Then, to make bad matters worse, Congress in 1798 passed the
Sedition Act. Had political discretion instead of party venom
governed the judges, it is not unlikely that they would have
seized the opportunity presented by this measure to declare it
void and by doing so would have made good their censorship of
acts of Congress with the approval of even the Jeffersonian
opposition. Instead, they enforced the Sedition Act, often with
gratuitous rigor, while some of them even entertained
prosecutions under a supposed Common Law of the United States.
The immediate sequel to their action was the claim put forth in
the Virginia and Kentucky Resolutions that the final authority in
interpreting the National Constitution lay with the local
legislatures. Before the principle of judicial review was
supported by a single authoritative decision, it had thus become
a partisan issue!*

* See Herman vs. Ames, "State Documents on Federal Relations,"
Nos. 7-15.


A few months later Jefferson was elected President, and the
Federalists, seeing themselves about to lose control of the
Executive and Congress, proceeded to take steps to convert the
Judiciary into an avowedly partisan stronghold. By the Act of
February 18, 1801, the number of associate justiceships was
reduced to four, in the hope that the new Administration might in
this way be excluded from the opportunity of making any
appointments to the Supreme Bench, the number of district
judgeships was enlarged by five, and six Circuit Courts were