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An Independent Branch
Federal Supremacy and Judicial Review

The Constitution has much to say about Congress and the president, but relatively little about the Supreme Court. Articles I and II set out in considerable length the powers and prerogatives of the legislature and the executive branch, while Article III simply sketches the outline of a federal judiciary. One scholar, Julius Goebel Jr., suggests that at least for some delegates to the Constitutional Convention, “provision for a national judiciary was a matter of theoretical compulsion rather than of practical necessity … more in deference to the maxim of separation [of powers] than in response to clearly formulated ideas about the role of a national judicial system and its indispensability.” [6] With little discussion and even less debate, the convention approved the following: “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.”

Article II provides that the president appoint the members of the Supreme Court with the advice and consent of the Senate and that judges, along with all other civil officers of the national government, “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Article III, Section 1, provides that federal judges will hold their posts during “good Behaviour” and that their salaries may not be diminished during their terms in office. Section 2 describes the reach of federal judicial power. Some types of cases were included because of their subject matter—“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 … all Cases of admiralty and maritime Jurisdiction.” Others were included because of the status of the parties involved—“all Cases affecting Ambassadors, other public Ministers and Consuls; … Controversies to which the United States shall be a Party; … Controversies between two or more States.” The Supreme Court would have original jurisdiction—the power to hear initial arguments—in cases involving foreign dignitaries and in those involving states. In all other cases, the Court′s jurisdiction would be appellate, meaning that it would hear appeals from rulings of lower courts.

There ended the Constitution′s description of the nation′s judicial branch. The remaining sections of Article III deal with jury trials, the place of trials, and the crime of treason. The brevity of the constitutional description left to Congress and to the Court the task of filling in much of the substance and all of the details of the new judicial system. One early observer commented, “The convention has only crayoned in the outlines. It is left to Congress to fill up and colour the canvas.” [7]

An Independent Branch

The Articles of Confederation had not provided for a system of national courts, but the concept of a separate and relatively independent judiciary was generally accepted by the delegates to the Constitutional Convention. At the time of the adoption of Article III, six of the original thirteen states had such judicial branches. [8] There was some debate over the need for inferior federal courts. Some delegates argued that state courts were adequate to handle all judicial business other than that which the Supreme Court would consider. That debate was resolved by leaving the final decision to Congress. Delegates also disagreed over whether Congress or the president should appoint the members of the Supreme Court and whether the Court should try impeachments. A compromise resulted in giving the president the power to name the Court′s members but with the advice and consent of the Senate, the same body given the power to try impeachments. To safeguard judicial independence, the good behavior and salary provisions were added. Alexander Hamilton wrote of this in the Federalist Papers:

The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws. [9]

By providing for impeachment of judges, Hamilton wrote, the Constitution ensured their responsible conduct. [10]

Federal Supremacy and Judicial Review

Neither the separateness nor the independence of the Supreme Court is unique. The most notable and peculiar of its characteristics is its power of judicial review—the power to review and nullify state and federal laws that collide with the Constitution. The need for judicial review grew out of the convention′s adoption, in Article VI, of the following declaration

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Article VI also states that all officials of the national and state governments are to take an oath to support the Constitution. Left unsaid—again—was who would enforce the provisions and prescriptions of the Constitution if an official chose to ignore that oath. Insofar as state actions were concerned, Congress remedied the omission with passage of the Judiciary Act of 1789, which gives the Supreme Court the power to review rulings of state courts rejecting claims that state laws or actions conflict with the Constitution, federal laws, or treaties. It also specified that the Supreme Court consist of a chief justice and five associate justices, meeting twice each year, in February and in August. This provision for judicial review of state rulings was contained in Section 25, which would become the subject of much criticism and many efforts at repeal over the subsequent three decades.

Congress did not, however, grant the Supreme Court the power of judicial review over acts of Congress, and the Constitution does not address this aspect of the Court′s power. Rather, in 1803 the Court simply claimed this role for itself. [11] In Marbury v. Madison (1803) the Court struck down a portion of the same Judiciary Act of 1789 that granted it the power to review state court rulings. [12] The offending section, wrote Chief Justice Marshall, purported to enlarge the original jurisdiction of the Court—something Congress had no power to do. Marbury v. Madison sparked a long and sometimes intense scholarly debate over whether the Court was undertaking a role the framers of the Constitution intended it to fill or was usurping power that it was never intended to possess. Today the Court′s power to review acts of Congress is firmly established and has never been seriously challenged.

“Where the will of the legislature … stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter.” — Alexander Hamilton, The Federalist Papers (Source: Library of Congress.)

Most scholars think that the members of the Constitutional Convention intended the Court to exert this power. They point to various remarks during the convention debates and during the ratification conventions in the states as indicating that many members of the convention simply assumed that the Supreme Court would have this power. The most enduring of the arguments of this early period are those set out by Alexander Hamilton in the Federalist Papers. [13] Hamilton reasoned that this function of the Court was essential to the existence of a limited constitutional government. The federal courts, he thought, would serve as “bulwarks of a limited Constitution.” [14] After his often-quoted description of the judicial branch as “incontestably … beyond comparison the weakest of the three departments of power,” Hamilton continued:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. [15]

Hamilton rejected the argument that to allow the Court to declare acts of Congress invalid would elevate the “weakest branch” to a position superior to that of Congress:

[E]very act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm … that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid… .

… [T]he courts were designed to be an intermediate body between the people and the legislature in order, among other things, to keep the latter within the limits assigned to their authority. 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 the 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.

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. [16]


Document Citation
1 David G. Savage, Foundations of the Court, in Guide to the U.S. Supreme Court 4-6 (5th ed., 2011),
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