ArtIII.S1.8.2 Historical Background on Establishment of Article III Courts

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.

Before the Founding, each state had its own system of courts, while the Articles of Confederation did not provide for an independent Federal Judiciary.1 At the Constitutional Convention, the delegates agreed early on to depart from existing practice and establish an independent federal Judicial Branch including a Supreme Court.2 The Framers generally accepted that state courts would play a significant role in interpreting and applying federal law.3 But, in light of concerns about whether state courts would apply federal law correctly, uniformly, and without bias,4 the Framers provided for a federal Supreme Court with the power to review state judicial decisions involving issues of federal statutory or constitutional law.5

However, the Framers debated whether the Constitution should also provide for the existence of lower federal courts.6 James Madison’s proposal for the new government, known as 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.” 7 In the Committee of the Whole, the proposal to establish a national Judiciary was adopted unanimously.8 A clause providing that the Judicial Branch would “consist of One supreme tribunal, and of one or more inferior tribunals” was initially agreed to, but later reconsidered.9 Critics of the provision argued that state courts could adequately adjudicate all necessary matters in the first instance, while appellate review the supreme tribunal would protect national interests and assure uniformity, and the provision for inferior tribunals was ultimately stricken out.10

Madison and James Wilson then moved to authorize Congress to “appoint inferior tribunals.” 11 That proposal, sometimes called the Madisonian Compromise,12 carried the implication that Congress could, in its discretion, either designate the state courts to hear federal cases or create federal courts.13 Over the course of the Convention, the phrasing of the provision evolved into its present form, which vests federal judicial power in the “one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” 14 Beyond that provision, the Constitution imposes few specific requirements related to the organization of the federal Judiciary.15

The first Congress exercised its discretion to create lower federal courts promptly in the Judiciary Act of 1789, the first legislation related to the Federal Judiciary.16 Since that time, the Federal Judiciary has always consisted of one Supreme Court and multiple inferior federal courts, though Congress has periodically enacted legislation to change the size of the Supreme Court and the size and structure of the lower courts.17

Article IX of the Articles of Confederation authorized Congress to “appoint[ ] courts for the trial of piracies and felonies committed on the high seas; and establish[ ] courts; for receiving and determining finally appeals in all cases of captures.” The same Article further provided that Congress would be “the last resort on appeal, in all disputes and differences now subsisting, or that hereafter may arise between two or more states” and could appoint commissioners or judges to constitute a court to resolve such disputes.Articles of Confederation art. IX. back
See, e.g., Max Farrand, The Framing of the Constitution of the United States 79 (1913) ( “That there should be a national judiciary was readily accepted by all.” ). back
See, e.g., 1 The Records of the Federal Convention of 1787, at 243 (Max Farrand ed., 1911) [hereinafter, Convention Records]. For example, the Convention considered proposals that would require federal questions to be decided first in state court, but with a right of appeal to federal courts. See id. at 243, 424. Likewise, during the debate over ratification, Alexander Hamilton wrote that “the State courts will RETAIN the jurisdiction they now have, unless it appears to be taken away in one of the enumerated modes. . . . [Thus,] the State courts would have a concurrent jurisdiction in all cases arising under the laws of the Union, where it was not expressly prohibited.” The Federalist No. 83 (Alexander Hamilton). For additional discussion of the relationship between federal and state courts, see ArtIII.S1.6.1 Overview of Relationship Between Federal and State Courts. back
Madison expressed concern at the Convention about “improper Verdicts in State tribunals obtained under the biassed directions of a dependent Judge,” and “disliked the election of the Judges by the Legislature or any numerous body” due to “the danger of intrigue and partiality” and the fact that legislators lacked the “requisite qualifications” to select suitable judges. 1 Convention Records, supra note 3, at 120, 124. See also The Federalist No. 81 (Alexander Hamilton) ( “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.” ); 1 Convention Records, supra note 3, at 124 (statement of Madison expressing concern about “the local prejudices of an undirected jury” ); The Federalist No. 80 (Alexander Hamilton) ( “[T]he most discerning cannot foresee how far the prevalency of a local spirit may be found to disqualify the local tribunals for the jurisdiction of national causes.” ); id. ( “The mere necessity of uniformity in the interpretation of the national laws, decides the question. 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.” ). back
U.S. Const. art. III; 1 Stat. 73, 85; Martin v. Hunter’s Lessee, 14 U.S. 304 (1816). Cf. Oliver Wendell Holmes, Collected Legal Papers 295–96 (1921) ( “I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as the laws of the several States.” ). back
For additional discussion of the Convention’s consideration of the judiciary, see 1 Julius Goebel, Antecedents and Beginnings to 1801, History of the Supreme Court of the United States (1971). back
1 Convention Records, supra note 3, at 21–22. It is possible that this version may not be an accurate copy. See 3 Convention Recordsid. at 593–94. back
1 Convention Records, supra note 3, 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
Id. at 125. back
See Richard H. Fallon, Jr. et al, Hart & Wechsler’s The Federal Courts and the Federal System 8 (7th ed. 2015). 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 Convention Records, supra note 3, at 125. back
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 of Style left the clause empowering Congress to “constitute” inferior tribunals, 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 “ordain and establish.” Id. at 600. back
Article I appears to assume the existence of a Chief Justice of the United States, providing that “[w]hen the President of the United States is tried, the Chief Justice shall preside.” U.S. Const. art. I, § 3, cl. 6. Other provisions govern federal judges’ tenure and compensation and set the bounds of federal court jurisdiction. See ArtIII.S1.5.1 Overview of Congressional Control Over Judicial Power; ArtIII.S1.10.2.1 Overview of Good Behavior Clause; ArtIII.S2.C2.6 Exceptions Clause and Congressional Control over Appellate Jurisdiction. However, the Constitution does not specify the size of the Supreme Court or the number or size of the lower courts. back
1 Stat. 73. back
See, e.g., Judiciary Act of 1789, ch. 20, § 1, 1 Stat. 73; Judiciary Act of 1801, ch. 4, § 3, 2 Stat. 89; Act of Mar. 8, 1802, ch. 8, § 1, 2 Stat. 132; Act of Feb. 24, 1807, ch. 16, § 5, 2 Stat. 420; Act of Mar. 3, 1837, ch. 34, § 1, 5 Stat. 176; Circuit Judges Act of 1869, ch. 22, 16 Stat. 44; Act of March 3, 1891, ch. 517, 26 Stat. 826. See also ArtIII.S1.8.3 Supreme Court and Congress; ArtIII.S1.8.4 Establishment of Inferior Federal Courts; ArtIII.S1.8.5 Congressional Power to Abolish Federal Courts. back