Welcome back to The Monkey Cage’s weekly presentation of Founding Principles, a series of short videos designed to explain American government and how it works — in theory, and in practice.
So far we’ve looked at various aspects of the separation of powers — whether across the branches of government, or between levels — and at the first two Articles of the U.S. Constitution, dealing with Congress and the presidency. That brings us to Article III — the judiciary.
Now, Article III is very short — under 400 words, and even fewer if you don’t count the definition of treason. The only court the Constitution actually creates is a Supreme Court — and it doesn’t even say how many members that Court is supposed to have. Everything else is subject to what “Congress may from time to time ordain and establish.”
This episode goes through the structure of the federal courts — what, in fact, Congress has ordained and established over time. (That’s only a small part of the entire American judiciary, by the way.) But it also traces the way judicial politics work, both retail and wholesale, using the tools of statutory and constitutional interpretation.
Since judges have power over neither “purse” nor “sword,” Alexander Hamilton argued in Federalist 78 that the judiciary would be the “least dangerous” branch to people’s rights and liberties. On the other hand, almost every year cases arise that have a real impact both on the kind of powers Congress and the presidency can exercise, and on the scope of civil rights and liberties and rights all across the United States. Alexis de Tocqueville observed long ago that “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.”
He was right then, and even more right now.