Module 4: Article III, the Courts

The Text

Article III is short, and it leaves most of the work to Congress. Here are Sections 1 through 3 as the National Archives transcribes them, spelling and capitals included.¹

Section. 1. 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.

Section. 2. 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.

Section. 3. 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.

U.S. Const. art. III, §§ 1 to 3 (the transcription prints the dashes in Section 2 as long dashes)

One line of Section 2 no longer reads the way it did in 1788. The Eleventh Amendment, ratified February 7, 1795, says:²

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.

U.S. Const. amend. XI

In plain words: Section 1 names one court and leaves every court below it to Congress, which may build, reshape or abolish them. Judges keep their seats "during good Behaviour," and their pay cannot be cut. Section 2 sets the reach of federal judicial power in two kinds of matter, "Cases" and "Controversies." The Supreme Court hears a matter first only when ambassadors, other ministers, consuls or a state are parties. Everything else reaches it on appeal, under "such Exceptions" and "such Regulations" as Congress sets. Section 3 defines treason in one sentence and then makes it hard to prove.

How We Got Here

The Articles of Confederation, in force from March 1781, gave Congress a few judicial tasks: courts for piracies and felonies on the high seas, final appeals in cases of captures at sea, and a last-resort hearing when states quarreled over boundaries.³ Beyond that there was no national court system. State courts decided nearly everything, and nobody could make them agree.

On June 5, 1787 the Philadelphia Convention fought over how far to change that. John Rutledge moved to strike the lower national courts and let state courts hear cases first, with appeal to one supreme tribunal. James Madison answered that without lower courts "appeals would be multiplied to a most oppressive degree," and that "an effective Judiciary establishment commensurate to the legislative authority, was essential." The Committee of the Whole voted to strike the lower courts anyway, five states to four, with Massachusetts and New York divided. Wilson and Madison then moved that the national legislature be "empowered to institute inferior tribunals," and Madison's notes record that it carried, eight states to two, with New York divided.⁴ That is why the Constitution orders one Supreme Court and only permits the rest.

The delegates also split on whether judges could void laws. On August 15, Madison proposed that bills go to both the executive and the Supreme judiciary for possible objection. It failed, three states to eight. John Francis Mercer "disapproved of the Doctrine that the Judges as expositors of the Constitution should have authority to declare a law void," and John Dickinson "thought no such power ought to exist." Gouverneur Morris "could not agree that the Judiciary which was part of the Executive, should be bound to say that a direct violation of the Constitution was law."⁵ On August 27 the delegates added "this Constitution" to the list of things cases could arise under. Madison doubted it went too far and wanted the jurisdiction "limited to cases of a Judiciary Nature." The motion passed without dissent, "it being generally supposed that the jurisdiction given was constructively limited to cases of a Judiciary nature."⁶

In the ratification fight of 1788 Alexander Hamilton, as Publius in Federalist No. 78, called the judiciary the weakest branch, with "neither FORCE nor WILL, but merely judgment."⁷ The Anti-Federalist Brutus, on March 20, 1788, warned that under the new system "there is no power above them that can control their decisions, or correct their errors."⁸ But they were describing the same court.

Judges, Courts and the Court Today

Hamilton defended life tenure as "an indispensable ingredient" of an independent court, and the system still works that way. Justices hold office as long as they choose and can be removed only by impeachment. The House has impeached one, Samuel Chase, and the Senate acquitted him in 1805.⁹

The First Congress filled in the skeleton with the Judiciary Act of September 24, 1789, written chiefly by Senators Oliver Ellsworth and William Paterson. It put a Chief Justice and five associates on the Supreme Court, with four a quorum. It divided the country into thirteen districts, each with a one-judge district court, and created circuit courts staffed by two justices and a district judge. So the justices themselves traveled to hold them.¹⁰ Section 13 let the Supreme Court issue writs of mandamus "to any courts appointed, or persons holding office, under the authority of the United States." Section 25 let it re-examine final judgments of the highest state courts that decided a federal question.¹¹

The Constitution never says nine. Congress sets the number. It was six in 1789, and an 1801 Act cut it to five at the next vacancy, but none came and the 1802 repeal restored six. Congress authorized seven in 1807, nine in 1837 and ten in 1863. A 1866 Act ordered a cut to seven by attrition, the Court fell to eight justices, and the Act of April 10, 1869 fixed nine. Federal law today provides a Chief Justice and eight associates, and six make a quorum.¹²

