I. Federal Judicial System

THE HISTORY OF THE U.S. CONSTITUTION:

Perhaps the most important legal document ever written, the U.S. Constitution is the heart and soul of the experiment known as the United States of America.

The preamble, which has no legal applicability, is nevertheless important. It sets out the goals and aspirations of what the Framers of the Constitution were hoping to accomplish during the summer of 1787. It reads: “We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

The U.S. Constitution was proposed, debated and written between May 14 and September 17, 1787 at a convention held in the city of Philadelphia. Every state sent delegates to this convention except for the state of Rhode Island. It was ratified on June 21, 1788 when New Hampshire became the ninth and last state needed to ratify the new Constitution. So, what were the circumstances and events that brought 12 of 13 states to Philadelphia in 1787 resulting in a this new Constitution and thereby creating this new form of government?

THE REVOLUTIONARY WAR:

While most of us have a basic understanding of the Revolutionary War also known as the American Revolution, it cannot be overstated how much influence that war had on the formation of our Constitution and new form of government that ensued. The war started in 1775 and effectively was over by 1781 after the Continental Army defeated the British at Yorktown with French assistance. The fighting formally ended in 1783.

The war started due to growing tensions between the British and the 13 colonies. The British were continuing to raise taxes on the colonists while at the same time denying them representation. Violence between the British and the colonists started in 1770 with the Boston Massacre which resulted in 5 colonists killed by British soldiers. In 1773 a group of Bostonians dressed as Mohawk Indians dumped 342 chests of tea into the Boston Harbor. Shortly thereafter, the 13 American colonies created a Continental Congress. Their first meeting in 1774 in Philadelphia was to air their grievances with the British crown. By their second meeting in 1775, they voted to create the Continental Army with George Washington as the Commander in Chief. By July 4, 1776, they adopted the Declaration of Independence, a document written by a 5-man committee including Benjamin Franklin and John Adams but written primarily by Thomas Jefferson. The American Revolution was underway.

THE ARTICLES OF CONFEDERATION:

The first Constitution was actually the Articles of Confederation. The Continental Congress felt the need to create a central government due to the war. Six different drafts of the Articles of Confederation were presented to the Congress as early as 1775. The Congress adopted the final version in 1777 but they did not go into effect until 1781.

The Articles of Confederation defined itself as “a firm league of friendship” of states “for their common defence, the security of their liberties, and their mutual and general welfare.” It had a unicameral congress; in other words, one body. Each state had one member elected by that state’s legislature. Each state retained their “sovereignty, freedom and independence.” The new Congress could not levy taxes and could not regulate commerce. The Congress lacked sole control over foreign relations. While it had the authority to maintain an army and navy, it lacked the ability to collect revenue to do so. Nine states created their own armies and several had their own navies. States created their own money. States were imposing tariffs randomly on goods and the Congress had no power to stop any of this.

The Articles of Confederation was effectively an alliance or treaty between the 13 colonies and it was not very effective. By 1787, without the ability to raise revenue with taxes, it was clear that maintaining a national army and navy was impossible. There was no consistent national economic policy and the economy in general was in trouble. A convention was convened to meet in Philadelphia on May 14th, 1787 to address these issues and amend the Articles of Confederation. Twelve of the thirteen states sent delegates to the convention. Rhode Island was the sole holdout. Long known for fierce independence, the citizens of Rhode Island feared the convention would lead to a stronger, more centralized government which was an idea they vehemently opposed; therefore, they refused to participate.

THE CONSTITUTIONAL CONVENTION:

The meeting was to start on May 14th but travel was difficult and many arrived late. Almost all of the delegates had taken part in the Revolution. Twenty-nine of the fifty-four in attendance had served in the Continental forces. Over half were trained as attorneys. About 80% of them served in the Congress. Almost all had political experience. Twenty-five of them owned slaves. Most were landowners with wealth. For example, George Washington, who was in attendance, was one of the wealthiest men in the country.

Several important Founders were not in attendance. Thomas Jefferson was serving as the minister to France. He was not in favor of this convention. John Adams was serving as the minister to Britain. He was in favor of this convention and expressed such in writings to the delegates. John Hancock and Samuel Adams were absent. Patrick Henry did not attend stating he “smelt a rat in Philadelphia, tending toward monarchy.”

