Article III of the Constitution is likely more fascinating for what it does not include than for what it does include. The section, for example, includes several of the preliminaries that simply need to be laid out to establish the judicial system. It sets up the U.S. Supreme Court, and allows for the creation of lower courts. It briefly describes the vague outline of what is required of a federal judge, as well as provides for judges’ salaries.
However, somewhat uniquely, the true foundations of the federal court system and the power of the U.S. Supreme Court rest not with any text in the Constitution. Instead, the Court’s power is drawn from a peerlessly important case, Marbury v. Madison
(1803). It is this case that established Judicial Review, the notion that the Court is the ultimate authority on the interpretation of the Constitution and that the Court decides the outcome of a conflict between the Constitution and legislation. This cornerstone of the American judicial system has been at the heart of countless decisions ever since.
Finally, by way of general introduction, it is also worth noting here the role that constitutional interpretation has played in the history of the Court and in the modern controversies surrounding the Court’s authority. Today, Justices and their supporters tend to be placed into two camps: Originalists, sometimes known as Strict Constructionists and Non-Originalists, sometimes known as Activists. While the lines between these two camps are often more illusory than not, the disagreement centers on the degree to which it is appropriate for the Court to read into the text of the Constitution.
Originalists argue that broadly interpreting the Constitution and its scope risks exacerbating what is called the “counter-majoritarian problem.” Meaning, the more power the Court has to find conflict between the ever-expanding Constitution and enactments of the Legislative and Executive branches, the more the will of majorities, as represented by elected officials, will be frustrated by unelected judges. But Non-Originalists argue that the Constitution, by its very nature, requires interpretation. Some provisions are words are essentially meaningless without doing something more than giving the Constitution as strict and literal of an interpretation as is possible. Moreover, the role of the judicial system is often specifically to protect minorities from what can become tyrannical majorities.
Whole most Justices approach the role of the Court with some mix of the two, most notably, the battle cry of the Non-Originalists has been a line from the case of McCulloch v. Maryland
(1819). There, Chief Justice Marshall was emphatic: “we must never forget, that it is a constitution we are expounding.”