Article III. The Judiciary

Article III defines the federal judiciary, Alexander Hamilton’s “least dangerous branch” (Federalist 78). We agree with that characterization, but with the rueful observation that this is largely a matter of degree. At times, the federal judiciary has proven to be a powerful guarantor of American rights and of the constitutional order; but the power vested in the judiciary that has made it capable of playing this role has also at times been seriously abused.

The Framers likely never felt on more secure ground than in framing the judiciary. They had the great body of the English common law and its associated norms to draw upon, and they made few changes to the English legal tradition. The most important change was in the independence of the judiciary. From time immemorial, sitting in judgment had been regarded as a duty and prerogative of the monarch. Courts were creatures of the crown meant to lighten the king’s burden by allowing most ordinary cases to be settled without his direct attention. The American states, with their distaste for monarchy, placed courts under the legislature, but as such, they could not also be checks on the legislature. The Framer’s solution was to make the judiciary an independent branch of government. Once appointed, judges had permanent tenure and could not be removed except for actual misconduct, nor could pressure be put on them by threatening to reduce their salaries.

Hamilton’s judgment that the judiciary was the least dangerous branch of the federal government was based on two crucial limitations on the courts. First, they had no power to appropriate funds. Second, they had no military forces at their disposal. Their power was based entirely on their prestige as neutral arbiters of the law, whose rulings carried moral weight. A President might ignore a court ruling, as has happened occasionally in our history (though not flagrantly since the Civil War), and Congress might refuse appropriations to enforce a court ruling, but such flouting of the court carried a heavy political price. The court has little power to act on its own; it has considerable power to grant or withhold legitimacy from the actions of the other two principal branches.

We will discuss the basis of the judiciary’s authority, and how it has been exercised in practice, after completing the annotation of Article III.