Article 3, Section 2, Clause 1 — The Judicial Branch In The Constitutional Framework

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Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

The Supreme Court developed the Constitutional Avoidance Doctrine to minimize concerns about unelected federal judges setting aside Congress’s laws on constitutional grounds. Underlying the Constitution is the principle that government legitimacy depends on the consent of the people. Noting that “Governments are instituted among Men, deriving their just powers from the consent of the governed,” the Declaration of Independence justified the colonies’ separation from the British Crown, because it had, through “repeated injuries and usurpations,” deprived the colonists of government that represented and protected their interests.[1](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-judicial-branch-in-the-constitutional-framework#fn1art3 " The Declaration of Independence (1776). ")

Contemplating that popular sovereignty would guard against tyranny, the Framers provided for the people to elect the House of Representatives directly and the Senate and the Executive indirectly. Popular sovereignty, which the Framers viewed as necessary for a free and republican government, meant government by the majority.[2](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-judicial-branch-in-the-constitutional-framework#fn2art3 " John Locke, Second Treatise § 97 (1689) ( “And thus every Man, by consenting with others to make one Body Politick under one Government, puts himself under an Obligation to every one of that Society, to submit to the determination of the majority, and to be concluded by it; or else this original Compact, whereby he with others incorporates into one Society, would signifie nothing and be no Compact, if he be left free, and under no other ties, than he was in before in the state of Nature.” ). ") The Framers, however, feared that conflicting opinions and rivalries among factions of citizens might cause political instability or, if a faction gained a political majority, harm “the public good and the rights of other citizens.” [3](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-judicial-branch-in-the-constitutional-framework#fn3art3 " The Federalist No. 10 (James Madison). See also The Federalist No. 51 (James Madison) ( “It is of great importance in a republic not only to guard one part of the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.” ). ") To avoid this, the Framers crafted a Constitution that disbursed the limited powers of the new American government across three departments: the Legislative, the Executive, and the Judiciary, each with a unique role in securing for the Republic “a steady, upright, and impartial administration of laws.” [4](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-judicial-branch-in-the-constitutional-framework#fn4art3 " Id. No. 50 (James Madison). ")

The Framers were also concerned that different branches might attempt to expand their powers beyond those granted by the Constitution and upset the balance the Framers designed to “secure the blessings of liberty.” [5](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-judicial-branch-in-the-constitutional-framework#fn5art3 " U.S. Const. pmbl. ") Consequently, the Framers provided each branch some ability to offset the power of the other two.[6](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-judicial-branch-in-the-constitutional-framework#fn6art3 " The Federalist No. 78 (Alexander Hamilton). ") Describing the division of federal power among the three branches in the Federalist No. 78, Alexander Hamilton identified the Judicial Branch as posing the least danger to the constitutional framework. He stated:

Whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the Judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The Judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.[7](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-judicial-branch-in-the-constitutional-framework#fn7art3 " Id. ")

Although Hamilton viewed the Judicial Branch as the weakest of the branches, the Framers saw it as critical to preserving the rights of individuals and ensuring that the Legislative and Executive Branches did not exceed their constitutionally-granted powers.[8](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-judicial-branch-in-the-constitutional-framework#fn8art3 " Id. ( “The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specific exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way then through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.” ). ") Hamilton recognized the Constitution as superior to acts passed by Congress because the Constitution, by virtue of its ratification process,[9](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-judicial-branch-in-the-constitutional-framework#fn9art3 " Id. No. 40 (James Madison) (describing the Constitution as being submitted to “the people themselves” for ratification). Delegates to state ratifying conventions were selected by popular vote. John Hart Ely, Democracy and Distrust, A Theory of Judicial Review 5 (1980). ") manifests the intentions of the people, whereas acts of Congress merely manifest the intention of the people’s agents.[10](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-judicial-branch-in-the-constitutional-framework#fn10art3 " The Federalist No. 78 (Alexander Hamilton) ( “If there should be an irreconcilable variance between the [Constitution and a statute], that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.” ). See The Federalist No. 49 (James Madison) ( “As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power is derived.” ); see also M’Culloch v. Maryland, 17 U.S. 316, 404–05 (1819) (Marshall, C.J.) ( “The government of the Union, then . . . is, emphatically and truly, a government of the people. In form, and in substance, it emanates from them. Its powers are granted by them, and are to be directly exercised on them, and for their benefit.” ). ") He wrote: “[W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.” [11](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-judicial-branch-in-the-constitutional-framework#fn11art3 " The Federalist No. 78 (Alexander Hamilton) ( “If there should be an irreconcilable variance between the [Constitution and a statute], that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.” ). ")

Hamilton further described the Judiciary as the “bulwarks of a limited Constitution against legislative encroachments,” stating: “[E]very act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.” [12](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-judicial-branch-in-the-constitutional-framework#fn12art3 " Id. ") Hamilton also viewed the Judiciary as protecting minority interests from potential oppression by the majority, stating:

This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.[13](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-judicial-branch-in-the-constitutional-framework#fn13art3 " Id. ")

Whether the Framers intended to authorize the Judiciary to set aside laws passed by the elected legislature, as Hamilton envisioned, has been the subject of debate from the Nation’s earliest days. The Constitution does not expressly provide for judicial review. And while it is clear from the Federalist Papers that many Framers contemplated judicial review as including the power to invalidate acts that violated the Constitution, it is less clear whether delegates to the state ratification conventions agreed as to what judicial review might entail.[14](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-judicial-branch-in-the-constitutional-framework#fn14art3 " There was not always consensus that the federal courts had the power to strike down laws as unconstitutional. President Andrew Jackson once opined: “[T]he opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.” Andrew Jackson, Veto Message (July 10, 1832), http://avalon.law.yale.edu/19th_century/ajveto01.asp. After identifying the twenty-five delegates with the greatest impact on the Constitutional Convention, historian Charles Beard identified those who either directly or indirectly supported “judicial control” —John Blair of Virginia, John Dickinson of Delaware, Oliver Ellsworth of Connecticut, Elbridge Gerry of Massachusetts, Alexander Hamilton of New York, William Johnson of Connecticut, Rufus King of Massachusetts, James Madison of Virginia, Luther Martin of Maryland, George Mason of Virginia