Article III: The Courts

Article III is the shortest of the three branch articles. It creates "one supreme Court," lets Congress create lower courts, protects judges' tenure and pay, lists the kinds of cases federal courts may hear, guarantees jury trials in federal criminal cases, and defines treason narrowly.

The firsts in Article III are unusual because the courts themselves were the ones deciding what Article III meant. Some of the earliest "cases" were letters, refusals and resolutions, not ordinary lawsuits. This lesson follows the clauses in order and separates three kinds of firsts: the first time judges acted on a clause, the first Supreme Court decision, and the leading case today.

Section 1: The Judicial Power, Tenure and Pay

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.

U.S. Constitution, Article III, Section 1 (National Archives transcription, excerpt)

Hayburn's Case (1792): judges refuse non-judicial work

Compensation: Evans v. Gore (1920) and its reversal

Judges "shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office." When the income tax arrived, a federal judge in Kentucky paid tax on his 1918 salary under protest and sued. In Evans v. Gore, 253 U.S. 245 (1920), decided June 1, 1920, Justice Willis Van Devanter held that taxing a sitting judge's salary diminished it. Justice Holmes, joined by Justice Brandeis, dissented. The Constitution Annotated traces what came next: O'Malley v. Woodrough, 307 U.S. 277 (1939), upheld a tax on judges who took office after the tax law, and United States v. Hatter, 532 U.S. 557 (2001), formally overruled Evans. In between, United States v. Will, 449 U.S. 200 (1980), held that Congress could cancel a judges' cost of living raise only before it took effect.

Section 2: Cases and Controversies

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

U.S. Constitution, Article III, Section 2, Clause 1 (National Archives transcription, excerpt)

The Correspondence of the Justices (1793): no advisory opinions

In 1793 President Washington's administration sent the Justices questions about France and American neutrality. On August 8, 1793, Chief Justice Jay and Justices Wilson, Blair, Iredell and William Paterson replied that they would not answer. Their letter, published by the National Archives Founders Online, pointed to "The Lines of Separation drawn by the Constitution between the three Departments of Government" and called those lines "strong arguments against the Propriety of our extrajudicially deciding the questions alluded to." The National Archives says the letter "effectively set the precedent that the Supreme Court does not give out advisory opinions." It was not a lawsuit, but it is the first statement we found of the rule that federal courts decide only real cases.

Muskrat v. United States (1911): the rule enforced

Congress passed a 1907 law letting certain Cherokee citizens, including David Muskrat and J. Henry Dick, sue the United States in the Court of Claims to test whether later laws on Cherokee lands and allotments were constitutional. In Muskrat v. United States, 219 U.S. 346 (1911), decided January 23, 1911, Justice William Day held that these suits were not "cases" or "controversies" because the United States had no adverse interest and the judgment would settle no real dispute between parties. Congress could not require the Court to decide them. Muskrat is a leading early decision holding part of a federal law invalid under the case or controversy limit, and later standing cases build on the same idea.

Judicial Review: Marbury v. Madison (1803)

Before Marbury, the Justices had already brushed against the question. In Hylton v. United States (1796), the constitutionality of a federal carriage tax was argued and upheld on the merits (Lesson 04). In Ware v. Hylton (1796), the Court held that a Virginia law gave way to a treaty. And in Calder v. Bull (1798), Justice Iredell discussed the principle. But the Constitution Annotated states: "The Supreme Court first formally embraced the doctrine of judicial review in the 1803 case Marbury v. Madison."

The story

Before leaving office, President John Adams signed a commission naming William Marbury a justice of the peace for the County of Washington in the District of Columbia. The Senate had confirmed him and the seal was affixed, but the commission was never delivered. President Jefferson's Secretary of State, James Madison, withheld it. Marbury went straight to the Supreme Court and asked for a writ of mandamus ordering Madison to deliver it, relying on a provision of the Judiciary Act of 1789.

In Marbury v. Madison, 5 U.S. 137 (1803), decided February 24, 1803, Chief Justice Marshall held that Marbury had a right to the commission, but that the part of the Judiciary Act allowing him to seek mandamus directly in the Supreme Court enlarged the Court's original jurisdiction beyond what Article III allows. That part of the law was void, and the Court could not issue the writ. Marshall wrote: "It is emphatically the province and duty of the Judicial Department to say what the law is." Justices Cushing and Alfred Moore did not take part, so Marshall's opinion spoke for four Justices.

Marbury is generally cited as the first case in which the Supreme Court held an act of Congress unconstitutional.

Review of State Courts: Martin and Cohens

Martin v. Hunter's Lessee (1816)

The case began with land in Virginia's Northern Neck that had belonged to Lord Fairfax. His heir, Denny Martin Fairfax, was a British subject. Virginia granted part of the same land to David Hunter in 1789. The Virginia Court of Appeals ruled for Hunter in 1810. The U.S. Supreme Court reversed in 1813. Then the Virginia court refused to obey, declaring that the Supreme Court's appellate power did not reach state courts.

In Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816), decided March 20, 1816, Justice Joseph Story held that Section 25 of the Judiciary Act of 1789, which allowed Supreme Court review of state court decisions on federal questions, was constitutional. He relied on Article III, the Supremacy Clause and the need for one national reading of federal law. Justice William Johnson concurred. Chief Justice Marshall did not take part; the Justia case page notes he had a financial interest in the land.

Cohens v. Virginia (1821)

Philip and Mordecai Cohen sold tickets in a lottery authorized for Washington, D.C. to a buyer in Norfolk, Virginia, where such sales were illegal. They were fined $100 and argued that an act of Congress protected them. In Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821), Chief Justice Marshall held that the Supreme Court could review a state court's final judgment in a criminal case involving federal law, even when a state is a party. Then, on the merits, the Cohens lost: the act of Congress did not authorize sales in states that banned them.