However, there were important Founders in attendance. As mentioned above, George Washington was in attendance as was Benjamin Franklin. Also in attendance was James Madison who eventually would become known as the father of our Constitution. Washington’s attendance was crucial since he was a national hero and leader, giving credibility to the convention. But Madison was perhaps the most prepared delegate. He was determined not to amend the Articles of Confederation but to create an entirely new government. He was one of the first to arrive and he kept copious notes during the entire convention. As one of the delegates from Virginia, Madison presented to the convention delegates what is known as the Virginia Plan.

WHAT IS THE VIRGINIA PLAN?

The Virginia plan proposed three separate branches of government; legislative, executive and judicial. It proposed separation of powers between these three branches with checks and balances built in. It proposed a bicameral legislature which meant a legislative branch of government consisting of two chambers. Representation would be based on the number of free inhabitants in each state. Thus, it favored larger states. Overall, it reflected a strong national form of government.

WHAT IS THE NEW JERSEY PLAN?

After the Virginia Plan was proposed, William Paterson from New Jersey proposed a rebuttal plan that favored smaller states like New Jersey. Under the New Jersey Plan, the legislature would remain unicameral with one vote per state, as was already the case under the Articles of Confederation. This plan also advocated for the belief that states were independent entities that remained so even upon agreement to join the United States of America.

WHAT IS THE PINCKNEY PLAN?

Proposed by Charles Pinckney of South Carolina, it advanced a bicameral legislature with a House of Delegates and a Senate. The House of Delegates would have one member for each 1,000 inhabitants of a state. The House would then elect Senators who would serve four terms in rotation with Senators representing one of four regions of the country. The House would then meet to elect a President and appoint the cabinet members. The Congress would also serve as a court of appeal to resolve disputes between the states. The plan also called for a federal court system. While resembling the Virginia plan in many respects, Pinckney did not have a coalition of support behind him as Madison did and his plan was not even debated by the delegates.

WHAT IS HAMILTON’S PLAN?

Proposed by Alexander Hamilton, this plan advocated for doing away with state sovereignty and consolidation into one nation. It called for a bicameral legislature with one chamber’s members elected by the people for three year terms and the other chamber’s members elected by electors chosen by the people, with lifetime terms. It provided for an executive elected by electors who would also have a lifetime term. While well thought out, it was felt by the delegates to be too much a resemblance of the British system and therefore a non-starter.

WHICH PLAN PREVAILED?

Ultimately, our current Constitution resembles more of the Virginia Plan proposed by James Madison than any of the others. It was modified with ideas from the New Jersey Plan to obtain compromise between the small and large states. However, much of the debate and compromise needed to create the Constitution was over the presidency, the judiciary and slavery.

THE PRESIDENCY DEBATE AND THE ELECTORAL COLLEGE:

One of the most contentious debates was over the election of the president. There was widespread concern over a direct election of the president by the people. Many felt that information was passed along too slowly across the country which would lead to the people only voting for those from their state or region. The Virginia Plan proposed the election of the president by the legislature. Some wanted the president chosen by the state governors. Others proposed that state legislatures elect the president. Others proposed that special members of Congress chosen by lot elect the president. The compromise was the Electoral College.

The compromise gave each state a number of electors equal to the number of members of the House of Representatives for each state plus its two senators. These electors would then vote and thereby elect the president. The election of the president would require a majority of the Electoral College vote and if that did not happen, the House would then vote based on state block voting, not as individual members.

There is evidence to believe that the founders assumed the electors would be independent agents voting for the presidential candidate based on their merits, not necessarily on the popular vote of its states’ voters. Within the first decade under the Constitution, the electors were regarded more as agents of the will of the people and were expected, although not required, to vote for the presidential candidate that garnered the popular vote in their respective states. State legislatures were allowed to decide on how there electors were selected.

THE JUDICIARY DEBATE:

The debate over the judiciary centered on whether judges should be chosen by the legislature or by the president. Madison felt strongly that the link between the judiciary and the state executives fostered corruption and patronage. He wanted the judiciary to be an independent branch of the government and therefore felt it would be best if the legislature chose judges. However, many felt that this should be the function of the president. A compromise was reached where the president would nominate judges with the senate confirming them.

