Article III: The Judicial Branch

Article III is the shortest, and least specific, of the constitutional provisions establishing the three branches of government. The framers of the Constitution spent far less time-and debate-on the judiciary than Congress or the president. Yet the power of unelected judges to overturn laws in a democracy has become one of the most controversial issues in American government.

SECTION. 1. The judicial power of the United States

What is the nature of the judicial power? Article III doesn’t really say.

There was no national judiciary under the Articles of Confederation, so the framers of the Constitution were working from scratch. The essence of the judicial power is to interpret the laws. However, Article III makes no mention of judicial review, the third branch’s greatest power. Several of the framers implied the idea of judicial review in their comments at the Constitutional Convention-although it was not specifically debated. But as Alexander Hamilton made clear in Federalist 78, the power of judicial review was anticipated even before the Constitution was ratified. Hamilton declared that the judiciary was the “least dangerous” branch of government, because it had neither the legislature’s power of the purse nor the executive’s power of the sword it had “neither force nor will but merely judgment.” However, many Americans throughout history have disagreed with Hamilton, because unelected judges have the power to overturn the decisions of elected officials. And yet, argued Hamilton, even though unelected, the judiciary was the true guardian of the ultimate will of the people: the Constitution.

In Marbury a Madison (1803), the Supreme Court established the power of judicial review for federal judges. In that case, Chief Justice John Marshall faced the consequences of his own carelessness as secretary of state under President John Adams. (Today, Marshall would have been forced to recuse himself due to a conflict of interest.) Marshall had neglected to deliver several last-minute judicial commissions Adams issued as he was leaving office. The new secretary of state, James Madison-appointed by Marshall’s political and constitutional adversary, Thomas Jefferson-refused to honor some of these “midnight appointments.”

Now a frustrated office seeker, William Marbury brought suit under the Judiciary Act of 1789 to force Madison to deliver his commission as justice of the peace for the District of Columbia. Under the terms of the act, Marbury could go straight to the Supreme Court as part of its original jurisdiction, rather than appealing through the lower courts. However, as Chief Justice Marshall and a unanimous Court declared, Congress could not amend the original jurisdiction of the Supreme Court as set forth in Section 2 of Article III-without amending the Constitution. For the first time, an act of Congress was declared unconstitutional by the judiciary.

In Marbury, Chief Justice Marshall wrote: “It is, emphatically, the province and duty of the judicial department, to say what the law is.” Did Marshall mean that judges, through judicial review, have the final word on the meaning of the Constitution? This question sparked debate even in Marshall’s time, although public reaction to the Marbury decision was favorable overall. Both Jefferson and James Madison argued in the Virginia and Kentucky resolutions, passed to oppose a 1798 federal law prohibiting criticism of the government, that states had the power to declare acts of Congress unconstitutional. Similarly, President Andrew Jackson asserted his power of constitutional interpretation by refusing to carry out a Supreme Court decision about the Cherokee Nation, allegedly saying: “John Marshall has made his decision, now let him enforce it.” Abraham Lincoln also argued in his first inaugural address that the Dred Scott v. Sandford (1857) decision did not settle forever U.S. policy on the question of slavery in the federal territories.

The Supreme Court did not explicitly declare itself to be the final authority on the meaning of the Constitution until Cooper v. Aaron (1958). In that case, the Court denied the power of the governor of Arkansas to oppose its desegregation decision in Brown v. Board of Education (1954). The unanimous Court said in Cooper that the Marbury decision had established the principle that “the federal judiciary is supreme in the exposition of the law of the Constitution.” The court reiterated its position as “ultimate interpreter of the Constitution” in Baker v. Can (1962) and United States v. Nixon (1974).

Some scholars believe that the process of constitutional interpretation is more dynamic than merely following Supreme Court decisions. As law professor Cass Sunstein wrote in his book The Partial Constitution:

The Constitution does not mean only what the judges say it means…. Its meaning to Congress, the President, state government, and citizens in general has been more important than its meaning within the narrow confines of the Supreme Court building. (…)

Of course, the people have the final say about the meaning of the Constitution through their power to amend it. But that is a very difficult process. Until such amendment, the American system of judicial review gives judges a unique degree of power. In the words of historian Gordon Wood: “I do not know of any country in the world where judges wield as much power in shaping the contours of life as they do in the United States.”

