THE ONE COURT THAT CONGRESS CANNOT TAKE AWAY:
SINGULARITY, SUPREMACY, AND ARTICLE III
Laurence Claus1
University of San Diego
5998 Alcala Park
San Diego CA 92110
Tel. 619-260-5933
[email protected]
1
Professor of Law, University of San Diego. I am grateful for valuable
comments from Larry Alexander, Donald Dripps, Jeffrey Pojanowski, Saikrishna
Prakash, Michael Ramsey, Nicholas Quinn Rosenkranz, and Steven Smith, for able
research assistance from Jasmine Scott, and for a summer research grant from the
University of San Diego School of Law.
THE ONE COURT THAT CONGRESS CANNOT TAKE AWAY:
SINGULARITY, SUPREMACY, AND ARTICLE III
I. The Original Article III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
A. Linguistic Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. What it means to be “supreme” . . . . . . . . . . . . . . . . .
2. Alternative meanings of supremacy . . . . . . . . . . . 13
3. To what must the judicial Power extend? . . . . . . . 17
4. The syllogism summarized . . . . . . . . . . . . . . . . . . . 20
5. “Exceptions” and the internal logic of Article III . . .
6. The nature of ultimate appellate jurisdiction . . . . 24
B. Drafting History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
C. “Exceptions” as Constitutional Check on the Judiciary? 33
II. Genesis of the Great Misconception . . . . . . . . . . . . . . . . . . . . . . . 35
A. Wilson in Pennsylvania . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
B. Hamilton in New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
C. The Virginia Ratifying Convention . . . . . . . . . . . . . . . . . . 42
D. The Judiciary Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
E. Founding Judicial Decisions . . . . . . . . . . . . . . . . . . . . . . . . 57
1. Wiscart v. D’Auchy . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Marbury v. Madison . . . . . . . . . . . . . . . . . . . . . . . . . . 60
III. Relation between Article III and the Suspension Clause . . . . . 63
IV. A New Vision of Article III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
A. Reconciling Text and History . . . . . . . . . . . . . . . . . . . . . . . . .
B. Stare Decisis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
V. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
3
The Article III about which we learn in Federal Jurisdiction
class is a text at war with itself. That text invests the judicial Power of
the United States in “one supreme Court” and extends the judicial
Power to nine categories of matter. But Article III also lets Congress
make “Exceptions” to the categories of matter that the “one supreme
Court” can determine on appeal.2 Does the Exceptions power simply
let Congress move Article III matters from the one supreme Court’s
appellate jurisdiction to the Court’s original jurisdiction, or does the
power let Congress remove Article III matters from the Court’s
jurisdiction completely? As this article explains, both textual
coherence and drafting history demand the first interpretation. If the
judicial Power is to be vested in only one supreme Court and is to
extend to the matters listed in Article III, then the “one supreme
Court” must have ultimate power to decide the issues arising in all
Article III matters. Successive drafts at the Philadelphia Convention
reveal that the “Exceptions” language was meant only to let Congress
move Article III matters of particular importance to the one supreme
Court’s original jurisdiction. Yet current and longstanding orthodoxy
2
U.S. Const. Art. III §§ 1 and 2 cll. 1 and 2:
§1. The judicial Power of the United States, shall be vested in one supreme Court,
and in such inferior Courts as the Congress may from time to time ordain and
establish. The Judges, both of the supreme and inferior Courts, shall hold their
Offices during good Behaviour, and shall, at stated Times, receive for their Services
a Compensation, which shall not be diminished during their Continuance in Office.
§ 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under
this Constitution, the Laws of the United States, and Treaties made, or which shall
be made, under their Authority;--to all Cases affecting Ambassadors, other public
Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to
Controversies to which the United States shall be a Party;--to Controversies between
two or more States;- between a State and Citizens of another State;--between
Citizens of different States;--between Citizens of the same State claiming Lands
under Grants of different States, and between a State, or the Citizens thereof, and
foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those
in which a State shall be Party, the supreme Court shall have original Jurisdiction.
In all the other Cases before mentioned, the supreme Court shall have appellate
Jurisdiction, both as to Law and Fact, with such Exceptions, and under such
Regulations as the Congress shall make.
4
holds that the Exceptions power lets Congress deprive the one
supreme Court of jurisdiction over matters to which Article III
extends the judicial Power of the United States. Scholars differ in their
accounts of the extent to which deprivation may occur, and most
acknowledge that the Constitution’s commitment to a separation of
powers is at odds with letting Congress stop the one supreme Court
from deciding national legal issues. What, after all, is the purpose of
a separate Article III if it does not succeed in locating the “judicial
Power” that it defines in the “one supreme Court” that it creates?
Having conceded that the Exceptions power lets Congress deprive the
one supreme Court of ultimate judgment over at least some of the
matters to which Article III extends the judicial Power, courts and
scholars alike have been perplexed by an absence of concrete
constitutional criteria for identifying limits to such jurisdiction
stripping.
The prevailing orthodoxy concerning Congress’s Exceptions
power would never have survived for so long had Congress made
much use of it. Congress has rarely tried to take previouslyacknowledged jurisdiction from the one supreme Court. The reason
for that Congressional reluctance is structural. The Constitution’s
apportionment of legislative and executive powers among
independently-chosen actors in national and state governments makes
indispensable most Supreme Court determinations of government
power. Congress needs determinations of the reach of its own powers
from some source that the President and state governments will
respect. The only plausible candidate for umpire is the Court. But that
structural protection for the Court’s Article III jurisdiction may fail
when the Article III issue is government’s power to compromise the
interests of “discrete and insular minorities.”3 Having little or no
influence on the selection of legislators and executives in national and
state governments, minorities may lack any governmental champions
save the courts. Where consensus in the negative treatment of
minorities exists among national and state legislatures and executives,
Congress may be tempted to prevent the one supreme Court from
condemning that negative treatment. And those are precisely the
3
United States v. Carolene Products, 304 U.S. 144, 152 n. 4 (1938) (Stone, J.,
opinion of the Court).
5
circumstances in which Congress has recently sought to deprive the
one supreme Court of power to determine the legal limits of other
government actors’ powers. In the last two years, Congress has
actively considered removing the Court’s jurisdiction to determine the
legality of government action that involves negative treatment of
aliens, atheists, and gay people. Legislation purporting to remove
from the Supreme Court’s jurisdiction challenges to the legality of
aliens’ detention by the United States military at Guatanamo Bay,
Cuba, was enacted in 2005.4 In Hamdan v. Rumsfeld, a majority of the
Court treated the Act’s jurisdiction-stripping provisions as
inapplicable to pending cases, and thus avoided determining the
constitutionality of those provisions.5 Congress then passed further
legislation purporting to remove from the Supreme Court’s
jurisdiction challenges to the legality of aliens’ detention by the
United States anywhere, so long as the United States Government is
willing to call those aliens suspected enemy combatants.6 The new
legislation explicitly applies “to all cases, without exception, pending
on or after” its enactment.7 The legality of federal detentions has not,
however, been the only Article III issue recently at risk of attempted
Congressional removal from the Supreme Court’s jurisdiction.
Proposed legislation for removing from the Court’s jurisdiction all
challenges to the constitutionality of the Pledge of Allegiance as
defined in 4 U.S.C. § 4, or of that pledge’s recitation, was passed by
the House of Representatives in 2004.8 So was proposed legislation
4
Detainee Treatment Act 2005 § 1005 (e) and (h).
5
126 S.Ct. 2749, 2762-2770 (2006) (Stevens, J., opinion of the Court).
6
Military Commissions Act 2006 § 7.
7
Id., § 7(b).
8
Pledge Protection Bill 2004 § 2 (passed by the House of Representatives as
H.R. 2028 on September 23, 2004) and Pledge Protection Bill 2005 § 2 (introduced
to the House of Representatives and Senate respectively as H.R. 2389 and S.1046 on
May 17, 2005) (purporting to eliminate the Supreme Court’s jurisdiction to
determine the constitutionality of the Pledge of Allegiance as defined in 4 U.S.C. §
4 or of that pledge’s recitation). See also Constitution Restoration Bill 2005 § 101
(introduced to the House of Representatives and Senate respectively as H.R. 1070
and S. 520 on March 3, 2005) (purporting to eliminate the Supreme Court’s
6
removing from the Supreme Court’s jurisdiction all challenges to the
constitutionality of the Defense of Marriage Act.9
Congress’s alleged power to strip Article III’s one supreme
Court of jurisdiction over Article III matters is more pernicious than
a legislative power to override, or to deny effect to, judicial decisions.
Constitutional arrangements that let legislatures publicly secondguess judicial balancing of competing human interests in individualrights litigation create a public conversation about constitutional
norms.10 Where legislative “overrides” operate as responses to judicial
opinions, the community is afforded a visible constitutional dialogue
among its governing institutions about constitutionally-required and
politically appropriate protections.11 In contrast, jurisdiction-stripping
provisions preemptively rob the judiciary of capacity to contribute to
constitutional and other legal deliberation. Such provisions free
government actors’ exercise of power from judicial scrutiny and
rescue those actors from the risk of judicial critique. By removing
courts from constitutional and other legal discourse, jurisdictionstripping provisions may let government actors determine
conclusively and secretively the reach of their own powers. That
threat to liberty is exactly the evil that the Enlightenment’s separationof-powers principle was supposed to prevent.12
jurisdiction to determine the constitutionality of government actors’
“acknowledgment of God as the sovereign source of law, liberty, or government”).
9
Marriage Protection Bill 2004 § 2 (passed by the House of Representatives
as H.R. 3313 on July 22, 2004) and Marriage Protection Bill 2005§ 2 (introduced to
the House of Representatives as H.R. 1100 on March 3, 2005) (purporting to
eliminate the Supreme Court’s jurisdiction to determine the constitutionality of the
Defense of Marriage Act (28 U.S.C. § 1738C)).
10
See, e.g., Human Rights Act 1998 (U.K.), §§ 4 and 10. Cf. Canadian
Charter of Rights and Freedoms, § 33.
11
See Mark Tushnet, Policy Distortion and Democratic Debilitation:
Comparative Illumination of the Countermajoritarian Difficulty, 94 Mich.L.Rev.245
(1995).
12
Laurence Claus, Montesquieu’s Mistakes and the True Meaning of
Separation, 25 Oxford J. Legal Studies 419 (2005).
7
How did our Article III jurisprudence arrive at this unhappy
place? The origins of the current orthodoxy lie in debate surrounding
the ratification of the Constitution, and in particular the federalist
response to two widespread objections to Article III. Almost fatal to
the Constitution’s adoption was a complaint that the Supreme Court’s
appellate jurisdiction would let distant judicial elites substitute their
will for the findings of juries. The Court’s appellate jurisdiction over
questions of fact was accused of destroying the protection afforded
ordinary citizens by the privilege of trial by their peers. More
generally, antifederalists argued that the extent of Article III
jurisdiction took too much from state courts, which citizens could
access more easily. As this article recounts, the threat posed to the
Constitution’s prospects by these objections pushed federalists into
claiming that Congress’s power to make “Exceptions” to the Supreme
Court’s appellate jurisdiction would protect against the evils alleged.
That response necessarily construed the Exceptions power to let
Congress remove Article III matters from the Supreme Court’s
consideration completely, at the price of destroying Article III’s
linguistic coherence.
After tracing the distorting evolution of Article III
jurisprudence, this article proposes a new vision of the text that
minimizes the constitutional incoherence and political dangers posed
by its past distortion. The linguistically right answer is that Congress
can never use the Exceptions power to remove from the Supreme
Court an ability to give ultimate judgment of Article III matters, but
a fall-back view of the power that takes account of its postPhiladelphia history would reach the following conclusion: Congress
cannot use its Exceptions power to achieve particular desired answers
to questions that fall within the judicial Power of the United States.
The current orthodoxy arose from arguments at the founding
that Congress could use its Exceptions power to change the judicial
fora for determining Article III questions. Congress could leave to
state (or to inferior federal) courts the last word on questions of fact
in cases where facts had been determined at trial by a jury, and
Congress could leave to state (or to inferior federal) courts the
ultimate judgment of cases seeking damages or criminal penalties
where the amount of controversy or size of penalty was small. Such
8
forum-shifting provisions are authentically about protecting litigants
qua litigants. They are cousins of the forum-shifting provisions
contemplated by the text as originally drafted, which were provisions
for shifting politically-sensitive cases up into the Supreme Court’s
original jurisdiction. None of these provisions are means to let
Congress dictate its own answers to Article III questions. Statutes that
remove jurisdiction from Article III’s one supreme Court by reference
to the Article III questions at issue may be devices for dictating
Congress’s preferred answers to Article III questions. A principled
and effective limitation on the “Exceptions” orthodoxy that would
minimize its dissonance with the rest of the constitutional scheme is,
therefore, that Congress can remove matters from the Supreme
Court’s jurisdiction never by reference to issue, but only by reference
(1.) to prior jury adjudication of the issues comprising those matters,
or (2.) to adjudicative stakes in civil damages claims or in criminal
prosecutions.13 Moreover, Congressional exercise of the Exceptions
power to remove matters from the Supreme Court’s jurisdiction can
serve only the purpose of leaving the last word in defined cases to
other Article III federal courts or to extant state courts. The power can
never be used to leave parties with no access to judicial fora for
resolving Article III matters.
Early in the deliberations of the Philadelphia Convention, John
Rutledge identified the essential purposes of the federal judiciary as
being “to secure the national rights & uniformity of Judgmts.” He
argued that appellate jurisdiction in a national supreme Court would
sufficiently serve those purposes.14 A principle that Congress cannot
make exceptions to the Supreme Court’s appellate jurisdiction by
reference to issue is essential to fulfilling Article III’s purposes. An
intuition that some such principle must exist was displayed even by
the Reconstruction Supreme Court,15 despite its acquiescence in
Congressional jurisdiction stripping with respect to claims from the
13
See Sections II and IV, infra.
14
I Max Farrand (ed.), Records of the Federal Convention, 124 (1911) (June
5, 1787) (Madison’s notes).
15
United States v. Klein, 80 U.S. (13 W all.) 128, 145-48 (1872).
9
defeated South.16 A principle that prohibits “issue” exceptions would
concretize Henry Hart’s famous assertion that “the exceptions must
not be such as will destroy the essential role of the Supreme Court in
the constitutional plan.”17 Such a principle would comport with
Leonard Ratner’s formulation that Congressional exceptions must not
preclude “Supreme Court review in every case involving a particular
subject.”18 Hart and Ratner argued that such a limitation should be
understood to flow from the Constitution’s general structure and from
the longstanding practice of judicial review. They read the text of
Article III to impose no explicit limitation on Congress’s ability to
remove the Supreme Court’s appellate jurisdiction. This article
explains why the text of Article III gives Congress no ability to remove
the Supreme Court’s jurisdiction. It is those who wish to use
Congress’s Exceptions power to remove jurisdiction who must rely
solely on two centuries of institutional practice. As this article will
show, that institutional history does not support letting Congress limit
the Supreme Court’s jurisdiction by reference to issue.
I. The Original Article III
A.. Linguistic Structure
1. What it means to be “supreme”
Article I of the Constitution provides that “[a]ll legislative
Powers herein granted shall be vested in a Congress...”. Article II
provides that “[t]he executive Power shall be vested in a President...”.
Article III provides, congruently, that “[t]he judicial Power of the
United States, shall be vested in one supreme Court and” in any other
courts that Congress creates. “Shall” does not always mean “must,”19
16
Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869).
17
Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of
Federal Courts: An Exercise in Dialectic, 66 Harv.L.Rev. 1362, 1365 (1953).
18
Leonard G. Ratner, Congressional Power Over the Appellate Jurisdiction
of the Supreme Court, 109 U.Pa.L.Rev. 157, 201 (1960).
19
See, e.g., Town of Castle Rock v. Gonzales, 125 S.Ct. 2796, 2805-06 (2005).
10
but if the opening “shalls” of Articles I and II do, then, congruently,
so does the opening “shall” of Article III.
In Article III, “supreme” is not a title, it is a description.20 The
compulsory “one supreme Court” is not upper-case Supreme, it is
lower-case supreme. The text is no more concerned with what the
Court will be called than with whether the Court’s members will be
called “Justices” or “Judges.”21 The text is concerned with substance.
The reason that the text refers to the “judicial Power of the United
States,”not just “the judicial Power,” after the style of “[a]ll legislative
Powers herein granted,” and “[t]he executive Power,” is that in
Articles I and II the text is supplying a title, not just a description, and
reference to the United States is to appear in that title. Article I
provides that “[a]ll legislative Powers herein granted shall be vested
in a Congress of the United States... .” Article II provides that “[t]he
executive Power shall be vested in a President of the United States of
America.” These are both singular, and the text could have
congruently provided that the judicial Power be vested in “a Supreme
Court of the United States, and in such inferior courts as the Congress
may from time to time ordain and establish.” But the founders chose
to emphasize that the judicial Power was to belong to one
substantively supreme court by stipulating the singular and using
lower case: “The judicial Power of the United States, shall be vested
in one supreme Court ... .”
