Orientation and Getting Started
The Creation of the Constitution
The Road to Philadelphia
Slavery and the Constitution
The Presidency
The Federal Judiciary
Some Other Important Details
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Creating a Federal Judiciary

Article III of the Constitution, which establishes the structure of the federal judiciary, is considerably shorter than the first two articles, which respectively establish Congress and the presidency. Similarly, the debates that preceded the formation of the judiciary were far more succinct and generally less contentious than the debates leading to the formation of the other two branches. This relative brevity and harmony does not mean that the Framers believed that the judiciary was an unimportant branch of government or that they were indifferent to its structure; rather, there was more general agreement among the Framers about the nature and function of the courts. The court system that existed in America under the early state constitutions probably looked more like their British forebears than either of the other two branches of government. Americans were generally pleased with the way their judicial system worked, and few believed it was necessary or desirable to innovate with many of the features in this branch. It should come as no surprise, therefore, that the most contentious disagreements about the federal judiciary turned on the two questions that threatened to make the greatest inroads into the court system that was already familiar to them all. First, how broad should the jurisdiction of the new federal courts be? The answer to that question could drastically affect the authority of the existing state courts, and it was an extension of the perennially contentious question of how to balance state and federal powers. Second, should federal judges be involved in the presidential veto power? An experiment of this kind had been tried in New York, but for most delegates this proposal looked like a dangerous innovation. By contrast, subjects such as the role of juries in federal courts and establishing the salary and tenure of judges were, for the most part, simply a matter of working out the details. Finally, deciding how judges would be appointed caused middling controversy: it required the consideration and reconsideration of a few different suggested modes.

Under the Articles of Confederation, there had been no real federal judiciary. Congress had been empowered merely to set up ad hoc courts in order to settle matters like piracy and interstate squabbles. From the outset, the Virginia Plan laid out the principle that the new government was going to establish a powerful and permanent system of federal courts, one that was superior to state courts. The federal judiciary was to consist of inferior courts which would hear cases “in the first instance,” meaning they would have original jurisdiction; they would not be constrained to deciding cases that had been appealed by other (presumably state) courts. The Virginia Plan also proposed establishing “one or more supreme tribunals,” which would “hear and determine [cases], in the dernier resort.” This meant that the Supreme Court(s) would have the last say on any question; there would be no higher tribunal to which its judgments could be appealed.