essay on judicial branch

Article III, Section 2, Clause 1:

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.

The Supreme Court developed the Constitutional Avoidance Doctrine to minimize concerns about unelected federal judges setting aside Congress’s laws on constitutional grounds. Underlying the Constitution is the principle that government legitimacy depends on the consent of the people. Noting that “Governments are instituted among Men, deriving their just powers from the consent of the governed,” the Declaration of Independence justified the colonies’ separation from the British Crown, because it had, through “repeated injuries and usurpations,” deprived the colonists of government that represented and protected their interests. 1 Footnote The Declaration of Independence (1776) .

Contemplating that popular sovereignty would guard against tyranny, the Framers provided for the people to elect the House of Representatives directly and the Senate and the Executive indirectly. Popular sovereignty, which the Framers viewed as necessary for a free and republican government, meant government by the majority. 2 Footnote John Locke , Second Treatise § 97 (1689) ( “And thus every Man, by consenting with others to make one Body Politick under one Government, puts himself under an Obligation to every one of that Society, to submit to the determination of the majority , and to be concluded by it; or else this original Compact, whereby he with others incorporates into one Society , would signifie nothing and be no Compact, if he be left free, and under no other ties, than he was in before in the state of Nature.” ). The Framers, however, feared that conflicting opinions and rivalries among factions of citizens might cause political instability or, if a faction gained a political majority, harm “the public good and the rights of other citizens.” 3 Footnote The Federalist No. 10 (James Madison) . See also The Federalist No. 51 (James Madison) ( “It is of great importance in a republic not only to guard one part of the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.” ). To avoid this, the Framers crafted a Constitution that disbursed the limited powers of the new American government across three departments: the Legislative, the Executive, and the Judiciary, each with a unique role in securing for the Republic “a steady, upright, and impartial administration of laws.” 4 Footnote Id. No. 50 (James Madison) .

The Framers were also concerned that different branches might attempt to expand their powers beyond those granted by the Constitution and upset the balance the Framers designed to “secure the blessings of liberty.” 5 Footnote U.S. Const. pmbl. Consequently, the Framers provided each branch some ability to offset the power of the other two. 6 Footnote The Federalist No. 78 (Alexander Hamilton) . Describing the division of federal power among the three branches in the Federalist No. 78 , Alexander Hamilton identified the Judicial Branch as posing the least danger to the constitutional framework. He stated:

Whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the Judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The Judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. 7 Footnote Id.

Although Hamilton viewed the Judicial Branch as the weakest of the branches, the Framers saw it as critical to preserving the rights of individuals and ensuring that the Legislative and Executive Branches did not exceed their constitutionally-granted powers. 8 Footnote Id. ( “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 specific 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 then 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.” ). Hamilton recognized the Constitution as superior to acts passed by Congress because the Constitution, by virtue of its ratification process, 9 Footnote Id. No. 40 (James Madison) (describing the Constitution as being submitted to “the people themselves” for ratification). Delegates to state ratifying conventions were selected by popular vote. John Hart Ely , Democracy and Distrust, A Theory of Judicial Review 5 (1980) . manifests the intentions of the people, whereas acts of Congress merely manifest the intention of the people’s agents. 10 Footnote The Federalist No. 78 (Alexander Hamilton) ( “If there should be an irreconcilable variance between the [Constitution and a statute], 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.” ). See The Federalist No. 49 (James Madison) ( “As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power is derived.” ); see also M’Culloch v. Maryland, 17 U.S. 316, 404–05 (1819) (Marshall, C.J.) ( “The government of the Union, then . . . is, emphatically and truly, a government of the people. In form, and in substance, it emanates from them. Its powers are granted by them, and are to be directly exercised on them, and for their benefit.” ). He wrote: “[W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.” 11 Footnote The Federalist No. 78 (Alexander Hamilton) ( “If there should be an irreconcilable variance between the [Constitution and a statute], 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.” ).

Hamilton further described the Judiciary as the “bulwarks of a limited Constitution against legislative encroachments,” stating: “[E]very act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.” 12 Footnote Id. Hamilton also viewed the Judiciary as protecting minority interests from potential oppression by the majority, stating:

This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. 13 Footnote Id.

Whether the Framers intended to authorize the Judiciary to set aside laws passed by the elected legislature, as Hamilton envisioned, has been the subject of debate from the Nation’s earliest days. The Constitution does not expressly provide for judicial review. And while it is clear from the Federalist Papers that many Framers contemplated judicial review as including the power to invalidate acts that violated the Constitution, it is less clear whether delegates to the state ratification conventions agreed as to what judicial review might entail. 14 Footnote There was not always consensus that the federal courts had the power to strike down laws as unconstitutional. President Andrew Jackson once opined: “[T]he opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.” Andrew Jackson, Veto Message (July 10, 1832), http://avalon.law.yale.edu/19th_century/ajveto01.asp . After identifying the twenty-five delegates with the greatest impact on the Constitutional Convention, historian Charles Beard identified those who either directly or indirectly supported “judicial control” —John Blair of Virginia, John Dickinson of Delaware, Oliver Ellsworth of Connecticut, Elbridge Gerry of Massachusetts, Alexander Hamilton of New York, William Johnson of Connecticut, Rufus King of Massachusetts, James Madison of Virginia, Luther Martin of Maryland, George Mason of Virginia, Gouverneur Morris of Pennsylvania, Robert Morris of Pennsylvania, William Paterson of New Jersey, Edmund Randolph of Virginia, George Washington of Virginia, Hugh Williamson of North Carolina, and James Wilson of Pennsylvania—either directly or indirectly supported “judicial control.” Charles Beard , The Supreme Court and the Constitution 47 (Dover ed. 2006) .

Chief Justice John Marshall’s opinion in his seminal 1803 decision, Marbury v. Madison firmly entrenched judicial review as a tenet of the new Republic. 15 Footnote Marbury v. Madison, 5 U.S. 137 (1803) . For an earlier case recognizing judicial review, see Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796) . See also Herbert Wechsler , Principles, Politics & Fundamental Law (1961) ( “The courts have both the title and the duty when a case is properly before them to review the actions of the other branches in the light of constitutional provisions, even though the action involves value choices . . . .” ); William Michael Treanor , Judicial Review Before Marbury , 58 Stan. L. Rev. 455 (2005) ; Robert P. Frankel, Jr. , Before Marbury: Hylton v. United States and the Origins of Judicial Review , 28 J. Sup. Ct Hist. 1 (2003) . Chief Justice Marshall saw judicial review as implicit in the Constitution because, among other reasons, written constitutions are the paramount law; legislative acts contrary to the Constitution are thereby void; and the Constitution provides for the judicial department to interpret the law. In Marbury , Chief Justice Marshall wrote:

That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis, on which the whole American fabric has been erected. . . . This original and supreme will organizes the government, and assigns, to different departments, their respective powers. . . . Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution is void. . . . It is emphatically the province and duty of the judicial department to say what the law is. . . . [I]n declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle . . . that a law repugnant to the constitution is void; and that courts , as well as other departments, are bound by that instrument. 16 Footnote Marbury , 5 U.S. 137 at 176–80 (emphasis retained). See also Trop v. Dulles, 356 U.S. 86, 103 (1958) ( “The Judiciary has the duty of implementing the constitutional safeguards that protect individual rights.” ).

Lending support to the notion that the Constitution contemplates judicial review, the Framers distinguished the Judicial Branch from the Legislative and Executive Branches by freeing it from most forms of political accountability. 17 Footnote The Federalist No. 49 (James Madison) ( “The [Judiciary], by the mode of their appointment, as well as by the nature and permanency of it, are too far removed from the people to share much in their prepossessions.” ). See also id. No. 78 (Alexander Hamilton) ( “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 specific 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 then 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.” ). Unlike the Legislative and Executive Branches, the Federal Judiciary is not subject to elections or term limits. Instead, the President nominates and the Senate approves Justices to the Supreme Court. 18 Footnote U.S. Const. art. II, § 2, cl. 2 ( “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court . . . .” ). The Constitution further secures the Judiciary’s independence from public pressure and Legislative and Executive Branch influence by providing Justices life tenure during Good Behavior 19 Footnote The Good Behavior Clause created a “permanent tenure of judicial offices” to ensure an “independent spirit in judges.” The Federalist No. 78 (Alexander Hamilton) . See ArtIII.S1.10.2.3 Good Behavior Clause Doctrine. and preventing Congress from reducing the Justices’ compensation. 20 Footnote The Compensation Clause created a “fixed provision for [the judiciary’s] support” to prevent the political branches from having power over a Justice’s pecuniary remuneration and, with that, “power over his will.” The Federalist No. 79 (Alexander Hamilton) . See ArtIII.S1.10.3.1 Historical Background on Compensation Clause.

Congress, however, has some checks on the Judiciary. Justices can be impeached, 21 Footnote Jared P. Cole & Todd Garvey, Cong. Rsch. Serv. , R46013, Impeachment and the Constitution (2019), https://crsreports.congress.gov/product/pdf/R/R46013 . and the Exceptions Clause in Article III grants Congress the power to make “exceptions” and “regulations” to the Supreme Court’s appellate jurisdiction. 22 Footnote See Kevin Lewis, Cong. Rsch. Serv. , R44967, Congress’s Power over Courts: Jurisdiction Stripping and the Rule of Klein (2018), https://crsreports.congress.gov/product/pdf/R/R44967 . In addition, Congress can dilute the influence of individual Justices by increasing the number of Justices on the Court. 23 Footnote Joanna Lampe, Cong. Rsch. Serv. , LSB10562, “Court Packing” : Legislative Control Over the Size of the Supreme Court (2020), https://crsreports.congress.gov/product/pdf/LSB/LSB10562 . Finally, the Judiciary’s reliance on the other branches to give effect to its rulings provides a further check: If the Judicial Branch’s rulings are not enforced, the Judiciary becomes, in practical effect, a nullity, incapable of meaningfully performing its duty of preserving the Constitution. 24 Footnote Chief Justice John Marshall recognized this problem in Marbury v. Madison , ruling that while Marbury was entitled to his commission, the Court could not effectuate its delivery because the Judiciary Act of 1793’s writs of mandamus provision was unconstitutional. 5 U.S. 137, 176 (1803) ( “The authority, therefore, given to the supreme court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution; and it becomes necessary to enquire whether a jurisdiction, so conferred, can be exercised.” ). Consequently, while the Judicial Branch is largely insulated from political pressure, it is not completely insulated.