Most cases never get there. The Court receives roughly 7,000 to 8,000 petitions for certiorari each Term and hears about 80. Rule 10 says review "is not a matter of right, but of judicial discretion" and will be granted "only for compelling reasons," such as a split among federal courts of appeals or an important federal question no one has settled.¹³ Four of nine Justices must vote to take a case. The Term opens on the first Monday in October, and each side usually gets 30 minutes of argument. The Justices then meet in private conference. The Chief Justice speaks and votes first, and the rest follow by seniority. The Chief Justice, or the senior Justice in the majority if the Chief Justice dissents, assigns the opinion, and opinions are typically out by the last day of the Term in late June or early July. And a tie leaves the lower court's decision standing.¹⁴

Idaho has its own judicial article. The Idaho Supreme Court has five justices, elected statewide, and the state's courts form "a unified and integrated judicial system for administration and supervision by the Supreme Court."¹⁵ Federal cases from Idaho go through the District of Idaho, which Congress organized on July 3, 1890 as a single district with one judgeship, and then to the Ninth Circuit.¹⁶

Jurisdiction: Original, Appellate, and Congress's Power

Original jurisdiction means a court hears the case first. The Constitution gives the Supreme Court that role for cases affecting ambassadors, other public ministers and consuls, and cases in which a state is a party. Federal law makes it "original and exclusive" for controversies between two or more states. Everything else reaches the Court on appeal, on terms Congress sets. The lower federal courts have only what Congress gives them: jurisdiction over civil actions arising under federal law, and over suits between citizens of different states where more than $75,000 is at stake.¹⁷

The first collision came fast. In Chisholm v. Georgia, 2 U.S. 419 (1793), the executor of a South Carolina citizen sued the State of Georgia in the Supreme Court. Georgia protested the Court's jurisdiction and declined to argue. Each Justice wrote separately. Four of the five, relying on the clause covering controversies between a state and citizens of another state, held Georgia could be sued, and the Court ordered a default judgment unless the state appeared. Justice James Iredell dissented. Congress proposed the Eleventh Amendment in 1794, and it was ratified on February 7, 1795. It reversed Chisholm by changing the text.¹⁸

But the sharper question is Congress's power over appeals. In Ex parte McCardle, 74 U.S. 506 (1869), McCardle, a Mississippi newspaper editor held by military authorities for trial before a military commission, appealed the denial of habeas corpus under an 1867 Act. The Court heard argument in March 1868. While the case was under advisement, Congress repealed that appeal provision, over the President's veto. Chief Justice Salmon Chase wrote for the Court that "the power to make exceptions to the appellate jurisdiction of this court is given by express words," and dismissed for want of jurisdiction. The Court added that the repeal left untouched the habeas jurisdiction it had exercised before 1867.¹⁹

Cases and Controversies

A federal court acts only on a real dispute between parties with something at stake. The habit is old. In 1793 Secretary of State Jefferson, at President Washington's direction, asked the Justices for their views on questions about treaties and the law of nations, and Chief Justice Jay and his colleagues declined. In Muskrat v. United States, 219 U.S. 346 (1911), the Court made it a holding. Congress had let named Cherokee citizens sue in the Court of Claims to test earlier land-allotment laws. Deciding such a suit would mean giving "opinions in the nature of advice concerning legislative action," which the Constitution never assigned to the Court.²⁰

Standing asks whether this plaintiff was hurt. In Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), wildlife groups challenged a 1986 Interior Department rule that limited the Endangered Species Act's consultation duty to actions in the United States or on the high seas. Two members said they had visited Egypt and Sri Lanka, where federally funded projects threatened endangered animals, and meant to go back. Justice Scalia held for the Court that a plaintiff needs an "injury in fact" that is "concrete and particularized" and "actual or imminent," a causal link to the defendant's conduct, and a likelihood that a favorable ruling will repair the harm. "Some day" intentions, "without any description of concrete plans," did not suffice. Six Justices joined those parts. Justice Stevens concurred in the judgment, and Justice Blackmun, joined by Justice O'Connor, dissented, finding genuine factual issues on injury and redressability. One section drew only four votes.²¹

Ripeness asks whether the dispute has matured. In Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), the Court said the doctrine's "basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies." Mootness asks whether the dispute is still alive. In DeFunis v. Odegaard, 416 U.S. 312 (1974), a law student admitted under a trial-court order would finish school whatever the Court decided. The Court vacated the judgment, saying it could not, "consistently with the limitations of Art. III of the Constitution, consider the substantive constitutional issues." Ripeness is too early. Mootness is too late.²²