What, then, makes the “one supreme Court” substantively
supreme? Article III expresses the one Court’s supremacy as a relation
to “the judicial Power of the United States,” and makes that relation
unique by calling any other courts that Congress creates to exercise
the judicial Power “inferior.” Article III then defines the judicial
Power to reach nine categories of matter. The one Court’s supremacy
is, therefore, a unique relation to nine categories of matter. What is the
nature of that unique relation? Having the last word on issues arising in
20
See James E. Pfander, Federal Courts: Jurisdiction-Stripping and the
Supreme Court’s Power to Supervise Inferior Tribunals, 78 Tex.L. Rev. 1433, 1455
n. 8 (2000).
21
U.S. Const. Art. III §1.
11
those nine categories of matter. Article III supremacy relates to the
adjudication of subject matter, and the only plausible relation of
judicial supremacy to the adjudication of subject matter involves
power to give ultimate judgment on issues arising within that subject
matter.
When the Constitution calls itself, federal law, and national
treaties, “the supreme Law of the Land,” it means that those sources
of law apply “any Thing in the Constitution or Laws of any State to
the Contrary notwithstanding.”22 When the Constitution vests “[t]he
judicial Power of the United States” in “one supreme Court,” it means
that the decisions of that Court determine issues that fall within the
judicial Power of the United States, anything in the reasoning of other
bodies to the contrary notwithstanding. Use of “supreme” to
characterize law in Article VI has always and universally been
understood to have substantive constitutional consequences. Why
would that be less true for use of “supreme” to characterize the one
Court created in Article III?
The Virginia Plan presented to the Philadelphia Convention on
May 29, 1787, supports the conclusion that supremacy means
ultimacy. That plan, around which the Convention’s deliberations
revolved, proposed “that a National Judiciary be established to consist
of one or more supreme tribunals, and of inferior tribunals to be
chosen by the National Legislature... .”23 The proposal seems to have
contemplated that the judicial Power of the United States might be
divided up by subject and those subjects respectively placed under
the care of separate supreme courts. There could, for example, have
been a supreme admiralty court, a supreme constitutional court, and
a supreme court for federal questions that were answerable without
constitutional exposition. The founders’ recognition that adjudicative
consistency was one of the primary reasons to have a federal judicial
system suggests that geographic coverage was not the contemplated
criterion for distinguishing multiple federal supreme courts from each
22
U.S. Const. Art. VI § 2.
23
I Farrand, op cit n. 14, 21 (Madison’s notes).
12
other.24 To have a geographic apportionment of federal jurisdiction
among multiple federal supreme courts would have served the goal
of uniformity no better than leaving the whole judicial function to
state courts. The founders’ vision of multiple federal supreme courts
seems to have contemplated an apportionment of supremacy by
subject matter, not territory. But to apportion supremacy by subject
was necessarily to apportion ultimate judgment by subject. A
supreme admiralty court could not, for example, have had the last
word on a constitutional issue, for ultimate power to decide that issue
would by definition have belonged to the supreme constitutional
court.
The Philadelphia Convention decided not to apportion ultimate
judgment among multiple tribunals by reference to subject matter.
The Convention chose instead to relate all matters within the judicial
Power of the United States to one supreme Court.25 That choice, given
its alternative, was a choice to invest one Court with power to give
ultimate judgment on all issues arising within the judicial Power of
the United States.
Congress is welcome to exercise its legislative power “[t]o
constitute Tribunals inferior to the supreme Court.”26 Courts so
created may share in the judicial Power of the United States. But in
sharing that Power, those courts must remain inferior to “one supreme
Court.” Their exercise of the judicial Power can never be supreme. If
supremacy in Article III means power to give ultimate judgment, then
no inferior court should be invested with power to have the last word
on a matter that falls within the judicial Power of the United States.
Whether the judgments of inferior courts prove to be the last word on
the matters that those courts decide should depend on whether the
one supreme Court chooses to exercise its power of ultimate
judgment. If an issue falls within the judicial Power of the United
States, then the power to decide that issue is vested in “one supreme
24
Id., 124 (June 5, 1787).
25
Id., 95 (Journal), 104-5 (Madison’s notes) (June 4, 1787).
26
U.S. Const. Art. I § 8 cl. 9.
13
Court and,” not “or,” any other courts that Congress creates to decide
the issue.
Article I’s provision for Congressional power “[t]o constitute
Tribunals inferior to the supreme Court” is conspicuous for what it
lacks, namely any Congressional power “to constitute the supreme
Court.” The Constitution itself does that. The “shalls” of Article III
impose a duty on Congress to provide for the Court constituted by
Article III, and the necessary-and-proper clause of Article I § 8 cl. 18
empowers Congress to make that provision for carrying into
execution the judicial Power. As surely as the Constitution creates the
Court, the Constitution creates the Court’s jurisdiction, for the Court’s
identity is inseparable from that jurisdiction. Congress has not
fulfilled its constitutional duty to provide for Article III’s Supreme
Court unless Congress has provided for a body that has power to give
ultimate judgment on all matters to which the judicial Power extends.
A Court that does not have power to give ultimate judgment on all of
those matters is simply not the “one supreme Court.” If it has power
to give ultimate judgment on only some Article III matters, then it is
a supreme Court, but it is not the only one. If power to have the last
word on any matter to which the Constitution extends the judicial
Power of the United States is given to, or defaults to, a body other
than the “one supreme Court,” then another supreme court, within
the meaning of the Virginia delegation’s resolutions, is established,
and the Constitution’s requirement that the judicial Power be vested
in only “one supreme Court” is violated. If the other body is created
by Congress, then the Constitution’s requirement that all other federal
tribunals be “inferior to” the “one supreme Court” is violated too. If
the constitutionally-described jurisdiction in one tribunal does not
exist, then the constitutionally-described Court does not exist.
2. Alternative meanings of supremacy
(i.) Supervision of “inferior” federal courts
James Pfander has argued that the one supreme Court’s
supremacy implies power to review the decisions of courts “inferior”
14
to it in the federal judicial hierarchy.27 On Pfander’s view, the
Exceptions power may let Congress deprive the one supreme Court
of the last word on Article III issues, but the effect of doing so cannot
be to leave ultimacy to other federal courts. If Congress commits
adjudication of matters to federal courts of its own creation, then the
inferior status of those courts precludes Congress from rendering
their jurisdiction exclusive. An irremovable power in the one supreme
Court to review inferior federal court decisions follows from the
Constitution’s characterization of the Court as supreme and of other
federal courts as “inferior to the supreme Court.”
Pfander’s vision of Article III judicial supremacy comports with
claims made during the ratification debates that the purpose of
Congress’s Exceptions power was to leave Article III matters to
ultimate adjudication by state courts. But Article III’s one supreme
Court is to deserve that description regardless of whether Congress
creates inferior federal courts. The Court’s singularity and supremacy
describe not merely a relation to any inferior federal courts, but a
relation to the judicial Power of the United States.
Suppose that Congress had never taken up the Constitution’s
invitation to create inferior federal courts. Suppose further that
Congress had nonetheless purported to exercise its Exceptions power
to leave ultimate jurisdiction over “all Cases ... arising under this
Constitution” to state courts, by providing that the national
“supreme” Court’s jurisdiction should not extend to such cases.
Would the Constitution’s command that the judicial Power of the
United States be vested in “one supreme Court” still be obeyed?
This hypothetical seeks to highlight two features of Article III.
First, Article III supplies no metric for determining relative
significance of Article III matters. The text affords no basis for
concluding that the one supreme Court’s singularity and supremacy
can survive loss of ultimate jurisdiction over some Article III matters
27
See Pfander, op cit n. 20, and James E. Pfander, Marbury, Original
Jurisdiction, and the Supreme Court’s Supervisory Powers, 101 Colum. L.Rev. 1515
(2001). Cf. Amy Coney Barrett, The Supervisory Power of the Supreme Court, 106
Colum. L. Rev. 324 (2006).
15
but not others. Second, to let another body have ultimate judgment of
an Article III matter is to invest that body with supremacy in respect
of that matter and thus to transform the system into the kind
contemplated by the Virginia delegation’s resolutions for “one or more
supreme tribunals.” The Convention rejected that vision in favor of
having only one supreme Court.
(ii.) Precedential authority
Evan Caminker has argued that the one supreme Court’s
supremacy implies precedential authority in respect of Article III
issues vis-à-vis other federal and state courts.28 But as he concedes,
precedential authority “makes little practical sense”29 unless linked to
ultimate judgment of legal issues. If supremacy entails no more than
precedential authority, could the 1953 Congress have removed the
Supreme Court’s power to adjudicate equal protection claims and left
lower courts bound by Plessy v. Ferguson?30
Caminker suggests that a corollary of lower court ultimacy on
an issue might be the mere persuasiveness of Supreme Court
precedent on that issue.31 Vestigial precedential authority seems an
implausible candidate for the constitutionally-required relation
between the “one supreme Court” and the matters to which Article III
extends the judicial Power of the United States. The “judicial Power”
that Article III vests in one supreme Court is a power, not just a bully
pulpit. That power is defined to extend to nine categories of matter.
A judicial power that applies to categories of matter is a power to
decide the sets of issues arising in those categories of matter. To be
invested with that judicial Power as “one supreme Court” is to have
power to decide ultimately all of those issues.
28
See Evan Caminker, Why Must Inferior Courts Obey Superior Court
Precedents? 46 Stan. L.Rev. 817, 868 (1994).
29
Id., 835.
30
163 U.S. 537 (1896) (overruled in Brown v. Board of Education, 347 U.S.
483 (1954).
31
Caminker, op cit n.28, 869.
16
(iii.) “General” jurisdiction
In his Commentaries on the Laws of England, Blackstone used the
term “supreme” sometimes to connote ultimate responsibility for
deciding a set of legal issues32 and sometimes just to connote primary
responsibility for deciding a set of legal issues.33 The Constitution
shares with such usages a focus on subject matter. But the goal of
Blackstone’s writings was very different from that of the Constitution,
and that difference in purpose is relevant to usage. Blackstone sought
to describe the universe of convoluted existing jurisdictional
arrangements that had evolved in somewhat topsy turvy fashion over
centuries of English adjudication. The Constitution’s framers sought
to create a coherent distribution of power among political actors.
When the Constitution distinguishes one court from others by calling
the one supreme and the others inferior in relation to the Constitution’s
vesting of judicial Power, it must be construed to be drawing a clear
distinction in role, not merely noticing, as Blackstone did, that one
court had contributed more to creating a particular body of law than
had others.
The American federal judicial system functions under a
document that calls one Court supreme in relation to a list of matters
defined by subject or party, regardless of whether Congress chooses
to create inferior federal courts.34 The Constitution does not call one
Court supreme to signal that the Court’s jurisdiction uniquely has no
monetary upper limit, and the founders promptly proceeded to create
“inferior” federal courts that likewise had no monetary upper limits
on their jurisdictions.35 Nor does the Constitution distinguish the one
Court from any others by reference to geographic reach. Congress
could, had it wished, have created a single intermediate appellate
32
III William Blackstone, Commentaries on the Laws of England, Ch. 4,
56 (1768) (describing the House of Lords as “the supreme court of judicature in the
kingdom”).
33
Id., Ch. 4, 41 (describing the Court of King’s Bench as “the supreme court
of common law in the kingdom”).
34
Cf. Michael L. Wells and Edward J. Larson, Original lntent and Article III,
70 Tul.L.Rev. 75, 103-4 (1995); David E. Engdahl, What’s in a Name? The
Constitutionality of Multiple “Supreme” Courts, 66 Ind.L.J. 457 (1991).
35
Judiciary Act of 1789, 1 Stat. 73, §§ 11, 12.
17
court for the whole United States. And the Virginia Plan’s provision
for “one or more supreme tribunals”36 suggests that the founders did
not use the word “supreme” merely to connote jurisdiction over a
distinctively wide range of issues – that is, to connote a court of
uniquely general, as distinct from specialized, jurisdiction. The one
Court’s supremacy is expressed by the Constitution as a relation to
the adjudication of issues.37 Supremacy in the adjudication of issues
means ultimacy.
3. To what must the judicial Power extend?
The second section of Article III opens with a “shall” as
unqualified as the “shall” that vests legislative Powers in a Congress,
the “shall” that vests the executive Power in a President, and the
“shall” that vests the judicial Power in “one supreme Court and” any
other courts that Congress creates. The Constitution invests those who
hold the judicial Power of the United States with power to decide any
and all matters that fall within the nine categories listed.
Akhil Amar has contended that Congress may prevent the
judicial Power from extending to most matters in the six
“controversy” categories. He notes that the three “case” categories
each begin with the word “all,” while the six “controversy” categories
do not.38 But there is a better explanation for that textual difference.
Here is how the categories looked in the Report of the Committee of
Detail, delivered to the Convention on August 6, 1787:
The Jurisdiction of the Supreme Court shall extend to all
cases arising under laws passed by the Legislature of
the United States; to all cases affecting Ambassadors,
other Public Ministers and Consuls; to the trial of
impeachments of Officers of the United States; to all
36
I Farrand, op cit n. 14, 21 (Madison’s notes).
37
See I Joseph Story, Commentaries on the Constitution of the United States,
347, 357 (1833).
38
Akhil Reed Amar, A Neo-Federalist View of Article III: Separating the
Two Tiers of Federal Jurisdiction, 65 B.U.L.Rev. 205 (1985); Akhil Reed Amar,
Article III and the Judiciary Act of 1789: The Two-Tiered Structure of the Judiciary
Act of 1789, 138 U.Pa.L.Rev. 1499 (1990).
18
cases of Admiralty and maritime jurisdiction; to
controversies between two or more States, (except such
as shall regard Territory or Jurisdiction) between a State
and Citizens of another State, between Citizens of
different States, and between a State or the Citizens
thereof and foreign States, citizens or subjects.39
At that stage of the proceedings, the “controversy” categories were all
tied to a single expression of the word “controversy” and led off with
disputes between states. But not all of those controversies were to be
resolved by the federal courts. Until very late in the life of the
Convention, controversies between states concerning territory or
jurisdiction were expected to end up before ad hoc tribunals
established by the Senate.40 On August 24, the provision for ad hoc
tribunals was struck out as, in John Rutledge’s words, “rendered
unnecessary by the National Judiciary now to be established.”41 The
explicit exception from the “controversy” categories of controversies
between states concerning territory or jurisdiction incongruously
survived, however, in the draft of Article III that went to the
Committee of Style on September 10.42 The exception’s survival was
necessarily an oversight. It was caught in committee, in the twilight
of the Convention. Meanwhile, on August 27, James Madison and
Gouverneur Morris “moved to insert after the word `controversies’
the words `to which the U-- S-- shall be a party.’”43 That amendment
occurred without recorded debate. Selective use of “all”in Article III
§ 2 cl. 1 is a relic of drafting history, rendered linguistically
inconsequential by the imperative “judicial Power shall extend” that
applies to all nine categories.
Even if a “two-tier” analysis of the Article III categories were
apt, the tiers do not plausibly distinguish matters that merely may fall
within the judicial Power from matters that must. A more plausible
basis for two-tier analysis would be a distinction between exclusive
39
II Farrand, op cit n. 14, 186 (Madison’s notes).
40
Id., 183-5.
41
Id., 401.
42
Id., 576.
43
Id., 430 (Madison’s notes).
19
federal jurisdiction and federal jurisdiction held concurrently with the
jurisdiction of state courts.44 The exclusive-versus-concurrent
distinction, like the possibility of Congress preventing the judicial
Power from extending to all matters listed in Article III, was a subject
of much debate and uncertainty at the founding.45 But the exclusiveconcurrent distinction, unlike the Congressional jurisdiction-stripping
possibility, comfortably fits the text’s combination of a selectivelyused “all” in relation to Article III categories and an imperative
“judicial Power shall extend” that applies to all nine categories.
The founders’ choice to call some of the Article III § 2 cl. 1
categories “Cases” and others “Controversies” seems to do no more
than distinguish definitions by subject from definitions by party.46
44
Cf. Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 328-336 (1816) per
Story, J.
45
See Luther Martin, The Genuine Information, delivered to the Legislature
of Maryland, 1788 (expanded version of his Nov. 29, 1787 address to the legislature)
in III Farrand op cit n. 14, 220-1 and in II Herbert J. Storing, The Complete
Antifederalist, 69-70 (1981); A [Maryland] Farmer, No. 6, April 1, 1788, V Storing,
53-4; Alexander Hamilton, Federalist No. 82 and Federalist No. 81 n. 4; James
Wilson, Pennsylvania ratifying convention, II Jonathan Elliot, Debates in the Several
State Conventions on the Adoption of the Federal Constitution, 481 (1836) (Dec. 7,
1787) (suggesting exclusive federal jurisdiction), 491 (suggesting concurrent federalstate jurisdiction); John Marshall, Virginia ratifying convention, III Elliot’s Debates,
id., 554 ( June 20, 1788); Samuel Johnston, North Carolina ratifying convention, IV
Elliot’s Debates, id., 141 (July 28, 1788); Letter from Timothy Pickering to Charles
Tillinghast, Dec. 24, 1787, in II Charles W. Upham, The Life of Timothy Pickering,
366-7 (1873). See also Fisher Ames in debate over the Judiciary Bill, Aug 29, 1789:
“offences against statutes of the United States, and actions, the cognizance whereof
is created de novo, are exclusively of federal jurisdiction.” I Annals of Congress 839
(1834) (Cf. James Madison, James Jackson, William Loughton Smith, Elbridge Gerry,
and Samuel Livermore in the same debate: I Annals of Congress 812-66);
Gouverneur Morris in the United States Senate, Jan. 14, 1802: “That the original
jurisdiction of various subjects being given exclusively to [inferior federal courts],
it became the bounden duty of Congress to establish such courts.” XI Annals of
Congress 86 (1851); Alexander Hamilton, Jan. 2, 1802: “the right to employ the
agency of the State Courts for executing the laws of the Union, is liable to question,
and has, in fact, been seriously questioned.” The Examination No. 6, Jan. 2, 1802, in
XXV Harold C.Syrett et al. eds., The Papers of Alexander Hamilton, 488 (1977).
