The Online Library of Liberty

A project of Liberty Fund, Inc.

• About the Author
• Preface
• Part 1: The Constitution’s Deep Roots
• Points to Remember
• The Meaning of Constitutional Government
• The Lamp of Experience
• The Constitutions of Antiquity
• English Origins of America’s Constitution
• The Growth of Parliament
• The Challenge of Parliamentary Supremacy
• The Common Law Tradition
• The Republican Tradition and the Struggle For Constitutional Liberty
• The Influence of Continental Thinkers
• The Education of the Founders
• The French and American Revolutions Compared
• Appendix A: Relevant Chapters of Magna Charta (1215)
• Appendix B: Petition of Right (1628)
• Appendix C: The English Bill of Rights (1689) an Act For Declaring the Rights and Liberties of the Subject, and Settling the Succession of the Crown.
• Part 2: America’s First Constitutions and Declarations of Rights
• Points to Remember
• Colonial Governments
• Relations With Great Britain
• Local Government In the Colonies
• Civil Liberties In the Colonies
• The Movement Toward Independence
• The Declaration of Independence
• The Rights Proclaimed
• The First State Constitutions, 1776–1783
• The Articles of Confederation
• Appendix A: the Mayflower Compact
• Appendix B: Fundamental Orders of Connecticut
• Appendix C: Declaration and Resolves of the First Continental Congress
• Appendix D: Declaration of the Causes and Necessity of Taking Up Arms
• Appendix E: the Declaration of Independence (1776)
• Appendix F: Virginia Bill of Rights
• Appendix G: Thoughts On Government
• Appendix H: Massachusetts Constitution of 1780
• Appendix I: Articles of Confederation (1778)
• Part 3: The Achievement of the Philadelphia Convention
• Points to Remember
• The Problems of the Convention
• The Delegates to the Convention
• A Wide Range of Talents
• Plans and Progress At Philadelphia
• The Meaning of “federal”
• The Virginia Plan: a Supreme National Government
• Hamilton’s Concept of a Unified America
• The New Jersey Plan:checks Upon Central Power
• The Benefits of Compromise
• Compromise and Consensus
• Appendix A: Virginia Plan
• Appendix B: New Jersey Plan
• Appendix C: Constitution of the United States of America (1787)
• Part 4: Basic Constitutional Concepts: Federalism, Separation of Powers, and Rule of Law
• Points to Remember
• A.: Federalism
• Powers Delegated to Congress
• Powers Denied to Congress
• Powers Denied to the States
• The Division of Powers
• The Supremacy Clause
• National and State Obligations
• Obligations of the National Government to the States
• Obligations of the States to the National Government
• Obligations of the States to Each Other
• The Role of the States In the Amendment Process
• The Federalism Factor
• The Advantages of Federalism
• The Future of Federalism
• B.: the Separation of Powers
• Checks and Balances
• Checks Upon the Congress
• Checks Upon the President
• Checks Upon the Judiciary
• The Independence of Congress
• The Independence of the President
• The Independence of the Judiciary
• Summary and Review
• Separation of Powers: a Critical Evaluation
• Separation of Powers At the Crossroads
• C.: The Rule of Law
• The Basic Principles of the American Constitution
• Appendix A: the Federalist No. 10
• Appendix B: the Federalist No. 45
• Appendix C: The Federalist No. 47
• Part 5: Defending the Constitution: the Struggle Over Ratification and the Bill of Rights
• Points to Remember
• A.: the Anti-federalist Persuasion
• The Constitution Establishes a Consolidated Empire
• The Constitution Establishes an Aristocracy
• The Constitution Confers Too Much Power
• An Imperial Congress
• An Elected Monarch
• An Omnipotent Judiciary
• B.: the Federalist Response
• The Constitution Limits and Distributes Power
• Congress Is Not an Oligarchy
• The President Is Not a King
• The Judiciary Is the Least Dangerous Branch
• Whether a Bill of Rights Was Necessary
• The Clash of Values
• C.: The Bill of Rights
• The First Amendment: Religious Freedom, and Freedom to Speak, Print, Assemble, and Petition
• The Second Amendment: the Right to Bear Arms
• The Third Amendment: Quartering Troops
• The Fourth Amendment: Search and Seizure
• The Fifth Amendment: Rights of Persons
• The Sixth Amendment: Rights of the Accused
• The Seventh Amendment: Trial By Jury In Civil Cases
• The Eighth Amendment: Bail and Cruel and Unusual Punishments
• The Ninth Amendment: Rights Retained By the People
• The Tenth Amendment: Rights Retained By the States
• Rights Versus Duties
• Appendix A: the Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents
• Appendix B: Northwest Ordinance (1787)
• Part 6: Interpreting and Preserving the Constitution
• Points to Remember
• Principles of Statutory Construction
• The Doctrine of Judicial Review
• The Supreme Court As Final Interpreter
• The States As Final Interpreters
• Strict Versus Loose Construction
• The Independence of the Judiciary
• A.: Origins of Judicial Independence
• B.: the Judicial Power
• C.: Jurisdiction
• Appendix A: Marbury V. Madison
• Appendix B: Martin V. Hunter’s Lessee
• Appendix C: Washington’s Farewell Address (1796)
• Part 7: Changing the Constitution—together With an Explanation of the Amendments Added Since 1791
• Points to Remember
• Our Living Constitution
• Our Changing Constitution
• Amending the Constitution
• The Limits of the Amending Power
• The Amended Constitution
• A.: Amendment Xi (1798)
• B.: Amendment Xii (1804)
• C.: Amendment Xiii (1865)
• D.: Amendment Xiv (1868)
• E.: Amendment Xv (1870)
• F.: Amendment Xvi (1913)
• G.: Amendment Xvii (1913)
• H.: Amendment Xviii (1919)
• I.: Amendment Xix (1920)
• J.: Amendment Xx (1933)
• K.: Amendment Xxi (1933)
• L.: Amendment Xxii (1951)
• M.: Amendment Xxiii (1961)
• N.: Amendment Xxiv (1964)
• O.: Amendment Xxv (1967)
• P.: Amendment Xxvi (1971)
• Q.: Amendment Xxvii (1992)
• Conclusion

