Judicial Power under the Constitution By Director MAEVA MARCUS Historical Division, U.S. Supreme Court, Washington, D.C. John Jay, the first chief justice of the United States, described his approach to achieving a workable government under the Constitution as follows: “Wise and virtuous men,” he declared, “have thought and reasoned very differently respecting Government, but in this they have at Length very unanimously agreed. That its Powers should be divided into three, distinct, independent De-- partments — the Executive, legislative and judicial. But how to constitute and ballance themin such a Manner as best to guard against Abuse and Fluctuation, & preserve the constitution from Encroachments, are Points on which there continues to be a great Diversity of opinions, and on which we have all as yet much to learn.” Jay pointed out that the Constitution had established three separate branches and had taken care to provide checks “one on the other,” in order to “keep each within its proper Limits,” but it would rest with the men who wielded these governmental powers to carry them out satisfactorily. Hence the chief justice urged, “If the most discerning and enlightened Minds may be mistaken relative to Theories unconfirmed by Practice — and if the merits of our opinions can only be ascertained by Experience, let us patiently abide the Tryal, and unite our Endeavors to render it a fair and an impartial one.” The founders of the new American nation believed that the establishment of a national judiciary was one of their most important tasks. George Washington, the first president of the United States, conveyed this message to the judges of the Supreme Court on the eve of their undertaking their first judicial duties. “I have always been pursuaded (sic) that the stability and success of the National Government and consequently the happiness of the People of the United States, would depend in a considerable degree on the Interpretation and Execution of its Laws,” Washington observed. “In my opinion, therefore, it is important that the Judiciary System should not only be independent in its operations, but as perfect as possible in its formation.” Yet if you look at Article III of the Constitution of the United States, dealing with the judicial branch of government, you will see that it is very short. Moreover, at the Constitutional Convention the delegates spent relatively little time discussing judicial power. Instead they left the resolution of those issues on which they could not easily agree to the Congress that would come into being after the new systemof government was approved. Thus the story of the
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