The Debate Over the Judicial Branch

Antifederalists viewed the federal judiciary as a source of danger to individual liberty, the state judiciaries, and the future existence of the states themselves. The Constitution guaranteed jury trials in criminal cases, but it said nothing about civil cases. Thus, Antifederalists were concerned that the judicial power of the United States would compromise the right to jury trials in civil cases. They also noted that in criminal cases, juries of vicinage (local juries) were not guaranteed. This meant that individuals might need to travel distances of hundreds of miles to federal courts placing undue hardship on them. In cases that would come before the Supreme Court, travel could entail thousands of miles. Additionally, Antifederalists worried that the jurisdiction of the federal courts was too broad, and as federal power grew, which they believed was inevitable, more cases would be taken to federal courts rather than state courts, thus reducing the importance of state judiciaries. Since federal judges would be the interpreters of the ambiguities of the Constitution, the federal courts would accrue more power as they allowed federal power to expand at state expense.

Federalists responded that of the three branches, the judicial branch was “least dangerous,” because it only had the power of judgment. They denied that jury trials were always necessary or were endangered, either by the silence of the Constitution on civil cases or by the appellate jurisdiction of federal courts in matters of fact. They defended the jurisdiction of the federal courts as the only means to provide justice in foreign and interstate cases, and impose uniform obedience to the Constitution and federal law.

Federalists viewed the courts as the intermediary between the people and Congress and the Presidency. The courts, through judicial review, would uphold the Constitution against attempts by Congress or the President to enlarge their powers. As such, the judiciary was a protector of the people, not a danger to their liberties.

Among the issues that were not heavily debated, was judicial review since both recognized the judiciary would exercise this power under the new Constitution. The precedents of courts exercising the power of judicial review were well known to the Founders. In England the Law Lords served as a court of last resort. In both the Colonial Era and Post-Revolutionary Period, legislative councils continued this tradition. In New York, the Court of Error and Impeachment had review power. Thus, the idea of judicial review was not a new or radical idea during the Founding Period. However, during the ratification period, the debate centered on whether judicial review was synonymous with judicial supremacy. Federal courts in the proposed Constitution were uniquely independent from the other branches of government. This independence when coupled with the power of judicial review was central in the debates between Federalists and Antifederalists. Publius in The Federalist 78 suggested that having judicial review was advantageous because it afforded federal judges “an essential safeguard against the effects of occasional ill humours in the society.” Antifederalist Brutus argued that federal judges would be “independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.”

(F) Federalist Essays/Speeches (AF) Antifederalist Essays/Speeches

Criminal Cases

• Agrippa V, Massachusetts Gazette , 11 December 1787 (AF)

Decisions Not Reviewable

• Brutus XI, New York Journal , 31 January 1788 (AF)
• A Well-Wisher to Good Government, Virginia Independent Chronicle , 18 June 1788 (AF)

Equity Powers

• The Dissent of the Minority of the Pennsylvania Convention, Pennsylvania Packet , 18 December 1787 (AF)
• Brutus XIII, New York Journal , 21 February 1788 (AF)
• George Mason Speech: Virginia Convention, 19 June 1788 (AF)

Inferior Courts

• Cassius II: To Richard Henry Lee, Esquire, Virginia Independent Chronicle , 9 April 1788 (F)
• Edmund Pendleton Speech: Virginia Convention, 20 June 1788 (F)
• Brutus I, New York Journal , 18 October 1787 (AF)

Judicial Independence

• Publius: The Federalist 78, New York, 28 May 1788 (F)
• Publius: The Federalist 81, New York, 28 May 1788 (F)
• Brutus XII, New York Journal , 7 February 1788 (AF)
• Brutus XV, New York Journal , 20 March 1788 (AF)

Jurisdiction

• Aristides: Remarks on the Proposed Plan of a Federal Government , 31 January 1788 (F)
• Hugh Williamson Speech: Edenton, N.C., New York Daily Advertiser , 25-27 February 1788 (F)
• Publicola: An Address to the Freemen of North Carolina, State Gazette of North Carolina , 20 March 1788 (F)
• John Marshall Speech: Virginia Convention, 20 June 1788 (F)
• Publius: The Federalist 80, New York, 28 May 1788 (F)
• James Madison Speech: Virginia Convention, 20 June 1788 (F)
• A Democratic Federalist, Pennsylvania Herald , 17 October 1787 (AF)
• Centinel II, Philadelphia Freeman’s Journal , 24 October 1787 (AF)
• Boston American Herald , 7 January 1788 (AF)
• Luther Martin: Genuine Information X, Baltimore Maryland Gazette , 1 February 1788 (AF)
• Brutus XIV, New York Journal , 28 February 1788 (AF)
• Patrick Henry Speech: Virginia Convention, 20 June 1788 (AF)

Jury Trials

• An American Citizen IV: On the Federal Government, Philadelphia Independent Gazette , 21 October 1787 (F)
• One of the Middling-Interest, Massachusetts Centinel , 28 November 1787 (F)
• An Old Whig III, Philadelphia Independent Gazetteer , 20 October 1787 (AF)
• Federal Farmer: An Additional Number of Letters to the Republican , New York, 2 May 1788 —excerpt from Letter XV (18 January 1788) (AF)

Location and Access to Courts

• Patrick Henry Speech: Virginia Convention, 5 June 1788 (AF)

Organization of the Judiciary

• A Landholder V, Connecticut Courant , 3 December 1788 (F)
• Federal Farmer: Letters to the Republican , New York, 8 November 1787 —excerpts from Letter II (9 October 1787), Letter III (10 October), Letter IV (12 October) (AF)

Review Powers

• James Wilson Speech: Pennsylvania Convention, 1 December 1787 (F)
• Oliver Ellsworth Speech: Connecticut Convention, 7 January 1788 (F)
• Publius: The Federalist 79, New York, 28 May 1788 (F)

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The Judicial Branch

Where the executive and legislative branches are elected by the people, members of the Judicial Branch are appointed by the President and confirmed by the Senate.

Article III of the Constitution, which establishes the Judicial Branch, leaves Congress significant discretion to determine the shape and structure of the federal judiciary. Even the number of Supreme Court Justices is left to Congress — at times there have been as few as six, while the current number (nine, with one Chief Justice and eight Associate Justices) has only been in place since 1869. The Constitution also grants Congress the power to establish courts inferior to the Supreme Court, and to that end Congress has established the United States district courts, which try most federal cases, and 13 United States courts of appeals, which review appealed district court cases.

Federal judges can only be removed through impeachment by the House of Representatives and conviction in the Senate. Judges and Justices serve no fixed term — they serve until their death, retirement, or conviction by the Senate. By design, this insulates them from the temporary passions of the public, and allows them to apply the law with only justice in mind, and not electoral or political concerns.

Generally, Congress determines the jurisdiction of the federal courts. In some cases, however — such as in the example of a dispute between two or more U.S. states — the Constitution grants the Supreme Court original jurisdiction, an authority that cannot be stripped by Congress.

The courts only try actual cases and controversies — a party must show that it has been harmed in order to bring suit in court. This means that the courts do not issue advisory opinions on the constitutionality of laws or the legality of actions if the ruling would have no practical effect. Cases brought before the judiciary typically proceed from district court to appellate court and may even end at the Supreme Court, although the Supreme Court hears comparatively few cases each year.

Federal courts enjoy the sole power to interpret the law, determine the constitutionality of the law, and apply it to individual cases. The courts, like Congress, can compel the production of evidence and testimony through the use of a subpoena. The inferior courts are constrained by the decisions of the Supreme Court — once the Supreme Court interprets a law, inferior courts must apply the Supreme Court’s interpretation to the facts of a particular case.

The Supreme Court of the United States

The Supreme Court of the United States is the highest court in the land and the only part of the federal judiciary specifically required by the Constitution.

The Constitution does not stipulate the number of Supreme Court Justices; the number is set instead by Congress. There have been as few as six, but since 1869 there have been nine Justices, including one Chief Justice. All Justices are nominated by the President, confirmed by the Senate, and hold their offices under life tenure. Since Justices do not have to run or campaign for re-election, they are thought to be insulated from political pressure when deciding cases. Justices may remain in office until they resign, pass away, or are impeached and convicted by Congress.

The Court’s caseload is almost entirely appellate in nature, and the Court’s decisions cannot be appealed to any authority, as it is the final judicial arbiter in the United States on matters of federal law. However, the Court may consider appeals from the highest state courts or from federal appellate courts. The Court also has original jurisdiction over limited types of cases, including those involving ambassadors and other diplomats, and in cases between states.

Although the Supreme Court may hear an appeal on any question of law provided it has jurisdiction, it usually does not hold trials. Instead, the Court’s task is to interpret the meaning of a law, to decide whether a law is relevant to a particular set of facts, or to rule on how a law should be applied. Lower courts are obligated to follow the precedent set by the Supreme Court when rendering decisions.

In almost all instances, the Supreme Court does not hear appeals as a matter of right; instead, parties must petition the Court for a writ of certiorari. It is the Court’s custom and practice to “grant cert” if four of the nine Justices decide that they should hear the case. Of the approximately 7,500 requests for certiorari filed each year, the Court usually grants cert to fewer than 150. These are typically cases that the Court considers sufficiently important to require their review; a common example is the occasion when two or more of the federal courts of appeals have ruled differently on the same question of federal law.

If the Court grants certiorari, Justices accept legal briefs from the parties to the case, as well as from amicus curiae, or “friends of the court.” These can include industry trade groups, academics, or even the U.S. government itself. Before issuing a ruling, the Supreme Court usually hears oral arguments, where the various parties to the suit present their arguments and the Justices ask them questions. If the case involves the federal government, the Solicitor General of the United States presents arguments on behalf of the United States. The Justices then hold private conferences, make their decision, and (often after a period of several months) issue the Court’s opinion, along with any dissenting arguments that may have been written.