The Independence of the Judiciary

Although we do not ordinarily associate judicial interpretation with judicial independence, the two practices are so closely related as to be made of the same cloth. The basic purpose of granting independence to any judicial body is to shield it from political interference and intrigue emanating from the legislative or the executive branch, so that it may reach a fair and impartial decision. By following intelligible, reasonable, and uniform rules of interpretation, the judiciary in turn assures the other branches that it is performing its function properly. To put it another way, there would be no justification for an independent judiciary if the judges habitually deferred to the legislature in every case or always bowed to the wishes of the executive.

Nor would their independence seem warranted if the judges ruled arbitrarily and continually fabricated new “rules” of interpretation to suit their personal policy preferences. If that were the case, they might just as well be elected to office and held directly accountable to the people for their actions. In many States today, judges are in fact elected to office. This practice of electing judges dates back to the Populist and Progressive movements of the late nineteenth and early twentieth centuries, when it was widely believed in certain States that too many judges had become corrupt, had ceased to be neutral administrators of justice, and had therefore forfeited the right to be independent. The practice of electing judges has not proved to be entirely satisfactory, however, owing to the fact judges running for office may be inclined to curry the favor of special interest groups in order to raise campaign funds, or may feel obliged to compromise principle and rule of law in order to satisfy a passionate majority and please the electorate.

Attempts to amend the Constitution to provide for the election of Federal judges have met with little or no success, and the independence of the Federal judiciary seems well established. It has not been immune from criticism, however, and throughout much of its history, especially in modern times, the Supreme Court has been accused of manipulating its own rules of interpretation and imposing upon the Constitution its own philosophy of government. This is the basis of allegations that the Court is engaged in “judicial activism,” the assumption being that the Court should exercise “judicial restraint” and adhere more closely to fixed rules of interpretation and the original meaning of the Constitution.

A.

ORIGINS OF JUDICIAL INDEPENDENCE

Although the judiciary was clearly a separate branch of government in England by the Middle Ages, it was not until the latter part of the seventeenth century that it achieved lasting independence. Much of the credit for the establishment of an independent judiciary (and Parliament) goes to Sir Edward Coke, or Lord Coke as he was known by his contemporaries. Coke, we will recall, was Queen Elizabeth’s Attorney General and Chief Justice of both the Court of Common Pleas and the Court of King’s Bench under James, first Stuart King of England.

