Article III of the Constitution | US Government and Politics | Khan Academy

Hi, this is Kim from Khan Academy, and today I'm learning more about Article 3 of the Constitution. Article 3 establishes the judicial branch of government, including the Supreme Court, whose job is to interpret the laws of the United States. To learn more about Article 3 in the judicial branch, I asked two experts to give me some more information. Jeff Rosen is the president and CEO of the National Constitution Center, and he's written extensively about the courts and the Supreme Court in particular. Richard Garnett is a professor of law and political science at the University of Notre Dame School of Law.

Jeff, can you tell us a little bit about the framers' vision for the judicial branch? How much power did they intend for the judicial branch to have?

Well, let's start by reading the text; that's always the best place to start. The text of Article 3, the very first sentence, says: "The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as Congress may from time to time establish." The framers expected that we would have a Supreme Court and that it would be separate from the legislature and the president, but it was up for Congress to decide what other federal courts we'd have, if any. It's so interesting that the framers are so focused on a system where state courts are the main interaction that people have with the judicial system. They didn't even require Congress to set up inferior federal courts at all.

So, what does Article 3 tell us about how the judicial branch is supposed to be structured?

Well, it doesn't say a whole lot. It's interesting, so some people are surprised when you actually read the text of Article 3. It sets up the Supreme Court, and it says that all of the federal judicial power is going to be in that Supreme Court, but it doesn't tell us anything about, say, courts of appeals or trial courts. It clearly envisions that Congress is going to create some, but it really did leave it to Congress to decide how to structure the judicial system.

So, what are some of the ways the role of the Supreme Court has changed over time?

Well, I think it's fair to say that there's a lot more federal law than there used to be, and so there are more questions that are potentially questions for the Supreme Court than there used to be. I mean, if you think of the country's early history, most of the legal action was in the states, in the state courts and the state legislatures. There weren't that many questions for the Supreme Court to answer. As the federal government grows and federal law expands, that creates more work for the Supreme Court. What does equal protection mean? What does due process mean? What's the balance between the freedom of speech on the one hand and intellectual property on the other? These are questions that the founders might not have been able to envision being judicial questions.

Alexander Hamilton, in Federalist 78, famously said that the judiciary would be the least dangerous branch because it had neither person nor sword. The framers thought that Congress would be the most dangerous branch because it had the most enumerated powers, the presidency second, with limited but constrained powers, and the judiciary the least dangerous because it didn't have the army, it had no money, and all it could do was issue judgments and hope that they would be accepted by the other branches.

So, say that I'm a Supreme Court Justice. Good work, me! A case comes before me and it's up to me now to interpret the Constitution in such a way that I can answer questions about this certain case. What would be some of the tools that I could use to help me in my interpretation?

Well, there's obviously deep and fascinating disagreements among people about how exactly courts should do that, but one place where you could start—and I think there'd be common ground here—is that all justices believe that it's important to ask: how has the Supreme Court answered questions like this in the past? So the first place you would look would be to the court's own precedents, right? Has the court answered questions like this before? If so, what did the court say? Because there is a strong sense that, you know, the rule of law needs predictability and consistency, and so courts really do make an effort to have their rulings be consistent over time.

You might also be interested in empirical facts. What would be the effect of a particular decision on the country? You might also be interested in theories of natural law, which we talked about in discussing the Ninth Amendment. Are there, even if the right being asserted isn't written down in the Constitution, some cases that it is rooted in the history and tradition of our law and that it might come from sources like God or nature and not government?

Generally, judges have been reluctant to enforce rights—natural rights—that don't have a positive foundation. A positive right is a right that's written down or codified in some explicit way. A natural right comes from God or nature, but in practice, most of the natural rights tend to be codified in history or tradition and state constitutions or state laws. Those would be other places you'd look to.

But what's really important for viewers to remember—and I want all of you guys to try to do this yourselves at home—is to separate your constitutional conclusions from your political conclusions. When you're evaluating a law, don't ask, "Do I think that this form of, say, gun control regulation is a good or bad idea as a policy matter?" Ask yourself, "Do I think the Second Amendment allows or prohibits it?" and entertain the possibility that your constitutional conclusions might diverge from your political conclusions.

