This week, we finalize our brief look at the three branches of our government by a considering our national court system.

The Need for a Federal Court System

The founders recognized that a federal court system was a necessary aspect of the Constitution and the government they envisioned. Alexander Hamilton viewed the need for a federal court system as one of the “axioms,” or fundamentally required aspects of a successful polity. [1] He viewed as irrational to establish a government without the judicial power to enforce its legislation. A government without the power to adjudicate all of its constitution and laws would be imperfect. A judiciary that was compelled to enforce unconstitutional legislation would not be able to protect the citizens of the state. Against those who wanted no federal judiciary and those who wanted a subservient federal judiciary, Hamilton leveled some of his most potent attacks in the Federalist Papers.  [2]

This being the case, it was necessary for there to be an appropriately structured judicial branch of the new federal government. Thus, on the very second day of the Convention, the Virginia Plan was introduced, which provided in part:

Resd. that a National Judiciary be established to consist of one or more supreme tribunals, and of inferior tribunals to be chosen by the National Legislature, to hold their offices during good behaviour; and to receive punctually at stated times fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution. that the jurisdiction of the inferior tribunals shall be to hear & determine in the first instance, and of the supreme tribunal to hear and determine in the dernier resort, all piracies & felonies on the high seas, captures from an enemy; cases in which foreigners or citizens of other States applying to such jurisdictions may be interested, or which respect the collection of the National revenue; impeachments of any National officers, and questions which may involve the national peace and harmony. [3]

The Scope of the Federal Judiciary

The Constitution as adopted created a court of last resort, the United States Supreme Court, established the tenure of judges, and gave Congress the power to create other federal courts. Article III also contains provisions that govern the compensation of judges, the right to trial by jury in federal criminal cases, and defines and regulates prosecution for the crime of treason.

Article III, Section II of the Constitution grants jurisdiction to the Supreme Court in two fundamental ways:

1. The Supreme Court has original jurisdiction regarding suits between two or more states and cases involving ambassadors and other public ministers; and
2. The Supreme Court has appellate jurisdiction regarding cases that involves a point of constitutional or federal law. [4]

It was recognized from the beginning that there needed to be a federal court system of some kind, though the founders had no idea just how large the nation would become or how many courts would be required. [5]  At the time of the writing of the Constitution, there were already disputes among states that could not be fairly heard or resolved in state courts. These disputes and the difficulties they caused were already known to be problematic. Second, allowing ambassadors and other public ministers to be potentially tried in thirteen (or fifty) state courts would be a constant irritation to friends and enemies alike.

There were other areas of the law requiring a federal judicial system. As Hamilton noted, admiralty cases, are by their very nature likely to involve international law and the citizens and representatives of other nations, therefore, placing admiralty within the federal judicial domain. Thus, the Constitution assigned the following areas to the federal judicial system: cases and controversies arising under or affecting (i) the Constitution, (ii) the laws of the United States, (iii) treaties made under the United States, (iii) ambassadors, other public ministers and consuls (iv)  admiralty and maritime matters; (v) the United States as a party, (vi) two or more States, (vii) between a State and Citizens of another State; (viii) between Citizens of different States, (ix) between Citizens of the same State claiming land under grants made by different states, and (x) between a state, or the citizens thereof, and foreign states, citizens or subjects. [6]

It can be seen that the nature of the grants envision that the United States courts would be supreme in matters involving:

1. The Constitution itself and laws promulgated under it.
2. Foreign powers and international law.
3. Cases in which the United States of America is a party.
4. Disputes involving the states and their citizens where it is likely that no single state court could fairly or adequately resolve the matter.

Hamilton went to great lengths in defending the Constitution to assure his readers in the Federalist Papers that the grant of these powers would not infringe upon the existing judicial powers of the states, except where reason and sound judgement indicated that they either could not or could not fairly resolve the issues. In other words, the grant of powers to the judiciary was intended to be limited to those areas in which the federal government had been given powers and responsibility, but was coextensive with those powers and responsibilities.

Independence and Protection of Federal Judges

The Virginia Plan included significant protections for federal judges, protections that were inserted into the Constitution. Federal judges were not to be elected or serve for stated terms, but elected to serve during “good behavior.” [7] Only the House of Representatives by impeachment and the Senate by trial and conviction can remove a federal judge once appointed by the President and confirmed by the Senate. Second, their salaries cannot be reduced during their term in office. These provisions were included to avoid judges from becoming tools of the legislature for political and economic reasons.

