Article Three of the United States Constitution
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Article Three of the
Section 1 of Article Three vests the judicial power of the United States in "one supreme Court", as well as "inferior courts" established by Congress. Section 1 authorizes the creation of inferior courts, but does not require it; the first inferior federal courts were established shortly after the ratification of the Constitution with the Judiciary Act of 1789. Section 1 also establishes that federal judges do not face term limits, and that an individual judge's salary may not be decreased. Article Three does not set the size of the Supreme Court or establish specific positions on the court, but Article One establishes the position of chief justice. Along with the Vesting Clauses of Article One and Article Two, Article Three's Vesting Clause establishes the separation of powers between the three branches of government.
Section 2 of Article Three delineates federal judicial power. The
Section 3 of Article Three defines treason and empowers Congress to punish treason. Section 3 requires that at least two witnesses testify to the treasonous act, or that the individual accused of treason confess in open court. It also limits the ways in which Congress can punish those convicted of treason.
Background
Unlike the
Section 1: Federal courts
Section 1 is one of the three
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.
The Committee of Detail report reads slightly differently:[2][3]
"The Judicial Power of the United States shall be vested in one supreme Court, and in such Inferior Courts as shall, when necessary, from time to time, be constituted by the Legislature of the United States".
Clause 1: Vesting of judicial power and number of courts
Article III authorizes one Supreme Court, but does not set the number of justices that must be appointed to it. Article One, Section 3, Clause 6 refers to a "Chief Justice" (who shall preside over the impeachment trial of the President of the United States). Since the Judiciary Act of 1869 was enacted, the number of justices has been fixed at nine: one chief justice, and eight associate justices.[4]
Proposals have been made at various times for organizing the Supreme Court into separate panels; none garnered wide support, thus the constitutionality of such a division is unknown. In a 1937 letter (to Senator Burton Wheeler during the Judicial Procedures Reform Bill debate), Chief Justice Charles Evans Hughes wrote, "the Constitution does not appear to authorize two or more Supreme Courts functioning in effect as separate courts."[5]
The Supreme Court is the only
In certain types of cases, Article III courts may exercise appellate jurisdiction over Article I courts. In
The
The Constitution is silent when it comes to judges of courts which have been abolished. The
Clause 2: Tenure
The Constitution provides that judges "shall hold their Offices during good Behaviour." The term "good behaviour" is interpreted to mean that judges may serve for the remainder of their lives, although they may resign or retire voluntarily. A judge may also be removed by impeachment and conviction by congressional vote (hence the term good behavior); this has occurred fourteen times. Three other judges, Mark W. Delahay,[8] George W. English,[9] and Samuel B. Kent,[10] chose to resign rather than go through the impeachment process.
Clause 3: Salaries
The compensation of judges may not be decreased, but may be increased, during their continuance in office.
Section 2: Judicial power, jurisdiction, and trial by jury
Section 2 delineates federal judicial power, and brings that power into execution by conferring
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the 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.
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.
Clause 1: Cases and controversies
Clause 1 of Section 2 authorizes the federal courts to hear actual cases and controversies only. Their judicial power does not extend to cases which are hypothetical, or which are proscribed due to standing, mootness, or ripeness issues. Generally, a case or controversy requires the presence of adverse parties who have a genuine interest at stake in the case. In Muskrat v. United States, 219 U.S. 346 (1911), the Supreme Court denied jurisdiction to cases brought under a statute permitting certain Native Americans to bring suit against the United States to determine the constitutionality of a law allocating tribal lands. Counsel for both sides were to be paid from the federal Treasury. The Supreme Court held that, though the United States was a defendant, the case in question was not an actual controversy; rather, the statute was merely devised to test the constitutionality of a certain type of legislation. Thus the Court's ruling would be nothing more than an advisory opinion; therefore, the court dismissed the suit for failing to present a "case or controversy."
A significant omission is that although Clause 1 provides that federal judicial power shall extend to "the laws of the United States," it does not also provide that it shall extend to the laws of the several or individual states. In turn, the Judiciary Act of 1789 and subsequent acts never granted the U.S. Supreme Court the power to review decisions of state supreme courts on pure issues of state law. It is this silence which tacitly made state supreme courts the final expositors of the common law in their respective states. They were free to diverge from English precedents and from each other on the vast majority of legal issues which had never been made part of federal law by the Constitution, and the U.S. Supreme Court could do nothing, as it would ultimately concede in Erie Railroad Co. v. Tompkins (1938). By way of contrast, other English-speaking federations like Australia and Canada never adopted the Erie doctrine. That is, their highest courts have always possessed plenary power to impose a uniform nationwide common law upon all lower courts and never adopted the strong American distinction between federal and state common law.