The Least Dangerous Branch Alexander Hamilton

In Federalist 78, Alexander Hamilton argues that the judiciary is the least dangerous branch to democracy, and that courts are the true defenders of the will of the people.

Whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The executive not only dispenses the honors but holds the sword of the community.

The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the 77 wealth of the society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments….

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing…. shall be vested in one supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.

The Supreme Court is the only court established by the Constitution. All lower federal courts are created by Congress. Today these courts include federal district courts, which hear cases at the trial level, and U.S. appellate courts, which hear the first level of appeals in the federal system. Final appeals are heard by the Supreme Court, consequently known as the court of last resort.

The Supreme Court got off to a shaky start. President George Washington had a hard time filling the six seats on the first Supreme Court. Justices resented the duty to ride circuit, which required them to travel to hear trial court cases some more than a thousand miles yearly in an era of dangerous roads and rowdy inns. Not until 1891, when Congress created the federal appellate courts, were the justices relieved of this burden. John Jay, the first chief justice, resigned to take the more prestigious job of governor of New York. Other prominent Americans, such as Alexander Hamilton and Patrick Henry, refused nominations to be chief justice. But with the appointment of John Marshall as chief justice in 1801, the Court began to assume its place as an equal branch of government and a more desirable career choice.

Nothing in the Constitution requires that the Supreme Court consist of nine justices. The exact number is determined by Congress and has varied from the original six allowed in 1789 to a high often authorized in 1863.

After the Civil War, the number of justices settled at nine, until the Great Depression. When an aging and recalcitrant Court refused to uphold the constitutionality of New Deal legislation, President Franklin Roosevelt proposed that a new justice be added for each member of the Court aged seventy and older supposedly to help with the workload. This plan would have raised the Court’s total to fifteen. Reaction to Roosevelt’s “court-packing” plan was intensely negative, because it was seen as a direct attack on the independence of the judiciary. But while the bill was being considered by Congress it became moot. One of the opposition justices began voting with Roosevelt, a move later dubbed by future justice Abe Fortas as “the switch in time that saved the nine.” In 1948, a federal law set the size of the Supreme Court at eight associate justices and one chief justice.

The Constitution also does not specify what the qualifications of a Supreme Court justice should be. There are no requirements of minimum age or length of citizenship, as with the president and members of Congress. Before 1957, not all the justices even had law degrees, because until World War I most lawyers trained through apprenticeships instead of law schools. Several leading justices had no prior judicial experience – including John Marshall, Earl Warren, and Felix Frankfurter. Although the greatest legal minds can become Supreme court justices, so can political cronies of the president. In defending President Richard Nixon’s nomination of Judge Harrold Carswell to the Supreme Court, Senator Roman Hruska remarked: “Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they?” Carswell’s nomination was defeated.

The Supreme Court begins each annual term of hearing cases on the first Monday in October. The dates of the Court’s term are set by Congress and have varied in the past. Now the Court’s term begins in October and ends in June. The most controversial decisions are usually issued in June.

The chief justice is the only judicial officer mentioned in the Constitution, which states in Article I that the chief justice shall preside over the impeachment trial of the President. The chief justice is the head of the entire judicial branch, not just the Supreme Court. Therefore his or her proper title is chief justice of the United States-not chief justice of the side bar “We are not final because we are infallible, but we are infallible only because we are final.”

Justices of the Supreme Court

The chief justice administers all U.S. courts created under Article III including ninety-four federal district courts, thirteen appellate courts, and the Supreme Court.

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

The great democratic dilemma of the Constitution is the power that is given to unelected judges. On the one hand, Americans rely on judges who are independent of the political process to protect minority rights. On the other hand, such independent judges also limit majority rule, the essence of democracy. Under Article III, judges serve “during good Behaviour”-a life term that can be ended only by impeachment.

From Potato Hole to Temple of Karnak

The Supreme Court had no permanent home when the U.S. capital moved to Washington, D.C., in 1800. The Court first met in a committee room of the new Capitol building, then occupied the Senate’s former chambers on the ground floor in 1810. This room was so dark and dank that the New York Tribune referred to it as a “potato hole.” When the British burned the Capitol in 1814, the Supreme Court again met in temporary quarters until its chamber was restored in 1819. Then in 1860, the Court moved directly upstairs to the newly vacated Senate chambers, where it stayed for seventy-five years until 1935. Chief Justice William Howard Taft the only former U.S. president to serve on the Supreme Court argued that, as a separate branch of government, the Court needed its own building independent of the Congress. Others thought the proposed design too ostentatious. When the Supreme Court finally moved into its new quarters across the street from the Capitol, one justice remarked that the Court would become “nine black beetles in the Temple of Karnak.” But the inscription on the pediment of the new building became the Supreme Court’s motto: “Equal Justice Under Law.”