The Judicial Process

Article III of the Constitution of the United States guarantees that every person accused of wrongdoing has the right to a fair trial before a competent judge and a jury of one’s peers.

The Fourth, Fifth, Sixth, and Eighth Amendments to the Constitution provide additional protections for those accused of a crime. These include:

• A guarantee that no person shall be deprived of life, liberty, or property without the due process of law
• Protection against being tried for the same crime twice (“double jeopardy”)
• The right to a speedy trial by an impartial jury
• The right to cross-examine witnesses, and to call witnesses to support their case
• The right to legal representation
• The right to avoid self-incrimination
• Protection from excessive bail, excessive fines, and cruel and unusual punishments

Criminal proceedings can be conducted under either state or federal law, depending on the nature and extent of the crime. A criminal legal procedure typically begins with an arrest by a law enforcement officer. If a grand jury chooses to deliver an indictment, the accused will appear before a judge and be formally charged with a crime, at which time he or she may enter a plea.

The defendant is given time to review all the evidence in the case and to build a legal argument. Then, the case is brought to trial and decided by a jury. If the defendant is determined to be not guilty of the crime, the charges are dismissed. Otherwise, the judge determines the sentence, which can include prison time, a fine, or even execution.

Civil cases are similar to criminal ones, but instead of arbitrating between the state and a person or organization, they deal with disputes between individuals or organizations. In civil cases, if a party believes that it has been wronged, it can file suit in civil court to attempt to have that wrong remedied through an order to cease and desist, alter behavior, or award monetary damages. After the suit is filed and evidence is gathered and presented by both sides, a trial proceeds as in a criminal case. If the parties involved waive their right to a jury trial, the case can be decided by a judge; otherwise, the case is decided and damages awarded by a jury.

After a criminal or civil case is tried, it may be appealed to a higher court — a federal court of appeals or state appellate court. A litigant who files an appeal, known as an “appellant,” must show that the trial court or administrative agency made a legal error that affected the outcome of the case. An appellate court makes its decision based on the record of the case established by the trial court or agency — it does not receive additional evidence or hear witnesses. It may also review the factual findings of the trial court or agency, but typically may only overturn a trial outcome on factual grounds if the findings were “clearly erroneous.” If a defendant is found not guilty in a criminal proceeding, he or she cannot be retried on the same set of facts.

Federal appeals are decided by panels of three judges. The appellant presents legal arguments to the panel, in a written document called a “brief.” In the brief, the appellant tries to persuade the judges that the trial court made an error, and that the lower decision should be reversed. On the other hand, the party defending against the appeal, known as the “appellee” or “respondent,” tries in its brief to show why the trial court decision was correct, or why any errors made by the trial court are not significant enough to affect the outcome of the case.

The court of appeals usually has the final word in the case, unless it sends the case back to the trial court for additional proceedings. In some cases the decision may be reviewed en banc — that is, by a larger group of judges of the court of appeals for the circuit.

A litigant who loses in a federal court of appeals, or in the highest court of a state, may file a petition for a “writ of certiorari,” which is a document asking the U.S. Supreme Court to review the case. The Supreme Court, however, is not obligated to grant review. The Court typically will agree to hear a case only when it involves a new and important legal principle, or when two or more federal appellate courts have interpreted a law differently. (There are also special circumstances in which the Supreme Court is required by law to hear an appeal.) When the Supreme Court hears a case, the parties are required to file written briefs and the Court may hear oral argument.

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Civil Rights & Liberties. The Judicial Branch Essay (Critical Writing)

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Rights and Liberties

Judicial branch.

Bibliography

Rights and liberties is a term that refers to the set of rights granted to an individual by the virtue of them being American citizens. The major component of these rights and liberties are the contents of the fundamental freedoms and privileges contained in 13 and 14 th Amendments of the United States constitution guaranteeing certain freedoms and privileges to all citizens of country.

Rights and liberties, just like other sets of laws, are subject to interpretation by the judicial branch, which determines whether such rights and liberties as provided for in the constitution have been violated. An important aspect that always comes up when it comes to the discussion on rights and liberties is the civil liberties guaranteed to each and every American citizen and precisely, to what extent an individual can enjoy such civil liberties without any interference from the government authorities.

There are certain situations where the rights and liberties of an individual might be lawfully curtailed and, therefore, the constitution allows such curtailment for the purpose of enforcing the law. This paper will discuss various situations where the rights and liberties of an individual can be lawfully curtailed and present the rationale behind each case.

There are situations where the fundamental rights and liberties of an individual can be curtailed for the purpose of enforcing the law and ensuring that greater good is achieved. One instance involves the curtailment of the right to movement and association of a lawfully detained person.

A person who is legally detained for one reason or the other will not enjoy the right to free movement and association because extending such rights might interfere with an ongoing judicial process. In order to curtail such a right, the arrest and detention should be lawful in that such an arrest must be sanctioned by a court of law or the arresting officer must present justifiable course necessitating the arrest and detention of the suspect<.

A second right that is increasingly becoming a major issue in the United States is the right to due process and the curtailment of such rights. Against the backdrop of the September 11 th , the US has put in place several provisions that are meant to enhance the country’s security and prevent such attacks in the future. Chief among these are provisions regarding the handling of suspects who are deemed a threat to national security.

In such cases, the right to due process is at times shelved and suspects might be subjected to extended periods of detention and questioning depending on the severity of the case. This is in contradiction since a suspect should be arraigned in court within forty eight hours of arrest, which is part of the US judicial system due process.

The third right that can be curtailed within the precinct of the United States criminal justice system is the right to life. The right to life is one of the most fundamental rights and liberties in the US and other countries. This right is inherent upon any US citizen on the virtue of them being human beings.

The constitution has provisions for ensuring that all measures are undertaken to ensure that this right is upheld. However, the United States constitution has also provisions where this right can be curtailed legally. This can be viewed in cases where the United States government is legally entailed to deny somebody this right through its criminal justice system and the judicial Branch.

The United States is still one of those countries that practice capital punishment. This type of punishment is only reserved as the maximum sentence meted out on suspects who have been convicted of murder and it is meant to deter any person from committing such a crime. Therefore, the murder convicts do not enjoy this right if they have received the maximum sentence because enforcing the sentence essentially means putting an end to their lives.

In a nutshell, rights and liberties refer to the freedoms conferred to US citizens by virtue of them being citizens of the country. However, there are instances when these rights are curtailed. As a country, it is important to understand the reasons that might necessitate the curtailing of such rights and privileges. There will always be situations when a choice hasto be made between an individual’s rights and freedoms and the greater good of the country.

Judicial branch is a term that refers to the system of courts in all levels of government. The main responsibility of the judicial branch is interpretation of laws and applying the interpretation in the determination of cases brought before them.

The judicial branch is made up of the Supreme Court and other lower courts, which coordinate their efforts with an aim of ensuring that justice is delivered to each and every complainant through effective and correct interpretation of laws. There have been several aspects regarding the composition and structure of the judicial branch that serve to underscore the effectiveness of the Judicial Branch in both the country’s criminal justice and civil justice system.

Such aspects and structures have resulted in streamlining of the operation of the judicial branch and enhancing the ability of this vital branch in the interpretation of laws. This paper will discuss the structure and composition of the judicial branch and highlight their importance as far as the performance of the judiciary is concerned.

Starting with the Supreme Court that is the highest court of the land, it mainly deals with interpretation of the law. It interprets congressional enactments that are placed before it and in matters such as the interpretation of the law the Supreme Court’s ruling is final. Therefore, the Supreme Court is regarded as the final court of appeal. In addition to that, the Supreme Court is the only court mandated to settle international disputes that the country might be involved in.

In addition to the Supreme Court, another court that is important as far as the operations of the US Judicial System are concerned is the appellate court. The appellate court is tasked with the responsibility of determining cases originating from lower cases where there are disputes with the rulings. The appellate court normally sits to determine whether a lower court ruling is correct based on all the provisions that are supposed to be followed.

It can either affirm the ruling or overturn the ruling emanating from these lower courts. In order to carry out its function, the appellate court does not have to carry out another hearing of the case in question. Instead, the court relies on the transcript of the court proceedings from the lower court’s hearing.

The third court that will be discussed within the US judicial system is the district court. These courts are usually regarded as having original jurisdiction over the cases that they proceed over. Most of the cases that are decided within the US judicial branch are actually decided by the District Courts and, therefore, these courts are an integral part of the US justice system.

Some of the cases that are most commonly determined by the district courts include civil cases that result from the breach of various legal provisions, civil cases between two or more parties, criminal cases, and many other cases that do not fall directly under the mandate of the Supreme Courts or the appellate Courts.

All in all, the United States Judicial Branch is an important component of the US justice system. The Judicial Branch has several components that underscore its effectiveness as the main body tasked with the responsibility of interpreting and implementing the legal provisions contained in the constitution.

The highest court in the judicial system is the Supreme Court, which is tasked with the responsibility of interpreting laws and other congressional provisions. Its interpretation is final. The appellate court is responsible for hearing appeal cases emanating from lower courts while the district court is the court of original jurisdiction in many cases.

Abraham, Hiel J., and Perry B. Anthony. Freedom and the court: civil rights and liberties in the United States . New York: Oxford University Press, 1988.

Barron, June A., and Dienes C. Tony. Constitutional law . London: West Group, 1999.

Bermant, Gregory K., andWheeler R. Reir. “Federal Judges and the Judicial Branch: Their Independence and Accountability.” Mercer L. Rev . 46, no. 3 (1995): 835-1575.

Bollen, Kiel A. “Political rights and political liberties in nations: An evaluation of human rights measures, 1950 to 1984.” Hum. Rts. Q. 8, no. 4, (1986): 567.

Burger, Wilson E. “Report on the Federal Judicial Branch-1974.” ABAJ 60, no. 3 (1974): 1193.

Chong, Diel K. “How people think, reason, and feel about rights and liberties. ” American Journal of Political Science 5, no. 3 (1993): 867-899.

