March 28, 2011 – Article I, Section 08, Clause 09 of the United States Constitution – Guest Essayist: Charles K. Rowley, Ph.D., Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute

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Article I, Section 8, Clause 9

 9:  To constitute Tribunals inferior to the supreme Court;

There is much more to these seemingly simple words than meets the eye.  Indeed, one cannot write meaningfully about them without first advancing to Article III, Section 1 of 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.  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.

 It is not my intent to deal with Article III, Section 1 more than is minimally necessary for making sense of Article I, Section 8, Clause 9.  I ask the reader’s indulgence to this end.

It is noteworthy that Article III, Section 1 of the Constitution establishes one federal Supreme Court only for the entire United States, and that it separates the powers of this court from those of Congress and the executive.  By establishing just one Supreme Court, the Founders provided for a uniformity of interpretation of the federal laws that otherwise might not have been forthcoming.  By establishing the Supreme Court as separate from the Congress the Founders benefited from the genius of James Madison who built in checks and balances as a response to the Connecticut Compromise that provided equal representation to all the States in the Senate of the United States.  Prior to that Compromise, Madison’s Virginia Plan had advocated subservience of the Supreme Court to the Congress.

Note, however, that the Constitution does not itself create judicial bodies other than the Supreme Court.  The Congress alone – not the Supreme Court not the Executive – is empowered, should it so choose, to take responsibility for such matters.  Exactly how it should do so and in what form would be subjected to close scrutiny of the precise meaning of the wording of the Constitution.

In one – and in my judgment convincing – interpretation, the power given to Congress in Article I, Section 8, Clause 9 ‘To constitute Tribunals inferior to the supreme court’ plainly relates to the power given to Congress in Article III, Section 1 to ordain and establish inferior Courts.  If such is the case, then Article I empowers Congress to establish inferior judicial bodies (tribunals and courts being viewed as synonyms). And Article III reaches out to the tenure conditions attached to all such judges.

Since, in practice, Article I tribunals have not been viewed as identical to Article III courts, however, a careful parsing of the relevant words becomes essential, even if only to explain unjustifiable error.

As always, in parsing the words of the Constitution, it is important to rely upon the meaning of words in 1787, not those of the early twenty-first century.  To this end, I shall rely on the written records of the Founding Fathers and of the major dictionaries of that era, such as those of Samuel Johnson and Noah Webster.

The term ‘tribunal’, to be sure, carries a distinctive historical connotation, derived from the Roman tribunate, a raised platform on which the seats of magistrates were placed.  The term ‘court’, by contrast, derives from the judiciary’s close association in England and France with the king.  However, by Blackstone’s day, the terms were viewed as synonyms in all the major dictionaries. Throughout the early deliberations of the Philadelphia Convention, the Founding Fathers also used the two terms interchangeably, as does Hamilton in Federalist No. 81. Of course, such evidence does not guarantee that the Constitution itself deploys the term ‘tribunal’ under Article I as a synonym for the term ‘court’ under Article III.

There is some support from the drafting history for the view that the Constitution distinguishes between the two concepts.  The distinction may have grown out of the mid-convention debates over the possibility of employing some non-life-tenured judges to adjudicate federal claims.  Specifically, Congress might appoint state tribunals to act as courts of first instance in deciding questions of federal law.  Madison’s notes from the debates offer support for such a change in emphasis once the New Jersey Plan and the Virginia Plan were jettisoned following the Connecticut Compromise.  For the Compromise eliminated an early provision that mandated the creation of lower federal courts and substituted a regime of congressional discretion (as confirmed by Articles I and III).  At this point, the Committee of Detail dropped the usage of the term ‘tribunals’ to describe the federal courts in Article III, and it required life-tenured judges in Article III courts, while refusing to impose any such requirement for Article 1 tribunals.

