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Article Three of the United States Constitution establishes the judicial branch of the federal government. The judicial branch comprises the Supreme Court of the United Statesmarker along with lower federal courts established pursuant to legislation by Congress.

Section 1: Federal courts

Section 1 vests the judicial power in federal courts, requires a supreme court, allows inferior courts, requires good behavior tenure for judges, and prohibits decreasing the salaries of judges.

Section 1.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

Number of courts

Section 1 explicitly requires "one" Supreme Court, but does not fix the number of justices that must be appointed to it. The number of justices has been fixed by statute, and at present the number is nine: one chief justice and eight associate justices. (Article I of the constitution also provides for some courts. That article is discussed herein for completeness.)

Proposals to divide the Supreme Court into the separate panels have been made, but all have failed. Since all such proposals have failed, the Supreme Court has never ruled on the constitutionality of such a division. However, Chief Justice Charles Evans Hughes wrote, "the Constitution does not appear to authorize two or more Supreme Courts functioning in effect as separate courts."

The Supreme Court is the only federal court that is required explicitly by the Constitution. During the Constitutional Convention, a proposal was made for the Supreme Court to be the only federal court, having both original jurisdiction and appellate jurisdiction. This proposal was rejected in favor of the provision that we have today. Under this provision, the Congress may create inferior courts under both Article III, Section 1, and Article I, Section 8. The Article III courts, which are also known as "constitutional courts," were first created by the Judiciary Act of 1789. Article I courts, which are also known as "legislative courts," consist of regulatory agencies, such as the United States Tax Court. Article III courts are the only ones with judicial power, and so decisions of regulatory agencies remain subject to review by Article III courts. However, cases not requiring "judicial determination" may come before Article I courts. In the case of Murray's Lessee v. Hoboken Land & Improvement Co. (1856), the Supreme Court ruled that cases involving "a suit at the common law, or in equity, or admiralty" inherently involves judicial determination and must come before Article III courts. Other cases, such as bankruptcy cases, have been held not to involve judicial determination, and may therefore go before Article I courts. Similarly, several courts in the District of Columbia, which is under the exclusive jurisdiction of the Congress, are Article I courts rather than Article III courts.


The Constitution provides that judges "shall hold their Offices during good Behavior" (unless appointed during a Senate recess). The term "good behavior" is interpreted to mean that judges may serve for the remainder of their lives, although they may resign or retire voluntarily. A judge may also be removed by impeachment and conviction by congressional vote; this has occurred fourteen times. Three other judges, Mark W. Delahay, George W. English, and Samuel B. Kent resigned rather than go through the impeachment process.


The compensation of judges may not be decreased, but may be increased, during their continuance in office. The Constitution is silent when it comes to judges of courts which have been abolished. The Judiciary Act of 1801 increased the number of courts to permit the Federalist President John Adams to appoint a number of Federalist judges before Thomas Jefferson took office. When Jefferson became President, the Congress abolished several of these courts and made no provision for the judges of those courts. The power to abolish a court was next used in 1913, when the Congress abolished the Commerce Court. In that case, however, Congress transferred the judges of the Commerce Court to the Circuit Courts.

Section 2: Federal jurisdiction and trial by jury

Section 2 specifies the subject-matter jurisdiction of the federal courts and requires trial by jury in all criminal cases, except impeachment cases.

Section 2.
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.

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.

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.

Subject-matter jurisdiction

Federal courts are courts of limited jurisdiction, and not courts of general jurisdiction. Courts of limited jurisdiction can hear and decide cases that involve only certain subject matter. This limited subject-matter jurisdiction extends to:

  • Federal question jurisdiction: cases arising under the Constitution, federal laws, and treaties
  • Ambassador jurisdiction: cases involving ambassadors, other public ministers and consuls
  • Admiralty jurisdiction: cases involving navigable waters
  • Federal party jurisdiction: cases in which the United States is a party
  • State jurisdiction: cases between two or more states
  • Diversity jurisdiction: cases between citizens of different states
  • Land grants jurisdiction: cases between citizens of the same state claiming land under the grants of different states
  • Alienage jurisdiction: cases between
    • a state and a foreign state;
    • citizens of a state and a foreign state;
    • citizens of a state and citizens or subjects of a foreign state; or
    • a state and citizens of another state, or citizens or subjects of a foreign state, where the state is the initial plaintiff.

Article Three is not self-executing concerning the subject-matter over which federal courts can have jurisdiction. The Congress decides, from the subject-matter specified in Article Three, what jurisdiction the federal courts will have.

Eleventh Amendment and State Sovereign Immunity

In Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), the Supreme Court held that states were not immune from lawsuits by individuals due to the Supreme Court's Article III jurisdiction over them. Effectively reversing this judgment, the Eleventh Amendment was passed to prevent a state from being sued in a federal court.

Cases and controversies

Only actual cases and controversies may be heard by the federal courts; the judicial power does not extend to cases which are hypothetical, or which are precluded because of problems with standing, mootness, or ripeness. Generally, a case or controversy requires the presence of adverse parties. In Muskrat v. United States, , the Supreme Court denied jurisdiction to cases brought under a statute permitting certain Native Americans to bring suits against the United States to determine the constitutionality of a law allocating tribal lands. Counsel for both sides were to be paid from the U.S. Treasury. The Supreme Court maintained that, though the United States was a defendant, the case in question was not an actual controversy; rather, the statute was merely devised to test the constitutionality of a certain type of legislation, and the Court's ruling would be nothing more than an advisory opinion; therefore, it dismissed the suit for failing to present a "case or controversy."