THE SLAVERY DEBATE AND COMPROMISES:

Slavery was one of the most controversial issues at the convention. Slavery was widespread. Twenty-five of the fifty-five delegates owned slaves including all the delegates from Virginia. It was such an intense debate that several of the southern states made it clear they would not join this new Union if slavery was abolished.

Delegates from states opposed to slavery that wanted it outlawed felt pressure to compromise. A close look at the Constitution shows that the Framers neither authorized nor prohibited slavery. Slavery is dealt with three times in the original Constitution.

It is first implied in Article 1, Section 2. It reads: “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a term of years, and excluding Indians not taxed, three-fifths of all other Persons.”

This is known as the three-fifths compromise. It is a compromise between the northern and southern states by which the enumerated population of slaves would not count one for one in the distribution of taxes and apportionment of the House of Representatives. Many felt this was proposed by the northern states to suppress the power of the southern states in the House of Representatives.

Slavery is again implied in Article 1, Section 9 which reads: “The Migration and Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.”

This section deals with the issues of importation and taxation of the slave trade. It prohibits Congress from acting on the issue of the slave trade until 1808 and limits the tax imposed on the importation of slaves to no more than ten dollars per slave.

The third reference to slavery is in Article IV, Section 2. It reads: “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom Service or Labour may be due.”

This clause required that slaves that escape and flee to a free state must be returned to their owners.

PROVIDE FOR THE COMMON DEFENSE:

Mentioned in the preamble are the words “provide for the common defense”. Why? The victory in the American Revolution of common everyday citizens over the greatest military force on the planet, the British, was viewed by some as unlikely to happen again if the United States of America was ever attacked. The French Navy was no longer protecting the Americans. At that time, the British, French and Spanish were all strong militarily and all three had colonial ambitions

The Founders were aware of the need to establish a strong military. They realized that only a professionally organized military could deter or respond to a foreign threat. The Articles of Confederation did not make this possible. The Constitution put the responsibility of the national defense solely on the new federal government. The states would no longer have separate armies and navies. The Founders also made the common defense a shared responsibility between the congress and the president. The president would be the commander in chief but only the congress could declare war. Congress would also control the funding.

Common defense was critically important to the Founders. As mentioned earlier, almost all were involved in the American Revolution in some capacity. Over half of them served in the Continental forces. For the Founders, a primary and central job of the federal government was for the common defense. Thomas Jefferson once said that “the power of making war often prevents it.”

THE UNITED STATES CONSTITUTION EXPLAINED:

The following are the highlights of the Constitution.

The Preamble:

• Has no force in law.
• Explains why the Constitution exists.
• It reflects the desire of the Founders to allow the people the power to “form a more perfect union”.

Article 1:

• Establishes the first of the three branches of government, the Legislature.

Article 1, Section 1:

• The legislature is called the Congress.
• The Congress is a two-part body.

Article 1, Section 2:

• One part is the lower house and it is called House of Representatives.
• To be a member of the House you must be at least 25-years-old.
• The members must also be citizens for at least 7 years.
• The members must also be an inhabitant of the state from which they are elected.
• Members of the House are elected to two-year terms.
• The members of the House of Representatives are divided among the states proportionally based on each state’s population. This means the larger states have more House members.
• The leader of the House is called the Speaker of the House, chosen by the members.

Article 1, Section 3:

• The upper house is called the Senate.
• To be a member of the Senate, you must be at least 30-years-old.
• The members of the Senate must also be citizens for nine-years.
• The Senators must also be inhabitants of their states.
• The Senators are appointed by their state legislatures.
• The Senators serve six-year terms.
• Each state shall have two senators regardless of their population size.
• The Vice-President is the President of the Senate.
• The Vice-President only votes if there is a tie.

Article 1, Section 4:

• Each state establishes its method of electing members.
• It mandates that Congress shall meet at least once per year.

Article 1, Section 5:

• Sets the minimum number of members that must be present in order to meet.
• Sets fines for those that do not attend.
• It allows for members to be expelled.
• It requires both houses to record proceedings and votes.
• It requires both houses to agree to an adjournment.

Article 1, Section 6:

• Members of Congress will be paid.
• Members of Congress cannot be detained while traveling to and from Congress.
• Members of Congress cannot hold any other office of government while in the Congress.

