of the United States is tried, the Chief Justice shall preside.”
Where was the Constitution itself created?
The U.S. Constitution was created during the summer of 1787 at a meeting of fifty-five delegates whose assigned job was to propose revisions to the Articles of Confederation, the authoritative document of the existing government, which did not provide enough power for a central government. The delegates actually went beyond their job duties and created an entire new Constitution during a process that author Catherine Drinker Bowen called “the Miracle at Philadelphia.” This process culminated on September 17, 1787, when thirty-nine men signed the new document. Various states then ratified the Constitution in 1787 and 1788 that put the Constitution into effect.
Virginia delegate Edmund Randolph was instrumental in bringing forth a plan to create a federal judiciary branch in 1789. Randolph went on to become the nation’s first attorney general. Hulton Archive/Getty Images.
What is the structure of the Constitution?
The Constitution features seven sections, called articles. The first three articles deal with the powers of the three branches of government. Article I deals with the legislative branch (Congress), Article II deals with the executive branch (the president), and Article III deals with the judicial branch (the court system).
The Constitution features a system of separation of powers and checks and balances among the three branches of government. For example, Congress passes legislation but the president can veto (or stop) the legislation, which Congress can then override by a super-majoritarian vote of two-thirds. This means that if a president vetoes a piece of legislation, the law can still be enacted if two-thirds of the members of Congress vote to override the presidential action. However, the judicial branch can then declare a law unconstitutional if it determines that it is not compatible with the Constitution.
When did the framers consider a separate judicial branch?
Virginia delegate Edmund Randolph, later the nation’s first attorney general, introduced the so-called Virginia Plan, which called for the creation of a federal judiciary, on May 29, 1787. The Virginia Plan called for Congress, not the executive branch, to appoint judges.
Under the Constitution, who appoints Supreme Court justices?
The Constitution provides that the president has the power to appoint “Judges of the Supreme Court.” Article II, Section 2, says that the president “shall have Power … [to] nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for.” This means that the president nominates Supreme Court justices and the U.S. Senate then confirms (or denies) the selection.
Which framer first proposed how justices would obtain their positions?
Nathaniel Gorham, one of two members from Massachusetts who signed the Constitution at the 1787 Philadelphia Convention, first proposed the idea that the president should nominate the justices and the Senate should confirm them.
Massachusetts delegate Nathaniel Gorham first proposed that the president should nominate the justices and the Senate should confirm them. Hulton Archive/Getty Images.
Were the framers in agreement on the creation of lower federal courts?
No, the framers disagreed over whether the Constitution should call for the creation of lower federal courts. For example, John Rutledge—who would later become the second chief justice of the U.S. Supreme Court—said that creating lower federal courts would constitute “an unnecessary encroachment” upon state courts. Maryland’s Luther Martin warned that the creation of lower federal courts would cause “jealousies and oppositions in the State tribunals.” However, Virginia’s James Madison—the nation’s future fourth president—argued that lower federal courts were necessary to ensure the fair administration of justice. He warned that state courts may not provide “unbiased” rulings.
JUDICIAL REVIEW AND JUDICIAL INDEPENDENCE
Did the framers agree on the power of judicial review?
No, the Founding Fathers did not agree on the power of judicial review—the power of the Supreme Court to review the constitutionality of laws and regulations. The Federalists believed in establishing a strong, central government. One such Federalist, Alexander Hamilton, the nation’s first secretary of the Treasury, argued forcefully for the power of judicial review in one of his Federalist Papers (#78). The Federalist Papers were a series of essays published anonymously under the pen name “Publius” by Hamilton, James Madison, and John Jay to support the newly drafted Constitution and the new central government. In 1789, Madison argued for the addition of a Bill of Rights to the Constitution, and wrote that the Bill of Rights would give the judiciary a “check” on legislative encroachments on individual liberties.
Pro-Con: Judicial Review
Pro-Judicial Review (Federalist Papers): “It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.”
Anti-Judicial Review (Anti-Federalist Papers): “The supreme court under this constitution would be exalted above all other power in the government, and subject to no control. The business of this paper will be to illustrate this, and to show the danger that will result from it. I question whether the world ever saw, in any period of it, a court of justice invested with such immense powers, and yet placed in a situation so little responsible. Certain it is, that in England, and in the several states, where we have been taught to believe the courts of law are put upon the most prudent establishment, they are on a very different footing.”
Others, known as Anti-Federalists, believed that the new Constitution concentrated too much power in the new, federal government. They wanted to keep the power with the individual state governments. Robert Yates, a leader from New York, wrote a series of essays called the Anti-Federalist Papers under the pen name “Brutus.” In one of these, he attacked the concept of judicial review as residing too much power in the judiciary.
Does the Constitution explicitly give the power of judicial review to the judiciary?
No, the U.S. Constitution does not mention the concept of judicial review. Many framers assumed that the Court would have the power to declare laws unconstitutional but it is not specifically mentioned in the Constitution. Several lower courts asserted the power of judicial review and, most famously, Chief Justice John Marshall clearly established the power for the judiciary when he wrote in Marbury v. Madison (1803) that “it is emphatically, the province of the judicial department, to say what the law is.”
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