THE ONE COURT THAT CONGRESS CANNOT TAKE AWAY: … · 10/6/2006 · 5 4 Detainee Treatment Act 2005 § 1005 (e) and (h). 5 126 S.Ct. 2749, 2762-2770 (2006) (Stevens, J., opinion of

Professor of Law, University of San Diego. I am grateful for valuable1

comments from Larry Alexander, Donald Dripps, Jeffrey Pojanowski, SaikrishnaPrakash, Michael Ramsey, Nicholas Quinn Rosenkranz, and Steven Smith, for ableresearch assistance from Jasmine Scott, and for a summer research grant from theUniversity of San Diego School of Law.

THE ONE COURT THAT CONGRESS CANNOT TAKE AWAY:SINGULARITY, SUPREMACY, AND ARTICLE III

Laurence Claus1

University of San Diego5998 Alcala Park

San Diego CA 92110Tel. 619-260-5933

[email protected]

THE ONE COURT THAT CONGRESS CANNOT TAKE AWAY:SINGULARITY, SUPREMACY, AND ARTICLE III

I. The Original Article III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9A. Linguistic Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1. What it means to be “supreme” . . . . . . . . . . . . . . . . .2. Alternative meanings of supremacy . . . . . . . . . . . 133. To what must the judicial Power extend? . . . . . . . 174. The syllogism summarized . . . . . . . . . . . . . . . . . . . 205. “Exceptions” and the internal logic of Article III . . .6. The nature of ultimate appellate jurisdiction . . . . 24

B. Drafting History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25C. “Exceptions” as Constitutional Check on the Judiciary? 33

II. Genesis of the Great Misconception . . . . . . . . . . . . . . . . . . . . . . . 35A. Wilson in Pennsylvania . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39B. Hamilton in New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41C. The Virginia Ratifying Convention . . . . . . . . . . . . . . . . . . 42D. The Judiciary Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48E. 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70A. Reconciling Text and History . . . . . . . . . . . . . . . . . . . . . . . . .B. Stare Decisis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

V. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

3

U.S. Const. Art. III §§ 1 and 2 cll. 1 and 2:2

§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 andestablish. The Judges, both of the supreme and inferior Courts, shall hold theirOffices during good Behaviour, and shall, at stated Times, receive for their Servicesa 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 underthis Constitution, the Laws of the United States, and Treaties made, or which shallbe made, under their Authority;--to all Cases affecting Ambassadors, other publicMinisters and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--toControversies to which the United States shall be a Party;--to Controversies betweentwo or more States;- between a State and Citizens of another State;--betweenCitizens of different States;--between Citizens of the same State claiming Landsunder Grants of different States, and between a State, or the Citizens thereof, andforeign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and thosein 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 appellateJurisdiction, both as to Law and Fact, with such Exceptions, and under suchRegulations as the Congress shall make.

The Article III about which we learn in Federal Jurisdictionclass is a text at war with itself. That text invests the judicial Power ofthe United States in “one supreme Court” and extends the judicialPower to nine categories of matter. But Article III also lets Congressmake “Exceptions” to the categories of matter that the “one supremeCourt” can determine on appeal. Does the Exceptions power simply2

let Congress move Article III matters from the one supreme Court’sappellate jurisdiction to the Court’s original jurisdiction, or does thepower let Congress remove Article III matters from the Court’sjurisdiction completely? As this article explains, both textualcoherence and drafting history demand the first interpretation. If thejudicial Power is to be vested in only one supreme Court and is toextend to the matters listed in Article III, then the “one supremeCourt” must have ultimate power to decide the issues arising in allArticle III matters. Successive drafts at the Philadelphia Conventionreveal that the “Exceptions” language was meant only to let Congressmove Article III matters of particular importance to the one supremeCourt’s original jurisdiction. Yet current and longstanding orthodoxy

4

United States v. Carolene Products, 304 U.S. 144, 152 n. 4 (1938) (Stone, J.,3

opinion of the Court).

holds that the Exceptions power lets Congress deprive the onesupreme Court of jurisdiction over matters to which Article IIIextends the judicial Power of the United States. Scholars differ in theiraccounts of the extent to which deprivation may occur, and mostacknowledge that the Constitution’s commitment to a separation ofpowers is at odds with letting Congress stop the one supreme Courtfrom deciding national legal issues. What, after all, is the purpose ofa separate Article III if it does not succeed in locating the “judicialPower” that it defines in the “one supreme Court” that it creates?Having conceded that the Exceptions power lets Congress deprive theone supreme Court of ultimate judgment over at least some of thematters to which Article III extends the judicial Power, courts andscholars alike have been perplexed by an absence of concreteconstitutional criteria for identifying limits to such jurisdictionstripping.