Hamilton strongly argued that to make federal judges subject to legislative reduction of salaries would be to corrupt the political system the founders intended. Similarly, in a time where retirement plans were unavailable, it was necessary for appointments to be for life. Otherwise, the judges would have to look out for their monetary future, which would open a door to corruption. [8] Service for life conditional upon good behavior was the solution to these problems. [9]

Juries and Treason

Finally, there were two matters of special political importance that the founders had to address in the Constitution. The abrogation of trial by a jury of private citizens was one of those sacred rights the British Crown had sometimes ignored. No constitution could hope to be approved by the people which did not provide for the trial by jury. In point of fact, the provision included in the Constitution was not deemed sufficient and was vigorously attacked by the anti-federalists, and so the Bill of Rights included the Sixth and Seventh Amendments to make stronger and clearer this right. Nevertheless, the Constitution provides that:

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Similarly, the crime of treason was much misused in Europe generally and by the British crown for political reasons. Therefore, the Constitution contains specific provisions limiting the use of treason as a criminal offense. Article III, Section 3 of the Constitution provides:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Least Dangerous Branch

Perhaps the most famous words of Hamilton (or anyone else) in the Federalist Papers is his description of the judiciary as “the least dangerous branch.” [10] The founders could not have conceived of the vast extension either of federal power or the power of the federal courts that the 20^th Century brought. In particular, Madison’s and Hamilton’s view that the courts would be a bulwark against legislative excess has only been partially realized. Nevertheless, the Supreme Court and federal Courts generally are a moderating influence in our system of government. [11]

The founders never considered the emergence of a judicial theory that did not involve some form of natural law or the impact that such a theory might have on the Constitution and the role of judges. Modern power-based theories of law had not emerged and there was no reason to believe that judges would cease to be guided by principles of justice considered to be antecedent to the law itself. This will also be the subject of a later blog as we examine Justice Oliver Wendall Holmes and the emergence of what is commonly known as “legal realism.”

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] The Federalist Papers Clinton Rossiter ed.  (New York, NY: Mentor Books, 1961), No. 80 (Hamilton). All references to the Federalist Papers are to this edition and cited, “Federalist Papers Number, and Author.

In Federalist 80 Hamilton observes “If there are such things as political axioms, the propriety of the judicial power of a government being co-extensive with its legislative, may be ranked among the number.”

[2] Hamilton’s analysis and defense of the Constitution as regards the judicial powers of the government are found in Federalist Papers, Nos. 78-83.

[3] Madison’s Notes, May 29, 1787 (https://avalon.law.yale.edu/18th_century/debates_529.asp, downloaded from the Avalon project July 21, 2021).

[4] Article III, Section 2.

[5] Federalist Papers, 81. Hamilton thought that the number would be about half a dozen! Today, there ninety-four federal districts courts and thirteen Federal Courts of Appeal covering the United States and the District of Columbia. There are also bankruptcy, tax, and other specialized courts that Congress has created pursuant to Article III.

[6] Article III, Section 2.

[7] It is interesting that the term “good behavior” as opposed to “high crimes and misdemeanors” is used. Some hold that that a different and somewhat lower standard was intended for judicial removal than for removal of a President. In practice, however, judges are not removed except for the kind of misconduct that high crimes and misdemeanor language prohibits. See, https://constitution.congress.gov/browse/essay/artIII_S1_2_1_3/#ALDF_00014180 (downloaded July 21, 2021).

[8] Federalist Papers, 79. “In the general course of human nature, a power over a man’s subsistence is a power over his will.”

[9] There are aspects of Hamilton’s argument that may no longer make complete sense. For example, given the longer life spans of today together with the real possibility of judges serving beyond their time of capacity, it may be that some kind of term limits are needed.

[10] Federalist Papers, 78.

[11] I have decided to deal with the balance of powers in a later blog because of the complexity of the various provisions that create and limit this balance in the Constitution.

Article 2 of the Constitution begins with one simple phrase that says it all, but within which there is a long story to be told. Here is the phrase: “The executive Power shall be vested in a President of the United States of America.”

The Executive Branch

The Executive branch manages the day-to-day operations of the United States government through federal departments and agencies, such as the Departments of State, Treasury, Defense, Justice, and the like. At the head of this branch is the nationally elected President of the United States, who is also Commander in Chief of the Armed Forces and shares with the Congress by veto certain legislative powers and with the Judiciary certain judicial powers involving appointment. [1] The President’s powers include making treaties with other nations, appointing federal judges, department heads and Ambassadors, and determining how to best run the country and run military operations. Unlike European parliamentary systems, the President is also the Head of State, making him a powerful figure in American political life.

The Need for a Strong Executive

The Constitutional Convention believed the new nation needed a strong executive function. This was lacking under the Articles of Confederation. Under the Articles, there was no single individual possessing executive power sufficient to provide energy and direction to the national government. In particular, it was recognized that in times of danger there was no clear authority to defend the nation. As mentioned in an earlier blog, the Articles of Confederation, provided for a “Committee of the States” made up of a representative of each state, which had limited executive authority. [2] There was no effective central executive function with a clear and unambiguous authority to execute government policy. Obviously, this made coordinated public administration, international diplomacy, and defense nearly impossible.

