Creating the Judicial Branch

Introduction

The primary provisions of the Constitution relevant to the judicial branch are Article III and the 11th Amendment, in which the Constitution creates the Supreme Court and authorizes Congress to create additional inferior courts as necessary. Under the Articles of Confederation, no permanent federal judiciary existed. Judicial bodies were appointed on an ad hoc basis by Congress, or in many cases Congress simply addressed judicial issues on its own. The Constitution provides a separate judicial branch of government. Article III outlines the scope of federal judicial power by defining the types of questions and disputes the federal judiciary should address. In doing so, the Constitution defines what issues are inside or outside the judiciary’s purview. The federal courts are supreme when deciding cases that are appropriately within their scope of review. Consequently, they may overrule state courts with respect to those issues.

Creating the Judicial Branch 

The formation of the judicial branch occasioned less debate in the Constitutional Convention than any other branch of government. Indeed, the only real controversy was deciding whether federal courts—and especially “inferior” tribunals spread throughout the union—were really necessary to a government of limited powers like the one the delegates in Philadelphia were busy creating. Those delegates who wanted to keep the central government weak had accordingly argued that legal controversies should almost always be tried in state courts. The vast majority at the Convention, however, believed that the absence of a proper Executive and Judiciary in the Articles of Confederation was its primary defect. “An effective judiciary establishment,” insisted James Madison, “was essential. A government without a proper executive and judiciary would be the mere trunk of a body, without arms or legs to act or move” (June 5). Article III, which establishes the federal judicial power, is far more concise than those articles which establish the other two branches. The reasons for this brevity, both in the debates at the Convention and in the text of the Constitution, are twofold. First, judicial power was already generally understood and uncontroversial during this period—the colonists had largely adopted the legal traditions and precedents from Great Britain and their own colonial experience. Second, the judicial power was generally considered the weakest; it therefore was the least feared branch of government.