Article III

NOTE: Article III is by far the shortest of the three articles creating the three branches of the U. S. government.

Section 1 of Article III vests the judicial power of the U. S. in one Supreme Court and in such U. S. courts below the Supreme Court as Congress may choose to establish.

NOTE: The Constitution thus specifically creates only one court – the U. S. Supreme Court. Congress has created all U. S. courts below the Supreme Court. Congress thus has more power over these lower courts than it does over the Supreme Court. Since Congress creates these courts, it decides all kinds of questions concerning them and can alter or eliminate them at any time.

NOTE: Section 1 does not specify the number of members of the Supreme Court even though it establishes the Court. Congress by law sets the number of members, and that number has varied through history. It has not always been an odd number. The first Supreme Court in 1789, for example, as set by Congress in the Judiciary Act of 1789, had only six members. Congress by law set the number of members at nine in 1869 and has not changed that number since then. The only serious but unsuccessful attempt to change the number occurred in 1937 when President Franklin D. Roosevelt tried to persuade Congress to change the number of justices.

NOTE: As noted, Articles I and II spell out qualifications which an individual must have to be eligible to serve as a member of the House and the Senate or as the President. However, Article III does not specify any qualifications which an individual must have for appointment as a Supreme Court Justice or a judge of one of the other courts created by Congress.

NOTE: The President’s power to appoint Supreme Court Justices and judges of lower U. S. courts is granted in Article II. Section 1 provides that Supreme Court Justices as well as judges of the lower U. S. courts created by Congress “shall hold their offices during good behavior.”

NOTE: This means that these presidential appointees serve for life unless they seriously misbehave in which case they are subject to removal by Congress through the impeachment process. No Supreme Court Justice in American history has been impeached by the House and convicted and removed from office by the Senate. A few lower U. S. court judges have been impeached, convicted, and removed from office.

Finally, Section 1 provides that both Justices of the Supreme Court and lower court judges shall be compensated for their service and that this compensation cannot be reduced during the time they hold these offices.

Section 2 of Article III spells out in detail the jurisdiction of the U. S. courts or, in other words, all the cases which these courts may hear. Of great significance, Section 2 provides that “in all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”

NOTE: Original jurisdiction refers to those cases which begin at the Supreme Court or, in other words, those cases which the Supreme Court is the first court to hear. Of course, if a case begins at this Court, it also ends there since there is no other court above the Supreme Court. Section 2 has been interpreted to mean that the only cases falling under the Supreme Court’s original jurisdiction are: (1) cases involving foreign ambassadors or other foreign diplomatic personnel; and (2) cases between two or more states. There are very few original jurisdiction cases as indicated by the fact that in any given term, the Court hears at most only one or two such cases. In most terms, it hears no such cases. The Supreme Court is, therefore, primarily an appellate court which means that the overwhelming majority of cases it reviews each year come to it on appeal only after having first been heard and decided by a lower U. S. court or by a state court. The fact that Congress is authorized to regulate the Supreme Court’s appellate jurisdiction, but not the Court’s original jurisdiction, is therefore significant even though Congress has never used this power to any great extent. The Supreme Court in the 1803 case Marbury v Madison declared unconstitutional a part of an action of Congress which the Court interpreted as altering the Court’s original jurisdiction.

NOTE: Article III does not specifically grant the Supreme Court the power called “judicial review” whereby it could rule the actions of the states or the other two branches of the national government as constitutional or not. There is some evidence, however, that most of the framers of the Constitution intended the Court to have such a power, and in Federalist No. 78, Alexander Hamilton makes clear his belief that the Court possessed such a power. In any case, the Supreme Court under the leadership of Chief Justice John Marshall established this important power for itself over the other two branches of the national government in the 1803 case Marbury v Madison and over actions of the states in Fletcher v Peck (1810), Martin v Hunter’s Lessee (1816), and Cohens v Virginia (1821).

Section 2 also provides that, except for cases of impeachment, the trial of all crimes shall be by jury and that this trial shall be held in the state where the crime was committed

Section 3 of Article III defines treason as levying war against the U. S. or giving aid and comfort to the nation’s enemies. It provides that no one can be convicted of treason except by the testimony of two witnesses to the overt act or by the individual’s confession in open court.

NOTE: This is the only criminal offense defined in the Constitution.