A handsome country gentleman with considerable wealth, Coke was the personification of English law. On the courtroom floor, he could be raucous, witty, and ruthless. As Judge and as Speaker of the House of Commons, he risked his life for principles that are now embodied in our Constitution: a prisoner’s right to public trial and the writ of habeas corpus, the right of the accused against self-incrimination in a court of law, and the right not to be jailed without cause shown. When Coke was seventy, James I imprisoned him in the Tower of London for championing these rights, complaining that “he had become an oracle amongst the people.” In 1628, at the age of seventy-six, Coke led the fight in Parliament for the Petition of Right. “Sir Edward Coke never set foot on American soil,” observed Catherine Drinker Bowen in her biography of this legal giant. “Yet no United States citizen can read his story without a sense of immediate recognition. In these parliamentary struggles, knights, citizens and burgesses fought not for themselves alone but for States as yet unformed: Pennsylvania, Virginia, California. In Westminster courtroom battles over procedure, jurisdiction, ‘right reason and the common law,’ constitutional government found its way to birth. When the time came we changed the face of this English constitution; amid the sound of guns we repudiated what we hated, adapted what we liked. Yet the heritage endured.”

The famous Case of Commendams, a jurisdictional dispute involving the power of the King to grant ecclesiastical offices, illustrates the courage of Lord Coke in defending the principle of judicial independence. In June of 1616, King James I summoned the common law judges to his Whitehall palace (now the headquarters of the British bureaucracy). He was angry with them because, in defiance of his command to halt the proceedings of the case, the judges had refused. In a letter to the King, drafted by Coke, the judges had explained that their oaths of office compelled them to go ahead with the trial. They now stood before the King, trembling in fear of their lives. With a violent gesture, James ripped the letter in half. All twelve judges fell on their knees and begged humble pardon. The “form” of their letter, they confessed, had been wrong.

But Chief Justice Coke remained true to his convictions. Still on his knees, he raised his face to the King. “The stay required by your Majesty,” he said, “was a delay of justice and therefore contrary to law and the Judges’ oath.” “Mere sophistry,” bellowed the King. As the Judges cowered at his feet, James asked each Judge what he would do if the King ever again told the Court to stay proceedings. Each replied that he would do “as His Majesty commanded.”

When at last the King turned to Coke and asked him what he would do, the Chief Justice answered: “He would do that should be fit for a Judge to do.” It was a statement never to be forgotten, and because of it, Coke was removed from office. It was ambiguous enough to save his head, however, and in time he was vindicated. By the end of the seventeenth century, the judges had achieved full independence, and the English Judiciary today, though considerably less powerful than its American counterpart, is no less independent.

It was often difficult for early American judges to retain their independence also, especially in the period immediately following the American Revolution. Violations of judicial independence occurred not at the national level, for there were no national courts under the Articles of Confederation. Rather, they occurred under the new State constitutions first adopted in 1776, which were influenced in varying degrees by the principle of legislative supremacy. What early State court judges often feared was not the encroachment of the executive branch, for the office of governor was usually weak. The principal threat to judicial independence was the powerful legislative assembly.

Ignoring the concept of separation of powers, State legislatures sometimes treated State courts as mere agencies of the legislature, as if they were personally accountable to the legislators. Committees of the legislature might summon judges and interrogate them. Occasionally, legislatures actually interfered with court proceedings, reversed court decisions, reduced the judges’ salaries, and removed judges arbitrarily from office because of disagreement with their views. As late as 1808–1809, in Ohio, three supreme court justices, three presiding judges of the Court of Common Pleas, all of the associate justices of the courts of Common Pleas (more than 100 in number), and all of the justices of the peace were removed from their offices by a single resolution of the legislature.

Much of this was attributable to democratic excesses. The will of the people in many instances was considered omnipotent, and the legislature was simply carrying out the popular will. Hence, a number of early State legislatures did not hesitate to interfere with the traditional functions of the courts. During Shays’ Rebellion in 1786, people in Massachusetts prevented the courts from functioning and demanded that all inferior courts be abolished. Similar notions were advanced in New Hampshire in the early Republic. In Vermont, courthouses were set afire; and in New Jersey debtors nailed up the doors of courthouses and irate mobs attacked lawyers and judges in the streets.

The Framers of the Federal Constitution, profoundly alarmed by these developments, endeavored to provide the nation with a truly independent judiciary at the Federal level. But we may ask: independent of whom? The answer is not as easy as it might appear, for the independence of the Federal courts is not absolute. The Federal Judiciary, like Congress and the President, is a part of our separation of powers and checks and balances system. Congress and the President not only have certain powers to “check” the Judiciary, but also share with the Supreme Court the right and the duty to interpret the Constitution. The arrangement carefully constructed by the Framers is a complicated one, often misunderstood and in need of careful examination if we are to understand the role of the courts in our political system.

