox, The History of Contempt of Court: The Form of Trial and the Mode of Punishment 5–16 (1927). ↑
- Frankfurter & Landis, supra note 19, at 1046–47, 1049 n.139. ↑
- Id. ↑
- Fox, supra note 51, at 5–16. ↑
- Goldfarb, supra note 3, at 13. ↑
- See discussion infra Part II.A. ↑
- See discussion infra Part II.A. ↑
- *Frankfurter & Landis, supra note 19, at 1023. * ↑
- See id. at 1018, 1047. ↑
- See id. at 1020–22. ↑
- 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. ↑
- See discussion infra Part II. ↑
- See discussion infra Part II. ↑
- Pushaw, supra note 2, at 741–42. ↑
- Id. ↑
- Id. at 742. ↑
- Id. ↑
- Id. at 800, 806, 815–16. ↑
- See supra Part I.B.1 (discussing the timeline of Almon). ↑
- See Pushaw, supra note 2, at 821. ↑
- See discussion infra Part II.A–B. ↑
- *Pushaw, supra* note 2, at 821. ↑
- See Gordon S. Wood, The Creation of the American Republic 1776–1787, at 136–61 (1998). ↑
- See id. at 155–56, 161. ↑
- 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). ↑
- See Wood, supra note 73, at 10. ↑
- 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). ↑
- *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. ↑
- 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]. ↑
- 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). ↑
- 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). ↑
- See The Federalist Nos. 69, 84 (Alexander Hamilton). ↑
- 4 William Blackstone, Commentaries *119–26. ↑
- See Wood, supra note 73, at 136, 148–50. ↑
- 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”). ↑
- 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). ↑
- 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). ↑
- 4 William Blackstone, Commentaries *122. ↑
- Id. ↑
- 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.”). ↑
- Id. ↑
- See id. at *122. ↑
- Scandalum Magnatum, Black’s Law Dictionary (11th ed. 2019); see also Goldfarb, supra note 3, at 11. ↑
- Pushaw, supra note 2, at 806, 813–14, 813 nn.415 & 417, 817. ↑
- 4 William Blackstone, Commentaries *282. ↑
- Pushaw, supra note 2, at 814. ↑
- 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.’”). ↑
- See Nolan, supra note 77, at 768. ↑
- 2 William Blackstone, Commentaries *284–88. ↑
- *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.”). ↑
- *3 William Blackstone, Commentaries 23–24. ↑
- 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.”). ↑
- Id.; 3 William Blackstone, Commentaries *23–24. ↑
- 1 Willian Blackstone, Commentaries 257; 3 William Blackstone, Commentaries 23–24. ↑
- Report on Books for Congress, supra note 79; 1 Catalogue of the Library of Thomas Jefferson, supra note 80, at vi–viii. ↑
- 2 Edward Coke, The Institutes of the Laws of England 50 (London, M. Flesher & R. Young 1642). ↑
- Id. at 51. ↑
- Id. ↑
- Id. at 49. ↑
- Id. at 51. ↑
- Id. ↑
- Id. ↑
- See id. ↑
- See id. at 49–51. ↑
- 1 John Campbell, The Lives of the Chief Justices of England 128 (Jersey City, Fred D. Linn & Co.1881). ↑
- Meaning the King could remove him at will for any reason. ↑
- Meaning the King could only remove a judge for misbehavior. ↑
- 1 Campbell, supra note 115, at 128. ↑
- See Wood, supra note 73, at 160–61. ↑
- See, e.g., U.S. Const. art. III. ↑
- 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. ↑
- Thwing v. Dennie, Quincy (Mass.) Rep. 338 (1772). ↑
- See Wood, supra note 73, at 159. ↑
- Id. ↑
- Id. ↑
- Id. ↑
- Id. ↑
- Id. at 159–60. ↑
- Id. at 298. ↑
- Id. at 294. ↑
- See id. at 136–61. ↑
- Id. ↑
- 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.”). ↑
- 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). ↑
- Pushaw, supra note 2, at 820. ↑
- See The Declaration of Independence paras. 11–12 (U.S. 1776). ↑
- William Kent, Memoirs and Letters of James Kent, LL.D. 117–118. (Cambridge, Little, Brown, & Co. 1898). ↑
- 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. ↑
- Michael Chesterman, Contempt: In the Common Law, but Not the Civil Law, 46 Int’l & Comp. L.Q. 521, 557 (1997). ↑
- 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). ↑
- 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. ↑
- See Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era 187 (2001). ↑
- 3 Thorpe’s State Constitutions, supra note 141, at 1693 (Constitution of Maryland 1776). ↑
- Id. at 1703. ↑
- 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]. ↑
- These records may be incomplete because court records from this time period are sparse. ↑
- 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). ↑