Article 1, Section 7:

• Details how a bill becomes law.
• Requires any bill that raises money to start in the House.
• Bills passed by both houses are sent to the President.
• The President can either sign the bill or veto it.
• If the President vetoes a bill, it is sent back to Congress and if passed by both houses by a two-thirds majority, the bill becomes law over the President’s veto.
• If the President does not sign the bill but also does not veto it, it becomes law after 10 days.
• If the bill is sent to the President, he does not sign it but the Congress adjourns before the 10 days, the bill does not become law.

Article 1, Section 8:

• Congress has the power to establish and maintain an army and navy.
• Congress has the power to establish post offices.
• Congress has the power to create courts.
• Congress has the power to regulate commerce between the states.
• Congress has the power to declare war.
• Congress has the power to raise money.
• Congress has the power to pass any law necessary for carrying out these powers. This is known as the Elastic Clause.

Article 1, Section 9:

• Congress cannot suspend habeas corpus.
• Congress cannot issue bills of attainder.
• Ex post facto laws are prohibited.
• No law can give preference to one state over another.
• No money can be taken from the treasury except by law.
• No titles of nobility are allowed.

Article 1, Section 10:

• States cannot make their own money.
• States cannot declare war.
• States cannot tax goods from other states.
• States cannot have navies.

Article 2:

• Establishes the second of three branches of government, the Executive.

Article 2, Section 1:

• Establishes the offices of the President and the Vice-President.
• Their terms are four-years.
• The President is elected by the Electoral College.
• Each state gets one vote for each member of Congress in the Electoral College.
• Whoever gets the most Electoral College votes is President.
• Whoever comes in second is Vice-President.
• To be President, you must be at least 35-years-old.
• Presidents must be natural-born-citizens of the United States.
• The President is paid a salary that cannot be changed while in office.

Article 2, Section 2:

• The President is Commander-in-Chief of the armed forces and the militia of all states.
• The President has a Cabinet to assist him.
• The President can pardon criminals.
• The President makes treaties with other countries that must be approved by the Senate.
• The President chooses judges that must be approved by the Senate.

Article 2, Section 3:

• The President must give a State of the Union address each year.
• The President can make suggestions to Congress.
• The President as head of state receives ambassadors and heads of other countries.
• The President is required to make sure laws of the United States are carried out.

Article 2, Section 4:

• The President, Vice-President and all civil officers of the United States can be removed from office by impeachment.
• Impeachment is allowed if one of the above are convicted of treason, bribery or other high crimes and misdemeanors.

Article 3:

• Establishes the third of three branches of government, the Judiciary.

Article 3, Section 1:

• Establishes the Supreme Court as the highest court in the United States.
• Gives Congress the power to establish inferior or lower courts.
• Terms of judges are as long as they are on good behavior which means for life.
• Judges shall be paid and their pay cannot be lowered.

Article 3, Section 2:

• Established the Supreme Court’s original jurisdiction for disputes in which a state is a party or in cases involving representatives of foreign nations.
• In all other matters, the Supreme Court has only appellate jurisdiction.
• Requires the right to a jury trial for all crimes except for impeachment.

Article 3, Section 3:

• Defines treason as levying war against the United States, or giving adherence to its enemies or providing them aid and comfort.
• To be convicted, there must be two witnesses to the same act or confession in open court.

Article 4:

• Establishes state obligations.

Article 4, Section 1:

• Provides Full Faith and Credit to the laws of other states.

Article 4, Section 2:

• It requires that citizens of one state be treated the equally and fairly as other citizens from other states.
• Requires extradition for those fleeing from states where they committed a crime.
• Requires that slaves that escape be returned to their owners.

Article 4, Section 3:

• Concerns the admittance of new states into the Union.
• Concerns the control of federal lands.

Article 4, Section 4:

• Guarantees each state a Republican (representative democracy) form of government.
• Guarantees the federal government will protect the states from all invasions and insurrection.