The Need for an Energetic Executive

As mentioned above, the Constitutional Convention united in the view that a strong executive function was needed to remedy the defects of the Articles of Confederation. Not all members agreed as to how strong the executive function needed to be, and there was much debate over the exact powers to be given the President and the limitations on those powers. Nevertheless, it was recognized that an energetic and effective executive was needed. Here is how Hamilton put it in Federalist 70:

Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high handed combinations that sometimes interrupt the ordinary course of justice; to the security of liberty against the assaults of ambition, of faction, and of anarchy. [3]

Therefore, the first goal of the Convention was that the executive had to have the powers necessary for the effective conduct of the office. It was also recognized that a weak executive function was a danger both to the execution of the laws and to the security and well-being of the nation. [4] In order that there be an energetic executive, Article 2 provides that the President is the commander in chief of the armed forces, has the power to negotiate and enter into treaties, appoints ambassadors, public officials, judges and all other officers of the United States that Congress does not otherwise provide for. [5] Somewhat less important powers include the power to recommend to Congress various courses of action, a power that has become institutionalized in the annual state of the Union message that often includes a list of legislative proposals that the President feels necessary for the well-being of the nation. Presidents also routinely recommend legislation through other avenues.

The Need for a Responsible Executive

Naturally, having only recently won independence from a monarchy, and having a reasonable fear of the recurrence of the kinds of usurpations that monarchy can create, it was desired that there be limitations on the activities of the executive. The most important of these limitations is the need for the Senate to concur with presidential appointments by a two thirds majority of the Senators present. [6]

A second limitation is the power of the House of Representatives to impeach the President and the senate to try such impeachments, a provision that has been used three times in my lifetime and is increasingly being misused by Congress to the detriment of the nation. Article II, Section 4 provides that:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

The first two offenses are clear on the face of the Constitution, treason and bribery undermine the very foundation of the government. It is likely, therefore that the terms “other high crimes and misdemeanors” was intended by the founders to include similar offenses. It would seem that the nature of the offenses intended to be covered are those that would undermine the government the founders were creating. Madison saw impeachment as against “incapacity, negligence or perfidy of the chief Magistrate.” [7] This indicates that impeachment is to be used only against a president who is unable or unwilling to perform his or her duties or is corruptly conducting those duties.

Despite the necessity of some form of impeachment, the founders were concerned that the power of impeachment not render the executive incapable of independence from the legislative function. The power of impeachment was not to be a “rod” to be used against a public official. [8]

George Washington

The debate and discussion of the scope of executive power under the Constitution and the powers and limitations of the President took place in the most unusual circumstances: Sitting at the head of the Convention was the person nearly everyone believed would be that executive officer. General George Washington was clearly the person to be chosen as first President. The most famous American alive, with the possible exception of Benjamin Franklin, who was too old to serve, the former commander of the Continental Army, was a successful Virginia planter, citizen one of the most populist states, and a person trusted and admired by nearly everyone, and especially by nearly everyone at the Convention. His leadership was known to be careful, thoughtful and steady.

Had Washington wanted to be a king, it would have been hard to deny him the role—and had he desired, it is likely he could have raised the army to make it so. Fortunately for the nation, George Washington was not a “man who would be king.” His public career began in 1752, when he became a commander of the Virginia militia during the French and Indian War. In that war he earned a reputation for bravery under fire and skill as a leader of men. He was also considered extremely lucky in battle. In 1759, Washington was elected to the Virginia House of Burgesses, where he served until 1774—just two years before the American Revolution. As a result of his business experience, he felt that the American Colonies needed to be independent of the harmful tax policies of the British Government. [9] Washington served as a delegate to the first Continental Congress and was appointed Commander of the Continental Army at the beginning of the war. As Commander of the Army, he had experienced first-hand the defects of the Articles of Confederation. His tenacity as commander of the Continental Army through defeat, disaster, and want made him a legend.

At the Constitutional Convention, Washington seldom spoke, but he was an impressive figure and gave wise and sound leadership to the Convention. His steady hand was felt by all participants, and his leadership was calm and direct. He worked to dispel anger when the debate became too heated, and created an atmosphere in which debate could reach a consensus. Although he had opinions, including about the powers of the executive branch, he largely kept them to himself, allowing the delegates to reach their own conclusions. By the end of the Convention, he was the clear choice to be the First President, a position to which he was elected once the new Constitution was ratified and an election held.

Conclusion

In some ways, the debate over the powers and prerogatives of the President were the most important of the Convention. At various points in American history the actual implementation of these powers has differed, and different Presidents have interpreted and used their powers differently. Since the Presidency of Ronald Regan, we seem to have been exiting the period of the Imperial Presidency that began with Roosevelt, which may be a good thing over time, if the Legislature and Judiciary act wisely in upholding their own constitutional responsibilities.

Copyright, G. Christopher Scruggs, All Rights Reserved

[1] The president swears an oath to ‘faithfully execute’ the responsibilities as President and to ‘preserve, protect and defend the Constitution of the United States’. While this goes beyond his role as Commander in Chief, it includes a commitment to faithfully defend the nation.

[2] Articles of Confederation, Article IX.

[3] The Federalist Papers Clinton Rossiter ed.  (New York, NY: Mentor Books, 1961), No. 70 (Hamilton). All references to the Federalist Papers are to this edition and cited, “Federalist Papers Number, and Author.

[4] Id, at 423.

[5] United States Constitution, Article IV, Section 2.

[6] Article IV, Section 2.

[7] Madison’s Notes, July 20, 1787.

[8] Id.

[9]  See the prior blog on Edmund Burke and Declaration of Independence for additional information about the role of British tax policies on the American Revolution.