The prevailing orthodoxy concerning Congress’s Exceptionspower would never have survived for so long had Congress mademuch use of it. Congress has rarely tried to take previously-acknowledged jurisdiction from the one supreme Court. The reasonfor that Congressional reluctance is structural. The Constitution’sapportionment of legislative and executive powers amongindependently-chosen actors in national and state governments makesindispensable most Supreme Court determinations of governmentpower. Congress needs determinations of the reach of its own powersfrom some source that the President and state governments willrespect. The only plausible candidate for umpire is the Court. But thatstructural protection for the Court’s Article III jurisdiction may failwhen the Article III issue is government’s power to compromise theinterests of “discrete and insular minorities.” Having little or no3

influence on the selection of legislators and executives in national andstate governments, minorities may lack any governmental championssave the courts. Where consensus in the negative treatment ofminorities exists among national and state legislatures and executives,Congress may be tempted to prevent the one supreme Court fromcondemning that negative treatment. And those are precisely the

5

Detainee Treatment Act 2005 § 1005 (e) and (h).4

126 S.Ct. 2749, 2762-2770 (2006) (Stevens, J., opinion of the Court).5

Military Commissions Act 2006 § 7.6

Id., § 7(b).7

Pledge Protection Bill 2004 § 2 (passed by the House of Representatives as8

H.R. 2028 on September 23, 2004) and Pledge Protection Bill 2005 § 2 (introducedto the House of Representatives and Senate respectively as H.R. 2389 and S.1046 onMay 17, 2005) (purporting to eliminate the Supreme Court’s jurisdiction todetermine 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. 1070and S. 520 on March 3, 2005) (purporting to eliminate the Supreme Court’s

circumstances in which Congress has recently sought to deprive theone supreme Court of power to determine the legal limits of othergovernment actors’ powers. In the last two years, Congress hasactively considered removing the Court’s jurisdiction to determine thelegality of government action that involves negative treatment ofaliens, atheists, and gay people. Legislation purporting to removefrom the Supreme Court’s jurisdiction challenges to the legality ofaliens’ detention by the United States military at Guatanamo Bay,Cuba, was enacted in 2005. In Hamdan v. Rumsfeld, a majority of the4

Court treated the Act’s jurisdiction-stripping provisions asinapplicable to pending cases, and thus avoided determining theconstitutionality of those provisions. Congress then passed further5

legislation purporting to remove from the Supreme Court’sjurisdiction challenges to the legality of aliens’ detention by theUnited States anywhere, so long as the United States Government iswilling to call those aliens suspected enemy combatants. The new6

legislation explicitly applies “to all cases, without exception, pendingon or after” its enactment. The legality of federal detentions has not,7

however, been the only Article III issue recently at risk of attemptedCongressional removal from the Supreme Court’s jurisdiction.Proposed legislation for removing from the Court’s jurisdiction allchallenges to the constitutionality of the Pledge of Allegiance asdefined in 4 U.S.C. § 4, or of that pledge’s recitation, was passed bythe House of Representatives in 2004. So was proposed legislation8

6

jurisdiction to determine the constitutionality of government actors’“acknowledgment of God as the sovereign source of law, liberty, or government”).

Marriage Protection Bill 2004 § 2 (passed by the House of Representatives9

as H.R. 3313 on July 22, 2004) and Marriage Protection Bill 2005§ 2 (introduced tothe House of Representatives as H.R. 1100 on March 3, 2005) (purporting toeliminate the Supreme Court’s jurisdiction to determine the constitutionality of theDefense of Marriage Act (28 U.S.C. § 1738C)).

See, e.g., Human Rights Act 1998 (U.K.), §§ 4 and 10. Cf. Canadian10

Charter of Rights and Freedoms, § 33.

See Mark Tushnet, Policy Distortion and Democratic Debilitation:11

Comparative Illumination of the Countermajoritarian Difficulty, 94 Mich.L.Rev.245(1995).

