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 usconstitution.net, 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.)