Setting Up the Supreme Court: Article III and the Federalist Papers

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Article III

We will now examine Article III of the US Constitution. Our guide for this tour is none other than Publius, a pen name for the coalition of Alexander Hamilton, James Madison, and John Jay.

If those names sound familiar, it is because they had a hand in forming our great nation. Alexander Hamilton became the first Secretary of the Treasury. James Madison, dubbed the Father of the Constitution, became our fourth President.

John Jay was the first Chief Justics of the Supreme Court. The trio took turns writing letters to the editors of New York newspapers, advocating the proposed new Constitution.

Some of the letters have a clear author; others could have been written by either Hamilton or Madison. Join me as we explore the genius behind the world’s first Constitutional Republic.

Section 1

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

In Federalist Paper #78, Hamilton extolled the virtue of an unlimited term for the judiciary, as long as good behavior is maintained:

The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. 

Hamilton’s view of the influence of the judiciary was very limited, compared to the overarching power the Supreme Court wields today:

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 current struggle to seat a Supreme Court Justice in an election year demonstrates the importance of Supreme Court rulings. Tilting the Court toward conservative judges will take the United States on a path toward restoring the original intent of the Constitution.

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.

Adding another liberal to the Court means allowing activist judges to rewrite the meaning of the Constitution according to the prevailing thought of the day.

[T]hough individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.”

Hamilton meant to protect the “feeble” judiciary from undue influence by Congress and the President by allowing lifetime appointments:

 [F]rom the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security

Hamilton argued that the role of the Supreme Court is to keep the legislature from writing laws that violate the Constitution, and thereby violate the will of the people:

 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; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

The Constitution was not to be interpreted capriciously or changed whenever the winds of public doctrine blow. The Founders made it difficult to pass an amendment on purpose, to provide stability for the the nation.

Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.

Hamilton pressed the issue of a lifetime appointment by pointIng out the volume and complexity of the laws the Supreme Court would have to understand:

 It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government…there can be but few men in the society who will have sufficient skill in the laws…the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. 

In setting the pay for Supreme Court Justices, Hamilton showed the foresight to predict inflation in Federalist Paper #79:

What might be extravagant to-day, might in half a century become penurious and inadequate.

Hamilton pointed out that the legislative power to impeach the President also included impeachment of Supreme Court Justices:

They are liable to be impeached for malconduct by the House of Representatives, and tried by the Senate; and, if convicted, may be dismissed from office, and disqualified for holding any other. 

Section 2

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State;–between Citizens of different States;–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

The underlined portion of the first paragraph of Section 2 has been clarified with the 11th Amendment ratified in 1795:

11th Amendment

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

In other words, a citizen of one state cannot sue another state. As a citizen of South Carolina, I cannot sue the state of Georgia. Citizens of other countries are not allowed to sue a state either.

In Federalist Paper #80, Hamilton laid out the powers of the Supreme Court as outlined in Section 2. He explained that the state laws had to be ruled by the national laws in order to have an orderly interaction between the states:

Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed.

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.

When the states united, they gave up the power to make treaties and declare war, allowing the United States to interact with foreign countries as one nation. Hamilton clarified that the Supreme Court has jurisdiction over all controversies involving other nations:

As the denial or perversion of justice by the sentences of courts, as well as in any other manner, is with reason classed among the just causes of war, it will follow that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned

Hamilton emphasized the importance of dealing with foreign nations as one nation rather than a conglomerate of individual states:

Controversies between the nation and its members or citizens, can only be properly referred to the national tribunals. Any other plan would be contrary to reason, to precedent, and to decorum.

In Federalist Paper #81, Hamilton explained that a system of lower federal courts was to be put in place to avoid the local influence inevitable in state courts whose tenure was limited by the people of the state:

 State judges, holding their offices during pleasure, or from year to year, will be too little independent to be relied upon for an inflexible execution of the national laws.

Hamilton foresaw the Circuit Court system:

I am not sure, but that it will be found highly expedient and useful, to divide the United States into four or five or half a dozen districts; and to institute a federal court in each district, in lieu of one in every State. The judges of these courts, with the aid of the State judges, may hold circuits for the trial of causes in the several parts of the respective districts.

Hamilton explained the purpose of the appellate court:

The expression, taken in the abstract, denotes nothing more than the power of one tribunal to review the proceedings of another, either as to the law or fact, or both…It is true it cannot institute a new inquiry concerning the fact, but it takes cognizance of it as it appears upon the record, and pronounces the law arising upon it.

To avoid all inconveniences, it will be safest to declare generally, that the Supreme Court shall possess appellate jurisdiction both as to law and FACT, and that this jurisdiction shall be subject to such EXCEPTIONS and regulations as the national legislature may prescribe.

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.

In Federalist Paper #83, Hamilton discussed trial by jury as an impediment to ratification:

THE objection to the plan of the convention, which has met with most success in this State, and perhaps in several of the other States, is THAT RELATIVE TO THE WANT OF A CONSTITUTIONAL PROVISION for the trial by jury in civil cases. 

This problem was solving with the addition of the Seventh Amendment, which guarantees trial by jury in civil suits:

Seventh Amendment

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.

For more on the Seventh Amendment, see my blog post.

Section 3

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. 

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Corruption of blood was a punishment whereby an offender was stripped of the right to inherit property or title because his blood was tainted by the crime.

The Constitution provided for the penalties to stop at the end of the offender’s life, rather than being inherited by future generations. Thus children were not deprived of their inheritance by the conviction of a parent.

In Federalist Paper #43, Hamilton expressed the reasons for establishing a specific definition of treason:

As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it. But as new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other, the convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author.

Despite the wisdom of the Founders, the Judiciary has expanded its power significantly in the past two centuries, and the legislature has allowed the encroachment.

Judicial overreach is when a judge makes a decision about a law based on personal convictions rather than the text of the Constitution.

The Affordable Care Act of 2010 is a classic example of judicial overreach. The Affordable Care Act, colloquially known as Obamacare, mandated that citizens buy health insurance and assessed a fine on those who refused.

An in-depth reading of the Constitution reveals no clause that permits Congress to require citizens to buy anything, and the Constitution does specify that any powers not specified by the Constitution are reserved for the states or the citizens themselves.

I read the Amendments and found nothing that added the power to require purchase of insurance or anything else.

Chief Justice John Roberts, knowing that he could not justify Obamacare based on its intent of mandating the purchase of insurance, ruled instead that the fine imposed for not buying insurance was a tax.

That is absurd on its face, and this is the sort of twisting and turning that the Supreme Court has been engaging in for decades to fit the laws into their own opinions.

If you start watching government proceedings you will quickly begin to spot egregious overreach in all the branches of government. I recommend C-SPAN because it airs political event without commentary, allowing you to make your own assessment.

A government without oversight will quickly run amuck, and we the people are charged with overseeing our public officials.

We can exercise our rights by voting, by attending local proceedings, and by alerting our representatives when we notice them misbehaving. Show up at the next meeting and step up to the microphone when they ask for public comment.

Get involved in your government at the local or national level today. Find out how it is supposed to work, and hold your representatives responsible. Above all, go out and vote!

To see more of my writings on the Constitution, start with this one and then keep reading.

To see the full text of the Constitution, go to the National Constitution Center. To see the full text of the Federalist Papers, go to

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Carla Pittman

Carla is a Speech Pathologist working in Home Health by day and a blogger by night. She married Chris in 2008 and is working to help him unite his love of guns with his passion for teaching others to carry safely. Her other impetus for blogging is to make Americans aware of their Constitutional rights, which are at risk in the current political environment.

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