Why the judiciary is so distinct: It was designed to react, not initiate action

Written by William C. Duncan

October 8, 2021

Far and away the largest portion of the document proposed by the 55 delegates to the 1787 Constitutional Convention in Philadelphia was Article I, which described the makeup and legislative power of the House of Representatives and Senate. It contains 10 sections and more than 2,200 words.

Article II, describing the executive branch, has four sections and just over 1,000 words.

By contrast, Article III takes about 375 words to describe the judicial branch.

The importance of a role is not always proportional to the number of words used to describe it, of course, but the imbalance is striking. And, in fact, one prominent framer confirmed the perception that the judiciary was relatively less significant than the other branches by referring to it as the “least dangerous” branch.

Why would that be?

Article III creates “one supreme Court” and “such inferior Courts as the Congress may from time to time ordain and establish.” Significantly, the judges who serve on these courts hold office for life as long as they are on “good behavior.” (They can be impeached if not.) Another protection for the judges is that their pay cannot be reduced while they are in office.

Section 2 of the article lays out the specific jurisdiction of the courts. A couple of points are worth noting about this.

First, the judiciary branch is designed as a responsive, not proactive, branch of government. The text references “cases” and later “controversies,” which means that the court cannot act before an actual dispute between parties arises. Thus, the court can’t tell Congress not to pass an unconstitutional law or tell the president not to issue a legally invalid order. It must wait until after those actions take effect and someone challenges them in an adversarial proceeding.

Second, the federal courts can only rule on specifically enumerated types of disputes, the most significant being:

  • Issues that involve U.S. law – either the Constitution, statutes enacted by Congress (and, by extension, the federal administrative rules that enforce these), and treaties entered into by the United States.
  • Suits that involve foreign diplomats, since under the Constitution, foreign policy is a national responsibility.
  • Disputes involving actions at sea (admiralty and maritime cases).
  • Lawsuits against the United States.
  • Lawsuits between the states themselves. (The Constitution’s original text also mentions lawsuits between one state and a citizen of another state, but this was eliminated by the 11th Amendment).
  • Lawsuits between citizens of different states.

Article III goes on to say that the cases involving diplomats and suits between states are heard first by the Supreme Court. The other cases can be heard first by the lower federal courts and then appealed to the Supreme Court.

Despite this limited scope, the role of the courts in our federal system is critically important. Probably the best explanation why is found in Federalist 78, written by Alexander Hamilton (though strangely devoid of the hip hop style we have come to associate with him).

Hamilton was responding to an objection to the lifetime tenure of judges.

He explains that this provision is justified by the unique role of the court in checking excesses by the other branches, an “excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.”

Unlike the president, which “holds the sword of the community,” and the legislature, which controls spending and “prescribes the rules by which the duties and rights of every citizen are to be regulated,” the courts doesn’t have an active role. “It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

It is, says Hamilton, “the weakest of the three departments of power” as long as it “remains truly distinct from both the legislature and the Executive.” If it does retain its independence, it can ensure that the other branches will not exceed their enumerated powers because its duty is “to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”

So, the court is “to keep the [legislature] within the limits assigned to their authority” by “interpretation of the laws” and determination of whether there is “an irreconcilable variance” between a law and the Constitution. In doing so, it ensures that the will of the people as “declared in the Constitution” actually governs.


This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.

There is, Hamilton recognizes, a risk “that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature.” He appears to believe this is not a significant risk if the judiciary is really independent.

There have been times in history where politicians and others have questioned whether this analysis is still true. That discussion has become relatively constant in recent decades. The constitutional text and Hamilton’s description of the aspiration for the courts provide a critical starting point to understanding and engaging that discussion. Understanding the role the courts are intended to play is the only way to assess whether they are actually doing so.

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