Immanentize the Eschaton

Over the weekend, there was a bit of discussion on Twitter about the size of the Supreme Court. Some folks think the democratic-controlled Congress will increase the size of the Court by two seats. allowing President Obama to ensure a leftist majority on the Court. One question concerned whether the Constitution specified the size of the Court.

(DISCLAIMER: I am not a Constitutional lawyer, nor any other kind of lawyer. I believe, however, that the Founders expected the Constitution to be understood by any reasonably educated and informed person. No “emanations and penumbras” for them! Bear that in mind as you read the following.)

Article III of the Constitution establishes the Judicial branch. It is the shortest of the articles establishing the co-equal branches of government. The first section states:

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

That’s it. It creates the supreme Court, allows Congress to create federal courts inferior to the Supreme Court, grants federal Judges lifetime tenure (“…shall hold their Offices during good Behavior…”), and authorizes Congress to pay them. Nothing about the size of the Supreme Court or its organization. That is left to Congress.

The next section defines the jurisdiction of the federal courts:

Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

It also requires trial by jury in criminal case, except for impeachment. It states where the Supreme Court has original jurisdiction, and where it has appellate jurisdiction.

Section 3 defines the crime of treason and how is may be punished:

Section 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

And that’s all the Constitution has to say about the judicial branch. Nothing about judicial review. Nothing about the Supreme Court being the final arbiter of our rights. Compare this to Articles I and II, where the Legislative and Executive powers are strictly defined and limited. It appears to me that the Founders did not see the judiciary as a likely source of tyranny. In Federalist No. 78, Publius writes:

“…Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from
each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.”

The Founders would be dismayed to see how wrong they were!