- 3 Thorpe’s State Constitutions, supra note 141, at 1899 (Constitution of Massachusetts 1780). ↑
- Id. (“[T]he governor and council shall have the same authority to punish in like cases.”). ↑
- 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. ↑
- 3 Thorpe’s State Constitutions, supra note 141, at 1891 (Constitution of Massachusetts 1780). ↑
- Id. ↑
- 4 Thorpe’s State Constitutions, supra note 141, at 2462 (Constitution of New Hampshire 1784). ↑
- Id. See generally David O. Stewart, The Summer of 1787: The Men Who Invented the Constitution 41 (2007) (describing the Philadelphia Convention). ↑
- *4 Thorpe’s State Constitutions, supra note 141, at 2462 (Constitution of New Hampshire 1784).* ↑
- 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). ↑
- See, e.g., United States v. Barnett, 376 U.S. 681, 700 (1964). ↑
- 4 Thorpe’s State Constitutions, supra note 141, at 2462 (Constitution of New Hampshire 1784). ↑
- Id. ↑
- “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 . . . .”). ↑
- See 6 Thorpe’s State Constitutions, supra note 141, at 3248–58 (Constitution of South Carolina 1778). ↑
- 6 Thorpe’s State Constitutions, supra note 141, at 3260 (Constitution of South Carolina1790). ↑
- 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]. ↑
- See 7 Thorpe’s State Constitutions, supra note 141, at 3813–19 (Constitution of Virginia 1776). ↑
- 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”). ↑
- See generally sources cited supra note 165. ↑
- 1 The Papers of Thomas Jefferson, supra note 165, at 356–65 (“III. Third Draft by Jefferson, [before June 1776]”). ↑
- See 7 Thorpe’s State Constitutions, supra note 141, at 3813–19 (Constitution of Virginia 1776). ↑
- See 1 Thorpe’s State Constitutions, supra note 141, at 536–57 (Connecticut Constitutions). ↑
- 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. ↑
- 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). ↑
- 1 Thorpe’s State Constitutions, supra note 141, at 536–57 (Connecticut Constitutions). ↑
- 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). ↑
- 5 Thorpe’s State Constitutions, supra note 141, at 3088 (Constitution of Pennsylvania 1776) (emphasis added). ↑
- 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). ↑
- See Pushaw, supra note 2, at 799–800, 799 n.335. ↑
- Case law from this period is sparse. ↑
- See Adams, supra note 142, at 172. ↑
- 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.”). ↑
- *3 Thorpe’s State Constitutions, supra* note 141, at 1691–1703 (Constitution of Maryland 1776). ↑
- See 5 Thorpe’s State Constitutions, supra note 141, at 3081–92 (Constitution of Pennsylvania 1776). ↑
- See id. ↑
- Id. at 3088. ↑
- See Adams, supra note 142, at 172. ↑
- 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.”). ↑
- See U.S. Const. art. III. ↑
- See Adams, supra note 142, at 53. ↑
- Wood, supra note 73, at 155–56. ↑
- Id. ↑
- Id. at 161. ↑
- See id. at 160–61. ↑
- Id. at 161, 301. ↑
- 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). ↑
- 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”). ↑
- 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.”). ↑
- 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”). ↑
- See Articles of Confederation of 1781, art IX. ↑
- 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). ↑
- See 5 Elliot’s Debates, supra note 78, at 10. ↑
- Motion on Gunning Bedford, in 5 Papers of John Adams 223, 224 (Robert J. Taylor ed., 1983). ↑
- 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). ↑
- Wood, supra note 73, at 409. ↑
- See generally id. (explaining the shift in attitude towards the legislature during the revolutionary era). ↑
- See, e.g., supra note 145 and accompanying text. ↑
- See Wood, supra note 73, at 160–61. ↑
- See The Federalist No. 38 (James Madison). ↑
- See Federalist Papers, Encyc. Britannica (Jan. 26, 2020), https://www.britannica.com/topic/Federalist-papers [https://perma.cc/Y6TN-N85F]. ↑
- Id. ↑
- 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.’”). ↑
- 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. ↑
- The Federalist No. 48 (James Madison). ↑
- Wood, supra note 73, at 455–56. ↑
- 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.’”). ↑
- Id. at 455–56. ↑
- U.S. Const. art. III, § 1. ↑
- See Michaelson v. United States, 266 U.S. 42, 60, 65–66 (1924). ↑
- The Federalist No. 48 (James Madison). ↑
- See Wood, supra note 73, at 450–52 (discussing the separation of powers). ↑
- 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). ↑