You might think gun control is a good idea but the Second Amendment prohibits it, or it’s a bad idea but the Constitution allows it. That basic separation of political from constitutional conclusions is central to Hamilton's very theory of judicial review because that's what stops judges from being policymakers in robes and ensures that they're preferring the will of the people expressed in the Constitution to those of the legislatures, which represent fallible policy views.

As we learn from early cases like Marbury versus Madison and then even later cases like Brown versus Board of Education, the Supreme Court can render decisions that then no one enforces. So, how has the Supreme Court avoided becoming kind of a moot point?

Yeah, there's a story, and it might be apocryphal, but it's a good story anyway, that President Andrew Jackson said after the Supreme Court issued an opinion that he didn't like, “Well, the Supreme Court has issued its opinion; now let them enforce it.” Essentially making the point that all they could do was issue an opinion and it was up to others to decide to comply.

I think, you know, American culture—and this is something for us to be grateful for—has been built up over a long time. It's generally been that we have a strong norm that elected officials should follow the law as it's been declared by the federal courts. Now, there have been, as you know, controversies about court decisions throughout our history, whether it was the Dred Scott case which President Lincoln hated or, as you said, Brown versus Board which was resisted by some southern officials after it came down.

The court's ability to get its judgments enforced depends on its credibility and on America's culture of respecting the rule of law. If the court's credibility goes away or if Americans stop respecting the rule of law, then the court's judgments will have less force.

So, the Supreme Court exercises the power of judicial review, which means that it reviews the actions of the executive branch and the legislative branch and can declare those actions unconstitutional. Do you think the framers intended for the court to use that power to check the other branches of government?

Most scholars would agree that it was widely believed that the Supreme Court would have the power to review the acts of both other federal officials and of state governments and to decide whether or not those acts were consistent with the Constitution. Now, there was a lot of disagreement about how excited people were about that power, and again, some people worried that the Supreme Court might abuse its power of judicial review. But the basic idea that it's one of the jobs of a court to make sure that the acts of other officials are constitutional, are consistent with the written Constitution—that idea pre-existed Marbury. That idea was clearly in the minds of the founders when they created the Supreme Court.

I'm happy to say yes, the framers did intend for the courts to have the power of judicial review, and I'm confident of that both because the power was exercised by courts before and after the framing and also because Alexander Hamilton, in Federalist 78, so explicitly puts the case for judicial review.

It's such a shame that in that great musical, we've got the room where it happened but we don't have, you know, the judicial review where it happened because how it would be a great song about why Hamilton thought that judicial review followed logically from the very theory of popular sovereignty.

It really isn't the job of unelected judges to try to update and improve the Constitution that the people ratified. In some cases, this isn't much of a challenge, but in others, say in cases having to do with the freedom of speech or in cases having to do with the war powers and so on, it can be a challenge. It can be a challenge to figure out what exactly the provision meant to those who ratified it, and it can be a challenge to decide whether, if at all, the original meaning needs to be updated in light of more current events.

Now, there's of course much to say in response to Hamilton, and we could have a whole Con Law course on the responses to Hamilton. His very theory of judicial review is premised on the idea that the Constitution represents the will of the people more emblematically or profoundly or fundamentally than those of ordinary laws. The obvious first response is: "Hey, how can you say that the will of a bunch of dead white guys from 1787 really represents the will of we the people today more accurately than a law that Congress passes?"

The answer to the objection is, well, it's because the Constitution was passed by a special procedure. It was unusually deliberative; it took a long time to propose, and it didn't gain the status of supreme law until it was ratified by special conventions that were specially called for the purpose. It was that long process of deliberation that gives that constitutional text the right to speak in "we the people's" name.

How could the legislative or executive branch check the power of the Supreme Court?

