"The judicial power of the United States shall be vested in one Supreme Court..."
US Constitution, Article III
Lecture/Seminar
Article III of the Constitution provides that the judicial power "...shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." It also sets forth the qualifications of judges, the jurisdiction of the judicial power, the guarantee of the right to trial by jury in criminal matters, and the definition of treason and the requirements for conviction.
As is the case with executive and legislative powers, the Constitution provides for the sharing of judicial power. For example, Congress has an enumerated power under Article I, Section 8, "...to constitute tribunals inferior to the Supreme Court" and "...to make Rules for the Government and Regulation of the land and naval Forces" (the military court system and the Uniform Code of Military Justice). The privilege of habeas corpus (freedom from unlawful restraint), and the limits on bills of attainder (loss of civil rights) and ex post facto (retroactive) laws are also found in Article I. Other judicial provisions are found in Amendments such as limits on powers of the state to conduct unreasonable searches and seizures, protection against double jeopardy and self incrimination, the provision of due process to a bill of particulars, a speedy and public trial, and the rights to confront witnesses, and avoid excessive bail, fines, or cruel and unusual punishment.
The power of the judiciary has been achieved by custom and usage, by statute, and most importantly by judicial interpretation. Nowhere does the Constitution provide that the Supreme Court may hold an Act of Congress unconstitutional, but the Court did so in Marbury v. Madison (1803), and it held a state law void in Fletcher v. Peck (1810).
The Supreme Court has played a minor role in national security matters, leaving conflicts over war powers or foreign policy initiatives to the President and Congress to resolve for themselves under the political question doctrine.
Topic Objective
- To understand the role of the Judiciary in the national security process.
Questions for Consideration
- Given the shared nature of the judicial power, and the few provisions of Article III compared with Articles I and II, does the Judiciary have an inferior status to the Congress and the President or is it on equal footing?
- In recent years, a strong argument has been made that the Supreme Court should first look to the intent of the Framers in determining the meaning of the Constitution. How valid is this view? What are its strengths and weaknesses?
- What is the "political doctrine question"? Why has the Supreme Court actively intervened in struggles between the President and Congress over the legislative veto, for example, but refused largely to interfere in struggles over foreign policy or national security matters?
Required Readings
* Bernard Schwartz, Decision: How the Supreme Court Decides Cases (New York: Oxford University Press, 1996), pp. 3-8. (Reprint)
* Henry J. Abraham, The Judiciary: The Supreme Court in the Governmental Process (Boston: Allyn and Bacon, Inc. 1987), pp. 51-93. (Reprint)
* Lawrence Baum, The Supreme Court, Fourth Edition (Washington: CG Press, 1992), pp. 1-25, 121-145. (Reprint)
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