Laurence Claus, Montesquieu’s Mistakes and the True Meaning of12

Separation, 25 Oxford J. Legal Studies 419 (2005).

removing from the Supreme Court’s jurisdiction all challenges to theconstitutionality of the Defense of Marriage Act.9

Congress’s alleged power to strip Article III’s one supremeCourt of jurisdiction over Article III matters is more pernicious thana legislative power to override, or to deny effect to, judicial decisions.Constitutional arrangements that let legislatures publicly second-guess judicial balancing of competing human interests in individual-rights litigation create a public conversation about constitutionalnorms. Where legislative “overrides” operate as responses to judicial10

opinions, the community is afforded a visible constitutional dialogueamong its governing institutions about constitutionally-required andpolitically appropriate protections. In contrast, jurisdiction-stripping11

provisions preemptively rob the judiciary of capacity to contribute toconstitutional and other legal deliberation. Such provisions freegovernment actors’ exercise of power from judicial scrutiny andrescue those actors from the risk of judicial critique. By removingcourts from constitutional and other legal discourse, jurisdiction-stripping provisions may let government actors determineconclusively and secretively the reach of their own powers. Thatthreat to liberty is exactly the evil that the Enlightenment’s separation-of-powers principle was supposed to prevent.12

7

How did our Article III jurisprudence arrive at this unhappyplace? The origins of the current orthodoxy lie in debate surroundingthe ratification of the Constitution, and in particular the federalistresponse to two widespread objections to Article III. Almost fatal tothe Constitution’s adoption was a complaint that the Supreme Court’sappellate jurisdiction would let distant judicial elites substitute theirwill for the findings of juries. The Court’s appellate jurisdiction overquestions of fact was accused of destroying the protection affordedordinary citizens by the privilege of trial by their peers. Moregenerally, antifederalists argued that the extent of Article IIIjurisdiction took too much from state courts, which citizens couldaccess more easily. As this article recounts, the threat posed to theConstitution’s prospects by these objections pushed federalists intoclaiming that Congress’s power to make “Exceptions” to the SupremeCourt’s appellate jurisdiction would protect against the evils alleged.That response necessarily construed the Exceptions power to letCongress remove Article III matters from the Supreme Court’sconsideration completely, at the price of destroying Article III’slinguistic coherence.

After tracing the distorting evolution of Article IIIjurisprudence, this article proposes a new vision of the text thatminimizes the constitutional incoherence and political dangers posedby its past distortion. The linguistically right answer is that Congresscan never use the Exceptions power to remove from the SupremeCourt an ability to give ultimate judgment of Article III matters, buta fall-back view of the power that takes account of its post-Philadelphia history would reach the following conclusion: Congresscannot use its Exceptions power to achieve particular desired answersto questions that fall within the judicial Power of the United States.

The current orthodoxy arose from arguments at the foundingthat Congress could use its Exceptions power to change the judicialfora for determining Article III questions. Congress could leave tostate (or to inferior federal) courts the last word on questions of factin cases where facts had been determined at trial by a jury, andCongress could leave to state (or to inferior federal) courts theultimate judgment of cases seeking damages or criminal penaltieswhere the amount of controversy or size of penalty was small. Such

8

See Sections II and IV, infra.13

I Max Farrand (ed.), Records of the Federal Convention, 124 (1911) (June14

5, 1787) (Madison’s notes).

United States v. Klein, 80 U.S. (13 Wall.) 128, 145-48 (1872).15

forum-shifting provisions are authentically about protecting litigantsqua litigants. They are cousins of the forum-shifting provisionscontemplated by the text as originally drafted, which were provisionsfor shifting politically-sensitive cases up into the Supreme Court’soriginal jurisdiction. None of these provisions are means to letCongress dictate its own answers to Article III questions. Statutes thatremove jurisdiction from Article III’s one supreme Court by referenceto the Article III questions at issue may be devices for dictatingCongress’s preferred answers to Article III questions. A principledand effective limitation on the “Exceptions” orthodoxy that wouldminimize its dissonance with the rest of the constitutional scheme is,therefore, that Congress can remove matters from the SupremeCourt’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 criminalprosecutions. Moreover, Congressional exercise of the Exceptions13

power to remove matters from the Supreme Court’s jurisdiction canserve only the purpose of leaving the last word in defined cases toother Article III federal courts or to extant state courts. The power cannever be used to leave parties with no access to judicial fora forresolving Article III matters.

