May 3, 2011 – Article III, Section 1 of the United States Constitution – Guest Essayist: Kyle Scott, Political Science Department and Honors College Professor at the University of Houston

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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 Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Building on the political theory of John Locke and Baron de Montesquieu, the Founders established an independent judiciary, more specifically, a Supreme Court. While the Constitution only establishes a Supreme Court, it was not long after the ratification of the Constitution that the first Congress passed the Judiciary Act of 1789 which established the U.S. Federal Judiciary. The act created a Supreme Court in which there were five associate justices and one chief justice. The first chief justice was John Jay—one of the three authors of the Federalist Papers.

The act also established circuit courts and district courts. The district courts had original jurisdiction while the circuit courts had appellate jurisdiction. The first Supreme Court justices had to ‘ride circuit’, meaning they served on the Supreme Court and the circuit courts. This practice ended with the passage of the Judiciary Act of 1891.

The number of judges, justices, and courts has varied over the years—usually expanded at a time of one party dominance when the party in power looks to increase its influence within the judiciary by expanding the number of available slots to which they can appoint judges of a similar ideological disposition. This is but one consequence of being vague, but the Founders had their reasons for not being overly specific about the structure of the judiciary.

First, the judiciary—while important for maintaining the rule of law and a system of checks and balances—was thought peripheral to the political process. This is not surprising given that the Founders’ intellectual influences—particularly Locke and Montesquieu—treated the judicial branch in a similar manner. Now they recognized, particularly Hamilton who expanded Lord Coke’s theory of judicial oversight, the importance of the judiciary, but it wasn’t seen in the same esteem as the other two branches. Even after the ratification of the Constitution the Supreme Court was thought less important as evidenced by the fact that Washington had a tough time filling all the seats as most would-be appointees chose to stay judges or legislators in their home state where they thought more important work was being done. Let us not forget that the Supreme Court’s first chambers were in the basement of the Merchant Exchange Building in New York City—then the capital of the U.S.

Second, the justices recognized that a growing nation would need a court to grow with it. This is not the same as saying we need a living Constitution, or that the Founders favored a loose construction of the Constitution, it simply means that the Founders understood the workload of the early courts would be relatively light given the length of time it takes to work through the appeals process from the state level up, and the fact that there were very few national laws meaning most cases of original jurisdiction would be heard at the state level as disputes over laws were more likely to occur over state laws.

Third, they knew the inherent dangers of an appointed judiciary. Appointing judges was preferable to electing them in order to insulate them from the effects of politics and public pressure, but it also put them in an advantageous position to control the path of the country relative to Congress and the Executive who had to be elected and had shorter tenures. Therefore, the size and structure of the judiciary was made dependent upon Congress as one way to curb the power of the judiciary.

What we should remember is that when the Founders were vague they were intentionally so, and when they were specific they were intentionally so. And the same goes for silence—such as with judicial review which is nowhere found in the Constitution except through the most creative jurisprudence. This flies in the face of those who would argue for a loose—or broad—interpretation of the Constitution. To assume otherwise is to deny the Founders wrote intentionally or were aware of what they were writing. While they could not foresee all issues or problems, they chose their words carefully and we should treat them as though they did.

Kyle Scott is a lecturer in the Department of Political Science and Honors College at the University of Houston. His third book, Federalism, is due out March 17th. Dr. Scott has written on the Federalist Papers for Constituting America and proudly serves as a member of its Constitutional Advisory Board. He can be reached at kascott@uh.edu. Or, you can follow his blog at www.redroom.com/member/kylescott

6 replies
  1. yguy
    yguy says:

    [J]udicial review [] is nowhere found in the Constitution except through the most creative jurisprudence.

    Evidently Mr. Scott has a different definition of the term than I do. If it is defined as the power of a court to declare a federal statute unconsitutional, it seems to me that Marshall made an airtight case for that in Marbury – with the proviso that since the members of the other branches are just as much under a constitutional oath as federal judges, they are no more bound by an unconstitutional SC ruling than a member of the Judiciary is bound by an unconstitutional statute.