In general, Federal judges are independent of Congress, the President, the States, and the people. Strictly speaking, however, their independence is limited. They are not self-appointed, and most of the power they exercise is conferred by Congress. Article II, Section 2 of the Constitution authorizes the President, by and with the consent of the Senate, to appoint “Judges of the Supreme Court and all other officers of the United States.” Members of the Supreme Court and all Federal judges who sit on a lower Federal court that exercises the judicial power under Article III of the Constitution are thus classified as “Officers of the United States.” They are informally known as “Article III” judges and the courts upon which they sit are called “constitutional” courts because they deal with issues arising under the Constitution.

These distinctions are necessary to avoid confusion with other kinds of Federal judges who serve on other kinds of Federal courts. Referring back to Article I, Section 8 of the Constitution, which enumerates the delegated powers of Congress, we note that Clause 9 authorizes Congress “To constitute Tribunals inferior to the Supreme Court.” Congress has frequently exercised this power to create “legislative” courts, such as territorial courts and the U.S. Court of Military Appeals. The President appoints the judges to these courts, but Senate confirmation is not mandatory and the judges do not enjoy the same degree of independence as Article III judges. Instead of serving “during good behavior,” for example, they serve for specified terms and then must leave office when their term expires. Their responsibility is to carry out the will of Congress, not to exercise the judicial power.

It may thus be seen that both the President and one branch of the legislature decide who shall sit on a constitutional court. Once the appointment has been agreed to by the Senate, however, the President ceases to have any direct control over the personnel of the Judiciary.

Whereas judicial independence of the executive is considerable, we find that the Federal Courts are potentially at the mercy of Congress. Primary control of the Judiciary rests with Congress, and its powers over the Courts are far-reaching. We noted earlier that if Congress had the will to do so, it could constitutionally reduce the entire Federal Judiciary down to one judge—the Chief Justice of the Supreme Court—leaving the Supreme Court virtually powerless. This has never happened, of course, but it should be borne in mind that the Framers of the Constitution gave Congress sufficient power to check an arrogant judiciary.

In the first place, it is Congress, not the Constitution, which creates the Federal Judiciary. Article III, Section 1 provides simply that “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.” By these words, the Supreme Court is the only Federal Court that is required by the Constitution. Congress is free to create whatever lower Federal courts it pleases, and it may even abolish those already in existence. This first occurred in 1801, when the Jeffersonian Republicans abolished a number of Federal district courts that the administration of John Adams had established and packed with loyal Federalist party members.

Having once created the courts, Congress decides how many courts and judges there shall be, where they shall be located, what their salaries and administrative expenses shall be, what their duties shall be, and most importantly, what powers they shall exercise. Congress even has a voice in who shall be appointed to these courts and has sole authority in deciding who shall be removed.

With respect to the number of Federal judges we shall have, and what their qualifications shall be, the Constitution is silent. We know only that there must be a Supreme Court, because it is named in Article III, and that we must have a Chief Justice, because he is specifically mentioned in Article I, Section 3 as the officer who must preside over the impeachment trial of the President. During the course of American history, Congress has authorized as few as five and as many as ten Justices of the Supreme Court. For more than a century the number has remained constant at nine, including the Chief Justice. Today, the number of inferior Federal judges, also determined by statute, exceeds 700.

To protect the independence of the judges, Article III, Section 1 further provides that they shall serve during good behavior, and that Congress may not reduce their salaries while they are in office. The term “good behavior,” inherited from the English Constitution, means—in practical terms—for life or as long as the judge wishes to serve since Federal judges have been removed from office only through the impeachment process. Although a number of inferior Federal judges have been impeached and convicted—the most recent being in 1986—no member of the Supreme Court has ever been removed by this method. Justice Samuel Chase was impeached in 1805, but the Senate failed to convict. However, at least one member of the Supreme Court—Justice Abe Fortas—resigned rather than face impeachment proceedings.

On what grounds may a Federal judge be impeached? The Constitution is not clear on this point. On the one hand, Article II, Section 4 states that “all civil officers” may be removed if they are impeached and convicted of treason, bribery, or other high crimes and misdemeanors. Since Federal judges are civil officers, it would seem to follow that the impeachment clause applies to them. The term “high crimes and misdemeanors” is also vague and undefined. In England, it comprehended criminal conduct as well as that not constituting an indictable offense, such as maladministration or abuse of office. The Senate apparently followed this interpretation during the trials of two Federal judges in this century who were convicted on articles of impeachment which charged them with misconduct that did not amount to a violation of a criminal statute. The argument has been made in other impeachment trials, however, that to be impeachable, the conduct complained of must constitute an indictable offense.