Early in the deliberations of the Philadelphia Convention, JohnRutledge identified the essential purposes of the federal judiciary asbeing “to secure the national rights & uniformity of Judgmts.” Heargued that appellate jurisdiction in a national supreme Court wouldsufficiently serve those purposes. A principle that Congress cannot14

make exceptions to the Supreme Court’s appellate jurisdiction byreference to issue is essential to fulfilling Article III’s purposes. Anintuition that some such principle must exist was displayed even bythe Reconstruction Supreme Court, despite its acquiescence in15

Congressional jurisdiction stripping with respect to claims from the

9

Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869).16

Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of17

Federal Courts: An Exercise in Dialectic, 66 Harv.L.Rev. 1362, 1365 (1953).

Leonard G. Ratner, Congressional Power Over the Appellate Jurisdiction18

of the Supreme Court, 109 U.Pa.L.Rev. 157, 201 (1960).

See, e.g., Town of Castle Rock v. Gonzales, 125 S.Ct. 2796, 2805-06 (2005).19

defeated South. A principle that prohibits “issue” exceptions would16

concretize Henry Hart’s famous assertion that “the exceptions mustnot be such as will destroy the essential role of the Supreme Court inthe constitutional plan.” Such a principle would comport with17

Leonard Ratner’s formulation that Congressional exceptions must notpreclude “Supreme Court review in every case involving a particularsubject.” Hart and Ratner argued that such a limitation should be18

understood to flow from the Constitution’s general structure and fromthe longstanding practice of judicial review. They read the text ofArticle III to impose no explicit limitation on Congress’s ability toremove the Supreme Court’s appellate jurisdiction. This articleexplains why the text of Article III gives Congress no ability to removethe Supreme Court’s jurisdiction. It is those who wish to useCongress’s Exceptions power to remove jurisdiction who must relysolely on two centuries of institutional practice. As this article willshow, that institutional history does not support letting Congress limitthe Supreme Court’s jurisdiction by reference to issue.

I. The Original Article III

A.. Linguistic Structure1. What it means to be “supreme”

Article I of the Constitution provides that “[a]ll legislativePowers herein granted shall be vested in a Congress...”. Article IIprovides that “[t]he executive Power shall be vested in a President...”.Article III provides, congruently, that “[t]he judicial Power of theUnited States, shall be vested in one supreme Court and” in any othercourts that Congress creates. “Shall” does not always mean “must,”19

10

See James E. Pfander, Federal Courts: Jurisdiction-Stripping and the20

Supreme Court’s Power to Supervise Inferior Tribunals, 78 Tex.L. Rev. 1433, 1455n. 8 (2000).

U.S. Const. Art. III §1.21

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. The20

compulsory “one supreme Court” is not upper-case Supreme, it islower-case supreme. The text is no more concerned with what theCourt will be called than with whether the Court’s members will becalled “Justices” or “Judges.” The text is concerned with substance.21

The reason that the text refers to the “judicial Power of the UnitedStates,”not just “the judicial Power,” after the style of “[a]ll legislativePowers herein granted,” and “[t]he executive Power,” is that inArticles I and II the text is supplying a title, not just a description, andreference to the United States is to appear in that title. Article Iprovides that “[a]ll legislative Powers herein granted shall be vestedin a Congress of the United States... .” Article II provides that “[t]heexecutive Power shall be vested in a President of the United States ofAmerica.” These are both singular, and the text could havecongruently provided that the judicial Power be vested in “a SupremeCourt of the United States, and in such inferior courts as the Congressmay from time to time ordain and establish.” But the founders choseto emphasize that the judicial Power was to belong to onesubstantively supreme court by stipulating the singular and usinglower case: “The judicial Power of the United States, shall be vestedin one supreme Court ... .”

What, then, makes the “one supreme Court” substantivelysupreme? Article III expresses the one Court’s supremacy as a relationto “the judicial Power of the United States,” and makes that relationunique by calling any other courts that Congress creates to exercisethe judicial Power “inferior.” Article III then defines the judicialPower to reach nine categories of matter. The one Court’s supremacyis, therefore, a unique relation to nine categories of matter. What is thenature of that unique relation? Having the last word on issues arising in

11

U.S. Const. Art. VI § 2.22

I Farrand, op cit n. 14, 21 (Madison’s notes).23

those nine categories of matter. Article III supremacy relates to theadjudication of subject matter, and the only plausible relation ofjudicial supremacy to the adjudication of subject matter involvespower to give ultimate judgment on issues arising within that subjectmatter.

