Essay on Chapter 10

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Chapter 10: The Judiciary
Roots of the Federal Judiciary
The detailed notes James Madison took at the Constitutional Convention in Philadelphia make it clear that the Framers devoted little time to writing Article III, which created the judicial branch of government.
The Framers believed that a federal judiciary posed little threat of tyranny.
One scholar has even suggested that, for at least some delegates to the Constitutional Convention, “provision for a national judiciary was a matter of theoretical necessity…more in deference to the maxim of separation [of powers] than in response to clearly formulated ideas about the role of a national judicial system and its indispensability.”
The Framers also debated the need for any federal courts below the Supreme Court.
Some argued in favor of deciding all cases in state courts, with only appeals going before the Supreme Court.
Others argued for a system of federal courts.
A compromise left the final choice to Congress, and Article III, section 1, begins simply by vesting “The judicial Power of the United States…and in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
Article III, section 2 specifies the judicial power of the Supreme Court.
It also discusses the Court’s original and appellate jurisdiction.
This section also specifies that all federal crimes, except those involving impeachment, shall be tried by jury in the state in which the crime was committed.
The third section of the article defines treason, and mandates that at least two witnesses appear in such cases.
Had the Supreme Court been viewed as the potential policy maker it is today, it is highly unlikely that the Framers would have provided for life tenure with “good behavior” for all federal judges in Article III.
This feature was agreed on because the Framers did not want the justices (or any federal judges) subject to the whims of politics, the public, or politicians.
Moreover, Alexander Hamilton argued in Federalist No. 78 that the “independence of judges” was needed “to guard the Constitution and the rights of individuals.”
Some checks on the power of the judiciary were nonetheless included in the Constitution.
The Constitution gives Congress the authority to alter the Court’s jurisdiction (its ability to hear certain kinds of cases).
Congress can also propose constitutional amendments that, if ratified, can effectively reverse judicial decisions, and it can impeach and remove federal judges.
In one further check, it is the president who, with the “advice and consent” of the Senate, appoints all federal judges.
The Court can, in turn, check the presidency by presiding over presidential impeachment.
Article I, section 3, notes in discussing impeachment, “When the President of the United States, is tried, the Chief Justice shall preside.”
The Constitution, however, is silent on the Court’s power of judicial review, which allows the judiciary to review acts of the other branches of government and the state.
This question was not resolved until Marbury v. Madison (1803), regarding acts of the national government, and Martin v. Hunter’s Lessee (1816), regarding state law.
The Judiciary Act of 1789 and the Creation of the Federal Judicial System
In spite of the Framers’ intentions, the pervasive role of politics in the judicial branch quickly became evident with the passage of the Judiciary Act of 1789.
Congress spent nearly the entire second half of its first session deliberating the various provisions of the act to give form and substance to the federal judiciary.
As one early observer noted, “The convention has only crayoned in the outlines. It left it to Congress to fill up and colour the canvas.”
The Judiciary Act of 1789 established the basic three-tiered structure of the federal court system.
At the bottom were the federal district courts- at least one in each state.
If the people participating in a lawsuit (called litigants) were unhappy with
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