A key problem of the judicial system under the articles of confederation was that ______.

A convention of delegates from all the states except Rhode Island met in Philadelphia, Pennsylvania, in May of 1787. Known as the Constitutional Convention, at this meeting it was decided that the best solution to the young country's problems was to set aside the Articles of Confederation and write a new constitution. George Washington presided over the Constitutional Convention.

The delegates, or representatives for the states, debated for months over what would be included in the Constitution. Some states were in favor of a strong central government, while other states were opposed. Large states felt that they should have more representation in Congress, while small states wanted equal representation with larger ones.

Roger Sherman, a delegate from Connecticut, proposed a legislature with two parts; states would have equal representation in the Senate, and the population of states would determine representation in the House of Representatives. This created a bicameral legislative branch, which gave equal representation to each State in the Senate, and representation based on population in the House. Small states feared they would be ignored if representation was based on population while large states believed that their larger populations deserved more of a voice. Under the bicameral system, each party would be represented in a balance of power. Each state would be equally represented in the Senate, with two delegates, while representation in the House of Representatives would be based upon population. The delegates finally agreed to this "Great Compromise," which is also known as the Connecticut Compromise.

The Constitution also created an executive branch and a judicial branch, which set up a system of checks and balances. All three branches would have a distribution of power so that no one branch could become more powerful than another. Early on, Governor Edmund Randolph of Virginia presented the Virginia Plan, which provided for a national government with three branches. The legislative branch would make laws, the executive branch would provide leadership and enforce laws, and the judicial branch would explain and interpret laws.

Like the issue of political representation, commerce and slavery were two issues that divided the Northern and Southern states. Southern states exported goods and raw materials and feared that the Northern states would take unfair advantage. The South finally agreed not to require two-thirds passage in both houses to regulate commerce. The North agreed that the slave trade could continue until 1808. In addition, slaves would be counted as three-fifths of a person for representation in the House of Representatives; this was known as the “Three-Fifths Compromise.”

Nationality requirements and ways to amend and ratify the Constitution were also addressed. Senators would have to be citizens for nine years and Representatives for seven years, and the President must be native-born to be eligible to hold office. In order to make changes or amendments to the Constitution, nine of the 13 states would have to vote to ratify before an amendment could become law.

NOTE TO READERS
“Milestones in the History of U.S. Foreign Relations” has been retired and is no longer maintained. For more information, please see the full notice.

The Constitutional Convention in Philadelphia met between May and September of 1787 to address the problems of the weak central government that existed under the Articles of Confederation. The United States Constitution that emerged from the convention established a federal government with more specific powers, including those related to conducting relations with foreign governments. Under the reformed federal system, many of the responsibilities for foreign affairs fell under the authority of an executive branch, although important powers, such as treaty ratification, remained the responsibility of the legislative branch. After the necessary number of state ratifications, the Constitution came into effect in 1789 and has served as the basis of the United States Government ever since.

Under the Articles of Confederation, the federal government faced many challenges in conducting foreign policy, largely due to its inability to pass or enforce laws that individual states found counter to their interests. The 1783 Treaty of Paris, which ended the American War of Independence, stipulated that debts owed by Americans to British subjects were to be honored, and also stipulated that former British loyalists could bring forth suits in U.S. courts to recover confiscated property. These provisions were unpopular and many states blocked their enforcement. This led to British refusal to vacate military forts in U.S. territory. Additionally, after the war, British traders flooded U.S. markets with British goods, to the detriment of American importers and manufacturers. The Confederation Congress lacked the authority to regulate this trade, and intrastate trade was further hampered by states’ own attempts to impose import duties on goods from elsewhere in the United States. Lastly, the Spanish Government, which controlled New Orleans, barred American ships from navigating the Mississippi River. Southern delegates to the Confederation Congress wanted to lift this ban, while coastal merchants, especially in the northeast, were willing to make concessions in exchange for a treaty with otherwise favorable commercial terms. The large majorities necessary for ratification of such measures under the Articles of Confederation often resulted in the deadlock along sectional lines between North and South.

In attempting to resolve such issues, as well as problems arising from the payment of debts from the Revolutionary War and other domestic issues, the delegates to the Constitutional Convention created a model of government that relied upon a series of checks and balances by dividing federal authority between the Legislative, the Judicial, and the Executive branches of government. The framers of the Constitution had originally imagined a weak presidency and a strong legislature divided into a House of Representatives and the Senate. Under the Articles of Confederation, considerable minor paperwork had bogged down important business enough that legislators decided to establish an executive branch to deal with routine paperwork. When writing the Constitution, the framers expected the Senate to handle important issues, particularly the ratification of treaties, while the Executive would attend to matters of lesser consequence. However, as deliberations continued, the Executive branch acquired more power to deal with some of the issues that had been a source of sectional tension under the Articles of Confederation—and so the President acquired the authority to conduct foreign relations. The two-thirds clause for ratification of treaties in the Senate, as opposed to a simple majority, allowed the South a greater voice in these matters and assuaged concerns about the attempts to abandon navigation of the Mississippi.

The Constitution does not stipulate existence of departments within the executive branch, but the need for such departments was recognized immediately. Congress passed legislation creating the Department of Foreign Affairs in its first session in 1789, and in the same year changed the name to the Department of State after it added several additional domestic duties to the Department.

