Article III, Section 1 says: “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.”

I must admit that, when reading the U.S. Constitution (which I do frequently!), I read the myriad of details related to the legislative branch (Article I) and the somewhat less detailed description of the executive branch (Article II) and then I get to Article III, the judicial branch, but it almost seems that the delegates were exhausted and resorted to “one supreme Court” and then gave a nod to Congress, the power of the people, with a note that the elected delegates could create “such inferior Courts” as needed. DONE!

While that’s not exactly an accurate historical interpretation, one does sense that the delegates had strong opinions about what they wanted in a lawmaking body and what they did not want in an executive, but they were a bit less certain about how to create a court system. While they had English courts as a roadmap and a well-developed English Common Law tradition, the Brits did not have a written constitution, so, especially in the realm of the courts, they had a less firm grasp on structure and protocol. (Interestingly, the English did have a written Bill of Rights, 1689, signed by William III and Mary II, and that document will become important during the ratification debates.)

How should they proceed?

The states had court systems, but the Framers knew they could not leave the critical conflicts to the states, as each was governed by its own self-interests. If conflicts arose between the national government and the states, the final decision might vary from state to state, and that would not create a workable solution. Obviously, there had to be some type of national court system, and since many of the delegates to the Constitutional Convention were lawyers, they were able to debate and then compromise on the best design for a judicial system.

Today, citizens often argue about the power of the federal courts to dictate policy and evaluate the work of the other two branches, but Madison’s notes demonstrate that the judicial compromise was actually more easily reached than the two earlier articles.

They decided that:

• All criminal cases would be decided by a jury. They believed that a “jury of one’s peers” would not only administer justice more fairly but it would check the power of the government, i.e., an appointed judge.

• How could a judge render an impartial decision if he (or later, she) had to campaign for office? Politics and judicial decision-making seemed to be at odds since the judge needed to be free from the influence of political leaders and ideologies.

• Federal judges would be nominated by the president and the nomination would then be ratified by the Senate.

• In another attempt to lessen the political influence, federal judges would be appointed for life “during good behavior.” They could only be removed from office by the impeachment process for “treason, bribery, or other high crimes and misdemeanors.” (What exactly are high crimes and misdemeanors? Goodness gracious, understanding that clause still results in lengthy legal discussions among scholars.)

• The Framers decided that the judicial branch of the federal government would be charged with deciding conflicts between state governments and conflicts involving the national government.

• And then, in a brilliant stroke of insight, the federal courts were given the authority to handle two different types of cases: original jurisdiction and appellate jurisdiction. WOW! If a case went directly to the U.S. Supreme Court — say Tennessee and Georgia are in a fight over water rights — the ensuing lawsuit could be one of original jurisdiction. If a case originated in the lower federal courts but the decision was not accepted by both parties, it could be appealed to the U.S. Supreme Court — hence, appellate jurisdiction.

• What about judicial review? Madison’s notes do not contain detailed information about the issue of judicial review or the idea that the courts had the power to review actions of the executive or legislative branch and determine if those actions were within the prescribed powers authorized by the Constitution. It appears that some of the Framers “assumed” the federal courts would have that power, while others were hesitant to give that power to federal judges who were not easily held accountable by the citizens/voters. The decision regarding judicial review would be decided by the Supreme Court and Chief Justice John Marshall in 1803. We’ll revisit judicial review in a few weeks.

Join me next week as we finalize the other articles and then prepare for ratification by the states. Who doesn’t love a good argument?!