Engdahl, Derrick E. “Intrinsic Limits of Congress’ Power Regarding the Judicial Branch.” BYU L. Rev. 4, no. 3 (1999): 75.

Hensley, Tiel. R. and Baugh J. Anti. The Changing Supreme Court: Constitutional Rights and Liberties . New York: West Publishers, 1997.

Kurland, Pius B. Politics, the Constitution, and the Warren Court . New York: University of Chicago Press, 1970.

“U.S. History.” American History: from Pre-Columbian to the New Millennium . Web.

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IvyPanda. (2019, January 17). Civil Rights & Liberties. The Judicial Branch. https://ivypanda.com/essays/the-judicial-branch/

"Civil Rights & Liberties. The Judicial Branch." IvyPanda , 17 Jan. 2019, ivypanda.com/essays/the-judicial-branch/.

IvyPanda . (2019) 'Civil Rights & Liberties. The Judicial Branch'. 17 January.

IvyPanda . 2019. "Civil Rights & Liberties. The Judicial Branch." January 17, 2019. https://ivypanda.com/essays/the-judicial-branch/.

1. IvyPanda . "Civil Rights & Liberties. The Judicial Branch." January 17, 2019. https://ivypanda.com/essays/the-judicial-branch/.

IvyPanda . "Civil Rights & Liberties. The Judicial Branch." January 17, 2019. https://ivypanda.com/essays/the-judicial-branch/.

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4.4: The Structure and Functions of the Judicial Branch

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Where the Executive and Legislative branches are elected by the people, members of the Judicial Branch are appointed by the President and confirmed by the Senate.

Article III of the Constitution, which establishes the Judicial Branch, leaves Congress significant discretion to determine the shape and structure of the federal judiciary. Even the number of Supreme Court Justices is left to Congress — at times there have been as few as six, while the current number (nine, with one chief justice and eight associate justices) has only been in place since 1869.

The Creation of the Supreme Court, Lower Courts, Terms of Judges and Pay

The Judicial Power of the United States was intended to be placed solely in the hands of the Supreme Court with Congress being allowed to establish a system of lower courts as it deemed necessary. In 1789, Congress did just that when it created the United States Court System. This act created three sets of Constitutional courts starting with District Courts that would hear both criminal and civil cases of a federal nature, a set of intermediate “Circuit” courts of appeal which would review cases coming from the District Courts and the Supreme Court acting as the highest court in the land. With few exceptions, federal judges hold their Offices for life and can only be removed through a process of impeachment. Judges must be paid for their services and whenever they receive a pay raise, their pay may not be reduced as long as they stay in office. This protects the judges from being manipulated through their salary.

Judicial Authority and Jurisdiction for the Federal Courts

Section 2 of Article III describes the jurisdiction of the federal courts. Jurisdiction is the power of a court to hear a case, so this section tells us what kinds of cases the Supreme Court and other federal courts will hear.

• All cases that arise under the Constitution, the laws of the United States or its treaties.
• All cases that affect American Ambassadors, public officials, and public consuls.
• All cases of admiralty and maritime jurisdiction (cases that involve national waters).
• All cases in which the United States is a party (when a state, a citizen or a foreign power sues the national government).
• All cases that involve one or more states, or the citizens of different states.
• All cases between citizens of the same state who are claiming land under grants from other states.

The 11th Amendment changed some provisions of this section by placing limits on the ability of individuals to sue a state.

Original Jurisdiction

Section 2 also notes that the Supreme Court will have original jurisdiction in any case dealing with or affecting an Ambassador, Public Minister or Consul, or in which a state is a party.

Original jurisdiction is the power of a court to hear a case first. This means that, in any case dealing with these groups of public servants, the Supreme Court must hear the case first, and no lower court can do so. The number of original jurisdiction cases heard by the United States Supreme Court is very low; less than 1% of all their cases.

In addition to these original jurisdiction cases, the Supreme Court will have appellate jurisdiction in all other cases. Appellate jurisdiction is the power to hear a case AFTER a lower court has already decided the case. That is what it means to hear the case on appeal. The vast majority cases heard by the United States Supreme Court today are appellate cases.

The Supreme Court is the “court of last resort” that is, the final court in which a citizen, state or other entity can have their case heard. The Supreme Court is also the only federal court to have BOTH original and appellate jurisdiction.

Right to a Jury Trial in all Cases but Impeachment

Article III Section 2 also states that in the trial of all crimes, except impeachment, the accused has a right to a trial by jury. These trials are held in the state where the crime is committed. Impeachment is the process described in the Constitution by which high officers of the U.S. government may be accused, tried, and removed from office for misconduct; the House of Representatives is responsible for the inquiry and formal accusation, and the Senate is responsible for the trial. The right to a trial by jury is also expressly listed in the 6 th and 7 th Amendments of the Constitution (in the Bill of Rights).

Section 3 of Article III deals with the crime of treason, first by giving us a definition of the crime, then by telling us how the crime will be tried.

Treason is defined in the Constitution as levying war against the United States, or giving aid to our enemies. This is the only crime actually defined in the Constitution. Why? The founders were afraid that people could be charged with treason, when they were really just engaging in dissent. Part of living in a democracy is the ability we all have to disagree with our government. If simply speaking out against the government were treason, then the government could quash all dissent, and we would not have a free country. By defining treason in the Constitution, the founders made sure that those accused of treason had to do more than simply say things our government or leaders didn’t like.

To be guilty of treason, they had to take actual action (make war against our government or directly help our enemies). This protects our freedom of speech from being limited. Section 3 tells us that, to be convicted of treason, there must be two witnesses to the same overt act, or that the person committing treason must confess in open court. Congress has the power to determine the punishment for treason, which ranges from five years in prison and a $10,000 fine, up to life in prison or death.

The View of the Founders on an Independent Judiciary

The major Constitutional Convention debate was over the degree of court independence. The Federalists believed the new Supreme Court would be too weak, and the Anti Federalists believed it would be too strong. But there is little doubt that both sides intended the judicial branch to be the least powerful. In Federalist 78, Alexander Hamilton argued:

The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

But the power of the judicial branch (through its use of Judicial Review) has risen since its creation and today, it wields great power and influence through its actions and decisions

Four Types of Law

There are four basic types of law in the federal legal system. These include:

Source: https://www.law.upenn.edu/live/files/226-research-guide-federal-court-mappdf Independent Judiciary

Independent Judiciary is is the degree to which the courts and the judges who interpret the law are allowed to make and enforce decisions without intervention from other branches of the government. For the justice system to be impartial, it must also remain independent (by a separation of powers).

Judicial review is the power of the courts to overturn laws or other actions of Congress and the Executive Branch based on their constitutionality. This principle allows courts to establish quasi-legislation (legislation created from bench) which often leads to accusations of “judicial activism”. The Constitution is actually silent on subject of judicial review so the Supreme Court gave itself and lower courts power of judicial review in case of Marbury vs. Madison . Judicial review is rarely used. In fact the Court has struck down only around 170 national laws (less than .25 percent of all passed) and around 1400 state laws in its more than 200 year history.

Judicial Interpretation

Judicial interpretation is the manner or basis used to interpret a law. Constitutional interpretation involves deciding whether or not a law should stand solely on the basis of its constitutionality (whether or not it violates a particular part of the Constitution). Statutory interpretation involves applying both national and state law to a specific case to determine whether the law(s) actually apply to the case brought in front of the court and whether or not those laws are being applied properly in that specific case. Constitutional interpretation has a much broader scope than the very specific and minute details that are considered in the case of statutory interpretation.

Judicial Activism

Judicial activism is when the court strikes down a duly enacted law created by Congress. That is its FORMAL meaning, its descriptive meaning. But in the course of politics, commentators and critics often call a decision to strike down a law “judicial activism” if they don’t like the court’s action. If they DO like the court’s decision, they don’t use that term.

Court Fundamentals

In an adversarial judicial system such as we have in the United States, the plaintiff is the party that is bringing the case before the court as a complaint or accusation against another party. The defendant is the party that has been accused of harming the plaintiff in some way. In civil cases, the plaintiff is the injured party and the defendant is the party that has been accused of doing harm to the plaintiff. In a criminal case, the plaintiff is always the government (either the state or the United States government) and the defendant is the party accused of violating the law. In both civil and criminal cases, the burden of proof is on the plaintiff and the defendant is entitled to confront his/her accusers and to a vigorous defense against the charges.

In order to win a civil case, the plaintiff must prove the case “beyond a preponderance of the evidence” meaning the evidence presented weighs more on his/her side in the eyes of the jury or the judge (if the trial is a bench trial where a jury has been waived). In a criminal case, the state must prove its case “beyond a reasonable doubt,” meaning there is no doubt in the minds of the jury that the defendant committed the crime he/she is accused of. This is a much higher burden of proof.

In order to smoothly allow cases to flow through the system, plea bargaining often occurs before court verdicts are ever reached. This happens when the defendant is allowed to plead guilty to a lesser charge and/or receive a lighter punishment in exchange for his/her plea. In such a case, the defendant must testify to his/her crimes in open court and the defendant also waives the right to an appeal.

Deferred Adjudication

Deferred adjudication occurs when the court delays sentencing pending terms of probation. When the defendant completes all terms of probation, charges may be expunged (dropped) and/or the jail time may be eliminated or reduced.

The adversarial judicial system gives both sides of a case access to the relevant information. Each of the parties must openly share any evidence or relevant information with each other. This process is called disclosure.

Double Jeopardy and Civil/Dual (Federal and State) Prosecution Cases

Currently, people can face a criminal trial and a civil trial for the same incident without triggering the Constitution’s ban on “double jeopardy” which is forbidden in the Constitution. In a similar vein, a person can be tried at both the federal and state levels for the same crime (because of its two different laws and jurisdictions).

That’s what the law says. Is the law right? What are the arguments for and against being able to be tried both in civil and criminal court?

Principles of Common Law

Common Law (also known as case law or precedent) is law developed by judges through decisions of courts and similar tribunals that decide individual cases, as opposed to statutes adopted through the legislative process or regulations issued by the executive branch. This law is deeply rooted in the respect for the decisions and actions of previous courts and the expectation that when a ruling is made by the courts it should be respected and applied by future courts.