46
See, however, the suggestion that “all cases” embrace both civil and
criminal matters, while “controversies” refer only to civil litigation: Daniel J.
Meltzer, The History and Structure of Article III, 138 U.Pa.L.Rev. 1569 (1990); John
Harrison, The Power of Congress to Limit the Jurisdiction of Federal Courts and the
Text of Article III, 64 U.Chi.L.Rev. 203 (1997).
20
Cases affecting diplomats are defined by subject (namely, their effect
on diplomats), not party, because diplomats would in the ordinary
course have been immune from process under public international
law, and thus might not technically have been parties to suits affecting
their interests.47 Even where diplomats were the complainants, the
United States Government showed willingness to initiate litigation in
its own name on their behalf.48
4. The syllogism summarized
So far we have considered the text of Article III §1 and of
Article III § 2 cl. 1. That text forms a syllogism:
Premise 1: “The judicial Power of the United States, shall be vested in
one supreme Court, and” in any inferior courts that Congress creates.
Premise 2: “The judicial Power shall extend to” the nine categories of
matter listed in Article III § 2 cl. 1.
Conclusion: The Constitution invests one supreme Court with power
to decide ultimately every matter that lies within the nine categories
listed in Article III §2 cl. 1.
5. “Exceptions” and the internal logic of Article III
Article III §1 and Article III § 2 cl. 1 together define the one
supreme Court’s jurisdiction. Article III §2 cl. 2 divides that predefined jurisdiction between matters to be decided by the Court at
first instance and matters to be decided by the Court on appeal. The
clause literally provides that sometimes the one supreme Court is to
be the only judicial body with power to decide a matter. If the matter
involves a diplomat or a state party, then the one supreme Court is to
have both first and last word. The Supreme Court’s power to decide
matters on appeal is limited to “all the other Cases before mentioned.”
The two sentences in Article III §2 cl. 2 are interdependent. The one
47
Cf. Judiciary Act 1789 § 13, which provides for the Supreme Court to
exercise exclusively such jurisdiction of proceedings against diplomats or their staff
“as a court of law can have or exercise consistently with the law of nations.”
48
See United States v. Lawrence, 3 U.S. (3 Dall.) 42 (1795).
21
supreme Court’s appellate jurisdiction reaches the residue of Article
III matters not covered by the Court’s constitutionally-specified
original jurisdiction.
Article III’s distribution clause was designed to give the one
supreme Court original jurisdiction over the classes of legal dispute
that had most obvious potential to threaten national security. These
were the legal disputes that had the potential to snowball into the two
scenarios in which the Constitution permitted Congress under its war
powers to close down the courts in respect of detentions, namely,
rebellion or invasion.49Legal disputes involving state governments
posed a background risk of civil war. If Article III litigation involving
a state were allowed to begin in state court, and if the state supreme
court and the United States supreme Court on appeal reached
different conclusions, with the national court’s decision adverse to the
state, then the risk of state non-compliance with the national court’s
judgment would likely be greater. Legal disputes involving the
representatives of foreign governments posed a background risk of
foreign war. The use of “State” in Art. III §2 cl. 2's original-jurisdiction
sentence is vague and might have been meant to embrace suits to
which foreign states were parties too, as Art. III §2 cl. 1 capitalizes the
word “State” both when referring to domestic states and when
referring to foreign states, though unqualified use of the word “State”
in other constitutional contexts clearly refers only to domestic states.
If Article III litigation involving a diplomat were allowed to begin in
state court, then one state might compromise the nation’s foreign
relations, perhaps even catapulting the nation into international
conflict.50
The second sentence of Article III §2 cl. 2 recognizes that
Congress may designate other politically-sensitive cases for firstinstance attention in the Supreme Court. The linguistic structure of
Article III shows this to be the purpose of Congress’s power to make
“Exceptions” among the “other Cases before mentioned.” The
49
50
U.S. Const. Art. I § 9 cl. 2.
Cf. James Madison at the Virginia ratifying convention: “Could there be
a more favorable or eligible provision to avoid controversies with foreign powers?
Ought it to be put in the power of a member of the Union to drag the whole
community into war? As the national tribunal is to decide, justice will be done.” III
Elliot’s Debates, op cit n. 45, 533-34 (June 20, 1788).
22
Supreme Court’s power to decide Article III matters is like a fenced
field containing two pastures. Congress has power to remove matters
from the appellate pasture, but that action does not let those matters
escape the field, it just shifts them to the original pasture. Congress’s
Exceptions power is a power to move selected Article III matters from
the Court’s large residual appellate jurisdiction to join the list of
Article III matters in the Court’s original jurisdiction. This conclusion
follows from three features of the text: (1) the airtight syllogism of
“shalls” that dictates in whom the judicial Power vests and to what
the judicial Power extends; (2) the requirement that the Court’s
relation to the judicial Power be singular and supreme; and (3) the
source of Congress’s power to make “Exceptions” to the Court’s
appellate jurisdiction.
Article III is not the source of the legislative powers to which it
refers.51 If it were, then the Constitution would not separately invest
Congress with power “[t]o constitute Tribunals inferior to the
supreme Court.”52 The Virginia Plan’s resolution “that a National
Judiciary be established to consist of one or more supreme tribunals,
and of inferior tribunals to be chosen by the National Legislature”53
establishes that the term “tribunal” was used by the founders as a
synonym for “court.” Congress’s legislative power to make exceptions
to the Supreme Court’s appellate jurisdiction comes from Article I §8
cl. 18, which confers power to “make all laws which shall be necessary
and proper for carrying into Execution the foregoing Powers and all
other Powers vested by this Constitution in the Government of the
United States, or in any Department or Officer thereof.” Any
exception that Congress makes to the Supreme Court’s appellate
jurisdiction must be “necessary and proper for carrying into
Execution” the judicial Power of the United States, or some other
Power that the Constitution confers, consistent with Article III’s vesting
of the judicial Power in one supreme Court and with Article III’s
extension of the judicial Power to all nine listed categories of matter.
The “necessary and proper” criterion authorizes laws that genuinely
carry the Constitution into execution, not laws that change the
51
The term “legislative” is here used as a synonym for “Congressional,”
that is, in an institutional, not an essentialist, sense. See Claus, op cit n. 12, 442-445.
52
U.S. Const. Art. I § 8 cl. 9.
53
Farrand, op cit n. 14, 21 (Madison’s notes).
23
Constitution’s character. To remove the one supreme Court’s
appellate jurisdiction over an Article III matter is to deprive the Court
of supremacy with respect to that matter, unless the matter reappears
in the Court’s original jurisdiction. None of this calls for Congress to
do any “vesting” – power to decide all matters within Article III is by
the Constitution vested in the Supreme Court. All that the text’s
reference to “Exceptions” does is acknowledge that a law providing
for some matter of national importance to come directly to the Court
without prior adjudication is authorized by Congress’s power to make
laws necessary and proper for carrying into execution the judicial
Power. Congress may switch the route by which cases come to the
Supreme Court. But a law that purports simply to eliminate the
Supreme Court’s power to decide an Article III matter is not
authorized by Congress’s power to make laws necessary and proper
for carrying into execution the judicial Power, or for carrying into
execution some other constitutionally-conferred Power, for the
judicial Power extends to the excluded matter and is already vested
in the one supreme Court.
This “route-switching” understanding of Congress’s
Exceptions power explains why the power applies only to the
Supreme Court’s appellate jurisdiction and not to the Court’s original
jurisdiction. If politically sensitive disputes were to be litigated, the
founders definitely wanted those law suits to be channeled to the
Supreme Court, and they thought that the class of such suits would
at least include any cases involving diplomats or state parties. If the
orthodoxy were correct, and Congress’s Exceptions power were a
power to eliminate Supreme Court jurisdiction over Article III matters
completely, then putting the Court’s original jurisdiction beyond the
reach of that Exceptions power makes less sense. If Congress’s
Exceptions power were a license for Congress to let some political
actor or actors other than the Supreme Court decide the answers to
some Article III questions, would not questions affecting diplomats
have been near the top of the list of likely candidates for such
treatment? Given the political sensitivity of matters involving
diplomats, might not they have been as likely suitable as any category
of Article III jurisdiction for designation as political questions? Those
matters were assigned to the Court’s irreducible original jurisdiction,
which supports the view that the Exceptions power was not
contemplated to let Congress remove supreme Court jurisdiction – at
least not for the purpose of letting the elected branches conclusively
determine the answers to Article III questions.
24
6. The nature of ultimate appellate jurisdiction
Sometimes the Constitution explicitly accompanies its vesting
of a power with duties to exercise that power.54 The original
Constitution did not, however, explicitly impose a duty on members
of the Supreme Court to determine all matters falling within the
judicial Power, any more than it imposed a duty on members of
Congress to use all of their legislative powers. The concept of ultimate
appellate jurisdiction did not inherently imply an obligation to
adjudicate – quite the contrary. The House of Lords’ stature in Britain
as “the Supreme Court of Judicature to which all persons aggrieved
... did apply themselves for relief”55 carried a discretionary jurisdiction.
Parties aggrieved by adjudications of the King’s courts petitioned “the
King in Parliament”56 and the Lords’ reception of those petitions for
re-adjudication was in principle as discretionary as their reception of
petitions for new legislation.57
The due process clause of the fifth and fourteenth amendments
may oblige the Supreme Court to determine Article III matters
affecting lives, liberty or property to the extent that those matters
54
See, e.g., U.S. Const. Art. II § 3.
55
Denzil Holles, 1st Baron Holles, The Case Stated Concerning the
Judicature of the House of Peers in Points of Appeals, 45 (1675).
56
Robert Stevens, Law and Politics: The House of Lords as a Judicial Body,
1800-1976, 6 (1978). Cf. Appellate Jurisdiction Act, 1876 (UK) §§ 4 (“Every appeal
shall be brought by way of petition to the House of Lords, praying that the matter
of the order or judgment appealed against may be reviewed before Her Majesty the
Queen in her Court of Parliament, in order that the said Court may determine what
of right, and according to the law and custom of this realm, ought to be done in the
subject-matter of such appeal.”), 11 (“An appeal shall not lie from any of the courts
from which an appeal to the House of Lords is given by this Act, except in manner
provided by this Act, and subject to such conditions as to the value of the subjectmatter in dispute, and as to giving security for costs, and as to the time within
which the appeal shall be brought, and generally as to all matters of practice and
procedure, or otherwise, as may be imposed by orders of the House of Lords.”).
57
Stevens, id.; James S. Hart, Justice Upon Petition: The House of Lords and
the Reformation of Justice 1621-1675, 3-4, 18-19, 36-37, 224, 260 (1991); III
Blackstone, op cit n. 32, Ch. 27, 454.
25
would not otherwise receive fair adjudication.58 Beyond that,
Congress has power to impose duties to adjudicate. The Court’s
appellate jurisdiction is exercisable “under such Regulations as the
Congress shall make,” and the necessary-and-proper clause is the
source of Congress’s legislative power to make those regulations.
Congress may make appellate review as-of-right, or it may conform
its regulation to the constitutional default position and allow the
Court to decide which matters within its appellate jurisdiction will
receive substantive adjudication.59 But a regulation that purported to
deny the Court power to determine an Article III matter would not be
necessary and proper for carrying into Execution the judicial Power
that is already vested in the Court. And such a transformation of
constitutional structure would not be necessary and proper for
carrying into execution any other Power that the Constitution confers
either.
B. Drafting History
In none of the plans presented to the Philadelphia Convention
by Edmund Randolph of Virginia, William Paterson of New Jersey,
Alexander Hamilton of New York, and Charles Pinckney of South
Carolina, was Congress given any power over the Supreme Court’s
jurisdiction.60 Neither did any such power appear in the Convention’s
resolutions concerning the judiciary that were referred to a Committee
of Detail on July 23, 1787,61 “for the purpose of reporting a
Constitution conformably to the Proceedings aforesaid.”62 The first
reference to a Congressional power to make exceptions to the
Supreme Court’s appellate jurisdiction appeared in a draft prepared
during committee deliberations by Edmund Randolph and edited by
John Rutledge (angle brackets <>). After setting forth the precursors
to Article III §§ 1 and 2 cl. 1, the draft continued:
58
Cf. Laurence H. Tribe, I American Constitutional Law, 3rd ed., § 3-5, 273
59
See 28 U.S.C. §§ 1254, 1257.
60
I Farrand, op cit n. 14, 21-22, 244, 292, III id., 600.
61
II id., 85, 132-133.
62
Id., 85 (Journal).
(2000).
26
But this supreme jurisdiction shall be appellate only,
except in <Cases of Impeachmt. & (in)> those instances,
in which the legislature shall make it original. and the
legislature shall organize it
8. The whole or a part of the jurisdiction aforesaid
according to the discretion of the legislature may be
assigned to the inferior tribunals, as original tribunals.63
A subsequent draft by James Wilson, again edited by Rutledge,
provided:
In Cases of Impeachment, (those) <Cases> affecting
Ambassadors (and) other public Ministers <&
Consuls>, and those in which a State shall be (one of
the) <a> Part(ies)<y>, this Jurisdiction shall be original.
In all the other Cases beforementioned, it shall be
appellate, with such Exceptions and under such
Regulations as the Legislature shall make. The
Legislature may (distribute) <assign any part of> th(is)e
Jurisdiction <above mentd.,--except the Trial of the
Executive-->, in the Manner and under the Limitations
which it shall think proper (among) <to> such (other)
<inferior> Courts as it shall constitute from Time to
Time.64
In Randolph’s draft, “except” refers to Congressional choice to
move matters from the Supreme Court’s appellate jurisdiction to the
Court’s original jurisdiction. Randolph provided separately for
Congressional choice to assign original jurisdiction to inferior federal
courts, and recognized that Congress might choose not to do so even
for matters that stayed in the Supreme Court’s appellate jurisdiction;
state courts could adjudicate matters at first instance. Rutledge’s edits
to Randolph’s draft began the process of prescribing an original
jurisdiction, by stipulating that the Court’s jurisdiction over
impeachment trials should be original.
Wilson’s draft builds on Rutledge’s suggestion of a
63
Id., 147.
64
Id., 173.
27
constitutionally-prescribed original jurisdiction in the Supreme Court
and the text affords no reason to infer that Wilson’s draft, any more
than the Rutledge edit to Randolph’s, meant to preclude
Congressional additions to that original jurisdiction. The most
plausible reading of Wilson’s provision for the Court’s appellate
jurisdiction is that Randolph’s “except” becomes Wilson’s
“Exceptions” and Randolph’s “organize” becomes Wilson’s
“Regulations.” Wilson’s draft then expands Congress’s power to
assign jurisdiction to inferior federal courts – those courts might be
invested with original jurisdiction or with intermediate appellate
jurisdiction. That ultimate appellate jurisdiction could not be assigned
away from the Supreme Court necessarily followed from the Court’s
supremacy and the other courts’ inferiority. Wilson’s draft tracks
Randolph’s structure, first providing for “exceptions” and then
separately providing for assigning jurisdiction to inferior courts. This
suggests that the Congressional “exceptions” power in Wilson’s draft,
like that in Randolph’s, had nothing to do with removing ultimate
judgment of some Article III issues from the Supreme Court – that
“Exceptions” in Wilson’s draft, like those in Randolph’s, were
instances of Congress turning appellate jurisdiction original. The
probability of one member of the committee using the language of
exception to describe a Congressional route-switching role and
another member of the committee producing a later draft that used
the same structure and language of exception to describe a radically
greater Congressional role, namely jurisdiction stripping, is surely
negligible. Nothing about Wilson’s draft suggested that his provision
for the Supreme Court’s original jurisdiction was immutable – like
Rutledge’s edit to Randolph’s draft, Wilson’s provision for original
jurisdiction stipulated either a default distribution or a minimum
original jurisdiction. The committee’s report to the Convention
conformed to Wilson’s draft.
Here is the whole of Article III §§ 1 and 2 cll. 1 and 2's
precursor as it appeared in the report of the Committee of Detail to
the Convention on August 7, 1787:
Sect. 1. The Judicial Power of the United States shall be
vested in one Supreme Court, and in such inferior
Courts as shall, when necessary, from time to time, be
constituted by the Legislature of the United States.
28
Sect. 2. The Judges of the Supreme Court, and of the
Inferior Courts, shall hold their offices during good
behaviour. They shall, at stated times, receive for their
services, a compensation, which shall not be diminished
during their continuance in office.