In the Declaration of Independence, Thomas Jefferson criticized King George III for, among other things, making “judges dependent on his will alone for the tenure of their offices and the amount and payment of their salaries.” But after Jefferson served as president, and struggled with Chief Justice John Marshall over interpretations of the Constitution, he questioned the life tenure of judges: “A judiciary independent of a king or executive alone, is a good thing; but independence of the will of the nation is a solecism, at least in a republican government.” Even today, some citizens and constitutional scholars believe that federal judges should serve fixed terms, rather than have unlimited lifetime tenure.

The proper role of an unelected judiciary has been one of the most controversial constitutional issues in American history. How are judges to apply the law in a way that is consistent with democratic self-government?

How do they interpret law and not make law? Justice Oliver Wendell Holmes, Jr., believed that judges should not second-guess the opinions of the majority, as expressed in laws enacted by the legislature, unless the Constitution clearly prohibited such action. To Holmes, the mere fact that a judge disagreed with the wisdom of a law was not sufficient to make it unconstitutional.

Holmes’s point of view is known as judicial restraint. Under this philosophy, judges must show great deference to popularly elected legislatures and previous court decisions-and thus be slow to make drastic changes in public policy. Advocates of judicial activism, however, believe that judges play an important role in public policy and are less reluctant to overturn laws and precedents. Judicial activism and judicial restraint are not linked to political philosophy. A judge can be a liberal politically and still exercise judicial restraint; similarly, a conservative judge can issue activist decisions.

Linked to the question of judicial activism are various theories about how judges should interpret the Constitution. Advocates of strict construction-among them Thomas Jefferson-believe that judges should limit themselves to narrow interpretations of the Constitution’s text and avoid enlarging the powers of government. Proponents of broad or loose construction-as was Chief Justice John Marshall-maintain that the Constitution gives general guidance about basic principles but allows “play in the joints” for government to adapt to specific crises. As Chief Justice Marshall wrote in McCulloch v. Maryland (1819), “We must never forget that it is a constitution we are expounding,” rather than a wordy legal code that details all contingencies.

President Richard Nixon renewed the debate over strict construction with his judicial nominees in the 1970s. During the 2000 presidential campaign, George W. Bush also promised to appoint “strict constructionists” to the Supreme Court, citing Justices Antonin Scalia and Clarence Thomas as examples. Justice Scalia, however, resists that label. “I am not a strict constructionist, and no one ought to be,” he says. “A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.” Justice Scalia refers to himself as a “textualist” or “originalist” who relies on the original meaning of the words in the Constitiution rather than the intent of the framers who wrote the constitution.

Justice Scalia opposes interpreting the Constitution as an evolving document, which he believes gives unelected judges too much power.

He wrote in his book A Matter of Interpretation:

“The ascendant school of constitutional interpretation affirms the existence of what is called The Living Constitution, a body of law that (unlike normal statutes) grows and changes from age to age, in order to meet the needs of a changing society. And it is judges who determine those needs and ‘find’ that changing law.”

A leading proponent of the “framers’ intent” school of constitutional interpretation is Judge Robert Bork, a former federal appellate judge and Supreme Court nominee. Bork believes that, as demonstrated by his own confirmation hearings before the Senate in 1987, the law is becoming politicized, and judges are too often reading their own personal preferences into the Constitution, rather than following the intent of its framers. Critics of this judicial philosophy argue that the framers’ intent is impossible to determine. They point out that the framers had varying opinions on the meaning of the Constitution, as did the members of the state conventions who ratified it.

Another theory of judicial review, put forward by constitutional scholar John Hart Ely in his book Democracy and Distrust, argues that courts should act as referees in the political process to ensure equal representation. Beyond that, says Ely, in order to be consistent with democracy, judges should leave the protection of substantive rights that are not specifically mentioned in the Constitution to majority rule.

A Meaning That Does Not Change Justice Clarence Thomas

In a 2001 speech to the American Enterprise Institute, Justice Clarence Thomas argued that upholding the framers’ intent is the only judicial philosophy consistent with a written Constitution. When interpreting the Constitution and statutes, judges should seek the original understanding of the provision’s text, if the meaning of that text is not readily apparent.