Article 5:

• Establishes how to amend the Constitution.
• One way is for a bill to pass both houses of the legislature, by a two-thirds majority in each. Once the bill has passed both houses, it goes on to the states where it must be approved or ratified by three-fourths of the states. This is the method taken for all current amendments.
• Another way for a Constitutional Convention to be called by two-thirds of the legislatures of the States, and for that Convention to propose one or more amendments. These amendments are then sent to the states to be approved by three-fourths of the legislatures or conventions. This method has never been used.
• Provides that no amendment could be made prior to the 1808 that would affect the 1st and 4th clauses in Section 9 of Article 1.
• Provided that equal representation of the states in the Senate could not be amended without the state’s consent.

Article 6:

• Establishes certain obligations of the United States.
• All debts incurred under the Articles of Confederation will be honored by the new government.
• All laws and treaties of the United States shall be the supreme law of the land.
• It requires all officers of the United States and the states to swear an oath of allegiance to the United States and the upholding of the Constitution when taking office.

Article 7:

• Required that at least 9 of the 13 states would have to ratify the Constitution before it could be applied to all the states.
• Delaware ratified the Constitution on December 7, 1787.
• Pennsylvania ratified the Constitution on December 12, 1787.
• New Jersey ratified the Constitution on December 18, 1787.
• Georgia ratified the Constitution on January 2, 1788.
• Connecticut ratified the Constitution on January 9, 1788.
• Massachusetts ratified the Constitution on February 6, 1788 .
• Maryland ratified the Constitution on April 28, 1788.
• South Carolina ratified the Constitution on May 23, 1788.
• New Hampshire ratified the Constitution on June 21, 1788.
• Virginia ratified the Constitution on June 25, 1788.
• New York ratified the Constitution on July 26, 1788 .
• North Carolina ratified the Constitution on November 21, 1789.
• Rhode Island ratified the Constitution on May 29, 1790.

WHAT’S MISSING?

When people talk about their “constitutional rights”, most of the time they are referring to rights explained within one of the Constitutional Amendments, and, specifically, within the Bill of Rights. The Bills of Rights were not part of the original Constitution. The original Constitution was about forming a new government. It said little about individual rights under this new government.

During the ratification process, there was much debate between the federalist, those that favored the ratification of the Constitution, and the anti-federalist that were opposed to the Constitution feeling that so much centralized power would eventually lead to tyranny. Leading federalists included Alexander Hamilton, John Jay and James Madison. Together the three wrote 85 essays making the philosophical case for ratifying the Constitution. These essays are known as the Federalist Papers.

However, anti-federalists like George Mason, Patrick Henry and Samuel Adams were not in favor of ratification because of the lack of individual liberty protections. As the ratification process moved forward, some states refused to ratify the Constitution without adding a declaration of rights.

Amending the Constitution after it had already been ratified by several states was not seen as a practical solution. Instead, the leading federalists like James Madison promised to propose amendments to the Constitution that would provide rights of liberty to the citizenry once it was ratified. Soon after the Constitution was ratified, James Madison kept this promise and proposed twelve Amendments to the Constitution known as the Bill of Rights. Ten were passed and ratified by the states on December 15, 1791.

There were two amendments of the twelve that were not ratified originally. One was eventually ratified in 1992 as the Twenty-Seventh Amendment to the Constitution. The other has never been ratified. It would have required each congressional district not to exceed a population of 50,000 citizens.

AMENDMENTS TO THE UNITED STATES CONSTITUTION:

Amendment 1 establishes: (Ratified 1791)

• Freedom of religion.
• Freedom of the press.
• Freedom of speech.
• Freedom to assemble.
• Freedom to petition the government.

Amendment 2 establishes: (Ratified 1791)

• The right to own a firearm.

Amendment 3 establishes: (Ratified 1791)

• That the government cannot force a homeowner to provide room and board to the military.

Amendment 4 establishes: (Ratified 1791)

• Protection from the government from unreasonable search and seizure of their person or property without a warrant based on probable cause.

Amendment 5 establishes: (Ratified 1791)

• Due process of law.
• The requirement of an indictment for charged crimes.
• That one cannot be charged twice for the same crime.
• That one cannot be forced to testify against themselves.
• That your property cannot be taken by the government without just compensation.

Amendment 6 establishes: (Ratified 1791)

• The right to a fair and impartial jury.
• The right to a speedy trial.
• The right to an attorney.
• The right to compel witnesses to testify on your behalf.
• The right to confront witnesses testifying against you.