On the other hand, it has also been argued that Federal judges may be removed by means other than impeachment. They serve only during “good behavior,” and it is therefore open to Congress to define “good behavior” and establish a mechanism by which judges may be removed. By this reasoning, Congress could remove Federal judges either by impeachment (for high crimes and misdemeanors) or by some other method (for “bad” behavior). Legislation has frequently been introduced to effect this idea since the 1930s, but it has never passed. All the same, Congress has adopted legislation which authorizes a judicial conference to discipline and incapacitate inferior Federal judges. The Supreme Court has declined to rule on the constitutionality of this procedure, which allegedly conflicts with the separation of powers. Whether Federal judges may be removed by a non-impeachment method is indeed a question of considerable interest that could ultimately place the Supreme Court in the awkward position of having to rule on its own tenure.

By prohibiting Congress from reducing the salaries of Federal judges, the Framers sought to protect them from retribution and revenge for handing down unpopular opinions, and to discourage legislative interference while a case was in progress. An angry Congress bent upon punishing a judge or group of judges financially can at best freeze the salaries of all the judges—an unsatisfactory and indiscriminate means of judicial control that has rarely been advocated. Designed to secure the independence of the judges, the prohibition against the diminution of judicial salaries has presented little controversy or litigation. Congress is also prohibited from reducing the salary of the President while he is in office, but unlike the Judiciary, Congress cannot increase it either.

B.

THE JUDICIAL POWER

The independence of the Judiciary with respect to the powers it exercises is substantially limited, however, by federalism and the check and balance system of the Constitution. Section 1 of Article III states that the “judicial power” of the Federal government shall be vested in the Federal courts, and Section 2 of Article III lists the kinds of cases or controversies in which this power may be exercised. There are nine such classes of cases: (1) Cases arising under the Constitution, under a Federal law, or under a treaty; (2) cases affecting ambassadors, other public ministers, and consuls; (3) cases of admiralty and maritime jurisdiction; (4) controversies between two or more States; (5) controversies between a State and citizens of another State; (6) controversies between citizens of different States; (7) controversies between citizens of the same State claiming land under grants of different States; (8) controversies between a State and a foreign citizen; and (9) controversies between an American citizen and a foreign citizen. Taken literally, Section 2 would seem to say that the judicial power also extends to controversies between a State or citizen thereof and a foreign State. Under established principles of sovereignty and the law of nations, however, a foreign State cannot be sued without its consent. Thus, Mexico would be immune from a suit filed by the State of Texas or a citizen thereof. As a result of the Eleventh Amendment, which shall be examined later, this immunity also works in reverse, and the State of Texas would be immune from a suit filed by a citizen of Mexico.

Another way of understanding what kinds of cases the Federal courts are empowered to hear is to divide them into two categories: (1) the nature of the dispute; (2) the parties to the dispute. Under this first category fall cases arising under the Constitution, a Federal law or treaty, cases arising under admiralty and maritime jurisdiction, and cases involving title to land that is claimed because of land grants of two or more States. The second category, based on the parties to the dispute, covers cases in which the United States government is a party, cases in which a State is a party, cases in which the parties are citizens of different States, and cases that affect foreign ambassadors, ministers, and consuls.

The Constitution speaks of the “judicial power,” but the term is nowhere defined. What did the Framers mean when they conferred the “judicial power” of the United States on the Federal courts? In answering this question, it is important to understand the difference between authority and power. In general, the authority to act is the right to act, whereas the power to act is the capacity to do so. Thus a policeman may have the power or capacity to conduct a search,but whether he has the authority or right to take such action often depends upon whether he has obtained a valid search warrant.

The judicial power, as explained by the Supreme Court, is “the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.” It should not be confused with the “jurisdiction” of a court, which is the authority of a court to exercise “judicial power” in a particular case. If a court lacks jurisdiction over a case, then it cannot exercise judicial power and decide the case. In other words, the scope of the judicial power is limited by the jurisdictional requirement.

A careful reading of Article III of the Constitution reveals that the judicial power is limited in a number of ways. First, it is limited by federalism. The Federal judicial power can be exercised only in certain kinds of cases, not in every conceivable type of dispute that may come before a tribunal. If, for example, one citizen of Kentucky sues another citizen of Kentucky for wrongful injury (tort), the aggrieved party can bring an action to require the other party to pay damages. He would be required to sue in a Kentucky State court, however, because the Federal judicial power does not extend to controversies between citizens of the same State where the dispute involves negligent conduct. As a general rule, therefore, private disputes between citizens of the same State are reserved to the State courts. This is one reason why most cases are decided in the State rather than the Federal courts.

