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.
Posts
Article III, Section 2, Clause 3 of the United States Constitution
Analyzing the Constitution in 90 Days 2011 Project, Article III, Section 2, Clause 3, Kyle Scott, Ph.D. 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article III Section 1, Article III Section 2 Clause 3, Kyle Scott PhD
Guest Essayist: Kyle Scott, Political Science Department and Honors College Professor at the University of Houston
Article III, Section 2, Clause 3
3: The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
There are two current political issues whose resolution hinges on the interpretation of this clause: plea bargaining and the treatment of suspected terrorists.
Plea bargaining is the manner in which criminal cases are resolved without the benefit of trial. Rather than facing the full charge or the maximum penalty, the accused can plead guilty to a lesser charge in exchange for a lighter penalty. These agreements are reached without the benefit of a bench or jury trial. Plea bargains are quite common, and in fact have become more common than trials, due to the heavy workload of the courts. Courts could not function without relying on plea bargains and therefore plea bargains are often encouraged by prosecutors and judges. So while the need for plea bargains is real, the lingering question remains as to whether they are Constitutional according to Article III, Section 1, Clause 3. The act of plea bargaining has not been found to be unconstitutional, but that does not mean we should accept the practice.
No defendant can be coerced into a plea deal and therefore remains able to choose a trial and reject a plea deal. This supports the constitutionality of the plea bargain; but my reservations over the practice still remain. I begin with the assumption that the Founders established a Constitution aimed at establishing justice and that the institutions and practices in the Constitution can lead to justice if followed as the Founders had intended. Therefore, if read literally, the Founders can be said to have believed, as consistent with the excerpt under consideration, that the best pathway to justice is through a jury trial in criminal cases. If this is so, then we are left to wonder whether plea bargains abandon the Founders’ goal of justice or whether plea bargains abandon those institutions and processes the Founders thought would lead us to justice. In accepting plea bargains as a valid way to resolve criminal cases, have we replaced our justice system with a mere legal system?
No one will doubt that the eradication of terrorists is necessary and that playing by the rules severely hamstrings America’s ability to protect itself. For this reason we have found it necessary to not offer jury trials to many of those in custody. But the same questions that were raised above can be raised here: If the Constitution sets up a system that can achieve justice when literally followed then does abandoning that process compromise the search for a just resolution? Or, should we say, that abandoning this part of the Constitution in our fight against terrorism is the only means to achieve justice?
The two most popular responses are that those we have been arrested are enemy combatants and should therefore be dealt with in a military setting or that the rights guaranteed in the Constitution only apply to citizens. The first of these is the most defensible although it is still in question who determines if someone is an enemy combatant, how the term is defined, and if the who and how are done through means consistent with Constitutional principles. The second is more difficult to defend simply because in Article III, Section 2 the Constitution gives jurisdiction to federal courts in cases involving a state, or the citizens thereof, and “foreign states, citizens, or subjects.”
So now it is time to disappoint the reader I am afraid. I have taken this clause of the Constitution as far as I am capable and thus do not have a definitive answer to the questions I have raised. I do lean towards particular answers, but because I cannot be for certain what the Founders would have said on the matters, I must remain humble and not express those inclinations until more searching has been done. But, Article III, Section 3 should provide additional insight.
My intention for this essay was to show how this clause applies to current political events and uncover the fundamental questions that must be answered in order to reach some resolution. So let me repeat the most fundamental questions I see for this clause: If the Constitution sets up a system that can achieve justice when literally followed then does abandoning that system compromise the search for justice? Or, should we say, that abandoning this part of the Constitution in our fight against terrorism or overworked courts is the only means by which we can achieve justice? And, if we answer in the affirmative to the second question, must we say that the Constitution, if strictly followed, cannot lead us to justice in all situations?
Raising and pursuing these fundamental questions in a slow, deliberate manner within the confines of care, reason, and logic—without employing clichés or rhetoric—is the true intention of the Founders. Our Founders were deep and original thinkers who understood the fundamental questions and the importance of asking them. Their search for truth was more important to them than the personal attachment they felt to a particular position. We too should be so brave!
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
Guest Essayist: Kyle Scott, Political Science Department and Honors College Professor at the University of Houston
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