Eleventh Amendment and state sovereign immunity
In
Clause 2: Original and appellate jurisdiction
Clause 2 of Section 2 provides that the Supreme Court has
Often a court will assert a modest degree of power over a case for the threshold purpose of determining whether it has jurisdiction, and so the word "power" is not necessarily synonymous with the word "jurisdiction".[14][15]
Judicial review
The power of the federal judiciary to review the constitutionality of a statute or treaty, or to review an administrative regulation for consistency with either a statute, a treaty, or the Constitution itself, is an implied power derived in part from Clause 2 of Section 2.[16]
Though the Constitution does not expressly provide that the federal judiciary has the power of judicial review, many of the Constitution's Framers viewed such a power as an appropriate power for the federal judiciary to possess. In Federalist No. 78, Alexander Hamilton wrote,
The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.[17]
Hamilton goes on to counterbalance the tone of "judicial supremacists," those demanding that both Congress and the Executive are compelled by the Constitution to enforce all court decisions, including those that, in their eyes, or those of the People, violate fundamental American principles:
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.[17] It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgement, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.[17]
Marbury v. Madison involved a highly partisan set of circumstances. Though Congressional elections were held in November 1800, the newly elected officers did not take power until March. The Federalist Party had lost the elections. In the words of President Thomas Jefferson, the Federalists "retired into the judiciary as a stronghold". In the four months following the elections, the outgoing Congress created several new judgeships, which were filled by President John Adams. In the last-minute rush, however, Federalist Secretary of State John Marshall had neglected to deliver 17 of the commissions to their respective appointees. When James Madison took office as Secretary of State, several commissions remained undelivered. Bringing their claims under the Judiciary Act of 1789, the appointees, including William Marbury, petitioned the Supreme Court for the issue of a writ of mandamus, which in English law had been used to force public officials to fulfill their ministerial duties. Here, Madison would be required to deliver the commissions.
Marbury posed a difficult problem for the court, which was then led by Chief Justice John Marshall, the same person who had neglected to deliver the commissions when he was the Secretary of State. If Marshall's court commanded James Madison to deliver the commissions, Madison might ignore the order, thereby indicating the weakness of the court. Similarly, if the court denied William Marbury's request, the court would be seen as weak. Marshall held that appointee Marbury was indeed entitled to his commission. However, Justice Marshall contended that the Judiciary Act of 1789 was unconstitutional, since it purported to grant original jurisdiction to the Supreme Court in cases not involving the States or ambassadors[citation needed]. The ruling thereby established that the federal courts could exercise judicial review over the actions of Congress or the executive branch.
However, Alexander Hamilton, in Federalist No. 78, expressed the view that the Courts hold only the power of words, and not the power of compulsion upon those other two branches of government, upon which the Supreme Court is itself dependent. Then in 1820, Thomas Jefferson expressed his deep reservations about the doctrine of judicial review:
You seem ... to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps ... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.[18]
Clause 3: Federal trials
Clause 3 of Section 2 provides that Federal crimes, except impeachment cases, must be tried before a jury, unless the defendant waives their right. Also, the trial must be held in the state where the crime was committed. If the crime was not committed in any particular state, then the trial is held in such a place as set forth by the Congress. The United States Senate has the sole power to try impeachment cases.[19]
Two of the Constitutional Amendments that comprise the
Section 3: Treason
Section 3 defines treason and limits its punishment.
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
The Constitution defines treason as specific acts, namely "levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort." A contrast is therefore maintained with the English law, whereby crimes including conspiring to kill the King or "violating" the Queen, were punishable as treason. In
Under English law effective during the ratification of the U.S. Constitution, there were several species of treason. Of these, the Constitution adopted only two: levying war and adhering to enemies. Omitted were species of treason involving encompassing (or imagining) the death of the king, certain types of counterfeiting, and finally fornication with women in the royal family of the sort which could call into question the parentage of royal successors. James Wilson wrote the original draft of this section, and he was involved as a defense attorney for some accused of treason against the Patriot cause. The two forms of treason adopted were both derived from the English Treason Act 1351. Joseph Story wrote in his Commentaries on the Constitution of the United States of the authors of the Constitution that:
they have adopted the very words of the Statute of Treason of Edward the Third; and thus by implication, in order to cut off at once all chances of arbitrary constructions, they have recognized the well-settled interpretation of these phrases in the administration of criminal law, which has prevailed for ages.[21]
In Federalist No. 43 James Madison wrote regarding the Treason Clause:
As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it. But as new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other, the convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author.
