Guest Essayist: Gary Porter


Once upon a time in America, before the Constitution was ratified, the state courts were the only game in town (and in each state). But there was also a time in America when there were no courts whatsoever.

In early May 1607, stepping off the ship Susan Constant, in chains, was none other than Captain John Smith.  Smith was one of 105 men and boys, plus 39 sailors who had made the perilous 144 day voyage from England.

Smith was among the most enterprising and useful members of the colony, traits that served to make others of the company jealous of his influence. Midway through the voyage Smith had been absurdly charged with plotting to murder the thirteen member ruling council, usurp the government, and make himself King of Virginia. He was confined for the remainder of the voyage. The charge was absurd in the extreme since no one on the three ships making up the small expedition even knew the names of the council members; they were sealed — to be revealed only upon arrival in America.

On their arrival at what would be called Jamestown, Smith was liberated and the roster of councilmen’s names opened, only to reveal that Smith had been assigned as one of the thirteen members.  Smith complained of his unjust imprisonment and demanded a trial but could not obtain one: there was no court! The settlers quickly realized they had other pressing matters: namely, survival!  Half the settlers would die in the first six months; all the while, Smith proclaimed his innocence but was not allowed to take his seat on the council.

When Smith’s enemies could postpone it no longer, a hearing of the case was held and Smith was acquitted of all the charges against him; soon after, he took his rightful council seat.[1]

Shifting to the north, one of the first acts of the Pilgrims of Plymouth after establishing themselves as a “civil body politic” by means of the Mayflower Compact was to establish The General Court of Plymouth Colony, the first to establish a complete legal code in America.[2]

Eventually, as each of the American colonies was settled, courts were established to handle the inevitable squabbles between settlers.

Fast forward to 1781.  One of the chief defects in the Articles of Confederation was that it provided no court system above the state level. With no supervision from above, state courts ruled pretty much as they pleased, not always to the satisfaction of all concerned. The consistent rulings of the Massachusetts court system in favor of creditors and against poor farmers sparked the infamous Shays Rebellion[3] in which, not long after they had fought side by side, Massachusetts farmers and Massachusetts militiamen formed opposing lines and opened fire on each other outside Springfield Arsenal.

Then came the Constitution.

“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,” so says Article 3, Section One of the U.S. Constitution.  This clause obviously enables creation of the federal court system but the Constitution has little to say about the state court systems:  The Judges in every State “shall be bound” to view the Constitution as the “the supreme Law of the Land” (Article VI), and the “[t]rial of all Crimes, except in Cases of Impeachment, shall be … held in the State where the said Crimes shall have been committed” (Article III, Section 2). That’s pretty much all the Constitution has to say!

About one million cases are filed in the U.S. federal court system each year, while more than 30 million are filed in state courts.[4]

Today, state courts are considered courts of “general” jurisdiction. They hear all the various types of cases not specifically reserved to federal courts. Just as the federal courts interpret federal laws, state courts interpret state laws (although federal courts also get to interpret state laws).

Examples of cases typically heard in state courts include:

  • Violations of state law. Most criminal activity falls in this category, such as robbery, assault, murder, and many drug-related crimes.
  • Controversies arising out of the state constitution or other state laws.
  • Cases in which the state is a party, such as state tax violations.
  • Most real estate cases, malpractice, personal injury cases, and contract disputes.
  • All family, divorce, custody, inheritance and probate cases.
  • Nearly all traffic and juvenile cases

The structure of state court systems varies considerably but there are similarities. To get an idea of what the structure of state courts look like some example states, click on the links below:

The “workhorse” of any state court system is the trial court. This is the lowest level of court and usually where a case or lawsuit will originate. It may be a court of general jurisdiction, such as a circuit court, or it may be a court of special or limited jurisdiction, such as a probate, juvenile, traffic, or family court.

  • Probate courts handle the administration of estates and probating of wills.
  • Family courts focus on cases involving custody and child support, neglect and abuse, and, sometimes, juvenile crime or truancy.
  • Traffic courts handle alleged violations of traffic laws.
  • In some states, special housing courts, or landlord-tenant courts, have been established.
  • Small-claims courts handle civil matters in which the dollar amount at issue is below a certain amount.
  • Juvenile courts generally handle truancy and criminal offenses committed by minors.

Each state has a Supreme Court which is generally considered the court “of last resort” unless and until the matter qualifies for a hearing in the federal court system.

While most federal judges are appointed to their positions, the majority of state trial court judges are elected by the citizens. In some states, supreme court justices are appointed by state governors or legislatures, while in others, justices are elected.

Throughout Virginia’s history (my state), the selection and term of state judges has varied. In 1776, the state legislature selected state judges to serve a life term. Between 1850 and 1864, the citizenry elected state judges. Between 1864 and 1870, state judges were nominated by the governor and confirmed by the state legislature. After 1870, the General Assembly assumed full responsibility for the selection of state judges in Virginia.

State courts play a vital role in our nation’s legal system.  If you are ever a party to a lawsuit or are called as a trial witness, it will likely be in a state court. Without the fifty state court systems the federal court system would be overwhelmed.  State courts are usually easy to locate and provide a great opportunity to introduce school children to the U.S. legal system.

Gary Porter  is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people.   CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text.  Gary presents talks on various Constitutional topics, writes a weekly essay: Constitutional Corner which is published on multiple websites, and hosts a weekly radio show: “We the People, the Constitution Matters” on WFYL AM1140.  Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution.  Gary can be reached at, on Facebook or Twitter (@constitutionled).

Click Here for the next essay. 

Click Here for the previous essay.

Click Here to have the NEWEST essay in this study emailed to your inbox every day!

Click Here to view the schedule of topics in our 90 Day Study on Congress.


[1] A famous mural depicting the trial sits in the Cuyahoga County Courthouse.




0 replies

Join the discussion! Post your comments below.

Your feedback and insights are welcome.
Feel free to contribute!

Leave a Reply

Your email address will not be published. Required fields are marked *