What's a Constitution Among Friends? - Unbalancing Article III

34 Pages Posted: 4 Dec 2015

See all articles by Craig A. Stern

Craig A. Stern

Regent University School of Law

Date Written: November 2, 1998


Nine out of ten experts agree that a straightforward reading of the first section of the third article of the United States Constitution does not work. Such a reading, it is said, would doom the District of Columbia courts, courts-martial, the welfare state, and more. Claiming Chief Justice John Marshall as their vanguard, courts and commentators have sought to escape the constitutional text by drafting exceptions, striking balances, or proposing Pickwickian readings of Section 1 of Article III.

This Article suggests that Section 1 of Article III does work, and that Chief Justice Marshall was the vanguard not for escaping the text, but for reading it carefully. Section 1 does not threaten life as we know it in the United States, nor does it threaten even most of the developments thought to run afoul of the Section. Read carefully, Section 1 provides principled answers for some troublesome questions. It has no need of exceptions. The text of the Constitution permits courts-martial, territorial courts, executive adjudication of public rights, and the participation of judicial adjuncts -- all without the protection of Section 1 security for judges. Granted, these institutions and practices must be held to limits absent from the present balancing test. To conclude that the Constitution allows them is not to conclude that it allows them necessarily as they appear today. What the Constitution does is to provide principled guidance, a rule of law, regarding the incidence of Section 1 security. The provenance of the so-called “exceptions” to Article III rests upon the Constitution, not upon an unprincipled departure from the Constitution under the guise of historical necessity. To adopt a balancing test is to abandon their rationale, not to justify it.

Keywords: Article I courts, magistrates, public rights, courts martial, territorial courts, Article III

Suggested Citation

Stern, Craig A., What's a Constitution Among Friends? - Unbalancing Article III (November 2, 1998). University of Pennsylvania Law Review, Vol. 146, No. 4, 1998, Available at SSRN: https://ssrn.com/abstract=2698218

Craig A. Stern (Contact Author)

Regent University School of Law ( email )

1000 Regent University Drive
Virginia Beach, VA 23464
United States

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