The political question doctrine asks whether the Constitution gives the issue to someone other than the courts. In Baker v. Carr, 369 U.S. 186 (1962), Tennessee voters argued that a 1901 statute apportioning the General Assembly among the state's 95 counties debased their votes. A three-judge district court dismissed the case. Justice Brennan, for the Court, reversed, listing what marks a political question: "a textually demonstrable constitutional commitment of the issue to a coordinate political department," a "lack of judicially discoverable and manageable standards," and several related signs. The equal-protection claim was justiciable, and the case went back for trial. The vote was six to two. Justice Frankfurter, joined by Justice Harlan, dissented, Justice Harlan dissented separately, and Justice Whittaker took no part.²³ In Nixon v. United States, 506 U.S. 224 (1993), an impeached federal judge objected to the Senate's use of a committee to hear evidence. The Constitution gives the Senate "the sole Power to try all Impeachments," and the Court held the claim nonjusticiable. In Rucho v. Common Cause, 588 U.S. 684 (2019), five Justices, in an opinion by Chief Justice Roberts, held that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Four Justices, in a dissent by Justice Kagan, disagreed.²⁴

Judicial Review: Marbury and After

Nothing in Article III says courts may strike down a law. That power comes from a 1803 opinion. As John Adams's term ended in March 1801, William Marbury and others were confirmed as justices of the peace for the District of Columbia, and their commissions were signed and sealed but never delivered. Marbury asked the Supreme Court for a writ of mandamus ordering Secretary of State James Madison to deliver his. Chief Justice John Marshall, on February 24, 1803, found that Marbury had a right to the commission, in a government "emphatically termed a government of laws, and not of men." Then he turned to the Court's own power. Section 13 of the Judiciary Act of 1789 let the Supreme Court issue mandamus to federal officers. Article III gives the Court original jurisdiction only in the listed cases, and Marshall read that list as a ceiling: "Affirmative words are often, in their operation, negative of other objects than those affirmed." A statute that added to the list conflicted with the Constitution, and the Court had to say so: "It is emphatically the province and duty of the judicial department to say what the law is." The rule was discharged, and Marbury got no writ.²⁵

Days after Marbury, Stuart v. Laird, 5 U.S. 299 (1803), upheld the 1802 Act that moved cases between circuit courts and kept the justices riding circuit, noting that "practice and acquiescence" since 1789 had "fixed the construction."²⁶ Review of state courts caused the sharper fight. In Martin v. Hunter's Lessee, 14 U.S. 304 (1816), a dispute over Virginia land once held by Lord Fairfax, the Virginia Court of Appeals refused to obey the Supreme Court's mandate and called Section 25 of the 1789 Act unconstitutional. Justice Story, for the Court, held that the Supreme Court may review state-court judgments on federal questions, and reversed Virginia. In Cohens v. Virginia, 19 U.S. 264 (1821), defendants prosecuted in Norfolk for selling District of Columbia lottery tickets appealed. Chief Justice Marshall held the Court could hear the case, because one arising under the Constitution or federal laws "is cognizable in the Courts of the Union, whoever may be the parties to that case." Virginia still won. The Court read the congressional lottery act as not authorizing sales outside the District and affirmed.²⁷

The idea reached its fullest form in Cooper v. Aaron, 358 U.S. 1 (1958). The Governor and Legislature of Arkansas claimed state officials had no duty to obey federal court orders resting on Brown v. Board of Education (Module 10), and the Little Rock school board sought to delay its desegregation plan. The opinion carries the names of all nine Justices. It quotes Marbury, concludes that "the federal judiciary is supreme in the exposition of the law of the Constitution," and says Brown cannot be nullified "openly and directly" by state officials or "indirectly by them through evasive schemes."²⁸

Juries and Treason

Article III is the only place the original Constitution guarantees a jury, and it covers crimes, not civil suits. Trials must be held "in the State where the said Crimes shall have been committed." The Sixth Amendment adds an "impartial jury of the State and district wherein the crime shall have been committed," and the Seventh preserves jury trial in common-law suits over twenty dollars. Module 9 covers both.²⁹ Idaho writes its own promise: "The right of trial by jury shall remain inviolate." Its text then allows three-fourths verdicts in civil actions, lets the legislature allow five-sixths verdicts in misdemeanors, and caps misdemeanor juries at six.³⁰