• Precedent (stare decisis) means “let the decision stand” in Latin. This is the principle that previously decided cases/sets of decisions should serve as a guide for future cases on the same topic. The Supreme Court strongly honored precedent in first 100 years of its existence but many decisions in the past 100 years have demonstrated modern court is more willing to overturn precedent in order to correct for violations of human rights, civil rights or states’ rights.
• Jurisdiction is the power of a court to hear a case and to make a binding legal judgment or decision based on the facts presented to the court. The Constitution and the Federal Judiciary Act of 1789 both establish the jurisdiction of the federal courts in regards to what cases they may hear and how those cases are selected or assigned to the courts.
• Collusion is the requirement that litigants in the case cannot want the same outcome
• Standing is when a petitioner has a legitimate basis for bringing the case
• Mootness is the requirement that controversy must still be relevant when the Court hears the case
• Ripeness is the opposite of mootness; with ripeness, the controversy has not started yet.

For more information on the fundamentals of common law, go to:

www.law.berkeley.edu/library/robbins/pdf/CommonLawCivilLawTraditions.pdf

Limitations on the Court's Power

The power of the Supreme Court is great but ultimately it is only a court of law. The Supreme Court does not have the power to initiate its own cases. Cases can only come to it from a lower court (except in the limited area of so-called original jurisdiction). Therefore, a justice cannot select a law or policy with which he/she disagrees and bring it to court for a ruling.

Once a decision has been made, the Supreme Court does not have the ability to enforce its rulings. This can only be done by the Executive and Legislative branches of government. When segregation in southern schools was declared unconstitutional in 1954, nothing happened in the south. It took until 1957 for the decision to actually be enforced. Though the Supreme Court had initiated a new approach in southern schools, no-one in the south wanted to enforce it and only the Federal government could do this by the use of troops.

The Supreme Court needs to maintain its position within America as the highest judicial body in the nation. Therefore it does need to be seen working as a partner with the Legislative and Executive branches as a conflict between the three would invariably diminish their standing in the eyes of the public. It is rare that the Court will totally overturn an act passed by the Legislative. The Court might seek to change parts of it piecemeal and over a period of time as this would appear to be less provocative towards an elected body. The ability of the Supreme Court to interpret the Constitution is limited as most parts of it are written in a very clear and concise way which does not leave them open to interpretation.

The greatest limitation to the Supreme Court are the politicians themselves. As the Court cannot enforce its decisions, it relies on the Federal authorities to do this. These politicians are supportive of the Constitution and even Roosevelt never thought about operating without a Supreme Court regardless of his clashes with it. Politicians must be willing to listen and abide by its decisions. What could the Supreme Court do if these politicians refused to abide by its decisions?

Power of the Supreme Court

In Federalist No. 78, Alexander Hamilton described the courts as “the least dangerous” branch of government. Yet, they do possess considerable power. For example, because of the Court’s 5–4 decision in 2002, the more than seven million public high school students engaged in “competitive” extracurricular activities—including cheerleading, Future Farmers of America, Spanish club, and choir—can be required to submit to random drug testing. Decisions such as these have proven divisive and have led to a belief by many that the Supreme Court has recently exceeded its Constitutional authority and purpose.

Discussion Question: "Do you think the Supreme Court's power has grown too large?

Many have argued that since the 1950s, the Supreme Court has changed from “the Least Dangerous Branch” to an “Imperial Judiciary.” Do you think the Supreme Court’s power has grown too large? Read the articles below and respond to this question.

www.voanews.com/content/a-13-2005-03-07-voa48-67525242/387028.html

http://www.nationalaffairs.com/publications/detail/the-most-dangerous-branch

http://www.heritage.org/research/reports/2012/01/what-is-the-proper-role-of-the-courts

http://www.outsidethebeltway.com/still_the_least_dangerous_branch/

Judicial Review

The federal courts’ most significant power is judicial review. Exercising it, they can refuse to apply a state or federal law because, in their judgment, it violates the US Constitution.

Marbury v. Madison

Judicial review was asserted by the U.S. Supreme Court in 1803 in the decision of Chief Justice John Marshall in the case of Marbury v. Madison (5 US 137, 1803).

After losing the election of 1800, John Adams made a flurry of 42 appointments of justices of the peace for Washington, D.C. in the last days of his presidency. His purpose in doing so was to ensure that the judiciary would remain dominated by his Federalist party. The Senate approved the appointments, and Secretary of State John Marshall stamped the officials’ commissions with the Great Seal of the United States. But no one in the outgoing administration delivered the signed and sealed commissions to the appointees. The new president, Thomas Jefferson, instructed his secretary of state, James Madison, not to deliver them. One appointee, William Marbury, sued, asking the Supreme Court to issue a writ of mandamus, a court order requiring Madison to hand over the commission.

The case went directly to the Supreme Court under its original jurisdiction. John Marshall was now chief justice, having been appointed by Adams and confirmed by the Senate. He had a dilemma: a prominent Federalist, he was sympathetic to Marbury, but President Jefferson would likely refuse to obey a ruling from the Court in Marbury’s favor. However, ruling in favor of Madison would permit an executive official to defy the provisions of the law without penalty.

Marshall’s solution was a political masterpiece. The Court ruled that Marbury was entitled to his commission and that Madison had broken the law by not delivering it. But it also ruled that the part of the Judiciary Act of 1789 granting the Court the power to issue writs of mandamus was unconstitutional because it expanded the original jurisdiction of the Supreme Court beyond its definition in Article III; this expansion could be done only by a constitutional amendment. Therefore, Marbury’s suit could not be heard by the Supreme Court. The decision simultaneously supported Marbury and the Federalists, did not challenge Jefferson, and relinquished the Court’s power to issue writs of mandamus. Above all, it asserted the prerogative of judicial review for the Supreme Court.

For 40 years after Marbury, the Court did not overturn a single law of Congress. And when it finally did, it was the Dred Scott decision, which dramatically damaged the Court’s power. The Court ruled that people of African descent who were slaves (and their descendants, whether or not they were slaves) were not protected by the Constitution and could never be U.S. citizens. The Court also held that the U.S. Congress had no authority to prohibit slavery in federal territories.

The pace of judicial review picked up in the 1960s and continues to this day. The Supreme Court has invalidated an average of 18 federal laws per decade. The Court has displayed even less compunction about voiding state laws. For example, the famous Brown v. Board of Education of Topeka, Kansas desegregation case overturned statutes from Kansas, Delaware, South Carolina, and Virginia that either required or permitted segregated public schools. The average number of state and local laws invalidated per decade is 122, although it has fluctuated from a high of 195 to a low for the period 2000–2008 of 34.

Judicial review can be seen as reinforcing the system of checks and balances. It is a way of policing the actions of Congress, the president, and state governments to make sure that they are in accord with the Constitution. But whether an act violates the Constitution is often sharply debated, not least by members of the Court.

Constraints on Judicial Power

Samuel Chase (April 17, 1741 – June 19, 1811) was an associate justice of the United States Supreme Court and earlier was a signatory to the United States Declaration of Independence as a representative of Maryland. Early in life, Chase was a "firebrand" states-righter and revolutionary. His political views changed over his lifetime, and, in the last decades of his career, he became well known as a staunch Federalist and was impeached for allegedly letting his partisan leanings affect his court decisions. He was acquitted by the Senate and was NOT removed from office. But he remains the only Supreme Court Justice to have articles of impeachment drafted against him by the House. His is an example of philosophical and political differences that remain today.

At question then, as today, is the issue of judicial authority and power. The American system of government relies on specific checks and balances of power so as to balance the authority of the three branches of government. In this section, we will examine three types of constraints on the power of the Supreme Court and lower court judges. These are precedents, internal limitations, and external checks.

Ruling by Precedent

Judges look to precedent, previously decided cases, to guide and justify their decisions. They are expected to follow the principle of stare decisis , which is Latin for “to stand on the decision.” They identify the similarity between the case under consideration and previous ones. Then they apply the rule of law contained in the earlier case or cases to the current case. Often, one side is favored by the evidence and the precedents.

Precedents, however, have less of an influence on judicial power than would be expected. According to a study, “justices interpret precedent in order to move existing precedents closer to their preferred outcomes and to justify new policy choices.”

Precedents may erode over time. The 1954 Brown school desegregation decision overturned the 1896 Plessy decision that had upheld the constitutionality of separate but equal facilities and thus segregation. Or they may be overturned relatively quickly. In 2003, the Supreme Court by 6–3 struck down a Texas law that made homosexual acts a crime, overruling the Court’s decision seventeen years earlier upholding a similar antisodomy law in Georgia. The previous case “was not correct when it was decided, and it is not correct today,” Justice Kennedy wrote for the majority.

Judges may disagree about which precedents apply to a case. Consider students wanting to use campus facilities for prayer groups: if this is seen as violating the separation of church and state, they lose their case; if it is seen as freedom of speech, they win it. Precedents may allow a finding for either party, or a case may involve new areas of the law.

Internal Limitations

For the courts to exercise power, there must be a case to decide: a controversy between legitimate adversaries who have suffered or are about to suffer in some way. The case must be about the protection or enforcement of legal rights or the redress of wrongs. Judges cannot solicit cases, although they can use their decisions to signal their willingness to hear (more) cases in particular policy areas.

Judges, moreover, are expected to follow the Constitution and the law despite their policy preferences. In a speech to a bar association, Supreme Court Justice John Paul Stevens regretted two of his majority opinions, saying he had no choice but to uphold the federal statutes. [8] That the Supreme Court was divided on these cases indicates, however, that some of the other justices interpreted the laws differently.

A further internal limitation is that judges are obliged to explain and justify their decisions to the courts above and below. The Supreme Court’s written opinions are subject to scrutiny by other judges, law professors, lawyers, elected officials, the public, and, of course, the media.

External Checks on Power

The executive and legislative branches can check or try to check judicial power. Through their authority to nominate federal judges, presidents influence the power and direction of the courts by filling vacancies with people likely to support their policies.