When the Constitution calls itself, federal law, and nationaltreaties, “the supreme Law of the Land,” it means that those sourcesof law apply “any Thing in the Constitution or Laws of any State tothe Contrary notwithstanding.” When the Constitution vests “[t]he22

judicial Power of the United States” in “one supreme Court,” it meansthat the decisions of that Court determine issues that fall within thejudicial Power of the United States, anything in the reasoning of otherbodies to the contrary notwithstanding. Use of “supreme” tocharacterize law in Article VI has always and universally beenunderstood to have substantive constitutional consequences. Whywould that be less true for use of “supreme” to characterize the oneCourt created in Article III?

The Virginia Plan presented to the Philadelphia Convention onMay 29, 1787, supports the conclusion that supremacy meansultimacy. That plan, around which the Convention’s deliberationsrevolved, proposed “that a National Judiciary be established to consistof one or more supreme tribunals, and of inferior tribunals to bechosen by the National Legislature... .” The proposal seems to have23

contemplated that the judicial Power of the United States might bedivided up by subject and those subjects respectively placed underthe care of separate supreme courts. There could, for example, havebeen a supreme admiralty court, a supreme constitutional court, anda supreme court for federal questions that were answerable withoutconstitutional exposition. The founders’ recognition that adjudicativeconsistency was one of the primary reasons to have a federal judicialsystem suggests that geographic coverage was not the contemplatedcriterion for distinguishing multiple federal supreme courts from each

12

Id., 124 (June 5, 1787).24

Id., 95 (Journal), 104-5 (Madison’s notes) (June 4, 1787).25

U.S. Const. Art. I § 8 cl. 9.26

other. To have a geographic apportionment of federal jurisdiction24

among multiple federal supreme courts would have served the goalof uniformity no better than leaving the whole judicial function tostate courts. The founders’ vision of multiple federal supreme courtsseems to have contemplated an apportionment of supremacy bysubject matter, not territory. But to apportion supremacy by subjectwas necessarily to apportion ultimate judgment by subject. Asupreme admiralty court could not, for example, have had the lastword on a constitutional issue, for ultimate power to decide that issuewould by definition have belonged to the supreme constitutionalcourt.

The Philadelphia Convention decided not to apportion ultimatejudgment among multiple tribunals by reference to subject matter.The Convention chose instead to relate all matters within the judicialPower of the United States to one supreme Court. That choice, given25

its alternative, was a choice to invest one Court with power to giveultimate judgment on all issues arising within the judicial Power ofthe United States.

Congress is welcome to exercise its legislative power “[t]oconstitute Tribunals inferior to the supreme Court.” Courts so26

created may share in the judicial Power of the United States. But insharing that Power, those courts must remain inferior to “one supremeCourt.” Their exercise of the judicial Power can never be supreme. Ifsupremacy in Article III means power to give ultimate judgment, thenno inferior court should be invested with power to have the last wordon a matter that falls within the judicial Power of the United States.Whether the judgments of inferior courts prove to be the last word onthe matters that those courts decide should depend on whether theone supreme Court chooses to exercise its power of ultimatejudgment. If an issue falls within the judicial Power of the UnitedStates, then the power to decide that issue is vested in “one supreme

13

Court and,” not “or,” any other courts that Congress creates to decidethe issue.

Article I’s provision for Congressional power “[t]o constituteTribunals inferior to the supreme Court” is conspicuous for what itlacks, namely any Congressional power “to constitute the supremeCourt.” The Constitution itself does that. The “shalls” of Article IIIimpose a duty on Congress to provide for the Court constituted byArticle III, and the necessary-and-proper clause of Article I § 8 cl. 18empowers Congress to make that provision for carrying intoexecution the judicial Power. As surely as the Constitution creates theCourt, the Constitution creates the Court’s jurisdiction, for the Court’sidentity is inseparable from that jurisdiction. Congress has notfulfilled its constitutional duty to provide for Article III’s SupremeCourt unless Congress has provided for a body that has power to giveultimate judgment on all matters to which the judicial Power extends.A Court that does not have power to give ultimate judgment on all ofthose matters is simply not the “one supreme Court.” If it has powerto give ultimate judgment on only some Article III matters, then it isa supreme Court, but it is not the only one. If power to have the lastword on any matter to which the Constitution extends the judicialPower of the United States is given to, or defaults to, a body otherthan the “one supreme Court,” then another supreme court, withinthe meaning of the Virginia delegation’s resolutions, is established,and the Constitution’s requirement that the judicial Power be vestedin only “one supreme Court” is violated. If the other body is createdby Congress, then the Constitution’s requirement that all other federaltribunals be “inferior to” the “one supreme Court” is violated too. Ifthe constitutionally-described jurisdiction in one tribunal does notexist, 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’ssupremacy implies power to review the decisions of courts “inferior”