Sect. 3. The Jurisdiction of the Supreme Court shall
extend to all cases arising under laws passed by the
Legislature of the United States; to all cases affecting
Ambassadors, other Public Ministers and Consuls; to
the trial of impeachments of Officers of the United
States; to all cases of Admiralty and maritime
jurisdiction; to controversies between two or more
States, (except such as shall regard Territory or
Jurisdiction) between a State and Citizens of another
State, between Citizens of different States, and between
a State or the Citizens thereof and foreign States,
citizens or subjects. In cases of impeachment, cases
affecting Ambassadors, other Public Ministers and
Consuls, and those in which a State shall be party, this
jurisdiction shall be original. In all the other cases before
mentioned, it shall be appellate, with such exceptions
and under such regulations as the Legislature shall
make. The Legislature may assign any part of the
jurisdiction above mentioned (except the trial of the
President of the United States) in the manner, and
under the limitations which it shall think proper, to
such Inferior Courts, as it shall constitute from time to
time.65
Art. III § 2 cl. 2's precursor in no way sought to vest the
Supreme Court’s jurisdiction, nor to specify the matters to which that
jurisdiction extended. The precursor of Art. III § 1 had accomplished
the first of those tasks, and the precursor of Art. III § 2 cl. 1 had
accomplished the second. Art. III § 2 cl. 2's precursor sought only to
distribute the Supreme Court’s already constitutionally vested
jurisdiction between original and appellate tiers. The clause’s separate
65
II id., 186-87 (Madison’s notes).
29
provision for assigning jurisdiction to other federal courts was
irrelevant to the reach of the Supreme Court’s jurisdiction, because
those other federal courts were specified to be inferior to the Supreme
Court, and thus assignments of jurisdiction to them were inevitably
subject to an ultimate appellate jurisdiction in the Supreme Court. In
the Committee of Detail’s report, the precursor of Art. III §2 cl. 1
described its list of case and controversy categories as “[t]he
Jurisdiction of the Supreme Court.” When Wilson’s draft stipulated
that for certain matters “this Jurisdiction shall be original” and that
“[i]n all the other Cases beforementioned, it shall be appellate, with
such Exceptions and under such Regulations as the Legislature shall
make,” his referent was the already-established “Jurisdiction of the
Supreme Court.” Wilson’s draft let Congress make “Exceptions” to
the appellate nature of the Supreme Court’s jurisdiction, not
“Exceptions” to the existence of the Supreme Court’s jurisdiction.
Exceptions from the Court’s jurisdiction being appellate were
instances in which the Court’s jurisdiction was to be original.
After receiving the committee’s report, the Convention rejected
a motion to insert: “`In all the other cases before mentioned the
judicial power `shall be exercised in such manner as the Legislature
shall `direct’.”66 The Convention Journal also records a motion to add
immediately after “appellate `both as to law and fact with such
exceptions and under such `regulations as the Legislature shall
make’” the following words: “`But in cases in which the United States
shall be a Party `the jurisdiction shall be original or appellate as the
Legislature `may direct.’” A motion to strike out “original or” passed
6-2, but then the amended motion was defeated 5-3.67 On none of this
was there recorded debate of the kind that one would expect to find
in Madison’s notes had the proposals been for a Congressional role
that was conceptually different from that proposed in the committee’s
draft. Thus there is no reason to infer that the delegates were doing
more than exploring alternative ways of articulating a Congressional
role in distributing the Supreme Court’s jurisdiction between original
and appellate tiers. These rejected amendments reinforce the “route-
66
67
Id., 425 (Journal), 431 (Madison’s notes).
Id., 424-5 (Journal).
30
switching” understanding of Congress’s Exceptions power, because
they show that the Convention, without debating primary principles,
was still considering ways to express a Congressional route-switching
role after receiving the Committee of Detail’s draft, which suggests
that route-switching was what they understood the Committee’s draft
to be doing. The rejected language was ambiguous or superfluous or
both. That the reference to “Exceptions” retained some ambiguity
may, however, have been appreciated and viewed as expedient by
some delegates. Gouverneur Morris suggested as much in a letter
written 27 years later.68 Morris’s recollection of how Article III was
perceived may have been colored, however, by the ensuing 27 years’
developments through which the Exceptions power had come to be
characterized as a Congressional power to extinguish Supreme Court
jurisdiction over Article III matters. And to any logical mind reading
the text of Article III holistically, there was no ambiguity at all, for
only a route-switching understanding of the Exceptions power
reconciled all aspects of the text with each other.
Akhil Amar has noted that a route-switching characterization
of Congress’s Exceptions power requires exercise of the power “to do
two things simultaneously” – remove from appellate jurisdiction and
add to original jurisdiction. “The textual basis for the first half is clear
enough; it’s the second half that is the rub.”69 But that objection
ignores the founders’ pursuit of linguistic economy. Other phases of
the drafting process for Article III reveal that participants at
Philadelphia were conscious that constitution-writing called for as
much concision as clarity would allow. For example, their change of
the referent in Art III §2 cl. 1 from “the jurisdiction of the Supreme
Court” to “the judicial Power” let the drafters eliminate a whole
sentence providing for Congressional assignment of jurisdiction to
inferior courts. Where fewer words could be used to achieve the same
result, that was a recognized virtue. Where a later draft appears to
have inadvertently introduced ambiguity in service of succinctness,
68
See id., 420 (letter of Gouvernour M orris to Timothy Pickering, Dec. 22,
1814).
69
Akhil Reed Amar, Marbury, Section 13, and the Original Jurisdiction of
the Supreme Court, 56 U.Chi.L.Rev. 443, 465 (1989).
31
the ambiguity should be resolved in favor of the earlier draft’s
meaning, unless records of debate evidence an intention to alter
meaning. Amar’s inference that a later draft’s diminution of the text
reflected a desire to achieve different meaning is not the natural one,
and requires supporting evidence that does not exist. Had the
Committee of Detail meant to move from letting Congress decide how
the Supreme Court would exercise its ultimate jurisdiction over
Article III matters (originally or on appeal) to letting Congress decide
whether the Supreme Court would have an ultimate jurisdiction over
Article III matters, surely the Convention would have debated the
committee’s choice substantially enough to leave records. Such a
radical change would have enjoyed no support in the Convention’s
resolutions concerning the judiciary that had been referred to the
committee.
On August 27, James Madison and Gouverneur Morris moved
to describe the list of “case” and “controversy” categories not as
comprising “The jurisdiction of the supreme Court” but as comprising
“the Judicial power.”70 Absent specific prohibition, this made the
listed categories of jurisdiction potentially assignable by Congress to
inferior federal courts. The Convention made the change without
recorded debate and then, again without recorded debate, deleted the
sentence in the committee’s reported draft that had explicitly
provided for Congressional power to assign jurisdiction to inferior
federal courts.71 It had become surplusage. The deleted sentence’s
reference to Congress assigning “any part” of the Supreme Court’s
Art. III §2 cl. 1 jurisdiction to inferior courts meant that any matters in
any of the categories could be assigned to inferior courts, as was made
clear by the excepting from this assignment power of one particular
class of matter, namely the trial of presidential impeachments, which
the Convention ended up removing from Article III completely.72
Randolph’s earlier draft had provided for assigning “[t]he whole or
a part of the jurisdiction aforesaid” to “the inferior tribunals, as
70
II Farrand, op cit n. 14, 431 (Madison’s notes).
71
Id.
72
Id., 551-2 (September 8, 1787) (Madison’s notes).
32
original tribunals,” showing that an assignment of even “the whole”
was understood not intrinsically to include an assignment of appellate
jurisdiction, let alone of ultimate appellate jurisdiction. The later
version’s “any part” language likewise in no way suggested
Congressional power to assign ultimate jurisdiction over Article III
matters to inferior courts, for that was by definition not possible –
inferiority precluded ultimacy, for ultimacy is the sine qua non of
supremacy.
One possibly-unintended effect of the August 27 changes was
that the Supreme Court’s constitutionally-specified original
jurisdiction became clearly unassignable. In the committee’s reported
draft there had been a textual inconsistency between Congress’s
power to assign most of the Supreme Court’s constitutionallyspecified original jurisdiction to inferior federal courts and the
exclusion of matters within the Supreme Court’s constitutionallyspecified original jurisdiction from the Court’s appellate jurisdiction.
Matters within the constitutionally-specified original jurisdiction
would doubtless have seemed like a small set in 1787, particularly in
view of the widespread assumption that state governments would
enjoy sovereign immunity from suit by individuals73 and the
relatively few individual-rights limitations on state governments that
the federal constitutional text imposed prior to the fourteenth
amendment’s adoption. In any event, the text’s confinement of the
Court’s appellate jurisdiction to “all the other Cases before
mentioned,” with “such Exceptions” but not “such Additions” as the
Congress might enact clearly prevented re-routing of matters within
the Court’s constitutionally-prescribed original jurisdiction to the
Court’s appellate jurisdiction. If the Court could not be given
appellate jurisdiction over those matters, then the Court’s supremacy
necessarily implied that only the Court could exercise original
jurisdiction over those matters.
As part of its general failure to appreciate the implications of
73
See III Elliot’s Debates, op cit n. 45, 555-56 (John Marshall, Virginia
ratifying convention, June 20, 1788); U.S. Const. Amendment XI (adopted in
response to the Supreme Court’s contrary conclusion in Chisholm v. Georgia, 2 U.S.
(2 Dall.) 419 (1793)).
33
the Court’s supremacy, Congress in 1789 conferred concurrent
jurisdiction on inferior federal courts and permitted concurrent
jurisdiction in state courts with respect to some of the matters
constitutionally specified to be within the Supreme Court’s original
jurisdiction.74 Wherever original jurisdiction lay, it had to be accessible
as-of-right, in contrast to ultimate appellate jurisdiction. Inferior
federal courts affirmed the validity of such concurrent jurisdiction75
over the ensuing 90 years until the Supreme Court did likewise. The
Court emphasized considerations of practicality and precedent.76
Marshall’s conclusion in Cohens v. Virginia,77 that Congress could
expand the Court’s appellate jurisdiction, as Congress had purported
to do,78 was commensurately expedient, and a result that both should
and would have been achieved by constitutional amendment but for
Marshall’s judicial fiat. The swift adoption of the eleventh amendment
showed the young nation’s propensity to make desired jurisdictional
amendments, and such an amendment would have been desired by
states that wished to litigate and faced a backlogged original docket
in the Supreme Court. Where the operation of unambiguous
constitutive text is impractical, two solutions exist: (1.) amend the text;
(2.) ignore the text. The rule of law depends upon systemic preference
for the first option.
C. “Exceptions” as Constitutional Check on the Judiciary?
Some commentators have characterized Congress’s Exceptions
power as fulfilling the function of inter-branch check on expository
overreaching by the courts. Charles Black called ultimate
Congressional control of federal jurisdiction “the rock on which rests
74
Judiciary Act 1789, §§ 9 and 13. See Section IID, infra.
75
See United States v. Ravara, 2 U.S. (2 Dall.) 297 (C.C.Pa. 1793)
76
Börs v. Preston, 111 U.S. 252 (1884) and Ames v. Kansas, 111 U.S. 449
(1884).
77
78
19 U.S. (6 Wheat.) 264, 392-403 (1821).
Judiciary Act 1789, § 25.
34
the legitimacy of the judicial work in a democracy.”79 But the
founding generation did not understand the Exceptions power to
fulfil that function, and there are powerful reasons of principle for not
casting the power in that role.
Influential founders did consider the risk of judicial
overreaching through exposition of authoritative texts, but in
proposing protections against that danger, they made no mention of
the Exceptions power. Those who foresaw the prospects for judicial
review recognized that any institutional safeguard should itself be
deliberative and should follow judicial action rather than foreclosing
such action. Missing from the Constitution, some complained, was an
appellate check exercisable by directly-accountable political actors.
When antifederalists identified the constitutional weakness of an
unchecked judiciary, their proposed remedy was the institutional
arrangement that existed in several states and in Britain, namely, an
ultimate appellate jurisdiction in which legislators participated.80 In
seeking to show that such an appellate check was not needed,
Alexander Hamilton turned not to the Exceptions power (despite
discussing it in the same paper as a protection against appellate
supplanting of jury verdicts), but to the impeachment power.81 “[T]he
important constitutional check which the power of instituting
impeachments in one part of the legislative body, and of determining
upon them in the other, would give to that body upon the members
of the judicial department” was “a complete security,” said Hamilton,
against “judiciary encroachments on the legislative authority.”82 When
John Marshall later denounced that use of impeachment, Marshall’s
proposed alternative remedy was, conversely, not the Exceptions
79
Charles Black, The Presidency and Congress, 32 Wash.& Lee L. Rev. 841,
846 (1975). See also Charles Black, Decision According to Law, 37-39 (1981); Charles
E. Rice, Congress and the Supreme Court's Jurisdiction, 27 Vill. L. Rev. 959, 984-85
(1982); Paul M. Bator, Congressional Power Over the Jurisdiction of the Federal
Courts, 27 Vill. L. Rev. 1030, 1041 (1982).
80
See Claus, op cit n. 12, 429-30, 447.
81
Id., 429.
82
Federalist No. 81.
35
power, but “an appellate jurisdiction in the legislature.”83 Judicial
overreaching was an appreciated risk at the founding, but no one
nominated a Congressional power to deprive the Supreme Court of
jurisdiction as an apt safeguard against that risk, let alone as one that
the proposed constitution provided. While the risk of judicial
overreaching was realized by leading figures at the founding to be
real, depriving the nation of the benefit of judicial deliberation can
never be an optimal remedy and was never seen as such.
II. Genesis of the Great Misconception
The account just given of Congress’s Exceptions power is not
the received wisdom.84 The Supreme Court has never endorsed it,85
and legal scholars have shied from it, treating Congress’s power to
make “Exceptions” to the Court’s appellate jurisdiction as judicial
83
Marshall to Samuel Chase, Jan. 23, 1804, reproduced in III Albert J.
Beveridge, The Life of John Marshall (1919), between 176 and 177.
84
A minority of scholars have agreed that the Exceptions power lets
Congress switch the route by which cases come to the Supreme Court, but among
these, only William Van Alstyne and Leonard Levy have suggested that the
Exceptions power might extend to nothing else. See William W. Van Alstyne, A
Critical Guide to Marbury v. Madison, 1969 Duke L.J. 1, 31-3; Cf. William W. Van
Alstyne, Antinomial Choices and the Role of the Supreme Court, 72 Iowa L. Rev.
1281, 1294 (1987); Leonard W. Levy, Original Intent and the Framers’ Constitution,
81 (1988). See also Edward S. Corwin, Marbury v. Madison and the Doctrine of
Judicial Review, 12 Mich.L.Rev. 538, 540 (1914); II William W. Crosskey, Politics and
the Constitution in the History of the United States, 1041-2 (1953); George Lee
Haskins and Herbert A. Johnson, II History of the Supreme Court of the United
States, 201 (1981) (citing evidence, in particular from the submissions of counsel in
Marbury (5 U.S. (1 Cranch), at 148-49), that the pre-Marbury Court understood the
Exceptions power to permit route-switching); David P. Currie, The Constitution in
the Supreme Court: The Powers of the Federal Courts, 1801-1835, 49 U.Chi.L.Rev.
646, 654 (1982) (also in David P. Currie, The Constitution in the Supreme Court: The
First Hundred Years, 68-9 (1985)); Robert N. Clinton, A Mandatory View of Federal
Court Jurisdiction: A Guided Quest for the Original Understanding of Article III,
132 U.Pa.L.Rev 741, 778 (1984).
85
See Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 330 (1816) (Story,
J.); Ex parte Yerger, 75 U.S. (8 Wall.) 85, 97 (1869) ( Chase, C.J.). Cf. Ex parte
McCardle, 74 U.S. (7 Wall.) 506 (1869) ( Chase, C.J.).
36
review’s textual Achilles heel.86 What explains this? Not the coherence
of other accounts, for they each evade or trivialize aspects of Article
III’s text. Not hostility to judicial review, nor in particular to the
notion that one Court should have power to give ultimate judgment
on constitutional questions. Prevailing scholarly sentiment
sympathizes with Henry Hart’s claim that Congressional
“Exceptions” should “not be such as will destroy the essential role of
the Supreme Court in the constitutional plan.” Hart defended the
efficacy of that principle by noting that it is no less determinate than
those “which the Court has evolved to meet other hard situations.”87
But “other hard situations” have been adjudicated by the Court under
an unquestioned assumption of jurisdiction. When the hard question
is the Court’s jurisdiction to adjudicate, the authority of the Court’s
answer depends uniquely on persuasiveness. Amorphous claims of
essential role may cut little ice with a President and Congress who
86
See Hart, op cit n. 17; Herbert Wechsler, The Courts and the Constitution,
65 Colum.L.Rev. 1001, 1005-6 (1965); Lawrence Gene Sager, The Supreme Court,
1980 Term, Foreword: Constitutional Limitations on Congress' Authority to
Regulate the Jurisdiction of the Federal Courts, 95 Harv. L. Rev. 17 (1981); Charles
Black, Decision According to Law, 37-39 (1981); Gerald Gunther, Congressional
Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing
Debate, 36 Stan. L. Rev. 895 (1984); Martin H. Redish & Curtis E. Woods,
Congressional Power to Control the Jurisdiction of Lower Federal Courts: A Critical
Review and a New Synthesis, 124 U. Pa. L. Rev. 45 (1975); Martin H. Redish, Federal
Jurisdiction: Tensions in the Allocation of Judicial Power, 24-45 (2nd ed. 1990);
Theodore Eisenberg, Congressional Authority to Restrict Lower Federal Court
Jurisdiction, 83 Yale L.J. 498 (1974); Leonard G. Ratner, op cit n. 18; Leonard G.