    Reply
  2. Kyle Scott
    Kyle Scott says:

    yguy:

    Marshall’s jurisprudence is precisely the sort of creativity I refer to. I understand Marshall’s argument but it only makes sense if one permits a loose reading of the constitution and are guided only by Hamilton’s idea of what the power’s of the judiciary ought to be. Let’s remember that Marshall had a personal stake in the decision as he was the one who failed to hand Marbury his appointment on time (thus he should have recused himself from the case to begin with) and a political stake in the matter as he was of the opposing party as Marbury and did not want to see him receive his appointment (perhaps). This is a cyncial reading of history to be sure, but it is one that is consistent with the facts surrounding the case and permitted because of Marshall’s loose constructionism. Marshall, following in Hamilton’s footsteps, extended the theory of judicial oversight that was made popular by Coke and Blackstone. Paul Caresse and James Stoner have each written wonderful books on this very topic and the final chapter of my Dismantling American Common Law makes the case against the current practice of judicial review as well.

    Thank you for your comment.

    Reply
    • yguy
      yguy says:

      Marshall’s jurisprudence is precisely the sort of creativity I refer to. I understand Marshall’s argument but it only makes sense if one permits a loose reading of the constitution

      If his argument for judicial review in Marbury can be said to begin with

      This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments.

      and includes everything that follows (save for the sentence that made Jefferson so famously irate), then I am at a loss to understand what part of it requires any such “creativity”.

      [T]he current practice of judicial review

      seems to me to be one thing, and Marshall’s argument in support of judicial review as I defined it above, quite another.

      Reply
  3. Kyle Scott
    Kyle Scott says:

    yguy:

    I appreciate the response, but I still do not see a direct citation to the constitution nor a reference to where the constitution gives the power to overturn legislation, in direct and specific terms, to the court. Judicial review can be legitimated through a number of means and citations, but that does not make it constitutional–only a loose/creative interpretation can do so.

    Best,
    Kyle.

    Reply
    • yguy
      yguy says:

      I appreciate the response, but I still do not see a direct citation to the constitution nor a reference to where the constitution gives the power to overturn legislation, in direct and specific terms, to the court.

      Nor do I…

      Judicial review can be legitimated through a number of means and citations, but that does not make it constitutional–only a loose/creative interpretation can do so.

      …nevertheless I fail to see any basis for the bolded claim.

      To use Marshall’s own hypothetical, if Congress passes an ex post facto statute and someone is prosecuted under it, is the Judiciary obliged to ignore the constitutional provision in favor of the statute? If yes, how can it do so without running afoul of the supremacy clause? And if no, what alternative does it have other than to refuse to rule according to the statute and declare it unconstitutional?

      Reply
  4. Ralph T. Howarth, Jr.
    Ralph T. Howarth, Jr. says:

    Judicial Review gets to be overly complicated by much sophistry. It distracts us from the actual power that a Judge has. The judge has the succinct power to [i]make a decision[/i] between one party and another party. Afterwards, it is customary for the judges to give an [i]opinion[/i] why they made such a decision. But the reasons why is only an opinion therefore it is called an “opinion”. We tend to confuse such opinions as laws or the striking down of such laws. If a judge makes a decision and makes some rationale that such-and-such a law is unconstitutional does not of itself make that law unconstitutional. All that does is signal a propensity for certain cases to go in favor of decisions one way or another. But court decision do not ever repeal any laws. Repealing of laws can only be originated by the house that wrote the law. Until then, any public servant or citizen can open up and read the register of laws for themselves and continue to sue or defend themselves on the grounds of the law written thereby; and another judge can come along and decide something to the contrary than what another judge cried “unconstitutional”. Now the Common Law principle of Stare Decisis does give the affect that a decision may strike down the affects of a law; but that very same set of Common Law principles is that judges simply decide whether or not somebody may suffer harm from the law on a case by case basis. This whole idea that a judge can strike down a law to be completely unenforceable to the point of even overturning state criminal laws…that is to say…telling states what is a crime or not a crime…is way too far of the scope of responsibilities of the federal court system. Such a notion takes judicial review on steroids.

    Reply

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