14

See Pfander, op cit n. 20, and James E. Pfander, Marbury, Original27

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, 106Colum. L. Rev. 324 (2006).

to it in the federal judicial hierarchy. On Pfander’s view, the27

Exceptions power may let Congress deprive the one supreme Courtof the last word on Article III issues, but the effect of doing so cannotbe to leave ultimacy to other federal courts. If Congress commitsadjudication of matters to federal courts of its own creation, then theinferior status of those courts precludes Congress from renderingtheir jurisdiction exclusive. An irremovable power in the one supremeCourt to review inferior federal court decisions follows from theConstitution’s characterization of the Court as supreme and of otherfederal courts as “inferior to the supreme Court.”

Pfander’s vision of Article III judicial supremacy comports withclaims made during the ratification debates that the purpose ofCongress’s Exceptions power was to leave Article III matters toultimate adjudication by state courts. But Article III’s one supremeCourt is to deserve that description regardless of whether Congresscreates inferior federal courts. The Court’s singularity and supremacydescribe not merely a relation to any inferior federal courts, but arelation to the judicial Power of the United States.

Suppose that Congress had never taken up the Constitution’sinvitation to create inferior federal courts. Suppose further thatCongress had nonetheless purported to exercise its Exceptions powerto leave ultimate jurisdiction over “all Cases ... arising under thisConstitution” 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 theUnited 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 relativesignificance of Article III matters. The text affords no basis forconcluding that the one supreme Court’s singularity and supremacycan survive loss of ultimate jurisdiction over some Article III matters

15

See Evan Caminker, Why Must Inferior Courts Obey Superior Court28

Precedents? 46 Stan. L.Rev. 817, 868 (1994).

Id., 835.29

163 U.S. 537 (1896) (overruled in Brown v. Board of Education, 347 U.S.30

483 (1954).

Caminker, op cit n.28, 869. 31

but not others. Second, to let another body have ultimate judgment ofan Article III matter is to invest that body with supremacy in respectof that matter and thus to transform the system into the kindcontemplated by the Virginia delegation’s resolutions for “one or moresupreme tribunals.” The Convention rejected that vision in favor ofhaving only one supreme Court.

(ii.) Precedential authority

Evan Caminker has argued that the one supreme Court’ssupremacy implies precedential authority in respect of Article IIIissues vis-à-vis other federal and state courts. But as he concedes,28

precedential authority “makes little practical sense” unless linked to29

ultimate judgment of legal issues. If supremacy entails no more thanprecedential authority, could the 1953 Congress have removed theSupreme Court’s power to adjudicate equal protection claims and leftlower courts bound by Plessy v. Ferguson? 30

Caminker suggests that a corollary of lower court ultimacy onan issue might be the mere persuasiveness of Supreme Courtprecedent on that issue. Vestigial precedential authority seems an31

implausible candidate for the constitutionally-required relationbetween the “one supreme Court” and the matters to which Article IIIextends the judicial Power of the United States. The “judicial Power”that Article III vests in one supreme Court is a power, not just a bullypulpit. That power is defined to extend to nine categories of matter.A judicial power that applies to categories of matter is a power todecide the sets of issues arising in those categories of matter. To beinvested with that judicial Power as “one supreme Court” is to havepower to decide ultimately all of those issues.

16

III William Blackstone, Commentaries on the Laws of England, Ch. 4,32

56 (1768) (describing the House of Lords as “the supreme court of judicature in thekingdom”).

Id., Ch. 4, 41 (describing the Court of King’s Bench as “the supreme court33

of common law in the kingdom”).

Cf. Michael L. Wells and Edward J. Larson, Original lntent and Article III,34

70 Tul.L.Rev. 75, 103-4 (1995); David E. Engdahl, What’s in a Name? TheConstitutionality of Multiple “Supreme” Courts, 66 Ind.L.J. 457 (1991).

