Article Three of the United States Constitution

From Wikipedia, the free encyclopedia
Jump to navigation Jump to search

Article Three of the United States Constitution establishes the judicial branch of the federal government. Under Article Three, the judicial branch consists of the Supreme Court of the United States, as well as lower courts created by Congress. Article Three empowers the courts to handle cases or controversies arising under federal law, as well as other enumerated areas. Article Three also defines treason.

Section 1 of Article Three vests the judicial power of the United States in the Supreme Court, as well as inferior courts established by Congress. 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 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.

Section 2 of Article Three delineates federal judicial power. The Case or Controversy Clause restricts the judiciary's power to actual cases and controversies, meaning that federal judicial power does not extend to cases which are hypothetical, or which are proscribed due to standing, mootness, or ripeness issues. Section 2 states that federal judiciary's power extends to cases arising under the Constitution, federal laws, federal treaties, controversies involving multiple states or foreign powers, and other enumerated areas. Section 2 gives the Supreme Court original jurisdiction when ambassadors, public officials, or the states are a party in the case, leaving the Supreme Court with appellate jurisdiction in all other areas to which the federal judiciary's jurisdiction extends. Section 2 also gives Congress the power to strip the Supreme Court of appellate jurisdiction, and establishes that all federal crimes must be tried before a jury. Section 2 does not expressly grant the federal judiciary the power of judicial review, but the courts have exercised this power since the 1803 case of Marbury v. Madison.

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 confesses. It also limits the ways in which Congress can punish those convicted of treason.

Section 1: Federal courts[edit]

Section 1 vests the judicial power of the United States in federal courts, requires a supreme court, allows inferior courts, requires good behavior tenure for judges, and prohibits decreasing the salaries of judges.


Number of courts[edit]

Article III authorizes one Supreme Court, but does not set the number of justices that must be appointed to it. Article I, Section 3, Clause 6 refers to a Chief Justice (who shall preside over the impeachment trial of the President of the United States). Since 1869 the number of justices has been fixed at nine (by the Judiciary Act of 1869): one chief justice, and eight associate justices.[1]

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. However, 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."[2]

The Supreme Court is the only federal court that is explicitly established by the Constitution. During the Constitutional Convention, a proposal was made for the Supreme Court to be the only federal court, having both original jurisdiction and appellate jurisdiction. This proposal was rejected in favor of the provision that exists today. Under this provision, the Congress may create inferior (i.e., lower) courts under both Article III, Section 1, and Article I, Section 8. The Article III courts, which are also known as "constitutional courts", were first created by the Judiciary Act of 1789, and are the only courts with judicial power. Article I courts, which are also known as "legislative courts", consist of regulatory agencies, such as the United States Tax Court.

In certain types of cases, Article III courts may exercise appellate jurisdiction over Article I courts. In Murray's Lessee v. Hoboken Land & Improvement Co. (59 U.S. (18 How.) 272 (1856)), the Court held that "there are legal matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them," and which are susceptible to review by an Article III court. Later, in Ex parte Bakelite Corp. (279 U.S. 438 (1929)), the Court declared that Article I courts "may be created as special tribunals to examine and determine various matters, arising between the government and others, which from their nature do not require judicial determination and yet are susceptible of it."[2] Other cases, such as bankruptcy cases, have been held not to involve judicial determination, and may therefore go before Article I courts. Similarly, several courts in the District of Columbia, which is under the exclusive jurisdiction of the Congress, are Article I courts rather than Article III courts. This article was expressly extended to the United States District Court for the District of Puerto Rico by the U.S. Congress through Federal Law 89-571, 80 Stat. 764, signed by President Lyndon B. Johnson in 1966. This transformed the article IV United States territorial court in Puerto Rico, created in 1900, to an Article III federal judicial district court.

The Judicial Procedures Reform Bill of 1937, frequently called the court-packing plan,[3] was a legislative initiative to add more justices to the Supreme Court proposed by President Franklin D. Roosevelt shortly after his victory in the 1936 presidential election. Although the bill aimed generally to overhaul and modernize the entire federal court system, its central and most controversial provision would have granted the President power to appoint an additional justice to the Supreme Court for every incumbent justice over the age of 70, up to a maximum of six.[4]

The Constitution is silent when it comes to judges of courts which have been abolished. The Judiciary Act of 1801 increased the number of courts to permit the Federalist President John Adams to appoint a number of Federalist judges before Thomas Jefferson took office. When Jefferson became President, the Congress abolished several of these courts and made no provision for the judges of those courts. The Judicial Code of 1911 abolished "circuit riding" and transferred the circuit courts authority and jurisdiction to the district courts.


The Constitution provides that judges "shall hold their Offices during good Behavior." The term "good behavior" 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,[5] George W. English,[6] and Samuel B. Kent,[7] chose to resign rather than go through the impeachment process.