Bearing in mind that there were no national courts under the Articles of Confederation, the Framers were careful to extend the Federal judicial power only to those kinds of cases in which the national interest was at stake, or in those where the States had delegated their powers to the Federal government. These would include cases where a State court decision might interfere with a treaty or the conduct of foreign relations, where it might produce hostility or even armed conflict among the States and disrupt the Union, where uniform rules were needed to facilitate trade and commerce, where the States were unable to act, and where a Federal forum was needed for the convenience of the parties or a just resolution of the dispute. At the risk of oversimplification of these complex matters, it may be said that the judicial power reserved to the States under Article III corresponds roughly to the power reserved to the States elsewhere in the Constitution, and that the Federal judicial power, which is designed to protect the national interest, is derived from and closely relates to the delegated powers of Congress and the powers of the President.

The principle of federalism also serves to limit the Federal judicial power in another way. The fact that the Constitution grants power to the Federal courts in certain types of cases does not, of itself, exclude State courts from exercising concurrent jurisdiction. Congress, as we shall see, is free to make the jurisdiction exclusive or concurrent. Under present law, for example, the Federal courts have exclusive jurisdiction in cases involving patent and copyright laws; but their jurisdiction is concurrent in cases where the parties are citizens of different States. We noted earlier that the State courts would have exclusive jurisdiction in a dispute between two citizens of Kentucky over a case involving personal injury. What is the rule if one of the parties is a citizen of Kentucky and the other party is a citizen of Indiana, in light of the provision in Article III stating that the judicial power shall extend to cases in which the parties are citizens of different States? Congress has decided, by statute, that in diversity of citizenship cases, the case may be decided by the Federal courts or the State courts if the dispute involves more than $10,000, and that if the sum is less, it shall be tried in the State courts.

The power of Congress to regulate and control the Federal courts, it may thus be seen, is formidable. The judicial power is not self-executing and generally may not be exercised unless Congress has enacted a law authorizing Federal courts to take jurisdiction. The Constitution confers the judicial power on the Federal courts, but it is the Congress which confers jurisdiction; and without jurisdiction, a Federal court cannot decide the case. In brief, the responsibility of limiting the power of the Federal Judiciary under our checks and balances system rests primarily with the Congress; and this is accomplished by the second clause of Article III, Section 2, which authorizes Congress to regulate the jurisdiction of the Federal courts.

C.

JURISDICTION

Whereas the first clause of Section 2 in Article III speaks of the judicial power, the second clause refers to jurisdiction: “In all cases affecting Ambassadors, other Public Ministers and Consuls, and those in which a State shall be a Party, the Supreme Court shall have Original Jurisdiction. In all 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.”

This is an important provision of the Constitution deserving careful study. It may be observed at the outset that the Supreme Court shall have two kinds of jurisdiction: original and appellate. Original jurisdiction is the power to hear and decide a case in the first instance. Unlike appellate jurisdiction, it flows directly from the Constitution, is self-executing, and does not depend upon an act of Congress. The Supreme Court’s original jurisdiction is not significant. It applies to only two classes of cases, and it is not exclusive. Since 1789, inferior Federal courts have had concurrent jurisdiction in some instances under these two classes of cases. But Congress cannot increase or decrease the original jurisdiction of the Supreme Court.

The appellate jurisdiction of the Supreme Court, applying to the other classes of cases, authorizes the Court to hear cases on appeal. By statute, the Court has been authorized since 1789 to hear appeals from lower Federal courts and from the highest State courts. The Supreme Court’s appellate jurisdiction is subject to “exceptions and regulations” prescribed by Congress. Noting that this power is complete and unqualified, the Supreme Court has always taken it for granted that Congress could, if it so desired, withhold all appellate jurisdiction, thereby making lower Federal courts or the State supreme courts the courts of last resort. “By the Constitution of the United States,” said the Court in one opinion, “the Supreme Court possesses no appellate power in any case, unless conferred upon it by act of Congress.” In order for a case to come within its appellate jurisdiction, the Court has stated, “two things must concur: the Constitution must give the capacity to take it, and an act of Congress must supply the requisite authority.” Moreover, “it is for Congress to determine how far, within the limits of the capacity of this Court to take, appellate jurisdiction shall be given, and when conferred, it can be exercised only to the extent and in the manner prescribed by law. In these respects it is wholly the creature of legislation.”