- The Federalist No. 78 (Alexander Hamilton). ↑
- Id. ↑
- 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.”). ↑
- 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.”)). ↑
- **The Federalist No. 78 (Alexander Hamilton). ↑
- 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). ↑
- The Federalist No. 78 (Alexander Hamilton). ↑
- Id. ↑
- 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.”). ↑
- 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.”). ↑
- See The Federalist No. 79 (Alexander Hamilton). ↑
- 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). ↑
- *The Federalist No. 78 (Alexander Hamilton). * ↑
- The Federalist No. 48 (James Madison). ↑
- See id. ↑
- 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. ↑
- 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.”). ↑
- See Anti-Federalists, Encyc. Britannica (Mar. 19, 2020), http://www.britannica.com/topic/Anti-Federalists [https://perma.cc/C598-JCXA]. ↑
- 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). ↑
- See Amar, supra note 236, at 117. ↑
- *Essays of Brutus, No. I, supra *note 238, at 365. ↑
- 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. ↑
- Id. (emphasis added). ↑
- Id. ↑
- See The Federalist No. 78 (Alexander Hamilton) (“FORCE nor WILL”). ↑
- See Essays of Brutus, No. I, supra note 238, at 365. ↑
- 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 . . . .”). ↑
- 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.”). ↑
- Essays of Brutus, No. XV, N.Y. J. (Mar. 20, 1788), reprinted in 2 The Complete Anti-Federalist, supra note 238, at 437, 440. ↑
- Id. (emphasis added). ↑
- 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)). ↑
- Records from the state conventions are sparse. ↑
- See David L. Pulliam, The Constitutional Conventions of Virginia from the Foundation of the Commonwealth to the Present Time 36 (1901). ↑
- 3 Elliot’s Debates, supra note 78, at 517 (emphasis added). ↑
- Id. ↑
- See supra Part II.A. ↑
- W. Hamilton Bryson, Edmund Pendleton (1721–1803), in 2 Great American Judges: An Encyclopedia 602, 604–05 (John R. Vile ed., 2003). ↑
- Id. at 605. ↑
- 6 George Bancroft, History of the United States of America, from the Discovery of the Continent 426 (New York, D. Appleton & Co. 1888). ↑
- Bryson, supra note 256, at 604. ↑
- Id. ↑
- Id.; 2 Albert J. Beveridge, The Life of John Marshall 18 (1916). ↑
- Bryson, supra note 256, at 604. ↑
- 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. ↑
- See 3 Elliot’s Debates, supra note 78, at 518–26, 534, 538. ↑
- Id. ↑
- Id. at 518–21. ↑
- Id. at 542. ↑
- Id. at 541–42. ↑
- Id. ↑
- Id. at 554 (emphasis added). ↑
- 2 Elliot’s Debates, supra note 78, at 196. ↑
- Id. ↑
- Id. ↑
- Id. at 190–97. ↑
- Id. at 190. ↑
- See id. ↑
- Id. at 197. ↑
- 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). ↑
- William Garrott Brown, The Life of Oliver Ellsworth 196–98 (1905). ↑
- 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.”). ↑
- 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). ↑
- 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). ↑
- 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). ↑
- 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. ↑
- See Letter to George Washington from Henry Knox, in 3 The Papers of George Washington 134, 137 (Dorothy Twohig ed.,1989). ↑
- 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.”). ↑
- Letters from Thomas Jefferson to George Hay, in 10 The works of Thomas Jefferson 394, 404 (Paul Leicester Ford ed., 1905). ↑
- Id. ↑
- Id. ↑
- Id. (emphasis added). ↑
- U.S. Const. art. III. ↑
- 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). ↑
- 4 Elliot’s Debates, supra note 78, at 566. ↑
- Id. ↑
- 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). ↑
- Green v. United States, 356 U.S. 165, 213 n.29 (1958) (Black, J., dissenting). ↑
- 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.”). ↑
- 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.”). ↑
- See United States v. Hudson, 11 U.S. (7 Cranch) 32, 32 (1812). ↑
- Id.; see supra Part I.B. ↑
- See supra Part I.B. ↑
- See Hudson, 11 U.S. at 32. ↑
- See Irwin F. Greenberg, Justice William Johnson: South Carolina Unionist, 1823–1830, 36 Pa. Hist.: J. Mid-Atlantic Stud. 307, 307 (1969). ↑
- Justice Johnson often disagreed with other members of the Court and was thus given the epithet “the first dissenter.” Id. ↑
- See supra Part II. ↑
- See supra Part II. ↑
- 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). ↑