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[edit]

Section 2 delineates federal judicial power, and brings that power into execution by conferring original jurisdiction and also appellate jurisdiction upon the Supreme Court. Additionally, this section requires trial by jury in all criminal cases, except impeachment cases.




Clause 1: Cases and controversies[edit]

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 about that, 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[edit]

In Chisholm v. Georgia, 2 U.S. 419 (1793), the Supreme Court ruled that Article III, Section 2 abrogated the States' sovereign immunity and authorized federal courts to hear disputes between private citizens and States. This decision was overturned by the Eleventh Amendment, which was passed by the Congress on March 4, 1794 1 Stat. 402 and ratified by the states on February 7, 1795. It prohibits the federal courts from hearing "any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State".[8]

Clause 2: Original and appellate jurisdiction[edit]

Clause 2 of Section 2 provides that the Supreme Court has original jurisdiction in cases affecting ambassadors, ministers and consuls, and also in those controversies which are subject to federal judicial power because at least one state is a party; the Court has held that the latter requirement is met if the United States has a controversy with a state.[9][10] In other cases, the Supreme Court has only appellate jurisdiction, which may be regulated by the Congress. The Congress may not, however, amend the Court's original jurisdiction, as was found in Marbury v. Madison, 5 U.S. (Cranch 1) 137 (1803) (the same decision which established the principle of judicial review). Marbury held that Congress can neither expand nor restrict the original jurisdiction of the Supreme Court. However, the appellate jurisdiction of the Court is different. The Court's appellate jurisdiction is given "with such exceptions, and under such regulations as the Congress shall make."

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".[11][12]

Judicial review[edit]

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.[13]

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,


Others, however, disagreed, claiming that each branch could determine for itself the constitutionality of its actions.

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:



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:


Clause 3: Federal trials[edit]

A nineteenth-century painting of a jury.

Clause 3 of Section 2 provides that Federal crimes, except impeachment cases, must be tried before a jury, unless the defendant waives his 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.[16]

Two of the Constitutional Amendments that comprise the Bill of Rights contain related provisions. The Sixth Amendment enumerates the rights of individuals when facing criminal prosecution and the Seventh Amendment establishes an individual's right to a jury trial in certain civil cases. It also inhibits courts from overturning a jury's findings of fact. The Supreme Court has extended the protections of these amendments to individuals facing trial in state courts through the Due Process Clause of the Fourteenth Amendment.

Section 3: Treason[edit]

Iva Toguri, known as Tokyo Rose, and Tomoya Kawakita were two Japanese Americans who were tried for treason after World War II.

Section 3 defines treason and its punishment.




Under English law effective during the ratification of the U.S. Constitution, there were essentially five species of treason.[citation needed] Of the five, 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.[18]

In Federalist No. 43 James Madison wrote regarding the Treason Clause:


Based on the above quotation, it was noted by the lawyer William J. Olson in an amicus curiae in the case Hedges v. Obama that the Treason Clause was one of the enumerated powers of the federal government.[19] He also stated that by defining treason in the U.S. Constitution and placing it in Article III "the founders intended the power to be checked by the judiciary, ruling out trials by military commissions. As James Madison noted, the Treason Clause also was designed to limit the power of the federal government to punish its citizens for 'adhering to [the] enemies [of the United States by], giving them aid and comfort.'"[19]

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.[20]



See also[edit]


  1. ^ "Landmark Legislation: Circuit Judgeships". Washington, D.C.: Federal Judicial Center. Retrieved September 1, 2018.
  2. ^ 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.
  4. ^ "Feb 05, 1937: Roosevelt announces "court-packing" plan". This Day in History. A&E Networks. Retrieved September 1, 2018.
  5. ^ "Judges of the United States Courts – Delahay, Mark W." Federal Judicial Center. n.d. Retrieved 2009-07-02.
  6. ^ staff (n.d.). "Judges of the United States Courts – English, George Washington". Federal Judicial Center. Retrieved 2009-07-02.
  7. ^ "Judges of the United States Courts – Kent, Samuel B." Federal Judicial Center. n.d. Retrieved 2009-07-02.
  8. ^ "Annotation 1 – Eleventh Amendment – State Immunity". FindLaw. Retrieved May 4, 2013.
  9. ^ 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).
  10. ^ 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."
  11. ^ 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 ..."
  12. ^ 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).
  13. ^ "The Establishment of Judicial Review". Findlaw.
  14. ^ a b c "The Federalist Papers : No. 78". Archived from the original on 29 October 2006. Retrieved 2006-10-28.
  16. ^ U.S. Constitution, Art. I, sec. 3
  17. ^ Bollman, at 126
  18. ^ Story, J. (1833) Commentaries sec. 1793
  20. ^ This rule was abolished in the United Kingdom in 1945.
  21. ^ Cramer, at 34



External links[edit]