Congressional Power to Establish Article III Courts: Historical Background

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ArtIII.S1.1.2.1 Congressional Power to Establish Article III Courts: Historical Background

Article III, 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.

The Constitution is almost completely silent concerning the organization of the federal judiciary. “That there should be a national judiciary was readily accepted by all.” 1 But whether it was to consist of one high court at the apex of a federal judicial system or a high court exercising appellate jurisdiction over state courts that would initially hear all but a minor fraction of cases raising national issues was a matter of considerable controversy.2 The Virginia Plan provided for a “National judiciary [to] be established to consist of one or more supreme tribunals, and of inferior tribunals to be chosen by the National Legislature . . . .” 3 In the Committee of the Whole, the proposition “that a national judiciary be established” was unanimously adopted,4 but the clause “to consist of One supreme tribunal, and of one or more inferior tribunals” 5 was first agreed to, then reconsidered. The provision for inferior tribunals was ultimately stricken out, it being argued that state courts could adequately adjudicate all necessary matters while the supreme tribunal would protect the national interest and assure uniformity.6 Wilson and Madison thereupon moved to authorize Congress “to appoint inferior tribunals,” 7 which carried the implication that Congress could in its discretion either designate the state courts to hear federal cases or create federal courts. The word “appoint” was then adopted, but over the course of the Convention the phrasing was changed again so as to suggest somewhat more of an obligation to vest such powers in inferior federal courts.8

The requirement that judges hold their office during “good behavior” excited no controversy during the Convention,9 although the lack of an enforcement mechanism for this provision resulted in impeachment under Article II becoming the primary mechanism for removal of a federal judge.10 And finally, the only substantial dispute that arose regarding the denial to Congress of the power to reduce judicial salaries (a power which could be used to intimidate judges) came on Madison’s motion to bar increases as well as decreases.11

Max Farrand, The Framing of the Constitution of the United States 79 (1913). back
The most complete account of the Convention’s consideration of the judiciary is J. Goebel, Antecedents and Beginnings to 1801, History of the Supreme Court of the United States, Vol. 1 ch. 5 (1971). back
1 Farrand, supra at 21–22. It is possible that this version may not be an accurate copy, see 3 id. at 593–94. back
1 id. at 95, 104. back
Id. at 95, 105. The words “One or more” were deleted the following day without recorded debate. Id. at 116, 119. back
Id. at 124–25. back
Madison’s notes use the word “institute” in place of “appoint,” id. at 125, but the latter appears in the Convention Journal, id. at 118, and in Yates' notes, id. at 127, and when the Convention took up the draft reported by the Committee of the Whole “appoint” is used even in Madison's notes. 2 id. at 38, 45. back
On offering their motion, Wilson and Madison “observed that there was a distinction between establishing such tribunals absolutely, and giving a discretion to the Legislature to establish or not establish them.” 1 id. at 125. The Committee on Detail provided for the vesting of judicial power in one Supreme Court “and in such inferior Courts as shall, when necessary, from time to time, be constituted by the legislature of the United States.” 2 id. at 186. Its draft also authorized Congress “[t]o constitute tribunals inferior to the Supreme Court.” Id. at 182. No debate is recorded when the Convention approved these two clauses, Id. at 315, 422–23, 428–30. The Committee on Style left the clause empowering Congress to “constitute” inferior tribunals as was, but it deleted “as shall, when necessary” from the Judiciary article, so that the judicial power was vested “in such inferior courts as Congress may from time to time” —and here deleted “constitute” and substituted the more forceful— “ordain and establish.” Id. at 600. back
The provision was in the Virginia Plan and was approved throughout, 1 id. at 21. back
See Article II, Judges, supra. back
Id. at 121; 2 id. at 44–45, 429–430. back

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