After the ratification of the Constitution in 1789, the machinery of state had been designed, but not yet tested and put to use. The provisions for management of foreign affairs would be put to the test in 1794, when the Senate had the opportunity to accept or reject the controversial treaty with Great Britain negotiated by John Jay.

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.

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; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Page 2

Article III of the Constitution establishes and empowers the judicial branch of the national government. The very first sentence of Article III says: “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.” So the Constitution itself says that we will have a Supreme Court, and that this Court is separate from both the legislature (Congress) and the executive (the President). It is up to Congress to decide what other federal courts we will have. But one of the first things Congress did in 1789, the year the new government got going, was to set up a federal judiciary, including the Supreme Court—with six Justices. Today, we have a three-level federal court system—trial courts, courts of appeals, and the Supreme Court—with about 800 federal judges. All those judges, and the Justices of the Supreme Court, are appointed by the President and confirmed by the Senate.

Why did the Framers guarantee that we would have a Supreme Court (unless the Constitution was amended—a very difficult thing to do) but leave open the possibility that there would be no other federal courts, depending on what the politicians in Congress decided? The answer tells us something about the debates at the time the Constitution was written. To some people in the United States at that time, the federal government seemed almost like a foreign government. Those people’s main loyalty was to their states; the federal government was far away, and they did not feel that they had much of a say in who ran it. If you thought that way, an extensive system of federal courts, staffed by judges who were appointed by the President and who might not have a lot of connections to the state and its government, amounted to allowing the “foreign,” federal government to get its tentacles into every corner of the nation. Other Framers, though, thought that the federal government could not be effective unless it had courts to help enforce its laws. If everything were left up to state courts, states that were hostile to the new federal government might thwart it at every turn.

The compromise was that, just as the Constitution and federal laws would be the “supreme Law of the Land,” there would definitely be a Supreme Court—so a court created by the federal government, with judges appointed by the President, would get the last word, in case state courts did something that was too threatening to the new nation. But the extent and shape of the rest of the federal court system—the degree to which the federal government would be present around the nation—would get hashed out in day-to-day politics. The result is the large and powerful federal judiciary we have today.  

The second sentence of Article III, Section 1, says: “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.” It’s pretty clear what’s going on here: this provision is designed to make sure that the judges are independent. They can decide cases according to what they think the law requires, without worrying about whether some powerful person—or even a majority of the people—will object. As Alexander Hamilton put it in The Federalist No. 78, judicial independence “is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.”

The language about “holding offices during good behaviour” has been interpreted to mean that the only way federal judges can be removed from office is if the House of Representatives impeaches them, and the Senate convicts them, of “treason, bribery, or other high crimes and misdemeanors.” Only fifteen judges have ever been impeached (that is, formally accused by the House of Representatives) and only eight have been convicted and removed from office. For practical purposes, any judge who does not commit a crime (or do something equally bad) has “lifetime tenure” and will stay in office until he or she dies or voluntarily steps down. And, as the provision says, Congress and the President cannot retaliate against judges by cutting their salaries.

Most state court judges—unlike federal judges—are elected, not appointed; and some have to be re-elected, or approved by the voters, every few years. Those systems of elected judges are often criticized just because, unlike the federal system, judges might think they have to do politically popular things, or build up political connections, in order to keep their jobs, even if that means ruling in a way that doesn’t follow the law. Very few people think that federal judges should be elected. There are, though, some critics of lifetime tenure: those critics say that lifetime tenure causes judges to stay in their positions longer than they should—after they have become too old to do their job well, either just because of age or because they are out of touch with modern times. Maybe, these critics say, judges should be appointed for a fixed term of years—say 14 or 18 years—with no chance of being reappointed. They still couldn’t be fired and, since they would have to leave at the end of their term, they would have no reason to shape their rulings in a way that pleases powerful figures or popular opinion. But a change like this would almost certainly require a constitutional amendment, and the chance of its happening is extremely small.

Although the guarantee that judges will have lifetime tenure seems simple, it actually raises a difficult question in our system. In the federal government, there are many officials who do judge-like things—think of military courts-martial, for example—but who do not have the lifetime tenure that Article III seems to require for federal judges. Many of these officials are members of, or work for, administrative agencies—what is sometimes called the federal bureaucracy. Officials like this will rule on whether, for example, a company has used advertisements that deceive consumers, or a business has wrongly tried to prevent its workers from joining a union, or the government has not paid a person the disability benefits he or she is entitled to. Thousands of decisions of this kind are made every year by federal officials who are not considered “judges” for purposes of Article III, and therefore do not have lifetime tenure, but who are doing the kinds of things judges usually do: settle disputes between people. These administrative officials usually serve only for a few years, after which the President can replace them. There are safeguards to prevent officials of this kind from being openly biased or unfair, but because they are appointed so frequently, they are often thought to be more responsive to day-to-day politics than judges are.

Why do we allow these officials to resolve disputes in the way that judges do, even though they do not have the lifetime tenure guarantee that judges have? The answer is complicated, but the basic idea is that you generally have a right to appeal from a decision of one of these officials to a judge whose independence is protected by lifetime tenure. So judges—including, potentially, the Supreme Court—will have the final word, and that, the Supreme Court has said, is enough to maintain the principle of judicial independence enshrined in Article III.