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Article III, ConstitutionArticle III.
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 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.
The 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.
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.
--- end Article III as ratified; amended once, below ---
The Judicial power of the United States shall not be construed to extend to 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.
Passed by Congress March 4, 1794. Ratified February 7, 1795.
The Judiciary which existed under the constitution in 1787 as the new Constitution was crafted is in the Articles of Confederation:
There were 8 State judges and 26 other lawyers among the delegates at the Constitutional Convention - links to the daily activities are here:
Key issues (as much of the legal stuff was already in the Articles or the rules in States' courts):
Was a federal Judiciary needed?
Roger Sherman (Connecticut) and others said "no" as state courts were already in operation, plus too costly.
John Rutledge (South Carolina) wanted a federal SCOTUS but no lower courts.
It was resolved that federal lower courts for national laws (including citizens' rights and law-breaking by foreigners), and state courts for state laws.
How judges to be picked? By Congress or by the President?
James Wilson (Pennsylvania) wanted one person, as history showed that groups' appointments were unfair and non transparent.
Rutledge disagreed - a President appointing judges would be a monarch.
Benjamin Franklin cracked a funny - in Scotland lawyers chose the judges by selecting the very best lawyers; then dividing up his clients among themselves.
This was resolved by OK-ing SCOTUS, with President picking all federal judges, deferring the lower courts' establishments, and details of SCOTUS (i.e. # of Justices) for Congress and the President to decide later if the Constitution was ratified.
Lots of compromises, and postponements of sensitive issues which would have bogged down debates and prevented compromises.
On another thread, as hyperlinked:
|scrutney wrote: |
| why stop at one [reason we no longer are the Land of the Free]?
upon further reflection, they all disturb the hell out of me.
we are either a nation of laws or we're not.
the judiciary needs to get involved...now.
And the dangers of the Executive Branch or the Legislative Branch running amok disturbed the Founders also - and SCOTUS, and how the Justices were appointed, and how they may (or may not) balance the equation of Power.
First, from the 1787 debates - from Rufus King's notes - as the U.S. Constitution was being written:
Madison-The judiciary ought to be introduced in the business of Legislation- they will protect their department, and united with the Executive make its negatives more strong.
There is weight in the objections to this measure-but a check on the Legislature is necessary,
Experience proves it to be so, and teaches us that what has been thought a calumny on a republican Govt. is nevertheless true-
In all Countries are diversity of Interests, the Rich & the Poor, the Dr. & Cr., the followers of different Demagogues, the Diversity of religious Sects-the Effects of these Divisions in ancient Govts. are well known, and the like causes will now produce like effects.
We must therefore introduce in our system Provisions against the measures of an interested majority-a check is not only necessary to protect the Executive power, but the minority in the Legislature.
The independence of the Executive, having the Eyes of all upon him will make him an impartial judge-add the Judiciary, and you greatly increase his respectability.
Wilson-Wilson moved and Madison seconds, that the judiciary be added to the Executive in revising the Laws.
Dickinson opposed-you shd. separate the Departments-you have given the Executive a share in Legislation; and it is asked why not give a share to the judicial power.
Because the Judges are to interpret the Laws, and therefore shd. have no share in making them-not so with the executive whose causing the Laws to be executed is a ministerial office only. Besides we have experience in the Br. Constitution which confers the Power of a negative on the Executive.
Wilson proposes that the judiciary be appointed by the National Executive, because he will be responsible.
Rutledge opposes, because the States generally appoint by their Legislatures.
Franklin-The 15 Lords of Sessions in Scotland are appointed by the Barristers or Doctors-these elect the most learned of their own order, because he has the most Business, wh. afterwards is divided among themselves.
Madison-in favor of further deliberation. Perhaps the appointment shd. be by the Senate-
Postponed-N.H., Mass, NY, Penn & Md. [judges appointed] by the Executive power R. Island by the People-Con. N. J. Del. Virg. N. Car. & So. Car elect Judges by Legislatre.
Rutledge proposes to have a supreme Natl. Tribunal but no subordinate ones, except those established by the States respectively.
Wilson of a different opinion.
Dickinson-the State & Genl. Tribunals will interfere-we must have a National Tribunal-entire and proceeding from the Genl Govt.
Madison-proposed to vest the Genl. Govt. with power to establish an independent Judiciary, to be co-extensive with the nation. Ayes, 5, No, 4, divided 2.
From James Madison's Notes of the same debate:
The Clause-"that the National Judiciary be chose by the National Legislature," being under consideration.
Mr. WILSON opposed the appointmt. of Judges by the National Legisl:
Experience shewed the impropriety of such appointmts. by numerous bodies. Intrigue, partiality, and concealment were the necessary consequences. A principal reason for unity in the executive was that officers might be appointed by a single, responsible person.
Mr. RUTLIDGE was by no means disposed to grant so great a power to any single person.
The people will think we are leaning too much towards Monarchy. He was against establishing any national tribunal except a single supreme one. The State tribunals are most proper to decide in all cases in the first instance.
Docr. FRANKLIN observed that two modes of chusing the Judges had been mentioned, to wit, by the Legislature and by the Executive.
He wished such other modes to be suggested as might occur to other gentlemen; it being a point of great moment. He would mention one which he had understood was practiced in Scotland.
He then in a brief and entertaining manner related a Scotch mode, in which the nomination proceeded from the Lawyers, who always selected the ablest of the profession in order to get rid of him, and share his practice among themselves. It was here he said the interest of the electors to make the best choice, which should always be made the case if possible.
Mr. MADISON disliked the election of the Judges by the Legislature or any numerous body.
Besides, the danger of intrigue and partiality, many of the members were not judges of the requisite qualifications.
The Legislative talents which were very different from those of a Judge, commonly recommended men to the favor of Legislative Assemblies. It was known too that the accidental circumstances of presence and absence, of being a member or not a member, had a very undue influence on the appointment.
On the other hand he was not satisfied with referring the appointment to the Executive. He rather inclined to give it to the Senatorial branch, as numerous eno' to be confided in-as not so numerous as to be governed by the motives of the other branch; and as being sufficiently stable and independent to follow their deliberate judgments.
He hinted this only and moved that the appointment by the Legislature might be struck out, & a blank left to be hereafter filled on maturer reflection.
Mr. WILSON seconds it.
On the question for striking out. Massts. ay. Cont. no. N.Y. ay. N.J. ay. Pena.ay. Del. Ay. Md. ay. N.C. ay. S.C.no. Geo.ay.
Mr. WILSON gave notice that he should at a future day move for a reconsideration of the clause which respects "inferior tribunals."
Mr. PINKNEY gave notice that when the clause respecting the appointment of the Judiciary should again come before the Committee he should move to restore the "appointment by the national Legislature."
In the final ratified Constitution the compromises were;
- That the President has veto power (the "negative" referred to in the 1787 debates), which can be overcome by a supermajority vote in Congress,
- That SCOTUS also has veto power by a majority vote of the Justices,
- That the number of Justices is determined by Congress,
- That the President appoints the Justices, with the Advice and Consent of the Senate.
In one of those ironies of history, the "Rutledge" debating in the above Notes is John Rutledge, the 2nd Chief Justice of the Supreme Court of the United States (replacing John Jay).
The irony is that he was the FIRST RECESS APPOINTMENT - by President George Washington - and was NOT confirmed by the Senate when they returned from recess, being defeated by a 14 to 10 vote!
Rutledge was the only Chief Justice - of the 15 who have been recess appointments - not to be confirmed later by the Senate.