Further support for distinguishing between Article I tribunals and Article III courts may be discerned in the empowerment provisions themselves.  Article I empowers Congress to ‘constitute tribunals interior to the supreme court’, whereas Article III empowers Congress to ordain and establish courts.  This difference in description of congressional powers is suggestive that the two adjudicative bodies might arise in different ways and with different degrees of permanence.  Specifically, Congress might ‘constitute’ tribunals either by creating new bodies from scratch, or by designating existing bodies as inferior tribunals.  To ‘ordain and establish’ inferior courts, by contrast, seems to contemplate the creation of new courts established in accordance with Article III.  Such a fine distinction is in accordance with the major dictionaries of the late eighteenth century.

In any event, Congress has exploited such parsing opportunities in order to distinguish clearly between Article I tribunals and Article III courts (A fairly good guide to congressional behavior in general is that if you give it an inch it will take a kilometer).  From the outset, Congress has established some (but not all) Article I tribunals without the Article III safeguards of life-tenure and remuneration.  These tribunals consist of certain federal courts and other forms of adjudicative bodies, endowed with differing levels of independence from the legislative and executive branches.  Some take the form of legislative courts set up by Congress to review agency decisions; others take the form of military courts-martial appeal courts, ancillary courts with judges appointed by Article III and administrative judges.

As one would predict, Congress (and the Executive) does not always relish the idea that Article I tribunals should be inferior to the Supreme Court.  Yet that is an inescapable reading of the Constitution.  The specification that tribunals and lower courts must remain inferior cements the requirement of the Supreme Court’s ultimate supremacy.  The requirement of inferiority precludes Congress (and by clear implication, the executive branch) from creating free-standing courts, investing them with some portion of judicial power, and giving them freedom from oversight and control of the Supreme Court.  In this regard, the Founders were only too mindful of such abuses of executive power by the Stuart kings in England’s not-so-far-distant past.

This portrait of Article I tribunals as acting outside of the judicial power, while remaining subject to oversight and control by Article III courts is reflected in modern jurisprudence.  However much it would like to do so, Congress (and the Executive) cannot create tribunals and place them entirely beyond the supervisory authority of the federal courts.

The most pressing recent variant of this logic effectively deals with the decision by President George W. Bush to create military tribunals for the adjudication of criminal claims against individuals designated as enemy combatants.  Although the government has argued for an exceedingly restricted judicial role in overseeing such tribunals, the Constitution clearly requires that they must remain inferior to the Supreme Court and subject to judicial review, at least when such tribunals operate within the jurisdiction of the United States.

Americans should be eternally thankful to the Founders for providing us with such protections, both under Article I and under Article III of the Constitution.  Unless the parchment unravels completely, there will be no Court of the Star Chamber, no Court of High Commission, and no Bloody Assize in the Unites States of America.

Charles K. Rowley, Ph.D. is Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia.  He is author of Liberty and the State (The Locke Institute 1993), co-author (with Nathanael Smith) of Economic Contractions in the United States: A Failure of Government (The Locke Institute and the Institute of Economic Affairs 2009), and the author of Never Let A Good Crisis Go To Waste (The Locke Institute 2010).  For further details see www.thelockeinstitute.org and www.charlesrowley.wordpress.com

7 replies
  1. Ralph T. Howarth, Jr.
    Ralph T. Howarth, Jr. says:

    Makes me wonder about Traffic Court if such is made subject to the Supreme Court? On one front, the federal government, which is not authorized to build anything other then post roads to regulate things like speed limits within states let alone spend money on such things being that the Congress is not authorized to spend on just any roads within states. Yet, because the federal seat does the bait and switch technique of matching funds at the behest of stipulated regulations, it appears that Traffic Courts are federalized too. Which raises the question in my mind, are Traffic Courts made subject to the US Supreme Court? Sure, I can find out in a little while; but I have a hunch that it has not.