Judiciary Act of 1789, 1 Stat. 73, §§ 11, 12.35

(iii.) “General” jurisdiction

In his Commentaries on the Laws of England, Blackstone used theterm “supreme” sometimes to connote ultimate responsibility fordeciding a set of legal issues and sometimes just to connote primary32

responsibility for deciding a set of legal issues. The Constitution33

shares with such usages a focus on subject matter. But the goal ofBlackstone’s writings was very different from that of the Constitution,and that difference in purpose is relevant to usage. Blackstone soughtto describe the universe of convoluted existing jurisdictionalarrangements that had evolved in somewhat topsy turvy fashion overcenturies of English adjudication. The Constitution’s framers soughtto create a coherent distribution of power among political actors.When the Constitution distinguishes one court from others by callingthe one supreme and the others inferior in relation to the Constitution’svesting of judicial Power, it must be construed to be drawing a cleardistinction in role, not merely noticing, as Blackstone did, that onecourt had contributed more to creating a particular body of law thanhad others.

The American federal judicial system functions under adocument that calls one Court supreme in relation to a list of mattersdefined by subject or party, regardless of whether Congress choosesto create inferior federal courts. The Constitution does not call one34

Court supreme to signal that the Court’s jurisdiction uniquely has nomonetary upper limit, and the founders promptly proceeded to create“inferior” federal courts that likewise had no monetary upper limitson their jurisdictions. Nor does the Constitution distinguish the one35

Court from any others by reference to geographic reach. Congresscould, had it wished, have created a single intermediate appellate

17

I Farrand, op cit n. 14, 21 (Madison’s notes).36

See I Joseph Story, Commentaries on the Constitution of the United States,37

347, 357 (1833).

Akhil Reed Amar, A Neo-Federalist View of Article III: Separating the38

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 JudiciaryAct of 1789, 138 U.Pa.L.Rev. 1499 (1990).

court for the whole United States. And the Virginia Plan’s provisionfor “one or more supreme tribunals” suggests that the founders did36

not use the word “supreme” merely to connote jurisdiction over adistinctively wide range of issues – that is, to connote a court ofuniquely general, as distinct from specialized, jurisdiction. The oneCourt’s supremacy is expressed by the Constitution as a relation tothe adjudication of issues. Supremacy in the adjudication of issues37

means ultimacy.

3. To what must the judicial Power extend?

The second section of Article III opens with a “shall” asunqualified 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” anyother courts that Congress creates. The Constitution invests those whohold the judicial Power of the United States with power to decide anyand all matters that fall within the nine categories listed.

Akhil Amar has contended that Congress may prevent thejudicial Power from extending to most matters in the six“controversy” categories. He notes that the three “case” categorieseach begin with the word “all,” while the six “controversy” categoriesdo not. But there is a better explanation for that textual difference.38

Here is how the categories looked in the Report of the Committee ofDetail, delivered to the Convention on August 6, 1787:

The Jurisdiction of the Supreme Court shall extend to allcases arising under laws passed by the Legislature ofthe United States; to all cases affecting Ambassadors,other Public Ministers and Consuls; to the trial ofimpeachments of Officers of the United States; to all

18

II Farrand, op cit n. 14, 186 (Madison’s notes).39

Id., 183-5.40

Id., 401.41

Id., 576.42

Id., 430 (Madison’s notes).43

cases of Admiralty and maritime jurisdiction; tocontroversies between two or more States, (except suchas shall regard Territory or Jurisdiction) between a Stateand Citizens of another State, between Citizens ofdifferent States, and between a State or the Citizensthereof and foreign States, citizens or subjects.39

At that stage of the proceedings, the “controversy” categories were alltied to a single expression of the word “controversy” and led off withdisputes between states. But not all of those controversies were to beresolved by the federal courts. Until very late in the life of theConvention, controversies between states concerning territory orjurisdiction were expected to end up before ad hoc tribunalsestablished by the Senate. On August 24, the provision for ad hoc40

tribunals was struck out as, in John Rutledge’s words, “renderedunnecessary by the National Judiciary now to be established.” The41

explicit exception from the “controversy” categories of controversiesbetween states concerning territory or jurisdiction incongruouslysurvived, however, in the draft of Article III that went to theCommittee of Style on September 10. The exception’s survival was42

necessarily an oversight. It was caught in committee, in the twilightof the Convention. Meanwhile, on August 27, James Madison andGouverneur Morris “moved to insert after the word `controversies’the words `to which the U-- S-- shall be a party.’” That amendment43

occurred without recorded debate. Selective use of “all”in Article III§ 2 cl. 1 is a relic of drafting history, rendered linguisticallyinconsequential by the imperative “judicial Power shall extend” thatapplies to all nine categories.

