The Origin of the Judiciary

by Natalie Bolton and Gordon Lloyd

Introduction:

To assist teachers in teaching the founding of the U.S. government, Professor Gordon Lloyd has created a website in collaboration with the Ashbrook Center at Ashland University on the American Founding. In an effort to assist students in understanding how the executive and judicial branches of government were established, two lesson plans have been created that combine content from websites created by Gordon Lloyd that tell the story of the founding. Students will review several primary source documents including Articles and Amendments of the U.S. Constitution and Federalist and Antifederalist papers to understand and explain the origins of the executive and judicial branches of the United States. The following lesson will explore the origin of the judiciary using primary sources from Madison’s Notes on the Convention, Federalist 78, and Brutus XV.

Guiding Question:

How does Article III of the United States Constitution balance the need for judgment in the Judiciary with the need for liberty?

Learning Objective:

After completing this lesson, students should be able to:

  1. Analyze Madison’s Notes of the Constitutional Convention and the Federalist and Antifederalist Papers and explain the arguments and compromises that were made to balance the need for judgment in the Judiciary with the need for liberty.

Background Information for the Teacher:

The years were 1787 and 1788. Along with the debate over the Constitution that was taking place in the state legislatures, an “out-of-doors” debate raged in newspapers and pamphlets throughout America’s thirteen states following the Constitutional Convention over the Constitution that had been proposed.

Origin of The Federalist

The eighty-five essays appeared in one or more of the following four New York newspapers: 1) The New York Journal, edited by Thomas Greenleaf, 2) Independent Journal, edited by John McLean, 3) New York Advertiser, edited by Samuel and John Loudon, and 4) Daily Advertiser, edited by Francis Childs. Initially, they were intended to be a twenty essay response to the Antifederalist attacks on the Constitution that were flooding the New York newspapers right after the Constitution had been signed in Philadelphia on September 17, 1787. The Cato letters started to appear on September 27, George Mason’s objections were in circulation and the Brutus essays were launched on October 18. The number of essays in The Federalist was extended in response to the relentless, and effective, Antifederalist criticism of the proposed Constitution.

McLean bundled the first 36 essays together—they appeared in the newspapers between October 27, 1787 and January 8, 1788—and published them as Volume 1 on March 22, 1788. Essays 37 through 77 of The Federalist appeared between January 11, and April 2, 1788. On May 28, McLean took Federalist 37-77 as well as the yet to be published Federalist 78-85 and issued them all as Volume 2 of The Federalist. Between June 14 and August 16, these eight remaining essays—Federalist 78-85—appeared in the Independent Journal and New York Packet.

The Status of The Federalist

One of the persistent questions concerning the status of The Federalist is this: is it a propaganda tract written to secure ratification of the Constitution and thus of no enduring relevance or is it the authoritative expositor of the meaning of the Constitution having a privileged position in constitutional interpretation? It is tempting to adopt the former position because 1) the essays originated in the rough and tumble of the ratification struggle. It is also tempting to 2) see The Federalist as incoherent; didn’t Hamilton and Madison disagree with each other within five years of co-authoring the essays? Surely the seeds of their disagreement are sown in the very essays! 3) The essays sometimes appeared at a rate of about three per week and, according to Madison, there were occasions when the last part of an essay was being written as the first part was being typed.

1) One should not confuse self-serving propaganda with advocating a political position in a persuasive manner. After all, rhetorical skills are a vital part of the democratic electoral process and something a free people have to handle. These are op-ed pieces of the highest quality addressing the most pressing issues of the day. 2) Moreover, because Hamilton and Madison parted ways doesn’t mean that they weren’t in fundamental agreement in 1787-1788 about the need for a more energetic form of government. And just because they were written with certain haste doesn’t mean that they were unreflective and not well written. Federalist 10, the most famous of all the essays, is actually the final draft of an essay that originated in Madison’s Vices in 1787, matured at the Constitutional Convention in June 1787, and was refined in a letter to Jefferson in October 1787. All of Jay’s essays focus on foreign policy, the heart of the Madisonian essays are Federalist 37-51 on the great difficulty of founding, and Hamilton tends to focus on the institutional features of federalism and the separation of powers.