    On the question of foreign national combatants, that same A3S2 puts questions of treaties, and by implication, the Law of Nations a.k.a International Law, and all cases where the US is a party, under the courts; but only vests original jurisdiction to questions of consuls, ambassadors, and other public ministers of foreign affairs, in the Supreme Court. The gamut of all other judicial proceedings is vested in the inferior courts and the Congress is granted the power to regulate the appellate court jurisdiction in both law and fact of the Supreme Court. By implication then, the Congress may very well block certain kinds of cases to be heard by the Supreme Court. Which has become common place for things like administrative courts for getting a Visa, some federal claims courts, etc. But it has been custom that criminal law always be granted a right to appeal to the Supreme Court, which is of the Common Law. That has been denied only one time when Habeaus Corpus was suspended by the Congress during the Civil War unless something else arcane comes to light.

    Reply
  2. Susan
    Susan says:

    I’m curious as to the purpose the Founders envisioned for these “tribunals” and over what would they have jurisdiction?

    Reply
  3. Barb Zakszewski
    Barb Zakszewski says:

    That is a pretty big “if” the parchement unravels.. I would say it already is unraveling, just a question of when that will be complete. UNLESS we all take responsibility to educate ourselves on the Constitution and its historical. We must ALWAYS insist that our elected officials adhere to thsi Constitution or risk not being re-elected..

    Very interesting and informative article.. I will have to read it again, to gain its full meaning.

    Reply
  4. Charles K. Rowley
    Charles K. Rowley says:

    These are three thoughtful comments. There can be no doubt that Congress has structured many Article I tribunals to fall outside the judicial power as defined by Article III. In my interpretation, such tribunals ultimately fall under the reach of the Supreme Court. For that to happen, of course, the Supreme Court must exercise its authority. This doies not always occur, either because important cases do not reach that level, or becausze, when they do, the Supreme Court refuses to grant certiorari (i.e. does not choose to hear them). The Supreme Court is not immune to political pressure. In 1937, the Court buckled under the threat by FDR to pack it with 5 additional members. Since then, the Court has been extremely hesitant in challenging the constitutionality of constitutionally dubious Congressional legislation and Presidential actions.

    During the convention, a lot of discussion centered on whether state courts might be treated as Article I tribunals. At that time it was not clear whether there would be one supreme court or several each with its own geographic jurisdiction.

    Barb is absolutely right to think that there has been substantial unraveling of the Constitution. That is why the initiative by Janine and Cathy is so important. If Americans in sufficient numbers are ignorant of the Constitution, then they cannot act to protect it against its transgressors. I believe that was the situation in 2008, when an enemy of the Constitution was elected to the nation’s highest office.

    Reply
  5. Janine Turner
    Janine Turner says:

    I thank you, Dr. Rowley, for your fabulous essay full of historical background and insights. I am thrilled with this opportunity to study the words of the Constitution with such historical detail and intricate comparisons – such as Article 1 tribunals and Article III courts. From the Roman interpretation to today’s it is a fascinating discovery. There was a reason for every word of this great document and there was a reason that Article 1 stated tribunal and Article III stated court. You summed this up beautifully in your closing sentences. Our founding fathers were astute and remarkable.
    God bless,
    Janine Turner

    Reply
  6. Barb Zakszewski
    Barb Zakszewski says:

    I love this forum… I have learned SO much this year, and also last year when the Federalist papers were examined!!! To get more people involved and coming to this site, I’ve taken to posting that day’s Article, Section and Clause on my FB..then directing people to this site to learn more about it.. Not only the Constitution, but also our GREAT Nation is starting to unravel. I re-read Janine’s quote at the top of the Home page of this site, and think how true it is indeed!! Thank you, thank you,!!

    Reply
  7. Ron Meier
    Ron Meier says:

    Dr. Rowley says “the Court has been extremely hesitant in challenging the constitutionality of constitutionally dubious Congressional legislation and Presidential actions.”

    This is very disturbing; I have no reason to doubt its truth. Over about the past 75 years, I’m sure that hundreds, if not thousands, of little and big laws have been passed that would shock our founders. We have not been vigilent.

    Reply

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