Original and appellate jurisdiction

Section 2 provides that the Supreme Court has original jurisdiction in cases affecting ambassadors, ministers and consuls, and controversies in which a state is a party. In other cases, the Supreme Court has only appellate jurisdiction, which may be regulated by the Congress. The Congress may not, however, amend the Court's original jurisdiction, as was found in Marbury v. Madison, (the same decision in which the principle of judicial review was established). Marbury established that Congress can neither expand nor restrict the original jurisdiction of the Supreme Court. However, the appellate jurisdiction of the Court is subject to such regulation and exceptions "as the Congress shall make." This power of Congress has rarely been exercised except to refine the procedures for obtaining Court review of lower court decisions; over the years the trend has been for Congress to grant the Court maximum discretion in deciding whether to accept or reject a case.

Judicial review

No part of the Constitution expressly authorizes judicial review, but the Framers did contemplate the idea. Alexander Hamilton wrote,

Others, however, disagreed, claiming that each branch could determine for itself the constitutionality of its actions.

Marbury v. Madison involved a highly partisan set of circumstances. Though Congressional elections were held in November, the newly elected officers did not take power until March. The Federalist Party had lost the elections, and, in the words of President Thomas Jefferson, "retired into the judiciary as a stronghold". In the four months following the elections, the outgoing Congress created several new judgeships, which were filled by President John Adams. In the last-minute rush, however, Federalist Secretary of State John Marshall had neglected to deliver commissions to the appointees. When James Madison took over as Secretary of State, several commissions remained undelivered. Under the Judiciary Act of 1789, appointees, including William Marbury, petitioned the Supreme Court for the issue of a writ of mandamus, which in English law had been used to force public officials to fulfill their ministerial duties.

Marbury v. Madison posed a difficult problem for the Supreme Court, which was incidentally led by Chief Justice John Marshall, the same person who had neglected to deliver the commissions as Secretary of State. If Marshall's Court commanded Madison to deliver the commissions, he would merely ignore the order, thereby indicating the weakness of the Court. Similarly, if the Court denied Marbury's request, it would be perceived as weak. In making his ruling, Chief Justice Marshall declared that Marbury was indeed entitled to his commission. He continued, however, that the Judiciary Act of 1789 was unconstitutional, as it purported to grant original jurisdiction to the Supreme Court in cases not involving states or ambassadors, thereby establishing that the courts could exercise judicial review over the actions of Congress or the executive branch.

Trial by jury

Section 2 provides that the trial of crimes, except impeachment cases, must be by jury. The trial must be held in the state where the crime was committed, or, if it was not committed in any particular state, in such a place as should have been previously set forth by the Congress.

The Sixth Amendment further provides that the trial must be held not only in the state, but also in the district where the crime was committed, which district should have been previously set forth by the Congress, and that the jury must be impartial and chosen from that state and district.

Section 3: Treason

Section 3 defines treason and its punishment.

Section 3.
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 Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

The Constitution defines treason as specific acts, namely "levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort." A contrast is therefore maintained with the English law, whereby a variety of crimes, including conspiring to kill the King or "violating" the Queen, were punishable as treason. In Ex Parte Bollman (1807), the Supreme Court ruled that "there must be an actual assembling of men, for the treasonable purpose, to constitute a levying of war".

Under English law effective during the ratification of the U.S. Constitution, there were essentially five species of treason. Of the five, the Constitution adopted only two: levying war and adhering to enemies. Omitted were species of treason involving encompassing (or imagining) the death of the king, certain types of counterfeiting, and finally fornication with women in the royal family of the sort, which could call into question the parentage of successors. One important distinction is that the encompassing the death species of treason was most used by the English government to silence political opposition and was expressly excluded by the authors. James Wilson wrote the original draft of this section, and he was involved as a defense attorney for some accused of treason against the Patriot cause.

Section 3 also requires the testimony of two different witnesses on the same overt act, or a confession by the accused in open court, to convict for treason. This rule was derived from an older British law, the Treason Act 1695. In Cramer v. United States, the Supreme Court ruled that "every act, movement, deed, and word of the defendant charged to constitute treason must be supported by the testimony of two witnesses." In Haupt v. United States, however, the Supreme Court found that two witnesses are not required to prove intent; nor are two witnesses required to prove that an overt act is treasonable. The two witnesses, according to the decision, are required to prove only that the overt act occurred (eyewitness and federal agents investigating the crime, for example).

Punishment for treason may not "work Corruption of Blood, or Forfeiture except during the Life of the Person" so convicted. The descendants of someone convicted for treason could not, as they were under English law, be considered "tainted" by the treason of their ancestor. Furthermore, Congress may confiscate the property of traitors, but that property must be inheritable at the death of the person convicted.



  • Irons, Peter. (1999). A People's History of the Supreme Court. New York: Penguin.

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