Ratner, Majoritarian Constraints on Judicial Review: Congressional Control of
Supreme Court Jurisdiction, 27 Vill.L.Rev. 929 (1981-2); Paul M. Bator,
Congressional Power over the Jurisdiction of the Federal Courts, 27 Vill.L.Rev. 1030
(1982); Vicki C. Jackson, Introduction: Congressional Control of Jurisdiction and the
Future of the Federal Courts - Opposition, Agreement, and Hierarchy, 86 Geo. L.J.
2445 (1998); John Harrison, op cit n. 46; Amar, The Two-Tiered Structure of the
Judiciary Act of 1789, op cit n. 38; Akhil Reed Amar, Reports of My Death Are
Greatly Exaggerated: A Reply, 138 U. Pa. L. Rev. 1651 (1990); Meltzer, op cit n. 46;
James S. Liebman and William F. Ryan, “Some Effectual Power:” The Quantity and
Quality of Decisionmaking Required of Article III Courts, 98 Colum.L.Rev. 696
(1998).
87
Hart, op cit n. 17, 1364-5.
37
frankly disagree with the Court’s assessment of its “essential role.”88
In no context is the quality of judicial reasoning and the clarity of
judicial conclusions more critical than when the Court is defending its
own jurisdiction. Why, then, has the persuasive power of the
Constitution’s text not been better harnessed? The answer lies in
debates surrounding the Constitution’s ratification.
No sooner was the Philadelphia Convention’s text out the door,
than its proponents encountered two resounding objections to Article
III. The first and less-anticipated objection was that the Supreme
Court’s appellate jurisdiction over questions of fact would
compromise the privilege of trial by jury.89 In Alexander Hamilton’s
words, Article III’s vesting of appellate jurisdiction in the Supreme
Court had “been scarcely called in question in regard to matters of
law; but the clamors have been loud against it as applied to matters
of fact ... as an implied supersedure of the trial by jury... .”90 To the
exasperation of the Constitution’s proponents, Article III’s explicit
reference to Supreme Court appellate jurisdiction over questions of
fact threatened to sabotage ratification. At the closely-fought Virginia
ratifying convention, Edmund Pendleton observed:
The appellate jurisdiction is, therefore, undoubtedly
proper, and would not have been objected to if they had
not introduced, unfortunately, in this clause, the words
“both as to law and fact.” Though I dread no danger, I
wish these words had been buried in oblivion. If they
had, it would have silenced the greatest objections
88
Cf. Wechsler, op cit n. 86, 1005-6.
89
See, e.g., Luther Martin, Genuine Information, in III Farrand, op cit n. 14,
220-2 and in II Storing op cit n. 45, 69-71; Federal Farmer No. 15, in II Storing, id.,
322; Brutus No. 14, in II id., 432-437. Brutus also foresaw judicial review of
Congress’s acts and condemned the principle. See Nos. 12 and 15, II id., 423-426,
437-442.
90
Federalist No. 81: The Judiciary Continued, and the Distribution of the
Judicial Authority.
38
against the section.91
The impending storm over the Supreme Court’s jurisdiction to
second-guess jury findings was probably foreshadowed to those who
were paying attention toward the end of the Philadelphia Convention.
Among George Mason’s papers has been found an alternative to
Article III92 in the handwriting of John Blair, who never spoke on the
Convention floor. Blair went on to vote for the proposed Constitution
both at Philadelphia93 and at the Virginia ratifying convention,94 and
is thus highly unlikely to have been aiding Mason with counterproposals after the Philadelphia vote. The Blair-Mason draft tracks
Article III’s language, including the amendment that explicitly
extended federal jurisdiction to cases arising under “this
Constitution.” The “Constitution” amendment did not occur until
August 27,95 suggesting that the Blair-Mason draft post-dated all of
the August 27 amendments, and was prepared in response to the
amendment on that day that explicitly invested the Supreme Court
with appellate jurisdiction over questions of fact. The alternative draft
limits the Supreme Court’s appellate jurisdiction on questions of fact
to equity, admiralty, and maritime jurisdiction. The draft also lets
Congress create inferior federal courts only in admiralty and maritime
jurisdiction, and leaves all other original jurisdiction to state superior
courts. Congress is given no power to affect the Supreme Court’s
jurisdiction beyond regulating the “manner” of admiralty and
maritime appeals, and the Court’s appellate jurisdiction in all other
categories of case is limited by the draft to those “cases where the
subject in controversy or the decree or judgment of the State court
shall be of the value of one thousand dollars.”96 If that amount-in-
91
III Elliot’s Debates, op cit n. 45, 519 (June 18, 1788).
92
II Farrand, op cit n. 14, 432-33.
93
Id. , 648-49 (September 17, 1787) (Madison’s notes).
94
III Elliot’s Debates, op cit n. 45, 654-55 (June 25, 1788).
95
II Farrand, op cit n. 14, 430 (August 27, 1787) (Madison’s notes).
96
Id., 433.
39
controversy limitation was viewed by its proposers as a direct
substitute for the Exceptions power, then perhaps Article III’s
“Exceptions” language was perceived even during the Convention to
authorize amount-in-controversy limitations on appeal to the
Supreme Court. On the other hand, those who collaborated in this
alternative draft may have had a purely “route-switching”
understanding of the Exceptions power, and wished to maximize
state-court responsibility by limiting Supreme Court appeals and by
eliminating Congressional power to move Article III matters into the
Supreme Court’s original jurisdiction.
Alongside their complaint about the effect of Supreme Court
appellate jurisdiction on the efficacy of jury trials, antifederalists
raised a more general, and more predictable, objection to Article III:
the federal judiciary would marginalize state courts, with which
citizens were familiar and to which the costs of access were likely to
be lower.97 In response to those antifederalist assaults on Article III,
federalists seized on the Exceptions power. Congress could carve out
substantive elements of federal jurisdiction, subsets of Article III’s
nine categories, and leave ultimate adjudication of those matters to
state courts. The ratification debates reveal a conceptual slide into
commandeering the “Exceptions” language to placate the
antifederalist objections that threatened to derail the ratification
process.
A. Wilson in Pennsylvania
Having hosted the proposed constitution’s gestation,
Pennsylvania was swiftest to consider ratification, but the delegates
to its convention were also swift to complain about Article III. As he
sought to shepherd the Constitution’s passage through the state
convention, James Wilson encountered robust objection to the
proposed Supreme Court’s appellate jurisdiction over questions of
97
See, e.g., Luther Martin, Genuine Information, in III id., 220-2 and in II
Storing op cit n. 45, 69-71; Federal Farmer, No. 18, in II Storing, id., 346-7; A Native
of Virginia, Observations upon the Proposed Plan of Federal Government, I
Stanislaus Murray Hamilton, ed., The Writings of James Monroe, 384-7 (1898).
40
fact. Wilson had cause to feel responsible for the threat to ratification
posed by that objection. He had prompted inclusion in Article III of
the words that triggered the controversy, by saying of the Supreme
Court’s appellate jurisdiction that “[t]he Committee [of Detail] he
believed meant facts as well as law & Common as well as Civil law.”98
In defending Article III’s explicit reference to appellate jurisdiction
over questions of fact, Wilson reminded delegates that during the
Revolutionary War, juries had been reluctant to give boats back, and
appeals of jury findings to benches of judges had been critical to
property-owners’ prospects of recovering their property.99 He noted
that appellate review of questions of fact might be necessary in other
cases too, and that Congress would control the contours of the
Supreme Court’s appellate jurisdiction over questions of fact through
”regulations.”
Consistently, Wilson used the text’s reference to “Regulations”
rather than its reference to “Exceptions” as the basis on which
appellate jurisdiction with respect to questions of fact could be shaped
by Congress.100 Consistently, Wilson avoided citing the “Exceptions”
language for jurisdiction stripping. And he adverted to Congressional
“regulations” as a means of jurisdictional guidance only in the limited
context of appellate review of questions of fact, allowing some
latitude for the notion of a Congressional power to “organize” the
Court, as Randolph had put the function in his earlier draft in the
Committee of Detail.101 Wilson’s vision of Congressional regulation
might, for example, have let Congress specify standards of review
other than de novo for the Court’s exercise of appellate jurisdiction
over questions of fact. Such a modest vision of Congress’s jurisdictionregulating role makes most sense of Wilson’s subsequent reasoning
as one of the founding members of the Supreme Court.102
98
II Farrand, op cit n. 14, 431 (August 27, 1787) (Madison’s notes).
99
II Elliot’s Debates, op cit n. 45, 493-4 (Dec. 7, 1787). See also 517-18.
100
Id., 494, 517-18.
101
II Farrand, op cit n. 14, 147.
102
See Wiscart v. D’Auchy, 3 U.S. (3 Dall.) 321 (1796); Section IIE, infra.
41
B. Hamilton in New York
In two articles first published while the New York ratifying
convention was sitting, Alexander Hamilton advanced beyond
Wilson’s position to claim that Congress’s Exceptions power was
Article III’s panacea for the antifederalists’ jurisdictional concerns. He
implied that the Philadelphia Convention had deployed the
“Exceptions” language at least partly to let Congress eliminate
appellate jurisdiction over questions of fact in common law cases.103
That was not true – the Committee of Detail’s resort to the
“Exceptions” language pre-dated the Convention’s choice on August
27, 1787, “to add after the word `appellate’ the words `both as to law
& fact.”104 The Convention did consider the “Exceptions” language at
the same August 27 session, but inserted “both as to law and fact”
when Gouverneur Morris asked whether the Court’s appellate power
“extended to matters of fact as well as law--and to cases of Common
law as well as Civil law,” and James Wilson replied affirmatively.105
Hamilton was not even present at Philadelphia when this occurred.106
The New York delegation had collapsed when its other members,
John Lansing and Robert Yates, went home on July 10, disgusted by
the Convention’s trajectory toward nationhood.107
In another paper, Hamilton argued more generally that the
Exceptions power would let Congress obviate “partial
inconveniencies ... connected with the incorporation of any” of Article
103
Federalist No. 81 (first published June 25 and June 28, 1788).
104
II Farrand, op cit n. 14, 431 (Madison’s notes).
105
Id.
106
III id., 588 (attendance records for Hamilton); id., 70 (letter of Alexander
Hamilton to Rufus King dated August 20, 1787).
107
I Elliot’s Debates, op cit n. 45, 480-82 (Letter of Yates and Lansing to
Governor Clinton); III Farrand, op cit n. 14, 588 and 590 (attendance records for
Lansing and Yates).
42
III’s jurisdictional categories “into the plan.”108 Hamilton’s assertion
that Congress could freely leave ultimate adjudication of federal
issues to state courts sits at odds with his later observation, after the
Constitution was safely in place, that “the right to employ the agency
of the State Courts for executing the laws of the Union, is liable to
question, and has, in fact, been seriously questioned.”109
C. The Virginia Ratifying Convention
Of all the state ratifying conventions, Virginia’s had greatest
claim to determining the Constitution’s destiny. In Pennsylvania,
Massachusetts, Connecticut, New Hampshire, and the Carolinas, “the
Federalists had the bulk of talent and influence on their side `together
with all the Speakers in the State great and small.’”110 While
Maryland’s federalists had to contend with the formidable Luther
Martin and Hamilton in New York was embattled by his erstwhile
Philadelphia colleagues, John Lansing and Robert Yates, it was the
Virginia Convention that witnessed an even-classed clash of political
titans. For the federalists stood James Madison and Edmund
Randolph, whose Virginia Plan proposal to the Philadelphia
Convention had shaped the Constitution more than any other. But the
antifederalist cause was championed by Patrick Henry, heroic and
eloquent leader of the Revolution, and by George Mason, primary
architect of the state’s constitution and declaration of rights. Virginia’s
ratifying vote was pivotal. New York’s, which had been even less
probable, followed.111
108
Federalist No. 80 (first published June 21, 1788).
109
The Exam ination No. 6, Jan. 2, 1802, op cit n. 45.
110
Gordon S. Wood, The Creation of the American Republic, 486 and 487
n. 24 (1969).
111
II Elliot’s Debates, op cit n. 45, 413 (July 26, 1788). (The New York
convention’s vote for ratification was 30-27.)
43
The ultimate vote in the Virginia convention was 89 to 79112
after a motion simply to propose amendments to the other states
before deciding whether to ratify was rejected 88 to 80.113 Among the
delegates voting against ratification with Henry and Mason was
Madison’s future successor as President, James Monroe. As the vote
count reflected, the Constitution’s proponents in Virginia, like
Hamilton in New York, had good reason to make every argument that
they could muster against every objection that their opponents raised.
In particular, they had to neutralize the complaint, made adroitly by
both Henry114 and Mason,115 that the proposed Supreme Court’s
jurisdiction would diminish ordinary citizens’ access to justice and,
most intolerably, would destroy the value of trial by jury. To
overcome those potentially-devastating objections to the Constitution,
the Virginia federalists united in presenting precisely the same
argument that Hamilton was simultaneously presenting in New York:
Congress could make “Exceptions.”
When they rose to speak, James Madison,116 Edmund
Randolph,117 John Marshall,118 and Edmund Pendleton119 each made
the same point. Congress’s power to make “Exceptions” or
“Regulations” would let Congress remove from the Supreme Court’s
appellate jurisdiction whatever Article III matters should not be there,
and leave ultimate adjudication of those matters to state courts.
Madison, uniquely among them, was careful to locate Article III’s
112
Id., 654-55 (June 25, 1788).
113
Id., 653-54 (June 25, 1788).
114
See, e.g., III id., 540-41, 546 (June 20, 1788) (Patrick Henry).
115
Id., 524-30 (June 18, 1788) (George Mason).
116
Id., 534-35 (June 20, 1788) (James Madison).
117
Id., 68-69 (June 6, 1788); 572-73, 576 (Sat June 21, 1788) (Edmund
Randolph).
118
Id., 559-60 (June 20, 1788) (John Marshall).
119
Id., 518-20 (June 18, 1788); 549 (June 20, 1788) (Edmund Pendleton).
44
support for such a Congressional power in the text’s reference to
“Regulations.” Like Wilson in Pennsylvania, Madison treated the
text’s reference to “Exceptions” as having nothing to do with
removing Article III matters from the Court. As “Exceptions” was the
more obvious word to rely on, the posture adopted by Madison and
Wilson implied that those two leading contributors to the text each
thought the Exceptions power let Congress do something other than
jurisdiction stripping.
Edmund Pendleton, who had not been at Philadelphia, went
much further than his fellow federalists. He argued, in flagrant
disregard of the text, that Congress could remove matters from the
Supreme Court’s constitutionally-prescribed original jurisdiction too.
He made clear that he meant actual reduction of the Court’s original
jurisdiction, not just a vesting of concurrent original jurisdiction in
other courts. In making that claim, he revealed that he was not really
reading the text at all. He was saying what he thought necessary to get
the proposed constitution approved. He added, for good measure,
that Congress could tamper with the Court’s original jurisdiction only
to subtract, never to add, thus precisely inverting the import of the
text.120
Patrick Henry responded. The federalists’ interpretation of
Congress’s “Exceptions” and “Regulations” powers was, he observed,
implausible. The future Supreme Court would, he predicted, not
interpret those Congressional powers to permit jurisdiction stripping
– not even of appellate jurisdiction over questions of fact.
This will, in its operation, destroy the trial by jury. The
verdict of an impartial jury will be reversed by judges
unacquainted with the circumstances. But we are told
that Congress are to make regulations to remedy this. I
may be told that I am bold; but I think myself, and I
hope to be able to prove to others, that Congress cannot,
by any act of theirs, alter this jurisdiction as established.
It appears to me that no law of Congress can alter or
arrange it. It is subject to be regulated, but is it subject to
120
Id., 518.
45
be abolished? If Congress alter this part, they will repeal
the Constitution. Does it give them power to repeal
itself? What is meant by such words in common
parlance? If you are obliged to do certain business, you
are to do it under such modifications as were originally
designed. Can gentlemen support their argument by
regular or logical conclusions? When Congress, by
virtue of this sweeping clause, will organize these
courts, they cannot depart from the Constitution; and
their laws in opposition to the Constitution would be
void. If Congress, under the specious pretence of
pursuing this clause, altered it, and prohibited appeals
as to fact, the federal judges, if they spoke the
sentiments of independent men, would declare their
prohibition nugatory and void. In every point of view,
it seems to me that it will continue in as full force as it is
now, notwithstanding any regulations they may
attempt to make.121
This response suggests that the seventh amendment122 was
prompted by genuine disbelief that the Constitution gave Congress a
power to remove matters specified in Article III from the Supreme
Court’s jurisdiction,123 not just by uncertainty as to whether Congress
would use such a power properly.124 Though it was not his immediate
121
Id., 540-41(June 20, 1788) (Patrick Henry).
122
U.S. Const. Amdt. VII: “In Suits at common law, where the value in
controversy shall exceed twenty dollars, the right of trial by jury shall be preserved,
and no fact tried by a jury, shall be otherwise re-examined in any Court of the
United States, than according to the rules of the comm on law.”
123
“I think the court are to be the judges of this. The judges on the bench
are to be judges of fact and law, with such exceptions, &c., as Congress shall make.
Now, give me leave to ask, Is not a jury excluded absolutely? By way of illustration,
were Congress to say that a jury, instead of a court, should judge the fact, will not
the court be still judges of the fact consistently with this Constitution?” III Elliot’s
Debates, op cit n. 45, 528 (June18, 1788) (George Mason).
