What's a constitution among friends? - Unbalancing Article III.

AuthorStern, Craig A.

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.

--The Constitution of the United States, Article III, Section 1


    Nine out of ten experts agree that a straightforward reading of the first section of the third article of the United States Constitution does not work.(1) Such a reading, it is said, would doom the District of Columbia courts, courts-martial, the welfare state, and more. Claiming Chief justice John Marshall as their vanguard, courts and commentators have sought to escape the constitutional text by drafting exceptions, striking balances, or proposing Pickwickian readings of Section 1 of Article III.(2)

    This Article suggests that Section 1 of Article III does work, and that Chief Justice Marshall was the vanguard not for escaping the text, but for reading it carefully. Section 1 does not threaten life as we know it in the United States, nor does it threaten even most of the developments thought to run afoul of the Section. Read carefully, Section 1 does provide principled answers for some troublesome questions.

    1. Some Troublesome Questions

      Article III, Section 1 of the United States Constitution vests the federal judicial power in the federal courts and protects the tenure and compensation of the judges of those courts. As the Framers of the Constitution explained, an independent judiciary is a bulwark of freedom.(3) Furthermore, the states were already chary of the power of the federal courts,(4) and would have been all the more so if the federal courts had been subservient to the President or Congress. Consequently, one might conclude that any federal adjudication must be within the exclusive province of judges with Section 1 security--that is, security from a cut in pay and from removal during good behavior.

      From the earliest days of the nation, however, some federal judging has been performed by those without Section 1 security. The First Congress itself entrusted disputes regarding veterans' benefits, customs duties, and matters before courts-martial to determination by those who were themselves not judges at all.(6) An 1828 opinion by Chief Justice John Marshall for the Court--his "vanguard" effort--approved a court established by Congress for the United States territory of Florida presided over by judges without Section 1 security.(7) Likewise, in the landmark 1856 case of Murray's Lessee v. Hoboken Land & Improvement Co., the Court held that Congress may authorize executive officers--not judges in the least--to determine

      matters, involving public fights, which may be presented in such form that

      the judicial power is capable of acting on them, and which are susceptible

      of judicial determination, but which congress may or may not bring within

      the cognizance of the courts of the United States, as it may deem proper.(8)

      Two years after Murray's Lessee, in Dynes v. Hoover, the Supreme Court rebuffed a constitutional attack on courts-martial, the judges of which have no Section 1 security.(9)

      The twentieth century has seen the Court allow still more federal adjudication by those without Section 1 security. In the seminal case of Crowell v. Benson, the Court held that deputy commissioners without Section 1 security could decide maritime disputes among private parties if judges with this security had appropriate power to review the decision.(10) Such decisions were the work of "adjuncts" to the judges with Section 1 security, and not the work of full-fledged judges exercising full-fledged judicial power.(11) This "adjunct" theory proved useful to later Courts that permitted federal magistrates to decide pretrial motions(12) and preside over jury selection with the consent of the parties.(13) After a brief formalist foray in Northern Pipeline Construction Co. V. Marathon Pipe Line Co.,(14) the Court rested upon a balancing test that seems to give Congress substantial liberty to commit judicial power to officers without Section 1 security.(15)

      Each of these "several exceptions to article III's apparently clear command" 16 presents a similar set of troublesome questions: Is the Constitution to govern this area of the law? If so, how to justify exceptions? What principles delimit exceptions once the constitutional text is left behind?(17)

    2. The Next Best Constitution

      Scholars and jurists have proposed diverse theories to justify and shape exceptions to the text of Section 1. One theory is that necessity and history have created a set of exceptions--a "neo-Darwinian"(18) theory that fails to explain why the march of necessity and history should halt with the present set.(19) Another is that Article III is satisfied by appropriate review before judges with Section 1 security.(20) This theory is difficult to square with the explicit provision of the Article that Judges, both of the supreme and inferior Courts,"(21) shall have Section 1 security.(22) The theory most popular these days, especially with the Court,(23) is balancing. In one pan of the balance is the cost to Article III values, sometimes bifurcated into (1) a decrease in the protection of litigants from bias (a protection they are free to waive); and (2) a decrease in the protection of courts from breaches of the separation of powers. In the other pan is the advancement of Article I values, specifically that Congress exercise power as necessary to legislate effectively toward constitutional ends.(24) If the benefits of the advancement of Article I values outweigh the costs to Article III values, then the "exception" to Article III passes constitutional muster before the Court. This balancing theory, at least, makes explicit the notion that necessity fuels the engine of exceptions to the constitutional text.(25)

      One would think that embracing this balancing theory would doom the exceptions. The text of the Constitution already has balanced Article III values against Article I values. Indeed, that balance is the very object of the text. The text invites a rebalancing only in Article V, concerning constitutional amendment. Furthermore, only a centralizing, nationalistic pragmatism argues that Article I necessitates departure from Article III. Why not argue that Article III necessitates a departure from Article I?(26) Regardless, both arguments err in positing a defect in the text. Would not faithfulness to the Constitution counsel, rather, that Article I values, like Article III values, are to be pursued to the extent and in the manner prescribed by the Constitution itself? The text itself indicates that in crafting Article III, the Framers limited the powers of Congress.(27) How, then, is it possible that the Constitution requires that a constitutional "value" exceed its constitutional bounds?

    3. A Constitutional Trial

      Until it embraced a balancing test in Thomas v. Union Carbide Agricultural Products Co.(28) and Commodity Futures Trading Commission v. Schor,(29) the Supreme Court never passed off the "exceptions" to Section 1 as exceptions. One must wonder whether the likes of John Marshall would have carved out an exception to Section 1 security so as to enhance congressional prerogatives at the expense of the federal judiciary.(30) Rather, as we shall see, the classic "exceptions" opinions read as expositions of Section 1, not evasions.

      This Article aspires to follow in the tradition of those classic opinions. It suggests that Section 1 invites careful reading, not evasion by exceptions spawned by "[t]he felt necessities of the time."(31) It assumes that the text of the Constitution is constitutional law.(32) Treated with respect, Section 1 comprises a principled, workable algorithm for determining what matters must come before judges with Section 1 security. The algorithm needs no exceptions, and brooks none. Still less does it need supplanting with unprincipled ipse dixit--balancing.(33)

      The rest of this Article comprises three major Parts, each of which examines a different component of the text of Section 1. Part II examines "the judicial Power." Distinguishing between the judicial and the executive powers resolves two important problems thought to require exceptions to the text: problems raised by courts-martial and the public-rights doctrine. Part III examines the judicial power "of the United States." A proper appreciation of this language resolves another important problem, that raised by territorial courts. Part IV--resolving yet a fourth problem (that of the "adjunct" theory)--examines the vesting of federal judicial power in "Courts," the "Judges" of which have Section 1 security. Each of the three components embraces a principle for our Constitution. Each also marks a practical limit to the requirement of Section 1 security. Adhering to the text of Article III should lend coherence to a jurisprudence in disarray,(34) a coherence born of the Constitution itself and the principles that animate it.


    1. Courts-Martial and "the Judicial Power"

      From the earliest days, courts-martial have not employed judges with Section 1 security. Almost as old as this practice is the doctrine that agencies of the federal government may decide matters of public rights without the ministrations of judges with Section 1 security. Although the Supreme Court has cast these two phenomena as historic exceptions to the terms of Article III,(35) they actually illustrate the textual limits of that Article. Article III purports to describe and vest only "the judicial Power."(36) Conducting courts-martial and deciding matters of public rights are matters of executive, not judicial, power. Consequently, Article III and its Section 1...

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