Amendment 7 establishes: (Ratified 1791)

• The right to a civil jury trial in federal court.

Amendment 8 establishes: (Ratified 1791)

• That punishment must be fair and not cruel.
• That fines and bail will be fair.

Amendment 9: (Ratified 1791)

• Makes the statement that rights may exist that are not stated, and just because they are not listed does not mean they cannot be violated by the government.

Amendment 10: (Ratified 1791)

• Provides that power not granted to the federal government belongs to the states.

Amendment 11: (Ratified 1795)

• Changed a portion of Article 3, Section 2.
• Federal Courts are prohibited from hearing certain lawsuits between the states and between citizens of different states.
• State courts do not have to hear certain suits against the state, if those suits are based on federal law.

Amendment 12: (Ratified 1804)

• Redefines how the Vice-President is chosen. It would now be cooperative not who comes in second place.

Amendment 13: (Ratified 1865)

• Abolishes slavery throughout entire United States.

Amendment 14: (Ratified 1868)

• Granted citizenship to all persons born or naturalized in the United States which included freed slaves.
• Prohibits the states from denying any person life, liberty and property without due process of law.
• Requires the states to provide equal protection under the law.
• Removed the three-fifths counting of slaves in the census.
• Stated that the United States would not pay the debts of the rebellious states.
• It set out loyalty requirements of legislators that participated in the Confederacy.

Amendment 15: (Ratified 1870)

• Granted freed male slaves the right to vote.

Amendment 16: (Ratified 1913)

• Allowed the federal government the right to base and collect taxes on incomes.

Amendment 17: (Ratified 1913)

• Modified Article I, section 3, of the Constitution by allowing voters to cast direct votes for U.S. Senators.

Amendment 18: (Ratified 1919)

• Prohibited the manufacturing, transportation and sale of alcohol within the United States.

Amendment 19: (Ratified 1920)

• Granted all women the right to vote.

Amendment 20: (Ratified 1933)

• Moved the beginning and ending of the terms of the president and vice-president from March 4 to January 20, and of members of Congress from March 4 to January 3.
• States that the vice-president shall be sworn in as president if the president-elect dies before being sworn in.
• Allows the Congress to pass legislation on a more detailed succession plan if the vice-president cannot assume the office of the president-elect.

Amendment 21: (Ratified 1933)

• Repeals the 18th Amendment and therefore Prohibition.

Amendment 22: (Ratified 1951)

• Limits the presidency to two terms of four years.

Amendment 23: (Ratified 1961)

• Extends voting rights in presidential elections to the District of Columbia residents by granting them three electors.

Amendment 24: (Ratified 1964)

• Prohibits any poll taxes for voting in federal elections.

Amendment 25: (Ratified 1967)

• Clarifies that the vice-president becomes president in the event of death, resignation, removal from office or impairment of the president.
• Establishes rules for removal of a president that can no longer perform his or her duties.

Amendment 26: (Ratified 1971)

• Grants the right to vote to eighteen-year-olds.

Amendment 27: (Ratified 1992)

• Changes in congressional pay must take place after the current term of those representatives.

Amending the Constitution

Article 5 of the Constitution itself describes the methods to amend it. There are two basic methods to amend:

1) two-thirds of both houses of Congress (the House of Representatives and the Senate) propose an amendment which then must be ratified by three-quarters of the State Legislatures OR by three quarters of the Conventions held in states, whichever method Congress shall specify (all but one of the 27 amendments has been ratified by the State Legislatures as opposed to a State Convention) OR

2) two-thirds of the State Legislatures call for a Constitutional Convention for proposing amendments, which then must be ratified by the states in the same manner explained above. This method has never happened.

