The Judicial Branch

Last week I asked for help in coming up with topics for a series of discussions I may be moderating for my local Democratic Party office. There were a lot of really good suggestions, for which I thank you. What’s really cool is I think I found my schtick for this regular Tuesday slot–discussions about the Constitution. It’s not like I’ll be lacking for fodder…

Today’s discussion is about the sometimes forgotten third child of the Constitution, the Judicial Branch (forgotten till there’s an opening on the Supreme Court, anyway). Here’s what theConstitution has to say:

Article III, Section 1: 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. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

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 Consuls; 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. [Note: this clause was modified by the 11th Amendment, but for my purposes, we don’t need to go into that further]

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 rest of Section 2 deals with trials and how they are carried out. Section 3 deals with the crime of Treason.

So in a nutshell, what does the Constitution say about the Judicial Branch? Have one.

My question to you is: Why? Why so little detail about this supposedly co-equal branch of government? There’s not even a clause about the qualifications to be a judge–under a strict interpretation of the Constitution, I could be a Supreme Court judge right now. (Easy there, breathe in, breathe out…here’s a brown paper bag…) And why not lay out exactly what powers are granted to the Supremes? After all, if you took the Constitution literally, since there’s no explanation for what “judicial Power” means, it could mean nothing at all. All it says is that the Court has Jurisdiction “both as to Law and Fact.”

The power of the Judicial Branch is a sticky issue–it certainly was in the early years of the republic. Just ask James Madison, the defendant of record in Marbury v. Madison (and a personal hero of mine).

I have my own theories about why the framers of the Constitution were so vague about the Judicial branch (“Constitutional Convention, Day 42: We’re almost done. Just the Judicial Branch left. It’s like a hundred degrees in here. Jeez, just say have one and we’ll call it good.”) Actually, I’m sure there are some very logical explanations, but I’d like to hear your thoughts. I hope this will generate an interesting discussion, and give me an idea of what kinds of answers and further questions might be generated by such a starting point.

(By the way, the linky above for the Constitution is to, which is a way cool place. There’s a ton of good stuff besides the Constitution itself. There are a number of other important documents dating back to the earliest precursors to the Constitution (all the way back to the Magna Carta). Check out the Topics and FAQs. This is place that taught me, among many other things, whatstare decisis is and why it’s important.)

10 thoughts on “The Judicial Branch

  1. I’m not a constitutional historian but I do know that as a general rule, the more overarching the law, policy or regulation, the more vague it is, deliberately, to allow for the certainty of changing times and precedent.

  2. When the Constitution was being authored, those delegates to the Constitutional Convention had priorities. For examples, they were afraid of the country falling into a de facto monarchy, they were afraid that their carefully crafted state constitutions would set aside, they were concerned about the populous states dominating the farming states, etc. Most of their efforts went into meeting those priorities.
    But, there clearly had to be a system of courts to decide disputes involving the federal government. There were no hidden agendas regarding those courts, no state pressures to neuter those courts, etc. So, they laid out only the bare bones of a court system, confident that by giving the Congress, whom they would select, the power to set up the courts they would not be mistreated. Just rememmber that originally the Congress was hand picked by the state governments, not by voters.

  3. They also had the least experience with judicial matters. Most of the framers had been legislators, most had some experience in executive matters, either public or private, but none had been a judge. They weren’t sure how much they wanted to spell out for fear of unforeseen events.

  4. Two things that came to me in reading the comments so far:
    First: The Articles of Confederation had been in operation for over 10 years by the time the Constitution was drafted. During that time, the colonies were operating with their colonial/state courts. So when the Constitution was being drafted, there had to have been concerns about what a federal court system would mean for these colonial/state courts. The creation of the judicial branch had federal vs. state power implications, too, right?
    I see your point, hoppy, about the states potentially believing they’d have the power to limit the judiciary through the legislative branch. That makes sense to me, to a point. I’m still a bit surprised, though, that there weren’t more basic parameters to judicial power laid out in the Constitution itself. Jurisdiction is one thing they deal with clearly, but the extent of judicial power when jurisdiction applies is a horse of a different color.
    Second: I’m still a bit baffled by why there weren’t qualifications laid out for judges. I’m not talking training–I mean things like age, citizenship, etc., as was done for the Prez and the legislators. They could have just boilerplated the same stuff for the judges, couldn’t they? Why didn’t they?
    Things I need to research more…

  5. Don’t have a whole lot of guesses on why except that the meaning of many of today’s professions has changed immensely. Medical Doctors used to learn their art as more of a journeyman apprentice and used potions out of Professor Snape’s class.
    As a hold over, in many locations, the stated qualifications for a judge don’t even include that you have to be a lawyer.

  6. The importance ofstare decisis should have been obvious if you’ve watched a SCOTUS nomination hearing in the last decade – if it weren’t for that phrase, nominees would have nothing to say at all.

  7. It has been 53 years since I had a history class, but I still remember my last teacher lecturing about the chore of writing the Constitution. Unfortunately, I don’t remember a single word having been in those lectures about the courts. I also remember, I think, that the present arrangement of courts kind of grew like Topsy, not per some plan. That makes me think that the fact that the delegates had no judicial experience may have been the reason for giving short shrift to that branch of the government.
    A related question: did the delegates intend that the judiciary be an equal branch of the government, or did that interpretation grow as the courts grew? The answer to that should be in the Federalist papers I would think.

  8. The Constitution is actually quite bizarre about the judiciary. It contemplates states suing each other as an important role for the Supremes, for example. (It does in fact occur from time to time: the price we pay for perpetuating the “federalism” myth, I guess).
    As FDR noted, the Constitution does not say how many Supreme Court justices there should be: 1, none, or 1,000 would all presumably be permitted.
    And finally, many of the hardest choices about the judiciary were simply kicked down the road. I’d guess that was because there was not agreement on substance. John Marshall had the idea for the Supreme Court being a referee of sorts on the Constitution for years, and patiently lay in wait until an opportunity came along (Marbury). And even then, he cheated a bit.
    Much of the judiciary’s role is a product of the judicial system’s own interpretation of the Constitution, more or less in the tradition of the common law itself — one thing from England that no American wanted to run away from.
    Oh – and about the power of the courts — at the end of the day, it rests on a broad public consensus about its legitimacy, much as the authority of government as a whole does. This is one reason why decisions like Bush v. Gore are so costly.
    Lucky you – enjoy!

  9. Thanks so much, Jim–you’ve given me a great deal to work with. I’d considered the “punting it to the next generation” idea, but I hadn’t really considered the traditions of English common law as a driver for this. It actually makes a lot of sense–in a nation without an actual Constitution per se, the role of the judiciary would be huge.
    And your comment about Bush v. Gore is priceless. If it’s all right by you, I’m gonna steal that.

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