This approach works in several ways to reduce judicial discretion and to maintain judicial impartiality. First, by tethering their analysis to the understanding of those who drafted and ratified the text, modern judges are prevented from substituting their own preferences for the Constitution.

Second, it places the authority for creating the legal rules in the hands of the people and their representatives, rather than in the hands of the judiciary. The Constitution means what the delegates of the Philadelphia Convention and of the state ratifying conventions understood it to mean, not what we judges think it should mean.

Third, this approach recognizes the basic principle of a written Constitution. “We the People” adopted a written Constitution precisely because it has a fixed meaning, a meaning that does not change. Otherwise we would have adopted the British approach of an unwritten, evolving constitution.

Aside from amendment according to Article V, the Constitution’s meaning cannot be updated, or changed, or altered by the Supreme Court, the Congress, or the President.

The Constitution Made Me DO It: Laurence H. Tribe

A critic of the tramer’s intent philosophy, Laurence Tribe of Harvard Law School believes that judicial decisions are inherently political because judges must always make value choices.

Should the peculiar opinions held… by men who have been dead for two centuries always trump contemporary insights into what the living Constitution means and ought to mean?

Should we permit others to rule us from the grave… through hidden beliefs and premises perhaps deliberately left unstated?…

The most serious flaw in both slavish adherence to the constitutional text and the inevitably inconclusive inquiry into the intent of those who wrote it is… that they abdicate responsibility for the choices that constitutional courts necessarily make. The Supreme Court just cannot avoid the painful duty of exercising judgment so as to give concrete meaning to the fluid Constitution, because the constitutional rules and precepts that it is charged with administering lack that certainty which permits anything resembling automatic application. Strict constructionism in all its variants is thus built on [the] myth.. .that the Supreme Court does not make law, but finds law ready-made by others….

But disclaimers that “the Constitution made me do it” are rarely more persuasive than those that blame the devil.

SECTION. 2

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consults to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Section 2 of Article III defines the jurisdiction of the federal courts. This provision of the Constitution, along with laws passed by Congress, gives courts the legal power to decide certain types of cases. The Wizard of Oz illustrates one kind of jurisdiction. In that movie, the Wicked Witch of the West threatens Dorothy, who has just arrived in Munchkin Land. Glinda, the Good Witch of the North, responds with a laugh: “Rubbish! You have no power here. Begone-before somebody drops a house on you, too!”

Like the Wicked Witch of the West, the federal courts have geographic limits. The United States and its territories are divided into local judicial districts for trial cases, which are grouped into regional circuits for appellate review.

Besides geography, the jurisdiction of the federal courts is also limited by subject matter. The federal courts can hear cases “arising under” the Constitution, U.S. laws, and treaties with foreign nations as well as cases involving diplomats and the law of the sea. The federal courts also have jurisdiction over cases involving certain parties, such as the United States government or citizens of different states. The goal of this provision of Article III was to avoid the possibility of prejudice by state courts against the federal government or citizens of other states. To lighten the workload of the federal courts, Congress in 1988 required that cases between citizens of different states-known as diversity jurisdiction-must involve a minimum dispute of more than $50,000.

The Constitution allows courts only to hear “cases or controversies”

This means that, despite their training in law school, judges do not rule on hypothetical cases. The case must be a real dispute between actual litigants.

Moreover, the courts do not give advisory opinions to the president or other government officials, telling them in advance whether a particular action is constitutional. Several proposals to allow such advisory opinions were specifically rejected by the Constitutional Convention. In 1793, President George Washington sought the opinion of the Supreme Court on several questions of international law, but the Court refused to answer them on the grounds of separation of powers.

The portion of this section of Article III that appears in italics has been overturned by the Eleventh Amendment. Originally, this provision in the Constitution allowed a state to be sued by citizens of another state, as the Supreme Court held in Chisholm v. Georgia (1793). That case was the first of four Supreme Court rulings that were subsequently overturned by constitutional amendments.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The word jurisdiction literally means the power “to say what the law is.”

Chief Justice John Marshall asserted that power on behalf of the federal courts in Marburyv. Madison (1803). Marshall based his decision on this clause in Article III that sets forth the Supreme Court’s original jurisdiction the types of cases it can hear directly, not through appeals from lower courts. As the Court pointed out in Marbury, Congress has the power to change the appellate jurisdiction of the Supreme Court, but its original jurisdiction can be altered only by constitutional amendment.

