Article III, 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 Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

At the time of the Founding, each state had its own system of courts, while the Articles of Confederation did not provide for an independent Federal Judiciary.1 The delegates to the Constitutional Convention agreed early on that the new Constitution should establish a federal Judicial Branch including a Supreme Court; however, they debated other questions about how to balance federal and state judicial power.

The Framers generally accepted that state courts would play a significant role in interpreting and applying federal law.2 However, some of the Framers also entertained concerns about whether state courts would apply federal law correctly, uniformly, and without bias. Then, as now, the specific structure of state courts varied significantly from state to state. State court judges often did not enjoy the safeguards that were afforded federal judges, such as life tenure during good behavior and salary protection. Certain delegates to the Constitutional Convention expressed concerns as to whether state court judges might therefore be subject to political pressures that could affect their decision-making.3 Others raised the prospect of disputes between states, noting that a state court might issue decisions that were biased in favor of its home state.4 Some Founders worried that the multiple state courts could interpret federal law differently, undermining the interest in having uniform federal laws.5

To mitigate those concerns, the Framers provided for a federal Supreme Court with the power to review state judicial decisions involving issues of federal statutory or constitutional law.6 Debate arose, however, on the question of whether lower federal courts were also necessary. Some delegates argued that establishing lower federal courts would encroach on the power of the states.7 Some argued that a right of appeal from state court to a federal appellate court would suffice to ensure uniformity and prevent bias.8 Other delegates countered that a right to appeal would provide less effective protection of federal rights than the right to consideration by an impartial tribunal in the first instance.9 The Convention discussed whether creating lower federal courts would lessen the burden on the Supreme Court and prevent it from being overwhelmed by numerous appeals.10 Some delegates voiced an interest in flexibility, contending that lower federal courts might be needed in the future even if they were not immediately necessary.11

Ultimately, the Framers left the decision of whether to create lower federal courts to Congress. Article III of the Constitution provides for “one supreme Court, and . . . such inferior Courts as the Congress may from time to time ordain and establish.” 12 The first Congress exercised its authority promptly, creating lower federal courts in the Judiciary Act of 1798, the first legislation related to the Federal Judiciary.13

Footnotes

1

Article IX of the Articles of Confederation authorized Congress to “appoint[ ] courts for the trial of piracies and felonies committed on the high seas; and establish[ ] courts; for receiving and determining finally appeals in all cases of captures.” The same Article further provided that Congress would be “the last resort on appeal, in all disputes and differences now subsisting, or that hereafter may arise between two or more states” and could appoint commissioners or judges to constitute a court to resolve such disputes. Articles of Confederation art. IX.

2

See, e.g., 1 The Records of the Federal Convention of 1787, at 243 (Max Farrand ed., 1911) [hereinafter, Convention Records]. For example, the Convention considered proposals that would require federal questions to be decided first in state court, but with a right of appeal to federal courts. See id. at 243, 424. Likewise, during the debate over ratification, Alexander Hamilton wrote that “the State courts will RETAIN the jurisdiction they now have, unless it appears to be taken away in one of the enumerated modes. . . . [Thus,] the State courts would have a concurrent jurisdiction in all cases arising under the laws of the Union, where it was not expressly prohibited.” The Federalist No. 83 (Alexander Hamilton).

3

James Madison expressed concern at the Convention about “improper Verdicts in State tribunals obtained under the biassed directions of a dependent Judge,” and “disliked the election of the Judges by the Legislature or any numerous body” due to “the danger of intrigue and partiality” and the fact that legislators lacked the “requisite qualifications” to select suitable judges. Convention Records, supra note 2, at 120, 124. See also The Federalist No. 81 (Alexander Hamilton) ( “State judges, holding their offices during pleasure, or from year to year, will be too little independent to be relied upon for an inflexible execution of the national laws.” ).

4

E.g., Convention Records, supra note 2, at 124 (statement of Madison expressing concern about “the local prejudices of an undirected jury” ); The Federalist No. 80 (Alexander Hamilton) ( “[T]he most discerning cannot foresee how far the prevalency of a local spirit may be found to disqualify the local tribunals for the jurisdiction of national causes.” ).

5

As Hamilton wrote, “The mere necessity of uniformity in the interpretation of the national laws, decides the question. Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed.” The Federalist No. 80 (Alexander Hamilton).

6

U.S. Const. art. III; 1 Stat. 73, 85; Martin v. Hunter’s Lessee, 14 U.S. 304 (1816). Cf. Oliver Wendell Holmes, Collected Legal Papers 295–296 (1921) ( “I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as the laws of the several States.” ).

7

See, e.g., Convention Records, supra note 2, at 124–25.

8

For example, John Rutledge argued that “State Tribunals might and ought to be left in all cases to decide in the first instance” and that lower federal courts would be “an unnecessary encroachment on the jurisdiction of the States, and creating unnecessary obstacles to their adoption of the new system.” Id. at 124.

9

See, e.g., id. at 124–125 (statements of Madison, Wilson, & Dickinson); see also 25 The Papers of Alexander Hamilton 486 (Harold C. Syrett et al. ed 1977) ( “The right of appeal is by no means equal to the right of applying, in the first instance, to a Tribunal agreeable to the suitor.” ).

10

Madison observed at the Convention that without federal trial courts, appeals from state court “would be multiplied to a most oppressive degree.” Convention Records, supra note 2, at 124. Even if a federal appeals court ordered a new trial, he asked, how could that provide an effective remedy when the case would be retried “under the biassed directions of a dependent Judge, or the local prejudices of an undirected jury? To remand the cause for a new trial would answer no purpose.” Id. In a similar vein, another delegate argued that “the establishment of inferior tribunals [would] cost infinitely less than the appeals that would be prevented by them.” Id. at 125; but see id. (statement of Sherman focused on “the supposed expensiveness of having a new set of Courts, when the existing State Courts would answer the same purpose” ).

11

See, e.g., id. at 125 (statement of Dickinson).

12

U.S. Const. art. III, § 1; cf. Convention Records, supra note 2, at 125 ( “Mr. Wilson & Mr. Madison then moved . . . to add . . . the words following ‘that the National Legislature be empowered to institute inferior tribunals'. They observed that there was a distinction between establishing such tribunals absolutely, and giving a discretion to the Legislature to establish or not establish them.” ).

13

1 Stat. 73.