UNITED STATES SUPREME COURT

Power of Interpretation

Whenever the U.S. Constitution is analyzed, there must be an accompanying discussion of the U.S. Supreme Court. Although it was not always the case and the early history of the Supreme Court is a colorful and fascinating account, the Court cemented its own function as the interpreter of the Constitution through Marbury v. Madison, 5 U.S. 137 (1803), a summary of which is set out at the end of this chapter. In Marbury, the controversy arose because of a political battle between the federalists who had been in power through the presidency of John Adams, and the anti-federalists who were about to come to power in the presidency of Thomas Jefferson. In the waning hours (yes, literally hours!) of his presidency, Adams created and installed several members of the judiciary with the purpose being to stack the deck against Jefferson. Not all of those formal judicial commissions had been delivered, however, by the time the clock struck the hour for Jefferson’s term, and his administration refused to deliver them. One of those appointees, Marbury, demanded his commission, and the administration continued to refuse. Congress passed a law suspending the usual court process to argue the case, so Marbury was able to bring the suit directly in the U.S. Supreme Court. The Chief Justice of the Supreme Court, John Marshall, was trying to strengthen his Court which had languished in the new republic. Marshall knew that if he ordered Jefferson to acknowledge the judicial appointments, Jefferson would refuse and Marshall’s Supreme Court would look pathetically weak. On the other hand, if he ruled for Jefferson’s side, the perception of the Court as serving merely at the whim of the Executive would be solidified and the Court would be similarly without power. Facing this catch-22, Marshall came up with a strategy that solidified the judiciary as a full participant in the three branched-government. In his opinion, Marshall took great care to announce why Jefferson was wrong, but he came to the conclusion that he could not rule on the merits because the Court had no jurisdiction to hear the case. The Court ruled that, except in very few specific cases, the Constitution required that its jurisdiction is appellate jurisdiction and, therefore, Congress had acted unconstitutionally by allowing the case to be brought directly to the Supreme Court rather than up through lower courts as is the standard process. So the Court, by taking itself out of the controversy (and thereby avoiding the appearance of a useless institution) and holding an act of Congress to be unconstitutional, cemented itself as the arbiter of what is or is not permissible under our Constitution. Brilliant!

Interpretation, Activism, Originalism

Marbury v. Madison may have established the Court’s power to interpret laws and the Constitution, but the Court’s power has not stopped there. In some cases, the Court has taken on a more active role in making policy. For example, cases that were decided in the Civil Rights era, abortion cases, same sex marriage, etc. all led to changes in our country’s approach to those topics. It is impossible to issue decisions on important issues and not have an impact on the policy surrounding those issues. The members of the Court have approached this task in different ways. Some justices are more liberally oriented, some more conservative. Some are what is called “strict constructionists” or “originalists” in which they take the words of the Constitution literally and do not interpret based on context, while others view the Constitution as a “living” document designed to be flexible in order to address contemporary issues. It has become generally recognized that one of the most powerful things a President can leave as his legacy is the installation of one (or more) Supreme Court Justices, who sit on the bench for life.

Appointment to the Supreme Court

Supreme Court Justices are nominated by the President of the United States and must then be affirmed by a majority vote in the U.S. Senate. Because this appointment is for life and brings with it a great deal of power over national issues (see above), the appointment process, and particularly the Senate confirmation hearings, have become very contentious at times, often centered around political party affiliations.

Federal Judicial Process

As Justice Marshall correctly wrote in the Marbury v. Madison opinion, the U.S. Supreme Court is an appellate court, with the ability to review cases decided in and appealed from lower level courts (there are very few case in which the Supreme Court has what is called original jurisdiction, allowing the case to start there). Therefore, the process by which a case can get to the U.S. Supreme Court is as follows:

1. Trial courts –Federal District Courts

Congress has divided the country into ninety-four federal judicial districts, using state boundaries to help define the districts. These are the trial level courts in the federal system; generally where a case begins. It is in the District Courts where there may be a jury, testimony, evidence presented, and a verdict.

2. Intermediate Appellate Court – Circuit Courts of Appeals

Congress placed each of the ninety-four districts in one of twelve regional circuits. Each circuit has a court of appeals; there is an additional Court of Appeals for the Federal Circuit, which hears special types of cases from across the country. If you lose a case in a district court, you can ask the court of appeals to review the case to see if the district judge applied the law correctly.

3. U.S. Supreme Court

The Supreme Court of the United States, in Washington, D.C., is the highest court in the nation. If you lose a case in a federal Court of Appeals (or, sometimes, in a state‘s highest court), you can ask the Supreme Court to hear your appeal. However, the Supreme Court does not have to accept it. In fact, the Supreme Court hears only a very small percentage of the cases it is asked to review. In order to have a case heard by the high Court, an appellant must seek permission; if at least four justices agree to hear the appeal, the appellant is granted a writ of certiorari.