The power of Congress to regulate the appellate jurisdiction of the Supreme Court is so broad that in one instance—the case of Ex parte McCardle (1868)—the Congress actually repealed the act which authorized the appeal in the case, thereby withdrawing jurisdiction while the case was being decided. Numerous restrictions on the Court’s appellate jurisdiction have been upheld since the earliest days of the Republic. For a hundred years, for example, Congress refused to provide for a right of appeal to the Supreme Court in Federal criminal cases, except upon a certification of division by the circuit court. By and large, however, the Congress has been extremely reluctant to limit the Court’s jurisdiction, and the general pattern of legislation over the years has reflected a desire to expand rather than decrease it.

Hence, much of the power presently enjoyed by the Supreme Court may be attributed to a friendly Congress. Efforts in Congress, particularly since the Second World War, to withdraw the Court’s jurisdiction in cases involving such controversial issues as abortion and prayer in the public schools have failed to gain majority support. Though Congress has the power, therefore, to strip the Court of all of its appellate jurisdiction, it has never withdrawn a meaningful portion of it. The tendency has been to give the Court almost all of the appellate jurisdiction it can take, and to let the Court retain it once it has been granted. Congressional control of the Federal Judiciary, in other words, is more a question of theory than of practice.

This brings us finally to the jurisdiction of the lower Federal courts. The second clause of Article III, Section 2 refers to the original and appellate jurisdiction of the Supreme Court, but makes no mention of inferior Federal courts. What type of jurisdiction may they possess, and to what extent may Congress regulate their jurisdiction? The answer to these questions lies in the first clause of Article III, Section 2, which authorizes Congress to create such courts. The thought that it would not be necessary to create any inferior courts was expressed in the Philadelphia Convention. Since State judges were bound under Article VI to uphold the supremacy of the Constitution, Federal laws and treaties—irrespective of what their State constitutions might require—the possibility was raised of letting the State courts handle all Federal cases. The first Congress rejected this option, however, in the Judiciary Act of 1789. This legislation organizing the Federal Judiciary, it should be noted, is one of the most important statutes ever enacted by Congress, and provides to this day much of the basic organizational and procedural structure of the Federal judicial system.

The power to create includes the power to destroy, and Congress has always acted under the assumption that it therefore has the lesser power of shaping the jurisdiction of all inferior courts as it sees fit. The Supreme Court has generally sustained this view, and Congress may confer or withhold both original and appellate jurisdiction in the lower Federal courts at its discretion. As the Supreme Court explained in Cary v. Curtis (1845), “the judicial power of the United States, although it has its origin in the Constitution, is (except in enumerated instances applicable exclusively to this court) dependent for its distribution and organization, and for the modes of its exercise, entirely upon the action of Congress, which possesses sole power of creating tribunals (inferior to the Supreme Court), for the exercise of the judicial power, and of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good.”

Over the years, the Congress has determined the times and places for holding court (including the Supreme Court), times of adjournment, appointment of officers, issuance of writs and methods of appeal, and other matters relating to the administration of justice. Congress has also organized the nation into various judicial districts, or circuits as they are called, and today there are eleven such circuits, each encompassing a group of States in a particular region, plus the District of Columbia. Within these circuits are numerous Federal district courts. These are trial courts of original jurisdiction, where juries are used. An appellate court stands at the head of each circuit. Formerly called circuit courts, they are now known as U.S. Courts of Appeal. Most appeals to these courts come from the U.S. district courts. Most appeals to the Supreme Court emanate from the U.S. Courts of Appeal and the State supreme courts.

On the basis of the foregoing discussion, it would seem that the principle of judicial independence under the Constitution applies more to the individual judges than to the judicial branch as such. Members of the Federal bench, in terms of salary and tenure, are virtually immune from legislative or executive control; but the Judiciary itself is subject to far-reaching regulations of the Congress. Thus, the independence of the Judiciary, like the independence of the Congress and the independence of the President, is far from absolute and is generally understood to exist within the separation of powers and checks and balances framework.

In the final analysis, it may be seen that the idea of an independent judiciary went hand-in-hand with the idea of a written Constitution. Federal judges, sworn to uphold the supremacy of the Constitution rather than the supremacy of the legislature, would serve as guardians of the Constitution, protecting it from subversion by the political branches. This they would do through their inherent power, as judges, to interpret and apply laws adopted by Congress and the States. As interpreters, their task was simply to interpret the laws in the light of the Constitution. Although judicial precedents might later serve as a guide to correct interpretation, their ultimate standard, particularly in the early years, was the Constitution itself—its underlying principles, wording, and text.