They may object to specific decisions in speeches, press conferences, or written statements. In his 2010 State of the Union address, with six of the justices seated in front of him, President Obama criticized the Supreme Court’s decision that corporations have a First Amendment right to make unlimited expenditures in candidate elections. [9]

Presidents can engage in frontal assaults. Following his overwhelming reelection victory, President Franklin D. Roosevelt proposed to Congress in February 1937 that another justice be added to the Supreme Court for each sitting justice over the age of seventy. This would have increased the number of justices on the court from nine to fifteen. His ostensible justification was the Court’s workload and the ages of the justices. Actually, he was frustrated by the Court’s decisions, which gutted his New Deal economic programs by declaring many of its measures unconstitutional.

The president’s proposal was damned by its opponents as unwarranted meddling with the constitutionally guaranteed independence of the judiciary. It was further undermined when the justices pointed out that they were quite capable of coping with their workload, which was not at all excessive. Media coverage, editorials, and commentary were generally critical, even hostile to the proposal, framing it as “court packing” and calling it a “scheme.” The proposal seemed a rare blunder on FDR’s part. But while Congress was debating it, one of the justices shifted to the Roosevelt side in a series of regulatory cases, giving the president a majority on the court at least for these cases. This led to the famous aphorism “a switch in time saves nine.” Within a year, two of the conservative justices retired and were replaced by staunch Roosevelt supporters.

Congress can check judicial power. It overcomes a decision of the Court by writing a new law or rewriting a law to meet the Court’s constitutional objections without altering the policy. It can threaten to—and sometimes succeed in—removing a subject from the courts’ jurisdiction, or propose a constitutional amendment to undo a Court decision.

Indeed, the first piece of legislation signed by President Obama overturned a 5–4 Supreme Court 2007 decision that gave a woman a maximum of six months to seek redress after receiving the first check for less pay than her peers. [10] Named after the woman who at the end of her nineteen-year career complained that she had been paid less than men, the Lilly Ledbetter Fair Pay Act extends the period to six months after any discriminatory paycheck. It also applies to anyone seeking redress for pay discrimination based on race, religion, disability, or age.

Impeachment

The Constitution grants Congress the power to impeach judges. But since the Constitution was ratified, the House has impeached only eleven federal judges, and the Senate has convicted just five of them. They were convicted for such crimes as bribery, racketeering, perjury, tax evasion, incompetence, and insanity, but not for wrongly interpreting the law.

The Supreme Court may lose power if the public perceives it as going too far. Politicians and interest groups criticize, even condemn, particular decisions. They stir up public indignation against the Court and individual justices. This happened to Chief Justice Earl Warren and his colleagues during the 1950s for their school desegregation and other civil rights decisions.

The controversial decisions of the Warren Court inspired a movement to impeach the chief justice. Do you think the founding fathers intended for the judiciary to be threatened with removal if Congress did not agree with their decisions? Explain your answer.

How the decisions and reactions to them are framed in media reports can support or undermine the Court’s legitimacy (Note the section below: "Comparing Content").

Comparing Content

Brown v. Board of Education of Topeka, Kansas

How a decision can be reported and framed differently is illustrated by news coverage of the 1954 Supreme Court school desegregation ruling.

The New York Times of May 18, 1954, presents the decision as monumental and historic, and school desegregation as both necessary and desirable. Southern opposition is acknowledged but downplayed, as is the difficulty of implementing the decision. The front-page headline states “High Court Bans School Segregation; 9–0 Decision Grants Time to Comply.” A second front-page article is headlined “Reactions of South.” Its basic theme is captured in two prominent paragraphs: “underneath the surface…it was evident that many Southerners recognized that the decision had laid down the legal principle rejecting segregation in public education facilities” and “that it had left open a challenge to the region to join in working out a program of necessary changes in the present bi-racial school systems.”

There is an almost page-wide photograph of the nine members of the Supreme Court. They look particularly distinguished, legitimate, authoritative, decisive, and serene.

In the South, the story was different. The Atlanta Constitution headlined its May 18, 1954, story “Court Kills Segregation in Schools: Cheap Politics, Talmadge Retorts.” By using “Kills” instead of the Times’s “Bans,” omitting the fact headlined in the Times that the decision was unanimous, and including the reaction from Georgia Governor Herman E. Talmadge, the Constitution depicted the Court’s decision far more critically than the Times. This negative frame was reinforced by the headlines of the other stories on its front page. “Georgia’s Delegation Hits Ruling” announces one; “Segregation To Continue, School Officials Predict” is a second. Another story quotes Georgia’s attorney general as saying that the “Ruling Doesn’t Apply to Georgia” and pledging a long fight.

The Times’ coverage supported and legitimized the Supreme Court’s decision. Coverage in the Constitution undermined it.

External pressure is also applied when the decisions, composition, and future appointments to the Supreme Court become issues during presidential elections. [11] In a May 6, 2008, speech at Wake Forest University, Republican presidential candidate Senator John McCain said that he would nominate for the Supreme Court “men and women with…a proven commitment to judicial restraint.” Speaking to a Planned Parenthood convention on July 17, 2007, Senator Barack Obama identified his criteria as “somebody who’s got the heart, the empathy, to recognize what it’s like…to be poor or African American or gay or disabled or old.”

Judges as Policymakers

Judges have power because they decide cases: they interpret the Constitution and laws, and select precedents. These decisions often influence, even make, public policy and have important ramifications for social conflict. For example, the Supreme Court has effectively established the ground rules for elections. In 1962 it set forth its “one person, one vote” standard for judging electoral districts. It has declared term limits for members of Congress unconstitutional. It has upheld state laws making it extremely difficult for third parties to challenge the dominance of the two major parties.

Judicial Philosophies

How willing judges are to make public policy depends in part on their judicial philosophies. Some follow judicial restraint , deciding cases on the narrowest grounds possible. In interpreting federal laws, they defer to the views expressed in Congress by those who made the laws. They shy away from invalidating laws and the actions of government officials. They tend to define some issues as political questions that should be left to the other branches of government or the voters. When the Constitution is silent, ambiguous, or open ended on a subject (e.g., “freedom of speech,” “due process of law,” and “equal protection of the laws”), they look to see whether the practice being challenged is a long-standing American tradition. They are inclined to adhere to precedent .

Judicial restraint is sometimes paired with strict constructionism . Judges apply the Constitution according to what they believe was its original meaning as understood by a reasonable person when the Constitution was written. Other judges follow a philosophy of judicial activism (although they may not call it that). Activist judges are willing to substitute their policy views for the policy actions or inaction of the other branches of government.

Judicial activism is often paired with loose constructionism, viewing the Constitution as a living document that the founders left deliberately ambiguous. In interpreting the Constitution, these judges are responsive to what they see as changes in society and its needs. A plurality of the Supreme Court found a right to privacy implicit in the Constitution and used it to overturn a Connecticut law prohibiting the use of contraceptives. [15] The justices later used that privacy right as a basis for the famous Roe v. Wade decision, “discovering” a woman’s constitutional right to an abortion.

The distinction between judicial restraint and strict constructionism on the one hand and judicial activism and loose constructionism on the other can become quite muddy. In 1995, the Supreme Court, by a 5–4 vote, struck down the Gun-Free School Zone Act—an attempt by Congress to keep guns out of schools. [16] The ruling was that Congress had overstepped its authority and that only states had the power to pass such laws. This decision by the conservative majority, interpreting the Constitution according to what it believed was the original intentions of the framers, exemplified strict constructionism. It also exemplified judicial activism: for the first time in fifty years, the Court curtailed the power of Congress under the Constitution’s commerce clause to interfere with local affairs. [17]A 5–4 conservative majority has also interpreted the Second Amendment to prohibit the regulation of guns. [18] This decision, too, could be seen as activist.

The Warren Court and Civil Rights

The Earl Warren Court of the 1950s and 1960s made some of the most important civil rights decisions in American History including Brown v. Board of Education , Gideon v. Wainwright, and Cooper v. Aaron , which were unanimously decided, as well as Abington School District v. Schempp, and Engel v. Vitale.

Each case striking down religious recitations in schools with only one dissent. In an unusual action, the decision in Cooper was personally signed by all nine justices, with the three new members of the Court adding that they supported and would have joined the Court's decision in Brown v. Board . But this court’s decisions also proved to be very divisive at a time in our history when the Civil Rights movement was gaining steam. The Warren Court is an example of how the Supreme Court can use its powers of judicial review to institute policy (civil rights and civil liberties) when the legislature is unable or unwilling to do so.

Research Topic:

Conduct Research on the Earl Warren Court and its important decisions then discuss its legacy.

Do you believe this court exemplifies judicial activism or judicial restraint? What impact did the court have on our lives today? Would you describe this court’s impact as positive or negative? Explain your answer.

One doesn’t have to believe that justices are politicians in black robes to understand that some of their decisions are influenced, if not determined, by their political views. [19] Judges appointed by a Democratic president are more liberal than those appointed by a Republican president on labor and economic regulation, civil rights and liberties, and criminal justice. [20]Republican and Democratic federal appeals court judges decide differently on contentious issues such as abortion, racial integration and racial preferences, church-state relations, environmental protection, and gay rights.

On rare occasions, the Supreme Court renders a controversial decision that graphically reveals its power and is seen as motivated by political partisanship. In December 2000, the Court voted 5–4, with the five most conservative justices in the majority, that the Florida Election Code’s “intent of the voter” standard provided insufficient guidance for manually recounting disputed ballots and that there was no time left to conduct recounts under constitutionally acceptable standards. This ensured that Republican George W. Bush would become president.

The decision was widely reported and discussed in the media. Defenders framed it as principled, based on legal considerations. Critics deplored it as legally frail and politically partisan. They quoted the bitter comment of dissenting Justice Stevens: “Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”

Study/Discussion Questions

• What role does judicial review play in our legal system? Why might it be important for the Supreme Court to have the power to decide if laws are unconstitutional?
• In Marbury v. Madison , how did Chief Justice Marshall strike a balance between asserting the Supreme Court’s authority and respecting the president’s authority? Do you think justices should take political factors into account when ruling on the law?
• Why do you think it might be important for judges to follow precedent? What do you think would happen if judges decided every case differently?
• Which of the four judicial philosophies described in the text makes the most sense to you? What do you think the advantages and disadvantages of that philosophy might be?