I suggest, furthermore, that the moment these essays were available in book form, they acquired a status that went beyond the more narrowly conceived objective of trying to influence the ratification of the Constitution. The Federalist now acquired a “timeless” and higher purpose, a sort of icon status equal to the very Constitution that it was defending and interpreting. And we can see this switch in tone in Federalist 37 when Madison invites his readers to contemplate the great difficulty of founding. Federalist 38, echoing Federalist 1, points to the uniqueness of the America Founding: never before had a nation been founded by the reflection and choice of multiple founders who sat down and deliberated over creating the best form of government consistent with the genius of the American people. Thomas Jefferson referred to the Constitution as the work of “demigods,” and The Federalist “the best commentary on the principles of government, which ever was written.” There is a coherent teaching on the constitutional aspects of a new republicanism and a new federalism in The Federalist that makes the essays attractive to readers of every generation.

Authorship of The Federalist

A second question about The Federalist is how many essays did each person write? James Madison—at the time a resident of New York since he was a Virginia delegate to the Confederation Congress that met in New York—John Jay, and Alexander Hamilton—both of New York—wrote these essays under the pseudonym, “Publius.” So one answer to the question is that how many essays each person wrote doesn’t matter since everyone signed off under the same pseudonym, “Publius.” But given the iconic status of The Federalist, there has been an enduring curiosity about the authorship of the essays. Although it is virtually agreed that Jay wrote only five essays, there have been several disputes over the decades concerning the distribution of the essays between Hamilton and Madison. Suffice it to note, that Madison’s last contribution was Federalist 63, leaving Hamilton as the exclusive author of the nineteen Executive and Judiciary essays. Madison left New York in order to comply with the residence law in Virginia concerning eligibility for the Virginia ratifying convention. There is also widespread agreement that Madison wrote the first thirteen essays on the great difficulty of founding. There is still dispute over the authorship of Federalist 50-58, but these have persuasively been resolved in favor of Madison.

Outline of The Federalist

A third question concerns how to “outline” the essays into its component parts. We get some natural help from the authors themselves. Federalist 1 outlines the six topics to be discussed in the essays without providing an exact table of contents. The authors didn’t know in October 1787 how many essays would be devoted to each topic. Nevertheless, if one sticks with the “formal division of the subject” outlined in the first essay, it is possible to work out the actual division of essays into the six topic areas or “points” after the fact so to speak.

Martin Diamond was one of the earliest scholars to break The Federalist into its component parts. He identified Union as the subject matter of the first thirty-six Federalist essays and Republicanism as the subject matter of last forty-nine essays. There is certain neatness to this breakdown, and accuracy to the Union essays. The first three topics outlined in Federalist 1 are 1) the utility of the union, 2) the insufficiency of the present confederation under the Articles of Confederation, and 3) the need for a government at least as energetic as the one proposed. The opening paragraph of Federalist 15 summarizes the previous fourteen essays and says: “in pursuance of the plan which I have laid down for the pursuance of the subject, the point next in order to be examined is the ‘insufficiency of the present confederation.'” So we can say with confidence that Federalist 1-14 is devoted to the utility of the union. Similarly, Federalist 23 opens with the following observation: “the necessity of a Constitution, at least equally energetic as the one proposed… is the point at the examination of which we are now arrived.” Thus Federalist 15-22 covered the second point dealing with union or federalism. Finally, Federalist 37 makes it clear that coverage of the third point has come to an end and new beginning has arrived. And since McLean bundled the first thirty-six essays into Volume 1, we have confidence in declaring a conclusion to the coverage of the first three points all having to do with union and federalism.

The difficulty with the Diamond project is that it becomes messy with respect to topics 4, 5, and 6 listed in Federalist 1: 4) the Constitution conforms to the true principles of republicanism, 5) the analogy of the Constitution to state governments, and 6) the added benefits from adopting the Constitution. Let’s work our way backward. In Federalist 85, we learn that “according to the formal division of the subject of these papers announced in my first number, there would appear still to remain for discussion two points,” namely, the fifth and sixth points. That leaves, “republicanism,” the fourth point, as the topic for Federalist 37-84, or virtually the entire Part II of The Federalist.

I propose that we substitute the word Constitutionalism for Republicanism as the subject matter for essays 37-51, reserving the appellation Republicanism for essays 52-84. This substitution is similar to the “Merits of the Constitution” designation offered by Charles Kesler in his new introduction to the Rossiter edition; the advantage of this Constitutional approach is that it helps explain why issues other than Republicanism strictly speaking are covered in Federalist 37-46. Kesler carries the Constitutional designation through to the end; I suggest we return to Republicanism with Federalist 52.

