The Formation of the U.S. Judiciary in the Pre-Constitutional Period

Prior to the declaration of independence, in the territory of 13 colonies, which later united into a union of independents, in the United States of America, there was no judicial body that could be considered as a prototype of the federal court.

The judicial power in each of the colonies was under the control of the English crown; The Privy Council in Great Britain considered appeals against decisions of the highest judicial bodies in the colonies, but its participation in the administration of justice in America was largely nominal, taking into account the distance from London to the east coast of America, and the time required to transfer of materials from the colonies and back.

The colonies were considered by the royal power as independent, unrelated political units, therefore there was not and could not be any court operating on the territory of more than one colony. The exception was several district admiralty courts, formed on the basis of a royal decree.

The Continental Congress, at the suggestion of Washington, acted as an appellate instance in relation to the courts of individual states, but only in prize cases and with the obligatory consent of the competent authorities of the state to file an appeal.

In 1779, when all but one state ratified the Articles of Confederation, a permanent Court of Appeal for seized property was established. Before the adoption of the US Constitution and the creation of the federal judiciary, Congress and this court itself considered 109 cases.

The Articles of Confederation, ratified in 1781, provide for the first attempts to create some kind of judicial system covering the united colonies.

These were very cautious attempts: the jurisdiction of the courts formed by the states “assembled in congress” was limited almost exclusively to the consideration of admiralty cases and crimes committed on the high seas. It is especially significant that, not trusting any courts that were not state institutions, and not yet believing in the reality of creating the function of the highest judicial body, to consider disputes between two or more states – mainly on border issues and cases related to the recognition of the right to land when claims to ownership were based on statutes and other regulations enacted by individual states

Features of the US judicial system

The state structure of the United States dates back to the 18th century. Many elements of the modern US government are not a logical development of constitutional principles, but the result of the adjustment of these principles themselves to the needs of American capitalism at various stages of its history.

In the US, the judiciary has a special place. This happens primarily because the American court, for a number of reasons, is a very effective tool for giving archaic constitutional norms and legislative acts a sound corresponding to the nature and needs of the era.

The American court in its reality does not remain within the usual framework of resolving disputes about law, but actively participates in the settlement of political, economic and social problems.

In fact, a strange situation has affected, when the courts become an instrument used more often than one might expect in attempts to resolve a number of problems of a political, economic and social nature.

Thus, the first feature of the US judicial system is a certain hypertrophy of the judiciary, which is manifested in the activities of American courts outside the sphere traditionally assigned to justice. This tendency, characteristic of the imperialist state, is “an expanded sphere of law-enforcement and law-making activities of the courts, penetrating deeper and more actively into various social relations.”

The second feature of the US judiciary is that it is a “double” or, more precisely, a dual system and, on the other hand, 50 judicial systems of states, districts of Columbia and four “territories”. The courts of each of them act independently and with sovereignty in their own sphere assigned only to them.

When you get acquainted with both systems, quite isolated, but at the same time in contact with each other on a wide range of issues, a feeling of chaos, illogicality and confusion is created. The courts, as Professor D. Karlen, one of the largest experts in the field of justice in the USA, notes, in many cases are not able to fulfill their functions and solve the tasks they face.