How Did the Framers View Judicial Power? [No. 86]
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How Did the Framers View Judicial Power? [No. 86]

Article 3 of the Constitution takes one of
the three categories, boxes, of governmental power, the judicial power, and it vests it
in the federal courts, judges who hold tenure during good behavior and have guarantees against
diminishment of salary while in office. What is the judicial power? That turns out to be a surprisingly difficult
question. If you go to the founding era and you start
looking for sources describing what the judicial power is, in crisp, clear terms, you will
be sorely disappointed. I know this because I’ve tried. It’s not out there. And once you reflect on it, it becomes clear
why you weren’t going to find that crisp, clear understanding of judicial power. Until just a few decades before the Constitution,
the judicial power was not thought of as a separate box of power. It was part of the executive box of power. People who are fans of John Locke will remember
that Locke identified three great heads of governmental power, the legislative power,
the executive power, his third was not the judicial power, his third was the federative
power, essentially power over foreign affairs, right? So as late as the 17th century, judicial power
was just considered part of the executive power. The judges were agents of the crown. Not until the middle of the 18th century did
people really start thinking of judicial power as something distinctive, but that means that
when Article 3 of the Constitution is ratified, there isn’t a big, long, centuries-old tradition
of understanding what the judicial power, as distinct from the executive power or even
as distinct from the legislative power, entails. And people today still argue about what sets
of powers might be incidental to the central case deciding power that the courts have. So articulating exactly what the judicial
power is, not an easy task. It’s easier. Not easy, but easier, to look at legislative
power, executive power and give at least a rough outline of what those look like, though
drawing the line between them is not easy as well. Figuring out the line between, let’s say,
executive and judicial power may be the most difficult line that the Constitution asks
us to draw. The thing to keep in mind is it does ask us
to draw that line. The entire structure of the Constitution is
built around legislative power here, executive power here, judicial power here. It assumes we’re going to give it the old
college try, and then at least in most cases, we’ll be able to come up with something plausible
as an answer.

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