By this mode of reasoning, Federal judges would have very little discretionary authority. It was not their responsibility to make the law, as that would be done by State and Federal legislatures. It was not their job to execute and enforce the law, for that function would be performed by the Chief Executive. Their sole task was to interpret the laws in cases or controversies presented to them for resolution, to determine the intent and meaning of the laws and weigh them against the intent and meaning of the governing constitutional provisions applicable to the situation. It was to be almost a mechanical function—to “discover” the law of the case, not to make it.

To do this fairly and objectively, it would be necessary to remove the judges from politics and give them independence of action. Through the judges, it was said, the voice of the people sober would speak to the warring factions drunk with power.

Such was the limited role of the Supreme Court envisioned by the Framers. Americans had little to fear, Hamilton assured the nation in The Federalist, from so weak an institution. The members of the Supreme Court would not be free, as the Anti-Federalists charged, to roam at will, invoking their personal biases and secret preferences in the name of some vaguely conceived “spirit” of the Constitution. Nor would they subvert the “common sense” of the Constitution by masking their interpretations in hypertechnicalities. “[T]he natural and obvious sense of its provisions, apart from any technical rules,” said Hamilton, “is the true criterion of construction.”

Writing in Federalist No. 81, Hamilton asserted that “there is not a syllable in the plan under consideration, which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect, than may be claimed by courts of every State.” It was clearly understood “that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of the convention, but from the general theory of a limited constitution.” It would thus seem, he concluded, “that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system.” Should the judges get out of hand, there were ample means through the checks and balances system to restore constitutional government. In the first place, judges could be removed by “the important constitutional check” of impeachment. And in the second place, the Supreme Court’s appellate jurisdiction was subject to legislative control, and “this will enable the government to modify it in such a manner as will best answer the ends of public justice and security.”

SUGGESTED READING

• Henry J. Abraham, The Judicial Process (New York: Oxford University Press, 1980).
• Elizabeth K. Bauer, Commentaries on the Constitution, 1790–1860 (New York: Russell and Russell, 1952).
• Raoul Berger, Government by Judiciary. 2nd ed. (Indianapolis: Liberty Fund, 1997).
• James E. Bond, The Art of Judging (New Brunswick, N. J.: Transaction Books, 1986).
• Robert K. Faulkner, The Jurisprudence of John Marshall (Princeton: Princeton University Press, 1968).
• Charles Hobson, The Great Chief Justice: John Marshall and the Rule of Law (Lawrence: University Press of Kansas, 1996).
• Charles Hyneman, The Supreme Court on Trial (New York: Atherton Press, 1963).
• Charles Hyneman and George W. Carey, A Second Federalist: Congress Creates a Government (Columbia: University of South Carolina Press, 1967).
• David N. Mayer, The Constitutional Thought of Thomas Jefferson (Charlottesville: University of Virginia Press, 1994).
• James McClellan, Joseph Story and the American Constitution (Norman: University of Oklahoma Press, 1971, 1990).
• Gary McDowell, The Constitution and Contemporary Constitutional Theory (Cumberland, Va.: Center for Judicial Studies, 1985).
• Gary McDowell, Curbing the Courts (Baton Rouge: Louisiana State University Press, 1988).
• Gary McDowell, Equity and the Constitution (Chicago: University of Chicago Press, 1982).
• James Madison, The Virginia Report of 1799–1800 (New York: DaCapo Press, 1970).
• R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (Chapel Hill: University of North Carolina Press, 1985).
• Clinton Rossiter, Alexander Hamilton and the Constitution (New York: Harcourt, Brace & World, 1964).
• Ralph Rossum, Congressional Control of the Judiciary: The Article III Option (Cumberland, Va.: Center for Judicial Studies, 1988).
• Joseph Story, Commentaries on the Constitution. 3 vols. (Boston: Hilliard, Gray & Co., 1833). See also Story’s one-volume abridgment of this work, designed for classroom use, entitled A Familiar Exposition of the Constitution of the United States (Washington, D.C.: Regnery Gateway, 1986).
• John Taylor of Caroline, Construction Construed and Constitutions Vindicated (New York: DaCapo Press, 1970).
• Abel P. Upshur, A Brief Enquiry into the True Nature and Character of Our Federal Government (New York: DaCapo Press, 1971).
• Christopher Wolfe, The Rise of Modern Judicial Review (New York: Basic Books, 1986).