Based on the above quotation, it was noted by the lawyer William J. Olson in an
Section 3 also requires the testimony of two different witnesses on the same overt act, or a confession by the accused in open court, to convict for treason. This rule was derived from another English statute, the Treason Act 1695.[23] The English law did not require both witnesses to have witnessed the same overt act; this requirement, supported by Benjamin Franklin, was added to the draft Constitution by a vote of 8 states to 3.[24]
In
Punishment for treason may not "work Corruption of Blood, or Forfeiture except during the Life of the Person" so convicted. The descendants of someone convicted for treason could not, as they were under English law, be considered "tainted" by the treason of their ancestor.
See also
References
- ISBN 9781543838794.
- ^ Proof Copy of the Committee of Detail Report, August 4-5 1787
- ^ Engdahl, David E. (1991). "What's in a Name? The Constitutionality of Multiple "Supreme" Courts". Indiana Law Journal. 66 (2): 475.
- ^ "Landmark Legislation: Circuit Judgeships". Washington, D.C.: Federal Judicial Center. Retrieved September 1, 2018.
- ^ a b "Constitution of the United States of America: Analysis, and Interpretation – Centennial Edition – Interim" (PDF). S. Doc. 112-9. Washington, D.C.: U.S. Government Printing Office. p. 639. Retrieved September 1, 2018.
- ISBN 978-1-933116-81-5., at 451.
- ^ "Feb 05, 1937: Roosevelt announces "court-packing" plan". This Day in History. A&E Networks. Retrieved September 1, 2018.
- ^ "Judges of the United States Courts – Delahay, Mark W." Federal Judicial Center. n.d. Retrieved July 2, 2009.
- ^ staff (n.d.). "Judges of the United States Courts – English, George Washington". Federal Judicial Center. Retrieved July 2, 2009.
- ^ "Judges of the United States Courts – Kent, Samuel B." Federal Judicial Center. n.d. Retrieved July 2, 2009.
- ^ "Annotation 1 – Eleventh Amendment – State Immunity". FindLaw. Retrieved May 4, 2013.
- ^ United States v. Texas, 143 U.S. 621 (1892). A factor in United States v. Texas was that there had been an "act of congress requiring the institution of this suit". With a few narrow exceptions, courts have held that Congress controls access to the courts by the United States and its agencies and officials. See, e.g., Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122 ("Agencies do not automatically have standing to sue for actions that frustrate the purposes of their statutes"). Also see United States v. Mattson, 600 F. 2d 1295 (9th Cir. 1979).
- ^ Cohens v. Virginia, 19 U.S. 264 (1821): "[T]he original jurisdiction of the Supreme court, in cases where a state is a party, refers to those cases in which, according to the grant of power made in the preceding clause, jurisdiction might be exercised, in consequence of the character of the party."
- Cover, Robert. Narrative, Violence and the Law (U. Mich. 1995): "Every denial of jurisdiction on the part of a court is an assertion of the power to determine jurisdiction ..."
- ^ Di Trolio, Stefania. "Undermining and Unintwining: The Right to a Jury Trial and Rule 12(b)(1) Archived July 5, 2011, at the Wayback Machine", Seton Hall Law Review, Volume 33, page 1247, text accompanying note 82 (2003).
- Findlaw.
- ^ a b c "The Federalist Papers : No. 78". Archived from the original on October 29, 2006. Retrieved October 28, 2006.
- ^ Jefferson, Thomas. The Writings of Thomas Jefferson, Letter to William Jarvis (September 28, 1820).
- ^ U.S. Constitution, Art. I, sec. 3
- ^ Bollman, at 126
- ^ Story, J. (1833) Commentaries sec. 1793
- ^ a b Olson, William J. (April 16, 2012). "Case 1:12-cv-00331-KBF Document 29-2 Filed 04/16/12 AMICUS CURIAE BRIEF" (PDF). Friedman, Harfenist, Kraut & Perlstein, PPC. lawandfreedom.com. pp. 15–16.
- ^ This rule was abolished in the United Kingdom in 1945.
- ^ Madison, James (1902) The Writings of James Madison, vol. 4, 1787: The Journal of the Constitutional Convention, Part II (edited by G. Hunt), pp. 249–250
- ^ Cramer, at 34
Bibliography
- ISBN 978-0-14-303738-5.
External links
- CRS Annotated Constitution: Article 3, law.cornell.edu