124
Id., 524-26, 528 (June18, 1788) (George Mason); 568 (June 21, 1788)
(William Grayson).
46
focus of concern, Henry saw precisely what was wrong with a
jurisdiction-stripping vision of the Exceptions power. “If Congress
alter this part, they will repeal the Constitution.”125 If the Exceptions
power let Congress remove the Supreme Court’s Article III
jurisdiction, then Congress could remove the Supreme Court’s ability
to say what the Constitution required. If that were true, then the
whole document would be putty in Congress’s hands. And if that
were true, then Congress would be as omnipotent as the British
Parliament had formerly been. The future Supreme Court, Henry
predicted, would reject the federalists’ interpretation of the
“Exceptions” and “Regulations” powers, and would conclude that
Congress had no power to remove Article III matters from the Court’s
jurisdiction. “[T]his sweeping clause,” said Henry, had a much more
modest ambit. It just let Congress “organize these courts,”126
consistently with the criteria for tenure and jurisdiction set forth in
Article III.
Henry’s understanding of Article III was not idiosyncratic. The
opposition that he and Mason led almost carried the day. In a
convention in which 168 voted on the ultimate questions, a change of
vote by five delegates on the motion to withhold ratification and
simply send out proposed amendments to the other states would have
changed the outcome. To suggest, therefore, that the ratifying
generation were even close to united in their understanding of the
Exceptions power would clearly be wrong.
The closeness of the Virginia contest also affords a ground for
suspicion that the federalists did not necessarily believe all of their
own arguments. Their expedient claims concerning Congress’s
“Exceptions” and “Regulations” powers were probably essential to
achieving a majority in favor of ratification. Had Virginia failed to
ratify, New York would probably have been lost too,127 and with it the
125
Id., 540.
126
Id. Cf. Randolph’s use of the word “organize” in his opening draft in the
Committee of Detail: II Farrand, op cit n. 14, 147.
127
A change in the votes of two delegates would have changed the outcome
in New York: II Elliot’s Debates, op cit n. 45, 413 (July 26, 1788).
47
momentum for radical constitutional change. With the fate of their
whole enterprise deeply uncertain, the federalists unsurprisingly
closed ranks, and all sang from one song sheet in response to the
antifederalists’ jurisdictional objections. The federalists’ unity of voice
drowned out Patrick Henry’s insight that their interpretation would
render the text incoherent and would be rejected by the courts
themselves.
Akhil Amar has noted that no one in the ratification debates
articulated a route-switching understanding of the Exceptions
power.128 But why would they have? The route-switching
understanding was not responsive to the antifederalist critique. No
one was complaining that the Supreme Court did not receive enough
original jurisdiction under the plan. Nor were they complaining that
more original jurisdiction might be added through exercise of the
Exceptions power. Expanding federal jurisdiction at the expense of
state courts was what bothered the antifederalists, not expanding one
kind of Supreme Court jurisdiction at the expense of another. The
antifederalist complaint was that the federal courts were empowered
by Article III to do too much, which raised the question whether the
“Exceptions” language would let Congress do more than re-route
cases into the Supreme Court’s original jurisdiction. The issue raised
and answered by the federalists was whether the “Exceptions”
language would let Congress eliminate the Supreme Court’s
jurisdiction over some Article III matters completely, implementing
a Congressional choice to leave some Article III matters to state courts
completely. Only Edmund Pendleton gratuitously proclaimed that
Congress could not expand the Supreme Court’s original jurisdiction,
and he blew his credibility by proclaiming in the same breath that
Congress could take the Supreme Court’s original jurisdiction away.
Amar argues that people had reason to care whether they were
trekking to the national capital sooner rather than later, because a
distant original jurisdiction would require that “litigants, witnesses,
and physical evidence be `dragged to the centre,’” whereas appellate
litigation would require only that “the record of the case” go to a
128
Amar, op cit n. 69, 468.
48
distant venue.129 But the antifederalists’ articulated concern was about
having to trek to the capital at all. They were concerned about federal
court expansion at the expense of state courts. To the extent that this
concern was about costs of litigation, it did not have Congressional
route-switching in its sights, and rightly so, for there was no universal
answer to the question whether Congressional shifting of matters
from the Supreme Court’s appellate jurisdiction to the Court’s
original jurisdiction would have added to or reduced litigants’ costs.
The answer to that question would in each case have depended on
whether the particular suit was likely to be pursued by losing parties
beyond the first instance. If it was, then shifting to original jurisdiction
in the Supreme Court might have been a cost-saver. Such arcane
possibilities were not in the antifederalists’ sights – their target was
the burden of subjection to federal jurisdiction in general.
D. The Judiciary Act
On April 7, 1789, the United States Senate established a
committee “to bring in a bill for organizing the Judiciary of the United
States.”130 The eight-man committee included Oliver Ellsworth and
William Maclay. There are no official records of Senate debate on the
bill, but Maclay’s journal illuminates invaluably. The draft that
emerged from committee was Ellsworth’s creation, and Maclay did
“not like it in any part, or rather I generally dislike it, but we will see
how it looks in form of a bill.”131 On June 12, 1789, Ellsworth’s
committee reported the bill to the Senate.132 Maclay’s enthusiasm had
not grown. “It was long and somewhat confused.”133 Maclay was not
in favor of a far-reaching federal judiciary, but he understood that the
129
Id., 472.
130
I Senate Journal 10 (1789).
131
Edgar S. Maclay (ed.), Journal of William Maclay, United States senator
from Pennsylvania, 1789-91, 30 (1890). (Entry for May 11, 1789.)
132
I Senate Journal 84 (1820).
133
Maclay, op cit n. 131, 74.
49
Constitution provided for one and that Congress had no discretion
about whether to create one, and his criticism of Ellsworth’s bill had
more to do with its awkward structure than with its extensiveness.
Accordingly, he defended the bill’s reach via reasoning that actually
implied that the bill was not extensive enough.
Mr. Lee brought forward a motion nearly in the words
of the Virginia amendment, viz., “That the jurisdiction
of the Federal courts should be confined to cases of
admiralty and maritime jurisdiction.” ... I rose and
begged to make a remark or two. The effect of the
motion was to exclude the Federal jurisdiction from
each of the States except in admiralty and maritime
cases. But the Constitution expressly extended it to all
cases, in law and equity, under the Constitution and
laws of the United States; treaties made or to be made,
etc. We already had existing treaties, and were about
making many laws. These must be executed by the
Federal judiciary. The arguments which had been used
would apply well if amendment to the Constitution
were under consideration, but certainly were
inapplicable here.134
Debate on Lee’s motion continued the next day. Maclay emphasized
that “the question expressly turned on this point, `Shall we follow the
Constitution or not?’” He elaborated “that the Constitution placed the
judicial power of the Union in one Supreme Court, and such inferior
courts as should be appointed; and, of course, the State judges, in
virtue of their oaths, would abstain from every judicial act under the
Federal laws, and would refer all such business to the Federal courts;
that if any matter made cognizable in a Federal court should be
agitated in a State court, a plea to the jurisdiction would immediately
be put in and proceedings would be stayed. No reply was made; the
question was soon taken and the motion was rejected.”135
134
Id., 85 (recording Senate debate on June 22, 1789).
135
Id., 86-7 (June 23, 1789).
50
To Maclay’s frustration, the bill’s federalist promoters were
little more attentive to the Constitution’s actual requirements for the
judiciary than were its antifederalist opponents. On June 29, 1789, he
noted making “a remark where Elsworth in his diction had varied
from the Constitution. This vile bill is a child of his, and he defends it
with the care of a parent, even with wrath and anger. He kindled, as
he always does, when it is meddled with.”136 Three days later, he
recorded:
I really dislike the whole of this bill, but I endeavored to
mend it in several places and make it as perfect as
possible, if it is to be the law of the land. But it was
fabricated by a knot of lawyers, who joined hue and cry
to run down any person who will venture to say one
word about it. This I have repeatedly experienced, and
when I am certain (for a man may sometimes be certain
of being right) of having made obvious and proper
amendments, I have been pushed at from both right and
left by them, and not a man to second me. Be it so,
however; this is no reason that I should be silent. I ran
Elsworth hard on the uselessness of part of this bill today, and thought I had the advantage in some of the
answers I gave. But it was of little avail.137
As debate on the bill moved toward a vote, Maclay lamented:
“I can scarcely account for my dislike for this bill, but I really fear it
will be the gunpowder-plot of the Constitution. So confused and so
obscure, it will not fail to give a general alarm. Elsworth has led in this
business ... .”138 On July 17, 1789, the Senate adopted a Judiciary Bill
by vote of 14 to 6. Maclay voted against the bill.139
On July 20, 1789, the House of Representatives received the
136
Id., 91-2.
137
Id., 97 (July 2, 1789).
138
Id., 101 (July 7, 1789).
139
Id., 117.
51
Senate’s bill.140 The Annals of Congress provide reports of House
deliberations on August 24, 29, and 31, 1789, but fail to provide details
of further extensive House deliberations on September 9,141 11,142 12,143
and 14.144 On September 14, the bill was tabled with amendments
proposed by the House Committee of the Whole.145 The House
deliberated further on September 15,146 and 16,147 and then passed the
Senate bill with amendments on September 17.148 The House Journal
and the Annals of Congress149 record neither the vote nor the House’s
amendments.
When House debate on the bill opened on August 24, Samuel
Livermore moved to strike out a clause that provided for dividing the
United States into districts for the purpose of creating inferior federal
courts. He argued that inferior federal courts would be duplicative,
burdensome and unnecessary.150 Any possible problem of bias against
out-of-state parties would find no remedy in dispersed inferior courts
of the kind proposed, because jurors and judges would be the same
combinations of local citizens regardless of whether serving in federal
140
I House Journal 63 (1826).
141
Id., 105.
142
Id., 109.
143
Id.
144
Id., 110.
145
Id.
146
Id., 110-11.
147
Id., 112.
148
Id., 113.
149
I Annals of Congress, op cit n. 45, 928-29.
150
Id., 813-14 (August 24, 1789); 826-28 (August 29, 1789).
52
courtrooms or in state ones.151 “The jurors must come from the
vicinage, and in all probability the district judges will be composed of
gentlemen who preside on the benches of the State courts.”152 All
subsequent recorded House debate on the Judiciary Bill pertains to
Livermore’s motion, which was defeated on August 31 by a vote of 31
to 11.153
William Loughton Smith responded in support of the Senate
bill’s provision for inferior federal courts by contending that the
Constitution required all matters within the judicial Power of the
United States to be vested in federal courts.
It is declared by that instrument that the judicial power
of the United States shall be vested in one supreme, and
in such inferior courts as Congress shall from time to
time establish. Here is no discretion, then, in Congress
to vest the judicial power of the United States in any
other tribunal than in the Supreme Court and the
inferior courts of the United States. It is further declared
that the judicial power of the United States shall extend
to all cases of a particular description. How is that
power to be administered? Undoubtedly by the
tribunals of the United States; if the judicial power of
the United States extends to those specified cases, it
follows indisputably that the tribunals of the United
States must likewise extend to them.154
Egbert Benson argued, to similar effect: “It is not left to the election of
the Legislature of the United States whether we adopt or not a judicial
system like the one before us; the words of the constitution are plain
151
See U.S. Const. Art. III § 2 cl. 3 with Amendments V, VI, and VII
152
I Annals of Congress, op cit n. 45, 827 (August 29, 1789).
153
Id., 866.
154
Id., 831-32 (August 29, 1789).
53
and full, and must be carried into operation.”155 Smith subsequently
observed that “[t]he words, `shall be vested,’ have great energy, they
are words of command; they leave no discretion to Congress to parcel
out the Judicial powers of the Union to State judicatures ... .”156
A skeptical Michael Jenifer Stone delivered the obvious riposte.
If what the bill’s supporters said was true, then the bill clearly did not
go far enough, for under its terms the federal courts, including the
Supreme Court, would have jurisdiction over less than everything in
Article III. The Senate had “directed appeals only to be had in certain
cases; this shows that, in their opinion, the articles of the constitution
gave them a latitude.”157 He then sought to draw an analogy between
Congress’s normal discretion whether to exercise any particular of its
legislative powers and an alleged Congressional discretion whether
to extend the judicial Power of the United States to any particular
category of Article III matter.158
Stone’s critique of the federalist position went relevantly
unanswered. The recorded debate was not addressed to the Supreme
Court’s jurisdiction and thus contained no reference to Congress’s
Exceptions power and no engagement with the question whether the
bill gave the Court all of the jurisdiction that the Constitution
required. Debate was focused on whether Congress should create
inferior federal courts, and seems to have taken for granted that the
Supreme Court was being constitutionally established.
As the House debate concluded, the senators’ attention
returned to the bill. Maclay’s journal records on September 16:
About two o'clock Mr. [Robert] Morris, Mr. [Rufus]
King, and Mr. [Pierce] Butler called on me. The talk was
only about the judiciary. Mr. Morris said he had
155
Id., 835.
156
Id., 850.
157
Id., 854 (August 31, 1789).
158
Id., 855.
54
followed Elsworth in everything; if it was wrong, he
would blame Elsworth. King said he had never had an
opportunity of judging of it. I censured it as freely as
ever.159
On September 19, Ellsworth delivered to the full Senate a
committee report on the House’s proposed amendments to the Senate
bill and the Senate resolved to accept most but not all of the proposed
amendments and to propose an amendment of its own to one of the
House amendments.160 On September 21 the House accepted the
Senate’s modified bill.161 Again, neither the Journal nor the Annals
record the vote or the negotiated amendments. On September 24,
President Washington informed the Senate that the bill had been
signed into law,162 and supplied the Senate with his nominees for
judicial office.163
Complicating the first Congress’s comprehension of Article III
was the esoteric nature of jurisdictional concepts and nomenclature.
That characteristic combined with the novelty of the whole nationstate power-apportioning enterprise to guarantee confusion about
how the federal judicial system would work.164 For example, lawyers
like Oliver Ellsworth were familiar with inferior court finality for
matters in which the amount in controversy or size of penalty was
small,165 as surely as they were familiar with inferior courts being
159
Maclay, op cit n. 131, 152.
160
I Senate Journal, op cit n. 130, 82-3. The Journal records neither the
amendments nor the committee’s report.
161
I House Journal, op cit n. 140, 115; 1 Annals of Congress, op cit n. 45, 939.
162
I Senate Journal, op cit n. 130, 87.
163
I Annals of Congress, op cit n. 45, 88–89.
164
Wells and Larson, op cit n. 34, 94.
165
See, e.g., Judiciary Act 1789, I Stat. 73, §§ 21, 22.
55
jurisdictionally limited by such criteria.166 But these measures of
adjudicative stakes were inapt to gauge which Article III cases and
controversies should rise to the Supreme Court’s attention. A federal
judiciary’s most essential remedial power was not going to be
awarding damages or property, or imposing sentences; it would be
ordering government actors to act differently. Those actors might be
officers of the Union, or of the States.167 Judicial orders of that kind,
whether issued at common law by writs of mandamus or prohibition,
or in equity by injunction, were in England only issuable by superior
courts of record168 and were fully appealable to the House of Lords as
“the supreme court of judicature in the kingdom.”169 Nothing at
Philadelphia suggested that the Exceptions power would let Congress
deprive the Supreme Court of power to issue or review such orders
in proceedings that fell within Article III’s categories.
The confusion of the first Congress about what Article III
accomplished was reflected in the disorganization and inverted
structure of the Judiciary Act. After providing for the constitutionallymandated Supreme Court, the Act purported to withhold from the
Court many of the matters within Article III’s nine categories. The
Act’s structure, in purporting to invest the Court with jurisdiction
over less than everything in Article III, implicitly treated all federal
appellate jurisdiction as in the gift of Congress. The Court ex post
characterized what Congress had done through the Judiciary Act as
an exercise of the Exceptions power.170 But if senators and
166
See, e.g., Judiciary Act 1789, §9.
167
Cf. Judiciary Act1789, § 13, purporting to confer on the Supreme Court
power to issue writs of mandamus only against officers of the Union, this measure
apparently constituting an exclusive “special provision by statute” for purposes of
§ 14.
168
III Blackstone, op cit n. 32, Ch. 7, 110-113, Ch. 27, 438-439.
169
Id., Ch. 4, 56. See also Ch. 4, 55; Ch. 25, 411; Ch. 27, 454-455.
170
See Wiscart v. D’Auchy, 3 U.S. (3 Dall.) 321, 327 (1796) (Ellsworth, C.J.);
United States v. More, 7 U.S. (3 Cranch) 159, 173 (1805) (Marshall, C.J.); Durousseau
v. United States, 10 U.S. (6 Cranch) 307, 314 (1810), per Marshall, C.J.: “The
appellate powers of this court are not given by the judicial act. They are given by
56
congressmen had widely understood the Exceptions power to be the
authority for their action, then the Act would have been framed as
provision for exceptions to a constitutional grant of jurisdiction.
Instead, the Act was framed as a statutory grant of jurisdiction. The
Act’s premise was that jurisdiction had to be conferred by Congress
if it was to exist. But the Constitution itself vests the judicial Power of
the United States in one supreme Court, as surely as the Constitution
vests “[a]ll legislative Powers herein granted” in Congress.