Taken from Introduction to the Federalist.

The Four Options of Antifederalism

It is helpful to consider four options when reflecting on the importance of the Antifederalists. They are 1) incoherent and irrelevant, 2) coherent and irrelevant, 3) incoherent and relevant, and 4) coherent and relevant. And which option we choose is in large part linked to a) how we define the Antifederalist project, b) how we interpret The Federalist and c) whether or not we are willing to retrieve the Antifederalists on their own terms or whether we see them as valuable in a quarrel over the American regime.

One way to define the Antifederalists is that they are those who opposed ratification of the unamended Constitution in 1787-1788. This definition might well make them lower case antifederalists or anti-federalists. The point is that they are both incoherent and irrelevant. A broader definition, one that reaches back to Montesquieu or to Aristotle introduces the possibility that they may be either coherent but irrelevant (Cecelia Kenyon) or incoherent but relevant (Herbert Storing). The upper case and hyphenated Anti-Federalist nomenclature is the preferred appellation for this approach. There is one last choice – the Antifederalists are coherent and relevant – and this suggests that we call them Antifederalists, upper case and non-hyphenated.

This fourth approach argues that their coherence and relevance is located in their basically American and new world character. They are neither Kenyon’s “men of little faith” nor Storing’s “incomplete reasoners,” and thus “junior founders.” Their thought is grounded in the American struggle for independence, draws strength from the colonial tradition, the natural rights tradition, and new state constitutions that emerged between 1776 and 1780. Their thought is moreover informed by the Articles of Confederation of the 1780s, matured by the debates over the creation and adoption of the Constitution, culminates with the adoption of the Bill of Rights and then bids farewell to its creative phase with the introduction of the Virginia and Kentucky Resolutions. I encourage the reader to consider this broader, and basically American and new world, definition of the Antifederalist project.

The Antifederalist Reputation

This reputation of the Antifederalists as irrelevant, even proto-Calhoun, disunionists was shaped, in part, by Alexander Hamilton’s observation in Federalist 1: “we already hear it whispered in the private circles of those who oppose the new Constitution, that the thirteen States are of too great an extent for any general system, and that we must of necessity resort to separate confederacies of distinct portions of the whole.” The response by the Antifederalist, “Centinel,” to Hamilton has been largely ignored: this claim of disunion, he said, is “from the deranged brain of Publius, a New York writer, who has devoted much time, and wasted more paper in combating chimeras of his own creation.”

James Madison’s commentary in Federalist 38 was no doubt also influential in portraying the Antifederalists as incoherent. Madison asks: “Are they agreed, are any two of them agreed, in their objections to the remedy proposed, or in the proper one to be substituted? Let them speak for themselves.” But Madison does not “let them speak for themselves.” When the Antifederalists are permitted to speak for themselves, as Antifederalist Melancton Smith demonstrates, a remarkably coherent alternative emerges. “An Old Whig” makes the same point: “about the same time, in very different parts of the continent, the very same objections have been made, and the very same alterations proposed by different writers, who I verily believe, know nothing at all of each other.” This appeared six weeks prior to Federalist 38. When the Antifederalists are permitted to speak for themselves, a coherent and relevant account emerges.

The Federalist argues for checks and balances, especially against the legislature; the Antifederalists support term limits and rotation in office for all elected and appointed officials. But this is why Kenyon calls them irrelevant; they held to a scheme of representation that was outmoded even for 1787. By contrast, The Federalist argues that the representative needs a longer duration in office than provided by traditional republicanism in order to exercise the responsibilities of the office and resist the narrow and misguided demands of an overbearing and unjust majority. Because the Antifederalists were dubious that one could be both democratic and national, they urged less independence for the elected representatives. They claimed that practical experience demonstrated that short terms in office, reinforced by term limits, would be an indispensable additional security to the objective of the election system to secure that the representatives were responsible to the people. For the Antifederalists, a responsible representative – the essential characteristic of republicanism – was constitutionally obliged to be responsive to the sovereign people. Ultimately, the “accountability” of the representative was secured by “rotation in office,” the vital principle of representative democracy. This is the concept of the citizen-politician who serves the public briefly and then returns to the private sphere.

