of the three branches of government, the legislative, the House of Representatives and the Senate,

the executive, the president, and the judicial, the Supreme Court and the lower federal courts,

which is the most powerful. Today most people would probably say, the judicial. It's the

Supreme Court that has the final say over every controversial issue. Prior in school, abortion,

sex marriage, let the court decide is the modern refrain. But that's a long way from how the

framers saw the role of the courts. Let's look at what the Constitution says. Article 3, section 1,

vests the nation's judicial power in a Supreme Court and any lower courts that Congress may establish.

The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior and

shall receive for their services a compensation which shall not be diminished. By good behavior,

the framers meant lifetime tenure. As long as federal judges didn't do anything worthy of

impeachment, they had the job for life or until they chose to give it up. The purpose of lifetime

tenure and salary was to place federal judges above politics to make them independent of the

legislative and executive branches. In this way, they would act as another check on the power of those

two branches. Yet for all that, Alexander Hamilton thought the judiciary was beyond comparison the

weakest of the three branches. Boy was he wrong, but not in his assessment of the judicial branch

as spelled out in the Constitution. As Hamilton explained, the executive bears the sword or the

power to coerce. Congress sets the rules and controls the purse, the federal budget.

But what weapon did the judiciary have? Hamilton couldn't see any. He couldn't see any because he

and the other framers never imagined that the court would be the ultimate arbiter of what was

constitutional and what wasn't. They saw the court as having a much more limited function, as we

shall see. The Constitution doesn't even state how many justices there should be. That was set by

the first Congress of 1789. They set the number of justices at six, which to our modern sensibility

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