Treason gets a sentence of its own because the framers feared its abuse. On August 20, 1787 the Convention voted, eight states to three, to require "two witnesses" to "the same overt act." Benjamin Franklin supported it: "prosecutions for treason were generally virulent; and perjury too easily made use of against innocence."³¹ Congress sets the punishment. Today a conviction carries death, or at least five years in prison and a fine of at least $10,000, and the convicted person is "incapable of holding any office under the United States."³²

The Court has reviewed few treason convictions. In Cramer v. United States, 325 U.S. 1 (1945), Anthony Cramer, a naturalized citizen, was convicted for meeting and helping two of the German saboteurs who landed from submarines in June 1942. Justice Jackson wrote that the two-witness rule means "every act, movement, deed, and word of the defendant charged to constitute treason must be supported by the testimony of two witnesses." Two FBI agents proved Cramer met the saboteurs, but a meeting looks innocent on its face, and its treasonable character came from what the government said was in Cramer's mind. The Court held the alleged overt acts insufficient as proved and reversed, five to four. Chief Justice Stone and Justices Black, Reed and Douglas dissented.³³

Landmark Cases

Where This Shows Up for Officials, Reporters and Citizens

A county commissioner is asked to pass a resolution declaring a federal law "null and void" in the county. The board can state a position, petition Congress or support a lawsuit. Under Marbury and Cooper, the resolution does not decide the question. Article VI makes federal law supreme and requires state officers to be bound by oath to support the Constitution. Idaho legislators swear to "support the constitution of the United States and the constitution of the state of Idaho."³⁴ Check the oath for your own office before you vote.

A sheriff receives a federal court order that conflicts with a county policy. Supremacy settles who wins. Cooper was a case about state officials who tried to avoid a federal order, and the Court gave no room for it.

A reporter covering a Supreme Court case should read the opinion at supremecourt.gov and count the votes by part. In Lujan, one section had four votes and the rest had six. A denial of certiorari means the Court chose not to take the case. A tie vote leaves the lower court's decision in place without a Supreme Court opinion.

A citizen at a public meeting angry about a county project may want to "take it to federal court." Standing asks what concrete harm that citizen suffered, apart from the public at large. Idaho's own courts follow Article V of the Idaho Constitution, and the Idaho Supreme Court's website, isc.idaho.gov, is the place to find them.

Related lessons: Module 2 on Congress, Module 3 on the President, Module 5 on federalism, and Module 9 on the jury and trial rights.

Sources & Further Reading

Primary Sources

• The Constitution of the United States: A Transcription, National Archives
• Amendments 11 to 27, National Archives, and the Bill of Rights transcript
• Articles of Confederation, Avalon Project
• Madison's Notes, Avalon Project: June 5, August 15, August 20, August 27, 1787
• Federalist No. 78, Avalon Project and Brutus XV, Teaching American History
• Judiciary Act of 1789, Federal Judicial Center
• 28 U.S.C. § 1, § 1251, § 1257, § 1331, § 1332 and 18 U.S.C. § 2381
• Idaho Constitution, Article V, Article I, section 7 and Article III, section 25

Cases and Court Procedure

• Opinions at Cornell LII: Chisholm, Marbury, Stuart, Martin, Cohens, McCardle, Muskrat, Cramer, Cooper, Baker, Lujan, DeFunis, Abbott, Nixon, Rucho
• Supreme Court FAQ, The Court and Its Procedures and Rules of the Supreme Court (2023)
• Federal Judicial Center, Supreme Court legislative history, District of Idaho legislative history and U.S. Courts, Supreme Court Procedures
• Idaho Supreme Court & Judicial Branch

Related Training Modules

• Course index
• Module 3: Article II, the President
• Module 5: Federalism and the States
• Module 9: The Fourth through Eighth Amendments
• Module 10: The Civil War Amendments