In Federalist 23, Hamilton describes the Antifederalist position as “absurd” because they admit the legitimacy of the ends and then are squeamish, even, cowardly, about the means: “For the absurdity must continually stare us in the face of confiding to a government the direction of the most essential national interests, without daring to trust it to the authorities which are indispensable to their proper and efficient management. Let us not attempt to reconcile contradictions, but firmly embrace a rational alternative.” The Antifederalists, according to Hamilton, are mushy thinkers; they fuss over means rather than focusing on ends. Storing totally agrees: they should have focused on the ends of union and the (limited) role of the states in the accomplishment of those ends. The Antifederalists, according to Hamilton and Storing, wanted union but argued against giving the union the means to secure the ends. They were absurd and thus they were incoherent. But there is more. According to Storing, the Antifederalists also avoided the hard and “ugly truth” of Federalist 51: the people can’t govern themselves voluntarily. This truth, says Storing, is something that the Federalists faced squarely.

Coherent and Relevant

Perhaps that the Antifederalists have a coherent understanding of federalism and republicanism – grounded in “democratic federalism” and “constitutional republicanism” – and that this coherent understanding is worth keeping alive in the twenty-first century because it addresses what ails the contemporary American federal republic. Antifederalist thought is the built-in American antidote for the ills of the American federal republic. In particular, the three other alternative explanations either read history backwards or import European or ancient categories to explain an American experience.

The Antifederalists are not primarily interested in the “good government” project of The Federalist or the “best regime” project of the ancients, or the “exit rights” project of the secessionists or many of the other projects invented by the various historical schools; instead, I suggest they are interested in the creation and preservation of free government. They remind us that free government means limited government, and thus the political project should be focused on limiting rather than empowering politicians. Antifederalist statesmanship involves an attachment to means, rather than an administration of ends. There is nothing absurd or incoherent about being fussy over the use and misuse of means because means are actually powers and the abuse of powers sets us down the slippery slope to old world tyranny.

The Antifederalists speak to those who have become increasingly disillusioned by the collapse of decentralized state and local government, the greater intervention by the federal government in economic matters, the blurring of the separation of powers, and the replacement of voluntary associations by government programs. The Antifederalists warn: beware the dangers of “democratic nationalism,” and “delegated constitutionalism.” These are warnings from within the very American System itself. They warn us that there is something morally corrosive about the exercise of political power and thus they remind us about the need for the rule of law. And they warn about the dangers of the Federalist temptation with empire abroad. The Antifederalists are not isolationists, men of little faith, or junior partners; they are “Antitemptationalists” with a message of liberty and responsibility that resonates across the centuries.

“On the most important points,” then, the Antifederalists were not only in agreement but their position was coherent and is currently relevant. They believed that republican liberty was best preserved in small units where the people had an active and continuous part to play in government. Although they thought that the Articles best secured this concept of republicanism, they were willing to bestow more authority on the federal government as long as this didn’t undermine the principles of federalism and republicanism. They argued that the Constitution placed republicanism in danger because it undermined the pillars of small territorial size, frequent elections, short terms in office, and accountability to the people, and, at the same time, encouraged the representatives to become independent from the people and the state governments. They warned that unless restrictions were placed on the powers of Congress, the Executive, and the Judiciary, the potentiality for the abuse of power would become a reality. These warnings culminated in their insistence on a Bill of Rights which, in conjunction with small territory, representative dependency, and strict construction, they conceived as the ultimate “auxiliary precaution.”

The expression of discontent over the last fifty years about American politics has an ominous ring, revealing the widespread Antifederal mood in the electorate. Among the dramatic changes in recent American politics are the alarming alienation of the citizenry from the electoral system, the increased presence of the centralized Administrative State, and the dangerous consequences of an activist judiciary that openly thwarts the deliberate sense of the majority. These are all Antifederalist concerns about the tyranny of politicians. The term limits movement of the late twentieth century demonstrates that the Antifederalist message – keep your representatives on a short leash, otherwise you will lose your freedom – still resonates with the American people, because Antifederalism is very much part of the American political experience.

When we hear the claim that our representatives operate independently of the people, and that the Congress fails to represent the broad cross-section of interests in America, we are hearing an echo of the Antifederalist critique of representation. When we hear that the federal government has spawned a vast and irresponsive administrative bureaucracy that interferes too much with the life of American citizens, we are reminded of the warnings of the Antifederalists concerning consolidated government. They warn that, in effect, executive orders, executive privileges, and executive agreements will create the “Imperial Presidency.” And they warn that an activist judiciary will undermine the deliberate sense of the majority. The criticism that Americans have abandoned a concern for their religious heritage and neglected the importance of local customs, habits, and morals, recalls the Antifederalist dependence upon self-restraint and self-reliance. When we hear a concern for the passing of decentralization – old time federalism – we are hearing the Antifederalist lament.