Yeah, our Constitution has a number of these interesting checks and balances features, right? So the three branches are distinct, but there's various ways in which they get into each other's business. Right? The president can veto a law. The president appoints justices, but of course, the Senate has to say about whether to confirm them, and so on. So the branches are separate, but they are related and they check each other.

Well, we remember from the text of Article 3 that the Constitution authorizes Congress to set up such inferior courts as it may from time to time choose to ordain and establish. Congress didn't have to create inferior courts; it can create them, it can change them. There's a debate right now about whether the Ninth U.S. Circuit Court of Appeals, which occupies much of the West, should be split up, and Congress can split it up if it wants. Congress can change the number of Supreme Court justices. There were originally six justices, and the number went up and down before settling at nine in the 1860s.

So, Congress could choose to change the number of justices to punish a president on political grounds. When Thomas Jefferson was coming in after the election of 1800, the outgoing Federalist Congress was so determined to punish him that they changed the size of the Supreme Court to deny him the right to make any appointments.

The other branches can check the court in a number of ways. The most dramatic would be, you know, you could impeach a justice for high crimes and misdemeanors. That doesn't happen very often. Another way, which doesn't happen all that often but could, is Congress can check the court by, for example, not funding it or by limiting the issues that the court is allowed to hear. Congress can control what's called the jurisdiction of the court; the court only gets to answer the questions that Congress gives it the power to answer.

Now, again, Congress is reluctant to do that, but it has sometimes in the past and it could if Congress thought it were necessary. Congress can engage in jurisdiction stripping. There's only a small category of cases that the Supreme Court is required to hear, but broadly, the court has broad discretion over its docket, and if Congress wanted to say, "Hey, Supreme Court, you're not allowed to hear any cases involving abortion," for example, it arguably could do that, although such a law might be constitutionally challenged.

I remember being in law school, just kind of indignant at the idea that Congress could violate the separation of powers so flagrantly. My great law professor Akil Amar convinced me that this has been done throughout American history. Before and during the Civil War, Congress deprived the court of the right to hear certain cases involving national security and so forth. So, Congress can, if it chooses, exempt certain categories of cases—those that are not in the original jurisdiction of the court—from being heard.

There's also the question of whether Congress could impose term limits for Supreme Court justices, and there's a proposal floating about to have 18-year terms for the justices and give each president the right to appoint two justices and have justices retire after 18-year terms. There’s a vigorous debate about whether that could be done by an ordinary statute or whether it would require a constitutional amendment.

Well, if you had to say there was one big takeaway about Article 3 that students should remember, what might it be?

That when courts strike down laws as unconstitutional, they're not thwarting the will of the people; they're supposed to be supporting it because the Constitution represents the will of the people. Ordinary laws represent the will of our representatives, and the Constitution is the supreme law, so that's why it trumps ordinary legislation.

You know, Americans of good faith and good reason have been disagreeing about the court's role for a long time. I think a challenge for the court is finding the right balance between asserting its independence and exercising judicial review on the one hand, but on the other, being mindful of the fact that it is undemocratic. The judicial review sometimes involves setting aside what the people have decided they want, and that's an awesome power, and it shouldn't be overused.

So, the court, from time to time in history, has been criticized for perhaps going beyond what the Constitution actually requires and instead enforcing perhaps their own policy preferences or their own political morality.

So, we've learned that Article 3 is crucial to the system of checks and balances that limits the power of government in the United States. The Supreme Court exercises judicial review to ensure that the executive branch and legislative branch act within the confines of the Constitution. But the other branches have plenty of checks on the judicial branch as well.

One of the most central questions about the Supreme Court is the relevance of the Constitution to the issues we face today. As Richard Garnett points out, some scholars might say it's undemocratic to overrule the will of the people as expressed through their elected representatives based on the Constitution. But, as Jeff Rosen argues, the Constitution is the supreme law of the land, and therefore striking down a law as unconstitutional isn't thwarting the will of the people, but rather preserving it.

To learn more about Article 3, visit the National Constitution Center's interactive Constitution and Khan Academy's resources on U.S. government and politics.