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The Importance of The Judicial Branch

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Upholding the rule of law, safeguarding individual rights, maintaining the balance of power.

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Federalist Papers

Federalist, no. 78, and the power of the judiciary.

"We proceed now to an examination of thejudiciary department of the proposed government." So begins Federalist, no. 78, the first of six essays by ALEXANDER HAMILTON on the role of the judiciary in the government established by the U.S. Constitution.

Hamilton made two principal points in the essay. First, he argued for the independence of the judiciary from the other two branches of government, the executive and the legislative. In presenting a case for the judiciary, he reached his second major conclusion: that the judiciary must be empowered to strike down laws passed by Congress that it deems "contrary to the manifest tenor of the Constitution."

In presenting his argument for the independence of the judiciary, Hamilton claimed that it was by far the weakest of the three branches. It did not, he said, have the "sword" of the executive, who is commander in chief of the nation's armed forces, nor the "purse" of the legislature, which approves all the tax and spending measures of the national government. It had, according to Hamilton, "neither FORCE nor WILL but merely judgment."

As a result of this weakness, the U.S. Constitution protects the judiciary from the other two branches by what Hamilton called "permanency in office." Article III, Section 1, of the Constitution declares, "Judges … shall hold their Offices during good Behaviour." By making the tenure of federal judges permanent and not temporary, Hamilton argued, the Constitution ensures that judges will not be changed according to the interests or whims of another branch of government. According to Hamilton, permanent tenure also recognizes the complexity of the law in a free society. Few people, he believed, will have the knowledge and the integrity to judge the law, and those deemed adequate to the office must be retained rather than replaced.

The judiciary must also be independent, according to Hamilton, so that it may fulfill its main purpose in a constitutional government: the protection of the "particular rights or privileges" of the people as set forth by the Constitution. Here, Hamilton made his second major point. To protect those rights, he proclaimed, the judiciary must be given the power of JUDICIAL REVIEW to declare as null and void laws that it deems unconstitutional.

Critics of the Constitution claimed that judicial review gave the judiciary power superior to that of the legislative branch. Hamilton responded to them in Federalist, no. 78, by arguing that both branches are inferior to the power of the people and that the judiciary's role is to ensure that the legislature remains a "servant" of the Constitution and the people who created it, not a "master":

There is no position which depends on clearer principles than that every 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 deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves.

Although judicial review is not explicitly mentioned in the Constitution, the U.S. Supreme Court established the legitimacy of the concept when it struck down an act of Congress in the 1803 case Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60. The courts had embraced judicial review by the twentieth century, leading some critics to maintain that the overly active use of judicial review had given the courts too much power. Whether or not the courts have demonstrated "judicial activism" by striking down legislation, Hamilton was correct in foreseeing that the U.S. Supreme Court and lower courts would protect the rights defined by the people in their Constitution.

CROSS-REFERENCES

Marbury v. Madison ; Marshall, John .

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The Judicial Branch of Government

Info: 2609 words (10 pages) Essay Published: 7th Jun 2019

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Jurisdiction / Tag(s): US Law

The Federalist Papers is an agreement on free government for harmony and security; it provides reasons that support the new plan of government described in the U.S. Constitution, and a deep perception into the framer’s purpose in the Constitution. The document was written by Alexander Hamilton, James Madison, and John Jay, explaining in a series of 85 articles how the proposed system of government would work. Alexander Hamilton outlined the contents of the document, but in the end it was divided in two parts by Madison and Hamilton; the first part discussing the errors of the present government, as well as, the Articles of Confederation, and the second part discussing the new constitution’s different components, which are the legislature, executive, and judicial branches.The next few paragraphs will discuss the powers and the limits to those powers of the judicial branch of government and the changes to the branch.

According to Hamilton in The Federalist Papers in essay no. 78, the judicial branch of government is without a doubt the weakest branch. The judicial branch doesn’t have the power to act only to judge and only the executive branch has the choice to carry the judgments or decisions out. In the Constitution, the “judicial power” is given to the Supreme Court and to any lower courts that Congress creates, which deals with the legislative branch of government, however, the Constitution does not define “the judicial power”. But it includes the power to hear appeals, hold trials, and review government conduct with accordance to the Constitution. The Supreme Court’s primary check on the other branches of government is “judicial review,” which is the ability of the court to examine the laws and actions underlying cases presented under its appellate jurisdiction to make sure they abide by the Constitution. The Constitution proposes that judges who are subject to “good behavior” can hold their office for life. Permanency in the office prevents the president and Congress from invading the judicial power by and it excuses judges from political tensions. The judicial branch does little harm to political rights. Once in a while, a court may wrongfully treat an individual, but they can never threaten the individual’s independence. There are certain restrictions on Congress imposed by the Constitution designed to protect every individual’s liberties, but if the courts are independent and have the power to declare laws that are in violation to the Constitution void, then those protections will have no effect. People will assume that the judicial branch will be powerful than the legislative branch when it comes to mind that judicial review gives the Supreme Court the power to declare laws unconstitutional. Hamilton takes this argument into consideration and states the fact that the fundamental law is only the Constitution. Arguing that the Constitution is not above the laws suggests that “the representatives of the people are superior to the people” and that the Constitution is lower than the government it gave life to. The courts are the ones who settle a dispute between the legislative branch and the people; the courts are to interpret the laws and keep the legislative branch from exceeding their powers. The courts must place the Constitution above the laws passed by Congress, as well as place the intentions of the people before the intentions of their representatives. It doesn’t matter which branch is superior to the other, but one must simply acknowledge that the people can exceed both. It is pointless to argue that the court’s decisions might interfere with the powers of the legislative branch. So then people argue that passing laws and formulating policies should be the function of Congress and not the courts. This may be correct, but interpreting the laws and judging them are the courts two special functions. It is necessary for the independence of the courts go against the destructive actions of conflicts in order to protect the rights of individuals. For there to be stability, changes must be orderly and constitutional for the fact that even though the people have the right to alter or destroy their government if it comes in conflict with their happiness it will not be enough protection. A government at the kindness of groups constantly planning its failure would be a shameful situation. The only way that citizens can feel that their rights are secure would be knowing that the judicial branch protects them against the people, both inside and outside the government, who work against their interests. Also, Hamilton cites another important reason for judges to hold their office for life. In a free government there are destined to be many laws that can be confusing and conflicting. So it can take a long time to fully comprehend the meaning of these laws and a short term of office would restrain competent and truthful men from looking for a position in the courts; they would be unwilling to give up very good law practices to take on a temporary judicial appointment. Once good behavior is adapted, life tenure can be an excellent device for guaranteeing judicial independence and protection of everyone’s individual rights. Moving on to Hamilton’s next essay no. 79 of The Federalist Papers, he claims that besides continuing in office for life “nothing can contribute to independence of the judges than a fixed provision of support.” He argues that by removing the temptation, power over a man’s life would add up to “power over his will” once again strengthen the judicial power. The judiciary cannot rely on the legislature for rewards because that will tear down the disconnection between the two branches. The Constitution establishes that judges of the United States “shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office.” If at times the amount of money can be increased by the legislature, but cannot be decreased, then they wouldn’t have the power to control a judge and the separation of powers will firmly remain as it is. In the judicial system there is another vital point which is the “want of removing a judge.” Hamilton believes that harm is done more to liberty when trying to separate incapability and capability than when trying to easily remove judges. Another ridiculous consideration is age because no one can say when someone is not able to help and learn the laws of the land when it’s a difficult, life-long task. In the short essay no. 79, while noting the strengths of the judiciary, most of the processes under the Constitution are indirect and not as definite as Hamilton laid it out in the essay. Judicial review can change the Constitution to a new form in the amending process. Although the Federalist doesn’t make an exact statement on the functions of the judges, such functions can be completed from other interpretation. In The Federalist Paper, Hamilton’s essay no. 80 starts in explaining the powers of the judiciary so the following is a list of powers in which the federal courts have jurisdiction:

Federal courts should have the power to overrule state laws violating the Constitution.

Federal courts should have the authority to enforce equality in the interpretation of national laws.

Federal courts should have the right in all cases involving citizens of other nations.

To assure domestic order and tranquility, federal courts should have power in conflicts between states, between a state and a citizen of another, and between citizens of different states.

National judiciary has authority in maritime cases, for it often involves the foreigner’s rights, rights secured to them by treaties which were part of the supreme law of the land.

If a case doesn’t fall into any category of the list, the federal judiciary cannot hear it and Congress cannot expand judicial power by adding cases to the list because the only way to change it is by the constitutional amendment.

