Article Three of the United States Constitution

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


Section One requires that the judicial power of the United States be vested in the Supreme Court and inferior courts established by the Congress. The Section explicitly requires “one” Supreme Court, but does not set the number of judges that may belong to it. Proposals to divide the Supreme Court into separate panels have been made, but they have all failed. Since all the proposals failed, the Supreme Court has never ruled upon 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”.

Judges, appointed by the President with the advice and consent of the Senate, hold their office “during good behavior,” a phrase that has been interpreted as “for life.” They may, however, be removed upon conviction in impeachment cases. The compensation of judges may not be reduced, but may be increased, during their continuance in office. The Constitution does not make provision for judges of abolished courts. 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, Congress abolished several of these special courts and made no provision for the judges thereof. The power to abolish a court was next used in 1913, when Congress abolished the Commerce Court. In that case, however, Congress transferred the judges to the circuit courts.

The Supreme Court is the only federal court required by the Constitution. One proposal to the Constitutional Convention was to have the Supreme Court as the only federal court, taking cases under its original jurisdiction and hearing appeals from the state courts. This proposal was rejected in favor of the current law: Congress may create inferior courts under both Article Three and Article One, though only the former article refers to the power explicitly. The Article Three courts are often referred to as the “constitutional courts”, and were first created by the Judiciary Act of 1789. Article One courts are called “legislative courts”. Since Article Three is the one which vests judicial power, only constitutional courts may exercise the judicial power of the United States. The difference between the powers exercised by the two types of courts, however, has often been unclear. Cases not requiring “judicial determination” may come before the legislative courts, but cases requiring it must come before the constitutional courts. In 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 constitutional courts. Other cases, such as bankruptcy cases, have been ruled to not involve judicial determination, and may therefore go before legislative courts. Similarly, several courts in the District of Columbia, which is under the exclusive jurisdiction of Congress, are Article One courts rather than Article Three courts.


The judicial power of the United States extends to cases arising under the Constitution, federal laws or treaties, cases involving ambassadors, ministers and consuls, cases of maritime jurisdiction, cases in which the United States is a party, cases between two or more states, cases between citizens of different states, cases between citizens of the same state claiming land under the grants of different states and cases between a state or citizens of a state and a foreign state or citizens of a foreign state. Formerly, the judicial power also extended to cases commenced by citizens against states, but the Eleventh Amendment, passed in response to the Supreme Court decision in Chisholm v. Georgia, removed this power. Only actual cases and controversies may be brought before courts; the judicial power does not extend to hypothetical or moot disputes. Generally, a case or controversy requires the presence of adverse parties. In Muskrat v. United States (1911), the Supreme Court struck down 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 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; therefore, it struck down the law.

Section Two 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 Congress. Congress may not, however, amend the Court’s original jurisdiction, as was found in Marbury v. Madison (1803), the same decision in which the principle of judicial review was established. No part of the Constitution expressly authorizes judicial review. The Framers, however, did contemplate the concept. Alexander Hamilton wrote that “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. If there should happen to be an irreconcilable variance between two, 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.” 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, at that time, 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 to 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 under 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.

Besides the principle of judicial review, Marbury established that Congress cannot expand or 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 for the purpose of refining 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.

Finally, Section Two provides that trials of crimes must, except in cases of impeachment, be by jury. The trial must be held in the state where the crime is committed, or, if it is not committed in any particular state, in such a place as Congress directs. The Sixth Amendment further requires that crimes must be tried not only in the state, but also in the district, in which it committed, such districts being determined by Congress beforehand.


The Constitution defines treason as “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.”

Section Three also requires the testimony of two different witnesses on the same “overt” act, or a confession by the accused, to convict for treason. In Cramer v. United States, the 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 only required to prove that the overt act actually occurred.

Furthermore, Section Three permits Congress to determine the punishment for treason. However, this punishment may not “work Corruption of Blood, or Forfeiture except during the Life of the Person” so convicted. In other words, the descendants of someone convicted for treason could not, as they were under English law, be considered “tainted” (i.e., their blood could not be corrupted) by the treason of their ancestor. Furthermore, the clause permits Congress to confiscate the property of traitors, but that property must be inheritable at the death of the person convicted.


  • Wikipedia – Constitution of the United States
  • Irons, Peter. (1999). A People’s History of the Supreme Court. New York: Penguin.

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