The Antifederalist project calls for a rejuvenation of interest in Antifederalist “democratic federalism” and “constitutional republicanism.” Since American politics is often a debate over the possibilities and limitations of the separation of powers, an independent judiciary, federalism, and representative government, it is vital that the potency of Antifederalist political analysis be restored. If the electorate has “lost faith” in the responsibility of the representatives in every branch of government, then the very concept of representation undergirding the country is in crisis. What is the solution? If no one cares either about the question, or the solution, then America is perhaps doomed to go the way of previous great regimes, and the experiment in “republican government” is exactly what opponents through the centuries have predicted it would be: a complete failure thus proving that the human race is incapable of being governed other than by force and fraud.

Antifederalist political science advocated concentration of the power of the people and eliminating temptations for the concentration of power in officeholders. The heart of their method was to propose a scheme of representation that safeguarded interests and avoid the clashes of factions. This called for certain homogeneity of interests, as opposed to the Madisonian encouragement of diverse interests. The latter approach they rejected as unnecessary and dangerous. They placed their faith instead in the virtue of “middling” Americans – a virtue that was not informed by ancient Sparta or even ancient Rome but by the modern doctrine of personal self-reliance – coupled with holding their representatives “in the greatest responsibility to their constituents.”

The Antifederalists viewed the Constitution as creating mutually independent sovereign agents. They argued that such independent rulers would “erect an interest separate from the ruled,” which will tempt them to lose both their federal and their republican mores. The Antifederalists concluded that unless executive power was yet more limited, representation more broadened, presidents and senators made more responsible to the people and the state governments protected – unless the arrangement was significantly modified – the proposed regime would necessarily destroy political liberty by destroying the sovereignty of the people, the litmus test of republicanism. As an expression of this “constitutional republicanism,” they insisted on a Bill of Rights as a declaration of popular sovereignty.

In conclusion, the Antifederalists warned about the tendency of the American system toward the consolidation of political power in a) the nation to the detriment of the various states, and b) one branch of the federal government at the expense of the separation of powers. They warned about c) the corrupting influence that political power has on even decent people, whom decent people elected into office, and d) that the rule of law has a privileged position in republican government. They also anticipated the idea that e) all politics is – or should be – local and thus particular attachments rather than abstract ideas matter in the preservation of a liberal political order.

Taken from Introduction to the Antifederalists.

Preparing to Teach this Lesson:

Prior to teaching this lesson the teacher should cover content related to the Articles of Confederation and its weaknesses. The teacher should familiarize her/himself with Madison’s Notes on the Constitutional Convention of 1787. Gordon Lloyd has presented the content of the Constitutional Convention of 1787 as a Four Act Drama. Students and teacher should also be familiar with the Federalist and Antifederalist Debates.

Analyzing Primary Sources:

If your students lack experience in dealing with primary sources, you might use one or more preliminary exercises to help them develop these skills. The Learning Page at the American Memory Project of the Library of Congress includes a set of such activities. Another useful resource is the Digital Classroom of the National Archives, which features a set of Document Analysis Worksheets. Finally, History Matters offers pages on “Making Sense of Maps” and “Making Sense of Oral History” which give helpful advice to teachers in getting their students to use such sources effectively.

Suggested Activities:

Introductory Activity:

Time required for activity: In class activity 20 minutes.

Students will complete a KWL chart to determine what students know about the judicial branch in relation to how often a Justice can be elected, the term length of a Justice, how an individual becomes a Justice, and the powers of a Justice.

Students should record their responses on the KWL graphic organizer. First, students should complete the K column to demonstrate what they know about the judiciary. The teacher should debrief with students and then provide students time to complete the W portion of the graphic organizer. The W portion of the graphic organizer allows students to reflect on what additional information they want to know about the Judiciary. After the activity on the Judiciary has been completed, students should complete the L section of the graphic organizer to indicate what they learned about the Judiciary during the Constitutional Convention of 1787 and from the perspective of the Federalist and Antifederalist.