Afar from the powers and limits to the powers of the judicial branch, it also had its changes. Since 1787, changes had been made to the judiciary system, as well as the Constitution that has been modified many times. There were many changes in the judicial system some dealing with the amendments of the Constitution. The first was in April 1789, when the First Congress under the Constitution met and members of the Federalist Party had total control of the House of Representatives and the Senate. Under the Constitution, the Federalists wanted to build a powerful national government, but the Anti-Federalists wanted the state governments to be stronger than the national governments. The First Congress passed the “An Act to Establish the Federal Courts of the United States,” which then became known as the Judiciary Act of 1789. It constructed a federal judiciary with trial courts and appellate courts to serve under the Supreme Court. Then the Judiciary Act of 1789 created district courts and circuit courts as two diferrent types of trial courts. There were thirteen district courts and each court had one judge and it had the power to hold trials in cases involving minor federal crimes and admiralty cases, which involved the use of navigable waters. The eleven states that formally approved the Constitution by then were grouped in to three circuits, which are the eastern, middle, and southern. One circuit court was created for each circuit, which has two Supreme Court judges and one district court judge holding trials in civil cases between citizens of different states, large civil cases filed by the United States, and major crime cases. Another change was 1787, when state delagates began debating on whether to ratify the Constitution, so the Anti-Federalists wanted the Constitution to have a bill of rights. If the Anti-Federalists chose to approve the Constitution, then the Federalist would seek a bill of rights. During the First Congress in 1789, James Madison outlined twelve proposed amendments, in which the House of Representatives and the Senate voted to forward them to the states for consideration. By the end of 1791, the eleven states approved ten of the amendments, which then became the Bill of Rights, making them part of the Constitution. The next few changes were the Constitutional Amendments, like when police enforcement went to houses or other places searching and taking evidence of crimes and arresting any criminal suspect. So, the Fourth Amendment required federal law enforcement agents to get warrants from a judge before they go into people’s houses and making arrests. The Fifth Amendment prevented people from being charged for a capital crime unless a grand jury finds good reasons nor can they be tried twice for the same crime or be forced to be a witness to him- or herself. Also, the amendment prevented the government from taking away a person’s life, liberty, or property without due process of law, which means the affected person has a fair chance to oppose the action. The Sixth Amendment expanded the rights of defendents in criminal trials and required the trials to be “public and speedy. Also, the criminal defendants would have the right to know the charges against them, the right to question the witnesses against them, the right to force favorable witnesses to testify for them, and the right to be assisted by an attorney. The Seventh Amendment changed the Constitution of 1787 because it didn’t contain specific provisions for civil trials, so it preserves the common law right to jury trials in cases involving more than $20. Also, this amendment prevented federal courts from altering a jury’s factual findings in civil cases, if it’s allowed under the common law. The Eight Amendment stated that criminal defendents shouldn’t be required to pay excessive bail, nor be imposed by excessive fines, and should not be inflicted by cruel and unusual punishment. According to the Supreme Court, punishments are not cruel and unusual when society approves of them, such as the death penalty. The Eleventh Amendment was proposed by Congress in 1794 before becoming part of the Constitution in 1798. This was proposed after the Supreme Court issued a decision in the Chisholm v. Georgia case in 1793, in which two citizens of South Carolina sued the state of Georgia for property that was taken by Georgia officials. So, the officials refused to appear in the Court and sent a letter saying that the Supreme Court had no right in hearing a case filed against a state by a citizen of another state. In the end, the Court found in favor of the South Carolina citizens and rejecting Georgia’s argument that the Court had no power to hear the case. By the end of February 1865, twenty-seven states approved the Thirteenth Amendment that Congress proposed on making slavery illegal in the U.S. After that slavery didn’t end it just made the Southern states bring about the Black Codes, which gave African Americans a little more freedom than the slaves did, but they were still treated differently than the white Americans. To put an end to the codes, the Fourteenth Amendment was proposed in June 1866 by Congress and then it became part of the Constitution two years later. This amendment stated that “all persons born or naturalized in the United States are citizens” of the country. After that, the Southern states still treated African Americans unfairly in preventing them from voting in elections making the Fifteenth Amendment become part of the Constitution on March 1870, which stated that any State cannot deny the right of citizens of the U.S. to vote because of their “race, color, or previous servitude.” As of the year 2005, the federal judiciary has ninety-four districts with each district having one district court. These courts handle criminal and civil law trials under the nation’s law, as well as handle civil cases involving diversity jurisdiction. During the twentieth century, Congress created federal courts that dealt with special cases, such as taxes and international trade cases, and they cut down on mandatory appeals and increased discretionary appeals to the Supreme Court. To appeal to the Supreme Court from a court of appeals, one would have to file a petition for a writ of certiorari asking the Court to review the case, then at least nine justices would vote to grant certiorari for the case to be appealed. Only 100 out of 8,000 petitions that the Court receives each year are selected. Nowadays, citizens can vote to change things on elections days, like allowing them to select judges and their term limits making judges keep in mind the what the people want.

In summary, the Federalist Papers was written to keep peace and security for the citizens of the United States and aided the new plan that U.S. Constitution had for the government, as well as keeping in mind the purpose of our Founding Fathers in the Constitution. Alexander Hamilton, James Madison, and John Jay wrote the document explaining in 85 essays the Articles of Confederation, discussing the errors of the now government, and discussing the new Constitution’s legislature, executive, and judicial branch. In the document, the judicial branch was known to be the weakest branch, but it still had its powers along with limits and it also had its changes.

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The first amendment, article iii, judicial branch.

Signing Details

Signed in convention September 17, 1787. Ratified June 21, 1788. A portion of Article III, Section 2, was changed by the 11th Amendment

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.

Interpretations & Debate

Read interpretations of article iii, section 1.

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.

Read Interpretations of Article III, Section 2

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.

Read Interpretations of Article III, Section 3

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Three Branches of Government

By: History.com Editors

Updated: September 4, 2019 | Original: November 17, 2017

The three branches of the U.S. government are the legislative, executive and judicial branches. According to the doctrine of separation of powers, the U.S. Constitution distributed the power of the federal government among these three branches, and built a system of checks and balances to ensure that no one branch could become too powerful.

Separation of Powers

The Enlightenment philosopher Montesquieu coined the phrase “trias politica,” or separation of powers, in his influential 18th-century work “Spirit of the Laws.” His concept of a government divided into legislative, executive and judicial branches acting independently of each other inspired the framers of the U.S. Constitution , who vehemently opposed concentrating too much power in any one body of government.

In the Federalist Papers , James Madison wrote of the necessity of the separation of powers to the new nation’s democratic government: “The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elected, may justly be pronounced the very definition of tyranny.”

Legislative Branch

According to Article I of the Constitution, the legislative branch (the U.S. Congress) has the primary power to make the country’s laws. This legislative power is divided further into the two chambers, or houses, of Congress: the House of Representatives and the Senate .

Members of Congress are elected by the people of the United States. While each state gets the same number of senators (two) to represent it, the number of representatives for each state is based on the state’s population.

Therefore, while there are 100 senators, there are 435 elected members of the House, plus an additional six non-voting delegates who represent the District of Columbia as well as Puerto Rico and other U.S. territories.

In order to pass an act of legislation, both houses must pass the same version of a bill by majority vote. Once that happens, the bill goes to the president, who can either sign it into law or reject it using the veto power assigned in the Constitution.

In the case of a regular veto, Congress can override the veto by a two-thirds vote of both houses. Both the veto power and Congress’ ability to override a veto are examples of the system of checks and balances intended by the Constitution to prevent any one branch from gaining too much power.

Executive Branch

Article II of the Constitution states that the executive branch , with the president as its head, has the power to enforce or carry out the laws of the nation.

In addition to the president, who is the commander in chief of the armed forces and head of state, the executive branch includes the vice president and the Cabinet; the State Department, Defense Department and 13 other executive departments; and various other federal agencies, commissions and committees.

Unlike members of Congress, the president and vice president are not elected directly by the people every four years, but through the electoral college system. People vote to select a slate of electors, and each elector pledges to cast his or her vote for the candidate who gets the most votes from the people they represent.

In addition to signing (or vetoing) legislation, the president can influence the country’s laws through various executive actions, including executive orders, presidential memoranda and proclamations. The executive branch is also responsible for carrying out the nation’s foreign policy and conducting diplomacy with other countries, though the Senate must ratify any treaties with foreign nations.

Judicial Branch

Article III decreed that the nation’s judicial power, to apply and interpret the laws, should be vested in “one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

The Constitution didn’t specify the powers of the Supreme Court or explain how the judicial branch should be organized, and for a time the judiciary took a back seat to the other branches of government.

But that all changed with Marbury v. Madison , an 1803 milestone case that established the Supreme Court’s power of judicial review, by which it determines the constitutionality of executive and legislative acts. Judicial review is another key example of the checks and balances system in action.

Members of the federal judiciary—which includes the Supreme Court, 13 U.S. Courts of Appeals and 94 federal judicial district courts—are nominated by the president and confirmed by the Senate. Federal judges hold their seats until they resign, die or are removed from office through impeachment by Congress.

Implied Powers of the Three Branches of Government

In addition to the specific powers of each branch that are enumerated in the Constitution, each branch has claimed certain implied powers, many of which can overlap at times. For example, presidents have claimed exclusive right to make foreign policy, without consultation with Congress.

In turn, Congress has enacted legislation that specifically defines how the law should be administered by the executive branch, while federal courts have interpreted laws in ways that Congress did not intend, drawing accusations of “legislating from the bench.”

The powers granted to Congress by the Constitution expanded greatly after the Supreme Court ruled in the 1819 case McCulloch v. Maryland that the Constitution fails to spell out every power granted to Congress.

Since then, the legislative branch has often assumed additional implied powers under the “necessary and proper clause” or “elastic clause” included in Article I, Section 8 of the Constitution.

Checks and Balances

“In framing a government which is to be administered by men over men, the great difficulty is this: You must first enable the government to control the governed; and in the next place, oblige it to control itself,” James Madison wrote in the Federalist Papers . To ensure that all three branches of government remain in balance, each branch has powers that can be checked by the other two branches. Here are ways that the executive, judiciary, and legislative branches keep one another in line:

· The president (head of the executive branch) serves as commander in chief of the military forces, but Congress (legislative branch) appropriates funds for the military and votes to declare war. In addition, the Senate must ratify any peace treaties.

· Congress has the power of the purse, as it controls the money used to fund any executive actions.

· The president nominates federal officials, but the Senate confirms those nominations.

· Within the legislative branch, each house of Congress serves as a check on possible abuses of power by the other. Both the House of Representatives and the Senate have to pass a bill in the same form for it to become law.

· Once Congress has passed a bill, the president has the power to veto that bill. In turn, Congress can override a regular presidential veto by a two-thirds vote of both houses.

· The Supreme Court and other federal courts (judicial branch) can declare laws or presidential actions unconstitutional, in a process known as judicial review.

· In turn, the president checks the judiciary through the power of appointment, which can be used to change the direction of the federal courts

· By passing amendments to the Constitution, Congress can effectively check the decisions of the Supreme Court.

· Congress can impeach both members of the executive and judicial branches.

Separation of Powers, The Oxford Guide to the United States Government . Branches of Government, USA.gov . Separation of Powers: An Overview, National Conference of State Legislatures .

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