The Constitution no more lets Congress decide what matters
the Supreme Court can hear than it lets Congress decide whether the
Supreme Court will exist. Inferior federal courts are wholly
distinguishable in both respects – a corollary of Congressional choice
to create them is Congressional choice of their jurisdictions, for the
Constitution does not prescribe how the judicial Power shall be
apportioned among them. But constitutional supremacy of itself
prescribes the Supreme Court’s share in the judicial Power.
Supremacy means the last word on the matters to which it pertains,
or it means nothing. Congressman Stone’s analogy between
Congress’s normal discretion whether to exercise any particular of its
legislative powers and an alleged Congressional discretion whether
to extend the judicial Power of the United States to any particular
category of Article III matter was false.171 The “shalls” of Article III
oblige Congress to legislate for a Court of the character described in
the Article, as surely as the “shalls” of Article I oblige Congress to
convene at all.172 The true analogy is between the Constitution’s
the constitution. But they are limited and regulated by the judicial act, and by such
other acts as have been passed on the subject. When the first legislature of the union
proceeded to carry the third article of the constitution into effect, they must be
understood as intending to execute the power they possessed of making exceptions
to the appellate jurisdiction of the supreme court. They have not, indeed, made
these exceptions in express terms. They have not declared that the appellate power
of the court shall not extend to certain cases; but they have described affirmatively
its jurisdiction, and this affirmative description has been understood to imply a
negative on the exercise of such appellate power as is not comprehended within it.”
171
Michael Jenifer Stone, I Annals of Congress, op cit n. 45, 855 (Aug. 31,
172
U.S. Const. Art. I § 4 cl. 2.
1789).
57
vesting of legislative powers over listed subjects in Congress and the
Constitution’s vesting of the judicial Power over listed subjects in
“one supreme Court” and in any other courts that Congress creates.
Choice whether to exercise a constitutionally-vested power belongs
to those in whom the Constitution vests it, subject to any
constitutionally-endorsed duties to do so. Congress can choose
whether to exercise its legislative powers, but only the one supreme
Court can choose whether to adjudicate matters listed by Article III as
within the judicial Power of the United States, subject to any duties to
adjudicate that Congress might impose under its regulations power.
In Cohens v. Virginia, Chief Justice John Marshall celebrated the
Judiciary Act as compelling evidence of the founding generation’s
collective understanding of the Constitution.173 On that occasion, the
claim served the result that he wished to reach. He made no such
claim in Marbury v. Madison,174 when declaring § 13 of the Act invalid
to the extent that the section provided for re-routing Article III matters
into the Supreme Court’s original jurisdiction. The history of the Act’s
adoption confirms what the Act’s chaotic structure suggests: that the
Judiciary Act might better be described as exhibit A for proving the
first Congress’s discord and failure to read Article III coherently.
E. Founding Judicial Decisions
1. Wiscart v. D’Auchy
Seven years later, as Chief Justice of the United States, Oliver
Ellsworth articulated the assumption under which he had written the
Judiciary Act: all federal appellate jurisdiction was in the gift of
Congress, and did not exist unless Congress by statute granted it. Mr.
Justice James Wilson, author in the Committee of Detail of the
Constitution’s reference to “Exceptions,” disagreed. Dissenting from
173
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 420 (1821). See also Wisconsin
v. Pelican Insurance, 127 U.S. 265, 297 (1888).
174
5 U.S. (1 Cranch) 137 (1803).
58
Ellsworth’s majority opinion in Wiscart v. D’Auchy,175 Wilson insisted
that the Constitution directly invested the Supreme Court with
jurisdiction over everything to which Article III extended the judicial
Power of the United States. Wilson’s dissent evaded the question
whether, and if so, to what extent, Congress could remove the Court’s
constitutionally-vested jurisdiction. Consistent with his performance
at the Pennsylvania ratifying convention, Wilson’s words were
sedulously ambiguous concerning the constitutionality of
Congressional jurisdiction stripping.
The occasion for Wilson’s disagreement with Ellsworth over
jurisdictional first principles was the Wiscart Court’s need to decide
whether it could exercise appellate jurisdiction over questions of fact
in equity and admiralty cases. Ellsworth’s answer for the majority was
no. Wilson’s was yes:
Such an appeal is expressly sanctioned by the
Constitution; it may, therefore, clearly in the first view
of the subject, be considered as the most regular
process; and as there are not any words in the judicial
act restricting the power of proceeding by appeal, it
must be regarded as still permitted and approved.
Even, indeed, if a positive restriction existed by law, it
would, in any judgment, be superseded by the superior
authority of the constitutional provision.176
That sounded as though Wilson denied any Congressional power to
remove Article III jurisdiction from the Court. Later in his dissent,
however, he seemed to concede that some such power might exist.
It is true, the act of Congress makes no provision on the
subject; but, it is equally true, that the constitution
(which we must suppose to be always in the view of the
Legislature) had previously declared that in certain
enumerated cases, including admiralty and maritime
175
176
3 U.S. (3 Dall.) 321 (1796).
Id., 325.
59
cases, “the Supreme Court shall have appellate
jurisdiction, both as to law and fact, with such
exceptions, and under such regulations as the Congress
shall make.” The appellate jurisdiction, therefore,
flowed, as a consequence, from this source; nor had the
Legislature any occasion to do, what the Constitution
had already done. The Legislature might, indeed, have
made exceptions, and introduced regulations upon the
subject; but as it has not done so, the case remains upon
the strong ground of the Constitution, which in general
terms, and on general principles, provides and
authorises an appeal; the process that, in its very nature,
(as I have before remarked) implies a re-examination of
the fact, as well as the law.177
Wilson’s observation that Congress could have made relevant
exceptions to the Court’s appellate jurisdiction did not address
whether such “exceptions” might validly exclude Supreme Court
review, or could only shift adjudication to the Court’s original
jurisdiction. Nonetheless, the dissent’s assertions seem irreconcilable,
for either use of the Exceptions power would effect a “positive
restriction” on the Court’s appellate jurisdiction.
Responding to Wilson’s dissent (and apparently writing only
for himself), Ellsworth contended that Congressional failure to
provide for an aspect of the Court’s Article III appellate jurisdiction
should be construed as an implicit exercise of the Exceptions power
to exclude those matters from the Court’s consideration completely.
If Congress has provided no rule to regulate our
proceedings, we cannot exercise an appellate
jurisdiction; and if the rule is provided, we cannot
depart from it. The question, therefore, on the
constitutional point of an appellate jurisdiction, is
simply, whether Congress has established any rule for
177
Id., 326-27.
60
regulating its exercise?178
That understanding was repeated by the nation’s next Chief Justice,179
and has sustained the orthodoxy concerning Congress’s Exceptions
power ever since.
2. Marbury v. Madison
The prospects for implementing a coherent vision of Article III
were already dim when Chief Justice John Marshall delivered the
Court’s opinion in Marbury.180 His opinion extinguished them.181 If
Congress had no power to let the Supreme Court entertain suits at
first instance for the writ of mandamus against federal officers by
plaintiffs other than states or diplomats, then to what did the
Exceptions power refer? Marshall was wilfully blind to the
possibilities that the constitutional specification of original jurisdiction
set only a floor on that jurisdiction, not a ceiling, or that the
constitutional specification of original jurisdiction was a default rule,
and subject to whatever necessary and proper redistributions between
original and appellate the Congress might choose to make.182 No such
redistributions between kinds of Supreme Court jurisdiction would
have risked the Court’s role as ultimate expositor of federal law under
Article III, whereas Marshall’s reading did. If Congress’s power to
make exceptions to the Court’s appellate jurisdiction were not a
power to expand the Court’s original jurisdiction, then where would
the exceptions go? If Marshall’s reasoning were right, then Congress’s
178
Id., 327.
179
United States v. More, 7 U.S. (3 Cranch) 159, 173 (1805) (Marshall, C.J.);
Durousseau v. United States, 10 U.S. (6 Cranch) 307, 314 (1810) (Marshall, C.J.).
180
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
181
See Ex parte Yerger, 75 U.S. (8 Wall.) 85, 97 (1869); Susan Low Bloch and
Maeva Marcus, John Marshall’s Selective Use of History in Marbury v. Madison, 1986
Wis.L.Rev. 301, 328-9;Amar, op cit n. 69; Louise Weinberg, Our Marbury, 89
Va.L.Rev. 1235 (2003); Haskins and Johnson, op cit n. 84, 201.
182
5 U.S. (1 Cranch) 137, 174-75.
61
power to make exceptions to the Court’s appellate jurisdiction had to
let Congress stop the Court from considering some Article III matters
at all. In his anxiety to establish the principle that his Court could
decide the constitutionality of Congress’s acts, Marshall cultivated the
greatest textual threat to that principle.
Marshall had cause to be anxious. Hostile incumbents
glowered from the White House and the Congress, threatening
impeachment of the federalist Court.183 In support of ideological
impeachment they could cite none less than Marshall’s fellow
federalist, Alexander Hamilton.184 Had Marshall decided the case as
he otherwise did without finding §13 of the Judiciary Act invalid to the
extent that it afforded the Court jurisdiction to entertain Marbury’s
suit, he would have risked two terrible consequences. The first, and
highly probable one, was that his decision would have been defied.
Jefferson would likely have instructed Madison to ignore the
mandamus and to refuse to deliver Marbury’s commission. Second,
Marshall would have added to the looming danger of his own
impeachment.185
Finding the Judiciary Act unconstitutional as applied to
Marbury’s suit avoided those bad consequences, and achieved a good
one. When Marbury’s suit appeared on his docket, Marshall had
every reason to consider it the safest circumstance he was ever likely
to encounter for asserting the Court’s authority to determine the
constitutionality of Congress’s acts. He had no cause for confidence
that he would again have opportunity to adjudicate the
constitutionality of a statute over which the Jeffersonians did not have
pride of authorship and which could be held invalid without
incensing them. By attacking a law not of their making on the ground
183
See letter from Marshall to Samuel Chase, Jan. 23, 1804, op cit n. 83;
Articles of Impeachment against Samuel Chase reported to the House of
Representatives on March 26, 1804, XIII Annals of Congress 1240(1852).
184
185
Federalist No. 81.
See, e.g., letter from Thomas Jefferson to William Branch Giles, April 6,
1807, excerpted in V Dumas Malone, Jefferson and His Time (Jefferson the President
Second Term 1805-1809), 305 (1974).
62
that it gave too much power to him, Marshall asserted power by
abdicating power in a way that disarmed his detractors. In plucking
a chance to elevate the Court’s authority from a scenario that looked
set to undermine the Court’s authority, Marshall paid a price that
must have to him seemed small. He was already on record in support
of reading Congress’s Exceptions power to permit jurisdiction
stripping.186 Marbury took that reading only a modest step further, by
implicitly insisting that jurisdiction stripping was the only thing that
the Exceptions power let Congress do. But Marshall’s reasoning
cemented the otherwise-contestable jurisdiction-stripping
understanding of “Exceptions” by rendering its coherent, routeswitching alternative unsalvageable.187
Did Marshall decide Marbury as he did just so that he could
declare an Act of Congress unconstitutional? T w o p i e c e s o f
evidence support that conclusion. First, he violated even the thinnest
recusal standards.188 But for an ulterior motive, he would surely have
leapt with gratitude on his involvement in the underlying dispute to
avoid sitting on the case. Marshall had sealed and recorded Marbury’s
commission, and Marshall’s younger brother, who had been in
Marshall’s office at the time, testified by affidavit to Marshall’s
conduct that night.189 Marshall’s opinion sought to emphasize the
ministerial nature of his role,190 but the office of Secretary of State was
186
III Elliot’s Debates, op cit n. 45, 559-60, (June 20, 1788) (John Marshall,
Virginia ratifying convention).
187
See Ex parte Yerger, 75 U.S. (8 Wall.) 85, 97 (1869).
188
Van Alstyne, op cit n. 84, 8.
189
Id.
190
5 U.S. (1 Cranch) 137, 155, 158: “It appears, from the affidavits, that in
compliance with this law, a commission for William Marbury as a justice of peace
for the county of Washington, was signed by John Adams, then president of the
United States; after which the seal of the United States was affixed to it; but the
commission has never reached the person for whom it was made out. ... The
commission being signed, the subsequent duty of the secretary of state is prescribed
by law, and not to be guided by the will of the President. He is to affix the seal of
the United States to the commission, and is to record it.”
63
hardly clerical. It made him the first-ranked member of the Adams
cabinet, and presumptively fixed him with a favorable opinion on the
merits of Marbury’s appointment as a Justice of the Peace. And it was
Marshall’s own oversight in not arranging dispatch of the commission
before departing the office that had let his successor withhold delivery
and thus had triggered the suit.191 As party to the commission’s
creation Marshall arguably would have had standing to be Marbury’s
co-complainant in the suit.
The pretextual character of Marshall’s Marbury adjudication is
also evidenced by the contrast between his reasoning in the case and
his reasoning in Cohens v. Virginia.192 In Cohens, Marshall held that
Congress could expand the Court’s appellate jurisdiction to include
litigation involving state parties, notwithstanding the text’s explicit
confinement of the appellate jurisdiction to those Article III matters
not falling within the Court’s constitutionally-prescribed original
jurisdiction. The text provided for “Exceptions” to the appellate
jurisdiction, not “Additions” to it, and nowhere provided for
“Exceptions” to the Court’s original jurisdiction. The textual case for
holding that Congress could not expand the Court’s appellate
jurisdiction was much clearer than the case that Marshall made in
Marbury for his conclusion that Congress could not expand the
Court’s original jurisdiction. Marshall’s failure in Marbury, surely
feigned, to notice that not all legal rules are mandatory rules, left the
judicial branch’s ability to participate in inter-branch constitutional
discourse dependent on the will of the other branches.
III. Relation between Article III and the Suspension Clause
The Constitution’s guarantee that “[t]he Privilege of the Writ
of Habeas Corpus shall not be suspended, unless when in Cases of
Rebellion or Invasion the public Safety may require it”193 is listed
191
192
193
Haskins and Johnson, op cit n. 84, 183-84.
19 U.S. (6 Wheat.) 264, 392-403 (1821).
U.S. Const. Art. I § 9 cl. 2.
64
among Article I § 9's limitations on the Congressional powers
conferred in Article I § 8. It necessarily implies that those legislative
powers – in particular, Congress’s war powers when read with the
necessary-and-proper clause – might otherwise authorize suspending
the jurisdiction of the courts to review the legality of federal
detentions in circumstances beyond a fighting war on American soil.
But it also necessarily implies that those legislative powers can be
used at most to suspend the detention-reviewing jurisdiction of the
courts, which means that those powers do not let Congress remove all
such jurisdiction. The jurisdiction-stripping understanding of Article
III puts the text of the Article at war, not only with itself, but also with
the suspension clause.
The suspension clause appears in the version of Charles
Pinckney’s plan of government that he supplied over three decades
after the Philadelphia Convention and alleged to be identical with the
version presented to the Convention on May 29, 1787194 except in
“form & unessentials.”195 The later-delivered version contained the
following clause:
The United States shall not grant any title of Nobility --- The Legislature of the United States shall pass no Law
on the subject of Religion, nor touching or abridging the
Liberty of the Press nor shall the Privilege of the Writ of
Habeas Corpus ever be suspended except in case of
Rebellion or Invasion.196
Madison subsequently criticized Pinckney for representing that the
Pinckney plan foreshadowed the Constitution to a greater degree than
it had.197 Other records from the Convention suggest that Pinckney
was indeed the moving force behind the suspension clause, but that
194
I Farrand, op cit n. 14, 23; III id., 595, 599.
195
III id., 427, 428. (Letter of Charles Pinckney to John Quincy Adams, Dec.
30, 1818).
196
Id., 599.
197
Id., 501-13.
65
if his original plan had provided anything on the subject, that
provision did not so closely conform to the eventual Constitution. On
August 20, 1787, Pinckney proposed the following:
The privileges and benefit of the Writ of Habeas corpus
shall be enjoyed in this Government in the most
expeditious and ample manner; and shall not be
suspended by the Legislature except upon the most
urgent and pressing occasions, and for a limited time
not exceeding months.198 [sic]
On August 28, the provision was taken up in Convention debate.
Pinckney moved that habeas corpus “should not be suspended but on
the most urgent occasions, & then only for a limited time not
exceeding twelve months.” John Rutledge preferred to declare habeas
corpus “inviolable,” because he thought it inconceivable “that a
suspension could ever be necessary at the same time through all the
States.” Gouverneur Morris then proposed the formula that passed:
“The privilege of the writ of Habeas Corpus shall not be suspended,
unless where in cases of Rebellion or invasion the public safety may
require it.”199 All state delegations agreed to the guarantee in the
provision’s opening phrase, and the three delegations from the deep
South resisted letting Congress suspend the writ even in the two
limited circumstances identified by Morris,200 reflecting the doubt felt
even by James Wilson that suspension would ever be necessary, given
the extent of judicial discretion to refuse bail.201 Luther Martin
complained during ratification that the power to suspend during
“rebellion” would be exploited to silence legitimate political
198
II id., 341 (Madison’s notes); 334 (Journal).
199
Id., 438 (Madison’s notes).
200
“N.H. ay. Mas. ay. Ct. ay. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. no. S. C.
no. Geo. no. [Ayes--7; noes-- 3.]” Id., 438 (Madison’s notes).
201
Id.