Since 1925, Congress has gradually eliminated most mandatory appeals to the Supreme Court, so the Court’s workload is almost entirely original cases that a court can hear directly, rather than through appeals appellate cases based on appeals from lower courts writ of certiorari an order issued by the U.S. Supreme Court that directs a lower court to transmit records for a case that it will hear on appeal.

These appeals may be filed by parties in federal or state court cases in which a federal question of law is involved. If four justices agree to issue the writ of certiorari, the case will be heard by the Supreme Court. Cases most likely to be accepted for review are those on an issue where the lower appellate courts have issued conflicting rulings. In the 2001-2002 term, the Supreme Court received more than 7,000 petitions for certiorari, but issued written opinions in only seventy-six cases.

In 1868, Congress acted to limit the jurisdiction of the Supreme Court to hear a case regarding the writ of habeas corpus, a court order that prevents arbitrary arrest. The Supreme Court upheld the law the next year, although Congress repealed the law in 1884. Since that time, however, experts have debated how far Congress can go to eliminate the appellate jurisdiction of the Court. Congress has considered, but not enacted, legislation to restrict Supreme Court jurisdiction regarding school prayer, abortion, and criminal procedure. In 1996, the Supreme Court upheld the Antiterrorism and Effective Death Penalty Act, which restricted but did not eliminate habeas corpus appeals to the Supreme Court.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Trial by jury is one of the few individual rights protected in the original Constitution. Before the Bill of Rights was added in 1791, the Constitution mainly set forth the structure of government and did not guarantee many civil liberties. But juries were so vital to Americans that diey are now specified four times in the Constitution: for deciding criminal cases in Article III; for screening criminal charges (grand juries) in the Fifth Amendment; again for deciding criminal cases in the Sixth Amendment, along with other fair trial guarantees; and for deciding civil cases in the Seventh Amendment.

Juries involve lay citizens in the dispensation of justice, rather than relying solely on professional judges. As Thomas Jefferson said, the jury means a trial “by the people themselves.” Thus, to many Americans, juries are essential to self-government. However, other Americans criticize the jury system, both in criminal and civil trials, as being unreliable and unfair.

These arguments are discussed in the entries on the Fifth, Sixth, and Seventh Amendments.

SECTION 3

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the life of the Person attainted.

Treason is the only crime defined in the Constitution. In England, treason charges had been used to punish criticism of the government. To avoid such abuse, the framers of the Constitution established very specific elements of the crime that must be proved-and the standard of evidence for that proof. Furthermore, although an attainder of treason could deprive a traitor of his assets, Congress could not punish the heirs of a traitor by revoking their inheritance-a practice known as corruption of blood.

The definition of treason was tested early in the republic. President Thomas Jefferson sought to prosecute his former vice president and political adversary, Aaron Burr, for treason in 1807. Burr was accused of organizing an expedition of men with aims of attacking Spanish lands west of the Mississippi, and possibly New Orleans. The alleged conspiracy took place in Ohio, where the men first gathered, although Burr was not present.

But in a declaration to Congress, Jefferson announced that Burr’s “guilt is placed beyond question.”

Burr was tried in federal court at Richmond, Virginia, with Chief Justice John Marshall serving in his capacity as circuit court judge. In his rulings on the evidence, Marshall construed the definition of treason very narrowly, requiring that two witnesses must testify that Burr was actually involved in levying war, not just conspiracy. Based on Marshall’s rulings, the jury acquitted Burr of all charges.

Because of the high standard of proof for treason, convictions have been rare in U.S. history-and those who were convicted were frequently pardoned. Participants in the Whiskey Rebellion of 1794 were pardoned, as were southern combatants during the Civil War. It was not until 1947 that the Supreme Court acted to uphold a treason conviction.

But the U.S. government prosecuted disloyal citizens on other grounds-and with less proof than required for treason. In 1917, Congress passed the Espionage Act, making it illegal to convey unauthorized information on national defense. In 1951, Julius and Ethel Rosenberg-both devoted members of the American Communist Party were convicted under the Espionage Act for conspiring to transmit atomic secrets to the Soviet Union. When the Supreme Court refused to hear their appeals, they were both executed on June 19, 1953. After the Cold War ended, evidence from U.S. and Soviet intelligence files implicated Julius as a spy, but it appears that Ethel was only tangentially involved.