Depending on student content vocabulary readiness the teacher may need to review vocabulary used in Madison’s notes of the Constitutional Convention of 1787 and the Federalist and Antifederalist Papers. One way to review is to use a word wall. The teacher will tell students that the class will be adding several words to the word wall today. Word walls are a literacy strategy that may be used before reading (explicit teaching and modeling), during reading (guided practice) and after reading (guided practice).

Activity

Time required for activity: In class activity, two 45 minute class periods.

First, students should read the summarized theme at the Constitutional Convention of 1787: Judicial Review and Judicial Powers, followed by the paragraph summary of Federalist 78 and Brutus XV. All summaries are written by Gordon Lloyd and can be accessed from the website. In addition to accessing the summaries on the website, they have each been included with this lesson as separate documents in order for teachers to modify them to address different needs of students.

Depending on student content vocabulary readiness the teacher may need to review vocabulary used in Madison’s Notes of the Constitutional Convention of 1787 and Federalist and Antifederalist Papers. One way to review is to use a word wall. The teacher will tell students that the class will be adding several words to the word wall today. Word walls are a literacy strategy that may be used before reading (explicit teaching and modeling), during reading (guided practice) and after reading (guided practice).

Students will be divided into small groups (3-4 students per group). The groups will all get a starting question to answer before they move around the classroom and “blog.” By participating in the blog, students will gain an understanding of how the establishment of the federal Judiciary balanced the need for judgment with the need for liberty.

As students read the Notes and Papers, they should prepare responses to the following four blog questions. These questions will be posted for students to respond to utilizing a classroom blog.

A teacher resource has been included in the lesson resources to provide suggested points to be included in student responses to the blog.

Note: The classroom blog can be set up using technology or can be done using chart paper and post-it notes and/or markers. Depending on the number of students in your classroom, student groups may be assigned the same starting question.

Share the four blog questions with students as they are reading the required text. Post the blog questions or write them on chart paper and post in the classroom.

Blog question 1: What role does Hamilton see for the federal Judiciary in terms of judicial review in Federalist 78?

Blog question 2: What role does Brutus see for the federal Judiciary in terms of judicial review in Brutus XV?

Blog question 3: How is judicial review discussed in Madison’s Notes of the Constitutional Convention?

Blog question 4: How does the Judicial Branch protect liberty in the eyes of Hamilton and Brutus?

Step 1: Each student group should generate a response to each blog question. Each response should be about 50 words in length and incorporate content and/or quotes from the readings. If using the paper method, students should respond on a designated color of large post-it note or be assigned a designated color of marker to write a response on a white sheet of paper and then post the response on chart paper.

Step 2: Each student group should then reply to two other student groups’ Step 1 responses. Replies should be about 50 words in length and state agreements and disagreements and explain why. If using the paper method, students should respond on a different designated color of large post-it note or be assigned a designated color of marker to write a response on a white sheet of paper and then post the response on chart paper.

Step 3: Student groups will return to the first blog question the group answered. Student groups should review and summarize the class responses and replies in 150-200 words.

After completing the activity, students should return to their KWL chart and complete the Learn column.

Assessment

After completing this lesson, students should individually be able to write a response to the following question:

How does Article III of the United States Constitution balance the need for judgment in the Judiciary with the need for liberty? Cite your explanation using evidence from Madison’s Notes to the Constitutional Convention, Federalist 78, and Brutus XV.

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

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. 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.

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 attained.

Scoring Criteria:

Credit will be fully rewarded if the response:

  • thoroughly addresses all aspects of the task by accurately interpreting the documents plus incorporates outside information related to the documents.
  • discusses all aspects of the task and supports with accurate facts, examples and details.
  • weighs the importance, reliability and validity of the evidence.
  • analyzes conflicting perspectives presented in the documents and weaves the documents into the body of the essay.
  • includes a strong introduction and conclusion.

Credit will be reduced if the response:

  • does not recognize the reliability, validity, or perspectives of the documents.
  • reiterates the content of the documents with little or no use of outside information.
  • discusses the documents in a descriptive rather than analytic manner.
  • shows little recognition of the tasks, lacked an introduction or conclusion.

Extending the Lesson:

Extension 1: Explain why the Judicial Branch has been viewed as both the least and most dangerous branch of government under the United States Constitution. Cite your explanation.
Related EDSITEment Lesson Plans:

Selected Websites:

Standards Alignment:

  1. NCSS-10 Civic ideals and practices. Citizenship in a democratic republic.
  2. NCSS-5 Individuals, groups, and institutions.
  3. NCSS-6 Power, authority, and governance.

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