66
opposition in the states.202
Morris’s revision of the Pinckney proposal responded to
Rutledge’s view that the national government would never need to
suspend habeas corpus, by identifying two circumstances in which
such action might be necessary. Rebellion and invasion are the two
circumstances in which the national government might be engaged in
active combat with an enemy on American soil. Congress may
suspend judicial review of federal executive detentions on American
soil if and only if the national executive is operating under battlefield
conditions on American soil. The clause is perspicaciously practical.
When rounding up apparent enemies on a battlefield, military
commanders should not have to gather evidence. Evidence-gathering
is inefficient, and battle is a context where the stakes for efficiency are
exceptionally high, for on efficiency depend one’s own soldiers’ lives,
military success, and ultimately the public safety. Suspending the writ
under battlefield conditions may indirectly protect detainees, for if
military commanders were subjected to judicial process and secondguessing when detaining and holding suspected enemy combatants
on a battlefield, those commanders might not bother. Summary
executions might displace summary detentions of captured or
surrendering adversaries. The founders understood the dynamics of
domestic combat, for they had just emerged from a shooting war at
home. When the homeland truly becomes a battlefield due to rebellion
or invasion, Congress may close down the courts, suspending the
jurisdiction that courts would otherwise have to determine the
legality of federal executive detentions.
The suspension clause’s primary guarantee insists, however,
that Congress’s war powers not be used pretextually – war abroad
does not justify shutting down courts at home. The suspension clause
exists precisely to prevent the Orwellian specter of a government
perpetually omnipotent and unaccountable because perpetually “at
war.” If, after homeland fighting subsides, the federal government
wishes to hold domestic prisoners in the longer term, then it had
better come up with evidence in support of their detention and make
202
Luther Martin, Genuine Information (address to the Maryland
Legislature, November 29, 1787), III id., 172, 213.
67
an appropriate case to the courts. Only in the unique circumstances of
a homeland fighting war may one branch of government (Congress)
insulate another branch of government (the President, as Commander
in Chief203) from scrutiny by the third branch of government with
respect to detention of persons in America.
The suspension clause tells us something important about the
proper interpretation of Article III, because the suspension clause
necessarily implies that there is something to suspend. In limiting the
circumstances in which the war powers let Congress suspend courts’
jurisdiction to determine the legality of federal detentions, the
suspension clause necessarily implies that no power lets Congress
simply prevent all courts from having that jurisdiction in the first
place.
The suspension clause presupposes that jurisdiction to issue
the writ of habeas corpus to determine the legality of federal
detentions exists in at least one court. The clause then sets forth the
limited circumstances in which Congress may use its war powers to
suspend – not eliminate, for the concept of suspension is intrinsically
temporary – the operation of that jurisdiction. But the suspension
clause does not of itself vest jurisdiction in any court. And nothing else
in the Constitution (a.) obliges states to enact laws vesting state courts
with jurisdiction to issue the writ of habeas corpus to determine the
legality of federal detentions, (b.) prevents Congress from making
federal jurisdiction to determine the legality of federal detentions
exclusive, or (c.) obliges Congress to enact laws to create any
particular inferior federal court with jurisdiction to issue the writ of
habeas corpus to determine the legality of federal detentions. Nor did
the original Constitution contain a due process clause. The only place
in the Constitution where Congress is subjected to a duty to invest a
particular court with jurisdiction to determine the legality of federal
detentions is Article III §§ 1 and 2, where the Constitution insists that
the judicial Power be vested in one supreme Court and that the
judicial Power extend to matters arising under the Constitution and
laws of the United States.
203
U.S. Const. Art. II § 2 cl. 1. See Ex parte Merryman, 17 F.Cas. 144, 151-52
(1861) (Taney, C.J., citing Story, J.)
68
If Congress’s power to make exceptions to the Supreme Court’s
appellate jurisdiction lets Congress eliminate the Court’s jurisdiction
to determine the legality of federal detentions, then Congress’s choice
to do so would not be a suspension of the Court’s jurisdiction, it
would be an extinction of that jurisdiction. And if the constitutionallyrequired jurisdiction to issue the writ of habeas corpus were a floater
that constitutionally had to exist except during rebellion or invasion
but did not constitutionally have to exist in any particular court,204 then
there would be more sense in speaking of removing or extinguishing the
jurisdiction during rebellion or invasion. But the Constitution seems
to assume that the jurisdiction to determine legality of federal
detentions cannot be removed – that such jurisdiction can at most be
suspended. By limiting the circumstances in which mere suspension
can occur, the Constitution seems to assume a background jurisdiction
somewhere that cannot be extinguished. But if that jurisdiction were
otherwise only in an inferior federal court or in a state court, then of
course that jurisdiction could be extinguished. Congress could abolish
the inferior federal court, or change that court’s jurisdiction however
Congress pleased.205 States could change state court jurisdictions or
Congress could exclude state courts from review of federal action. The
assumption that even in rebellion or invasion a jurisdiction to review the
legality of federal detentions will exist and can only at most be
suspended presupposes no Congressional power to extinguish that
jurisdiction in at least one court that has that jurisdiction. And that
counts robustly against the jurisdiction-stripping interpretation of
Congress’s Exceptions power and to a complete absence of
Congressional ability to remove habeas corpus jurisdiction from the
Supreme Court.
The underlying logic of the relation between Article III and the
suspension clause explains Chief Justice Salmon Chase’s perplexity
when the Reconstruction Congress displayed an inclination to
replicate the effect of wartime suspension through peacetime
204
Cf. Hamdan v. Rumsfeld, 126 S.Ct. 2749, 2818-19 (Scalia, J., joined by
Thomas and Alito, JJ., dissenting).
205
See Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850).
69
extinction.206 Conceding that Congress’s Exceptions power permitted
jurisdiction stripping, Chase noted that nonetheless “it is too plain for
argument that the denial to this court of appellate jurisdiction in this
class of cases must greatly weaken the efficacy of the writ, deprive the
citizen in many cases of its benefits, and seriously hinder the
establishment of that uniformity in deciding upon questions of
personal rights which can only be attained through appellate
jurisdiction, exercised upon the decisions of courts of original
jurisdiction.”207 Wistfully, he observed that but for Marbury,
Congress’s Exceptions power might have received a route-switching
characterization.
If the question were a new one, it would, perhaps,
deserve inquiry whether Congress might not, under the
power to make exceptions from this appellate
jurisdiction, extend the original jurisdiction to other
cases than those expressly enumerated in the
Constitution; and especially, in view of the
constitutional guaranty of the writ of habeas corpus, to
cases arising upon petition for that writ. But, in the case
of Marbury v. Madison, it was determined, upon full
consideration, that the power to issue writs of
mandamus, given to this court by the 13th section of the
Judiciary Act, is, under the Constitution, an appellate
jurisdiction, to be exercised only in the revision of
judicial decisions. And this judgment has ever since
been accepted as fixing the construction of this part of
the Constitution.208
A route-switching understanding of Article III makes sense of
the Article’s relation to the suspension clause. Jurisdiction to issue the
writ of habeas corpus to review the legality of federal detentions must
206
See Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869); Ex Parte Yerger, 75
U.S. (8 Wall.) 85 (1869).
207
208
Yerger, 75 U.S. (8 Wall.) 85, 102-03 (1869).
Id., 97.
70
exist in the one supreme Court. If that habeas jurisdiction is also
possessed by state courts or has been invested by Congress in inferior
federal courts, then the Supreme Court’s appellate jurisdiction affords
it power of ultimate judgment concerning the legality of federal
detentions.209 But if no state or inferior federal courts possess
jurisdiction to determine the legality of a federal detention, then
Congress is obliged to expand the one supreme Court’s original
jurisdiction to cover the case. The suspension clause requires no less.
So does the fifth amendment’s due process clause, and that clause
extends the obligation of Congress to ensure judicial fora beyond
issues of liberty.
IV. A New Vision of Article III
A. Reconciling Text and History
To a logical mind parsing Article III with the aid of Samuel
Johnson’s dictionary,210 the text’s reference to Congress’s Exceptions
power should not have seemed ambiguous. Only one meaning of
“Exceptions” coheres with the “shalls” of Article III and the
comparison with Articles I and II that shows those “shalls” to be
mandatory. Unlike any other court in the common law world at its
birth, Article III’s one supreme Court was not the creation of a
monarch or even of a legislature. It was created directly through a
document designed to stand above executives and legislatures. Its
organization was left to a legislature, but its character was prescribed
in the higher text that created it. Congress’s duty was to organize a
Court of the character described in Article III. If what the Court can
decide is completely within Congress’s discretion, then the
Constitution’s guarantee of the Court’s existence is empty, for the
Court’s identity is indistinguishable from what the Court can do.
209
See Dallin H. Oaks, The “Original” Writ of Habeas Corpus in the
Supreme Court, 1962 S. Ct. Rev. 153; Ex parte Bollman; ex parte Swartout, 8 U.S. (4
Cranch) 75 (1807) (M arshall, C.J.).
210
II Samuel Johnson, Dictionary of the English Language 1953 (1755)
(defining “supreme” as “1. Highest in dignity; highest in authority. ... 2. Highest;
most excellent.”).
71
Early in the life of the Philadelphia Convention, John Rutledge
rose to argue that the future national judiciary need not include
inferior federal courts and “that the State Tribunals might and ought
to be left in all cases to decide in the first instance[,] the right of appeal
to the supreme national tribunal being sufficient to secure the national
rights & uniformity of Judgmts.” In response, James Madison
“observed that unless inferior tribunals were dispersed throughout
the Republic with final jurisdiction in many cases, appeals would be
multiplied to a most oppressive degree.”211 As their colloquy was
predicated on the critical importance of securing “the national rights
& uniformity of Judgmts,” Madison’s vision of inferior court finality
cannot have been one of finality by reference to issue, but of finality by
reference to adjudicative stakes, measured, in civil cases, by amount
in controversy, and in criminal cases by size of penalty. If the inferior
federal courts “dispersed throughout the Republic” were invested
with the last word on an issue arising within the judicial Power of the
United States, then the “uniformity of Judgmts” would not be
secured, any more than if state courts enjoyed the last word on that
issue. Madison’s argument for inferior federal courts depended upon
the importance of adjudicative consistency, for if consistency were
unnecessary, then state courts could have been left with ultimate
judgment of some federal issues. The Convention had, just the
previous day, amended the Virginia delegation’s resolution for “one
or more supreme tribunals”212 to stipulate that there should be just
one.213
Madison had to mean that inferior federal courts could be
better relied on than state courts to observe Supreme Court precedent
on federal questions,214 and thus amount-in-controversy limitations on
appeal from federal courts would be acceptable even though
211
I Farrand, op cit n. 14, 124 (Madison’s notes) (June 5, 1787).
212
Id., 21 (Madison’s notes).
213
Id., 95 (Journal), 104-5 (Madison’s notes) (June 4, 1787).
214
The supremacy clause (U.S. Const. Art. VI cl. 2) does not explicitly bind
state courts to observe Supreme Court precedent, but see Cooper v. Aaron, 358 U.S.
1, 17-19 (1958).
72
comparable finality in state courts would not. Consistent with that
vision, the Judiciary Act imposed a $2,000 amount-in-controversy
limitation on Supreme Court review of federal circuit court decisions
on questions of law215 but no amount-in-controversy limitation on
Supreme Court review of state supreme court decision on questions
of the constitutionality and legality of federal action or the (federal)
unconstitutionality of state action.216 Madison may also have
contemplated that the Supreme Court would inherently possess a
power of discretionary review in respect of “final” judgments of
inferior federal courts.217
As the national experience has proven, leaving the Supreme
Court with discretion to decide which matters to adjudicate
substantively, rather than arbitrarily limiting access by reference to
amounts-in-controversy or size of penalties, is the optimal way to
keep the Court functional while preserving its supremacy in relation
to the matters within the judicial Power of the United States.218 But
jurisdictional restrictions calibrated to adjudicative stakes are a
second-best solution. They leave the Court power to exercise ultimate
judgment over less than all legal matters that fall within the judicial
Power of the United States, but do not necessarily frustrate the
Court’s ability to exercise ultimate judgment over all legal issues that
fall within the judicial Power of the United States. Such jurisdictional
limitations may co-exist, albeit awkwardly, with an understanding
that the Court’s supremacy calls for ultimacy on legal issues. Such coexistence is possible, however, only if adjudicative-stakes restrictions
on jurisdiction do not exclude from the Court every instance of any
215
Judiciary Act 1789, § 22.
216
Judiciary Act 1789, § 25. (The Act made no provision for Supreme Court
review of any court’s decisions on questions of fact, and, of course, the same
Congress proposed the seventh amendment.)
217
218
See Pfander, op cit n. 20, 1458-1462.
See 28 U.S.C. §§ 1254, 1257. (For provenance, see the Circuit Court of
Appeals Act of 1891 (the Evarts Act), 26 Stat. 826, providing for discretionary
Supreme Court review on writ of certiorari regardless of amount in controversy.)
73
particular Article III issue of law.219 And the seventh amendment now
independently regulates Article III’s provision for the Court’s
ultimacy on issues of fact.
History has called forum non conveniens a ground on which
Congress’s Exceptions power lets Congress prevent the Supreme
Court from deciding Article III matters. The legacy with which we are
left, however, is a Congress whose members think themselves
empowered to deprive the nation’s Supreme Court of jurisdiction for
a different reason. Periodically they threaten to legislate “Exceptions,”
not because of the kinds of considerations raised at the founding, but
because they do not like the way in which the Court has decided, or
looks likely to decide, particular legal issues that fall within the judicial
Power of the United States.220
The history of the Constitution’s adoption joins the logic of its
language in recognizing no power to remove jurisdiction from Article
III’s one supreme Court by reference to issue. Even in the depths of
judicial deference to Congressional jurisdiction stripping, the
Reconstruction Supreme Court condemned a statute through which
Congress purported to strip the Court of appellate jurisdiction by
reference to issue.221 The statute in United States v. Klein purported to
let the Court decide appeals in a class of matters (and let the Court of
Claims decide those matters in the first instance) only when those
matters did not implicate the Supreme Court’s conclusion on a
particular constitutional issue, namely, the effect of a Presidential
219
Cf. Ratner, op cit n. 18, 201, arguing that the Exceptions power must not
be used to negate the “essential constitutional functions of maintaining the
uniformity and supremacy of federal law,” and therefore must not preclude
Supreme Court review of “every case involving a particular subject.”
220
See, e.g.,”DeLay says Federal Judiciary Has `Run Amok,’ Adding
Congress Is Partly to Blame,” New York Times, April 8, 2005, Section A, 21 ([House
majority leader] “DeLay alluded to Congressional authority to `set the parameters’
of courts’ jurisdictions”). See also the examples cited in Carl A. Auerbach, The
Unconstitutionality of Congressional Proposals to Limit the Jurisdiction of Federal
Courts, 47 Mo.L.Rev. 47 (1982); Sager, op cit n. 86, 18 n. 3; Clinton, op cit n. 84, 744-5
nn. 4-10.
221
United States v. Klein, 80 U.S. (13 Wall.) 128, 145-48 (1872).
74
pardon. Klein provides pedigree in precedent for departing from the
current orthodoxy and concluding that Congress cannot make
exceptions to the Supreme Court’s appellate jurisdiction by reference
to issue.
B. Stare Decisis
Changing current doctrine to condemn issue-driven
jurisdiction stripping would compromise no citizen-reliance interests
of the kind that have on other occasions encouraged the Supreme
Court to maintain contested precedents.222 No participant in American
life has changed how she lives in reliance on Congress’s alleged
jurisdiction-stripping powers. Reliance interests of the kind that
accrete around decisions affirming and defining individual rights
would accrete around a decision rejecting Congressional power to
remove the Supreme Court’s jurisdiction. Those interests do not
protect decisions recognizing such a Congressional power. Moreover,
Congress’s reliance on the orthodox understanding of its Exceptions
power warrants little solicitude, for use of the power to remove
Supreme Court jurisdiction by reference to issue is antithetical to the
liberty of the citizen. And Congress’s reliance on having power to
remove jurisdiction by reference to issue has in fact been negligible.
What of Article III jurisdiction about which Congress has been
silent? The orthodoxy, ever since Wiscart v. D’Auchy,223 has been that
Congressional silence implicitly exercises the Exceptions power to
deny the Court jurisdiction over Article III matters. That conclusion
could change without conferring on any litigant a right to ultimate
appellate adjudication, for ultimate appellate jurisdiction is, in default,
wholly discretionary.224 An ultimate appellate Court may reasonably
forbear from exercising jurisdiction over matters sufficiently
adjudicated by other courts and for which there is no explicit statutory
222
See Planned Parenthood v. Casey, 505 U.S. 833, 855-57 (1992).
223
3 U.S. (3 Dall.) 321 (1796). See Section IIE, supra.
224
See Section IA-6., supra.
75
endorsement – not because such endorsement is needed, but because,
as a matter of inter-branch comity, it is desirable.
V. Conclusion
As the history of Article III reflects, most people do not read
law. They just get told about it. But the miscellany of mixed messages
that they receive is hardly sufficient basis for deciding authoritatively
what the law mandates. The rule of law in America depends upon
American governments, and courts in particular, taking Englishlanguage meanings of legal words seriously. And only one meaning
of “supreme” makes sense of Article III. America’s Constitution calls
America’s Supreme Court supreme in substance, not just in name.