Original Jurisdiction and Suits Against States

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.

U.S. Constitution, Article III, Section 2, Clause 2 (National Archives transcription, excerpt)

Chisholm v. Georgia (1793)

In 1777 Georgia officials bought supplies for American troops from Robert Farquhar, a South Carolina merchant, and never paid. Farquhar died in 1784. His executor, Alexander Chisholm, sued Georgia. When Georgia claimed sovereign immunity, Chisholm brought the case in the Supreme Court under its original jurisdiction. In Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), decided February 19, 1793, the Court ruled 4 to 1 that Georgia could be sued, according to the Federal Judicial Center. Jay, Wilson, Blair and Cushing were in the majority, each writing separately. Iredell dissented. The reaction was swift: the Federal Judicial Center says the states ratified the Eleventh Amendment on February 7, 1795, overturning the result. Lesson 10 continues the story.

Section 2, Clause 3: Jury Trials and Venue

The 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

U.S. Constitution, Article III, Section 2, Clause 3 (National Archives transcription, excerpt)

The Sixth Amendment later repeated and expanded the jury right, so many cases cite both. A key early Supreme Court decision on the Article III clause is Callan v. Wilson, 127 U.S. 540 (1888), decided May 14, 1888. James Callan, a musician and member of a Knights of Labor assembly, was convicted of conspiracy in the D.C. Police Court without a jury and fined $25. Justice John Marshall Harlan wrote that the Article III jury guarantee is not limited to felonies, that it applies in the District of Columbia, and that this conspiracy was not a "petty" offense. Callan was ordered discharged. Callan also recognized an exception for petty offenses that common law allowed to be tried without a jury. We did not confirm an earlier Supreme Court case squarely on this clause.

Section 3: Treason

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.

U.S. Constitution, Article III, Section 3, Clause 1 (National Archives transcription)

Ex parte Bollman and the Burr trial (1807)

The earliest Supreme Court interpretation of the treason definition we found is Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807), a habeas case for two men tied to Aaron Burr. Chief Justice Marshall wrote that levying war requires an actual assembly of men for a treasonable purpose: "The mere enlisting of men, without assembling them, is not levying war." Later that year Marshall presided at Burr's own treason trial on circuit in Richmond, where Burr was acquitted, as noted in Lesson 05. These were rulings on the meaning of treason, but no conviction was reviewed.

Cramer v. United States (1945): the first review of a conviction

In June 1942 German saboteurs landed in the United States. Anthony Cramer, a naturalized citizen born in Germany, met two of them, Werner Thiel and Edward Kerling, in public places in New York, where they drank and talked. He was convicted of treason. In Cramer v. United States, 325 U.S. 1 (1945), decided April 23, 1945, Justice Robert Jackson wrote for a 5 to 4 Court that the overt acts, as proved by two witnesses, did not show that Cramer actually gave aid and comfort to the enemy. The conviction was reversed. Justice William O. Douglas dissented, joined by Chief Justice Harlan Stone and Justices Hugo Black and Stanley Reed, according to the Cornell LII text. Jackson's opinion states: "Never before has this Court had occasion to review a conviction." That sentence makes Cramer a confirmed first.

What came after: Haupt (1947) and Kawakita (1952)

Two years later the Court upheld a treason conviction for the first time we found. Hans Max Haupt had sheltered his son Herbert, one of the 1942 saboteurs, helped him seek a job at a lens plant and helped him buy a car. In Haupt v. United States, 330 U.S. 631 (1947), decided March 31, 1947, Justice Jackson wrote that the overt acts were proved by two witnesses as required. Justice Frank Murphy dissented. Then, in Kawakita v. United States, 343 U.S. 717 (1952), decided June 2, 1952, Justice Douglas wrote for a 4 to 3 Court upholding the conviction of Tomoya Kawakita, an American citizen and Japanese national who mistreated American prisoners of war in Japan. The Court wrote that "An American citizen owes allegiance to the United States wherever he may reside." Chief Justice Vinson dissented, joined by Justices Black and Burton; Justices Frankfurter and Clark took no part.

Summary table

Clause	First case	Year	What kind of first
Judicial power (III.1)	Hayburn's Case	1792	Earliest refusal by federal judges to apply an act on constitutional grounds we found
Compensation (III.1)	Evans v. Gore	1920	Earliest tax ruling; overruled in 2001
Cases or controversies (III.2.1)	Correspondence of the Justices	1793	First refusal of advisory opinions (a letter, not a case)
Cases or controversies, enforced	Muskrat v. United States	1911	Leading early decision applying the limit
Judicial review	Marbury v. Madison	1803	First formal Supreme Court embrace; first act of Congress voided
Review of state courts	Martin v. Hunter's Lessee	1816	Section 25 review upheld (civil)
Review of state criminal cases	Cohens v. Virginia	1821	Review upheld where a state is a party
Original jurisdiction, states (III.2.2)	Chisholm v. Georgia	1793	Early major decision; reversed by the Eleventh Amendment
Jury trial (III.2.3)	Callan v. Wilson	1888	Key early Supreme Court case (earlier ones not confirmed)
Treason defined (III.3)	Ex parte Bollman	1807	Earliest Supreme Court interpretation we found
Treason conviction reviewed	Cramer v. United States	1945	First, per the Court; conviction reversed
Treason conviction upheld	Haupt v. United States	1947	Earliest affirmed that we found