Footnotes

1. U.S. Const. art. III, §§ 1 to 3, National Archives transcription, archives.gov/founding-docs/constitution-transcript.
2. U.S. Const. amend. XI, passed by Congress March 4, 1794, ratified February 7, 1795. National Archives, Amendments 11-27. The Archives notes that Article III, section 2 "was modified by amendment 11."
3. Articles of Confederation, art. IX (ratified March 1, 1781), Avalon Project.
4. Madison's Notes, June 5, 1787, Avalon Project. Rutledge's motion to strike passed 5 to 4, with Massachusetts and New York divided. The motion to empower the legislature carried 8 to 2, New York divided. The printed Journal shows New Jersey voting no.
5. Madison's Notes, August 15, 1787, Avalon Project. The vote on Madison's motion was Delaware, Maryland and Virginia aye, eight states no.
6. Madison's Notes, August 27, 1787, Avalon Project. Dr. Johnson moved to insert "this Constitution and the" before "laws."
7. The Federalist No. 78 (Hamilton), in McLean's edition (1788), per the Library of Congress. Hamilton calls the judiciary "beyond comparison the weakest of the three departments" and permanency in office "an indispensable ingredient in its constitution."
8. Brutus XV, March 20, 1788, Teaching American History.
9. Supreme Court, Frequently Asked Questions: tenure and impeachment (Samuel Chase, 1805).
10. Judiciary Act of 1789, ch. 20, 1 Stat. 73 (Sept. 24, 1789), §§ 1 to 4; Federal Judicial Center, Landmark Legislation: Judiciary Act of 1789.
11. Judiciary Act of 1789, § 13 (mandamus) and § 25 (review of state-court judgments), text as printed by the Federal Judicial Center.
12. Federal Judicial Center, Supreme Court: Legislative History (1 Stat. 73; 2 Stat. 89; 2 Stat. 132; 2 Stat. 420; 5 Stat. 176; 12 Stat. 794; 14 Stat. 209; 16 Stat. 44); 28 U.S.C. § 1.
13. Sup. Ct. R. 10 (2023 rules); Supreme Court FAQ (about 7,000 to 8,000 petitions and about 80 argued cases per Term). Numbers vary by Term.
14. U.S. Courts, Supreme Court Procedures (rule of four, conference order, opinion assignment, tie votes); Supreme Court, The Court and Its Procedures (Term begins first Monday in October).
15. Idaho Const. art. V, §§ 2, 6, 9 and 13, legislature.idaho.gov.
16. Act of July 3, 1890, 26 Stat. 215, per the Federal Judicial Center, U.S. District Court for the District of Idaho: Legislative History.
17. 28 U.S.C. §§ 1251(a), 1331, 1332(a). Section 1257 provides certiorari review of final state high-court judgments raising federal questions.
18. Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), delivered seriatim in February 1793. Eleventh Amendment: National Archives, Amendments 11-27.
19. Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869), decided April 12, 1869 (date per CourtListener). The Court had denied a motion to dismiss earlier, 6 Wall. 318.
20. Muskrat v. United States, 219 U.S. 346 (1911), decided January 23, 1911. The opinion recounts the 1793 Jefferson letter and the Justices' reply.
21. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), decided June 12, 1992. Scalia, J., for the Court in Parts I, II, III-A and IV; plurality in Part III-B; Kennedy, J., concurring in part and in the judgment, joined by Souter, J.; Stevens, J., concurring in the judgment; Blackmun, J., dissenting, joined by O'Connor, J.
22. Abbott Laboratories v. Gardner, 387 U.S. 136 (1967); DeFunis v. Odegaard, 416 U.S. 312 (1974) (per curiam), with dissents.
23. Baker v. Carr, 369 U.S. 186 (1962), decided March 26, 1962. Brennan, J., for the Court; concurrences by Douglas, Clark and Stewart, JJ.; dissents by Frankfurter, J. (joined by Harlan, J.) and Harlan, J.; Whittaker, J., did not participate.
24. Nixon v. United States, 506 U.S. 224 (1993) (Rehnquist, C.J.); Rucho v. Common Cause, 588 U.S. 684 (2019) (Roberts, C.J.; Kagan, J., dissenting, joined by Ginsburg, Breyer and Sotomayor, JJ.). The U.S. Reports page for Rucho was confirmed from a secondary source. The slip opinion at Cornell LII was read directly.
25. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), opinion delivered February 24, 1803.
26. Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803); Federal Judicial Center, Judiciary Act of 1802 (decided March 1803).
27. Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816), decided March 20, 1816; Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821).
28. Cooper v. Aaron, 358 U.S. 1 (1958). Per curiam judgment September 12, 1958; opinion of all nine Justices September 29, 1958.
29. U.S. Const. amends. VI and VII, National Archives Bill of Rights transcript. Module 9 treats both.
30. Idaho Const. art. I, § 7.
31. Madison's Notes, August 20, 1787, Avalon Project. The "same overt act" amendment carried 8 to 3.
32. 18 U.S.C. § 2381.
33. Cramer v. United States, 325 U.S. 1 (1945), decided April 23, 1945. Jackson, J., for the Court; Douglas, J., dissenting, joined by Stone, C.J., and Black and Reed, JJ.
34. Idaho Const. art. III, § 25 (oath of legislators); U.S. Const. art. VI, cls. 2 and 3.