Even if a “two-tier” analysis of the Article III categories wereapt, the tiers do not plausibly distinguish matters that merely may fallwithin the judicial Power from matters that must. A more plausiblebasis for two-tier analysis would be a distinction between exclusive

19

Cf. Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 328-336 (1816) per44

Story, J.

See Luther Martin, The Genuine Information, delivered to the Legislature45

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 CompleteAntifederalist, 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; JamesWilson, Pennsylvania ratifying convention, II Jonathan Elliot, Debates in the SeveralState Conventions on the Adoption of the Federal Constitution, 481 (1836) (Dec. 7,1787) (suggesting exclusive federal jurisdiction), 491 (suggesting concurrent federal-state jurisdiction); John Marshall, Virginia ratifying convention, III Elliot’s Debates,id., 554 ( June 20, 1788); Samuel Johnston, North Carolina ratifying convention, IVElliot’s Debates, id., 141 (July 28, 1788); Letter from Timothy Pickering to CharlesTillinghast, 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 whereofis 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 originaljurisdiction of various subjects being given exclusively to [inferior federal courts],it became the bounden duty of Congress to establish such courts.” XI Annals ofCongress 86 (1851); Alexander Hamilton, Jan. 2, 1802: “the right to employ theagency 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, inXXV Harold C.Syrett et al. eds., The Papers of Alexander Hamilton, 488 (1977).

See, however, the suggestion that “all cases” embrace both civil and46

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); JohnHarrison, The Power of Congress to Limit the Jurisdiction of Federal Courts and theText of Article III, 64 U.Chi.L.Rev. 203 (1997).

federal jurisdiction and federal jurisdiction held concurrently with thejurisdiction of state courts. The exclusive-versus-concurrent44

distinction, like the possibility of Congress preventing the judicialPower from extending to all matters listed in Article III, was a subjectof much debate and uncertainty at the founding. But the exclusive-45

concurrent distinction, unlike the Congressional jurisdiction-strippingpossibility, comfortably fits the text’s combination of a selectively-used “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. 1categories “Cases” and others “Controversies” seems to do no morethan distinguish definitions by subject from definitions by party.46

20

Cf. Judiciary Act 1789 § 13, which provides for the Supreme Court to47

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.”

See United States v. Lawrence, 3 U.S. (3 Dall.) 42 (1795).48

Cases affecting diplomats are defined by subject (namely, their effecton diplomats), not party, because diplomats would in the ordinarycourse have been immune from process under public internationallaw, and thus might not technically have been parties to suits affectingtheir interests. Even where diplomats were the complainants, the47

United States Government showed willingness to initiate litigation inits own name on their behalf.48

4. The syllogism summarized

So far we have considered the text of Article III §1 and ofArticle III § 2 cl. 1. That text forms a syllogism:

Premise 1: “The judicial Power of the United States, shall be vested inone supreme Court, and” in any inferior courts that Congress creates.

Premise 2: “The judicial Power shall extend to” the nine categories ofmatter listed in Article III § 2 cl. 1.

Conclusion: The Constitution invests one supreme Court with powerto decide ultimately every matter that lies within the nine categorieslisted 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 onesupreme Court’s jurisdiction. Article III §2 cl. 2 divides that pre-defined jurisdiction between matters to be decided by the Court atfirst instance and matters to be decided by the Court on appeal. Theclause literally provides that sometimes the one supreme Court is tobe the only judicial body with power to decide a matter. If the matterinvolves a diplomat or a state party, then the one supreme Court is tohave both first and last word. The Supreme Court’s power to decidematters on appeal is limited to “all the other Cases before mentioned.”The two sentences in Article III §2 cl. 2 are interdependent. The one

21


Cf. James Madison at the Virginia ratifying convention: “Could there be50

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 wholecommunity into war? As the national tribunal is to decide, justice will be done.” IIIElliot’s Debates, op cit n. 45, 533-34 (June 20, 1788).

supreme Court’s appellate jurisdiction reaches the residue of ArticleIII matters not covered by the Court’s constitutionally-specifiedoriginal jurisdiction.

Article III’s distribution clause was designed to give the onesupreme Court original jurisdiction over the classes of legal disputethat had most obvious potential to threaten national security. Thesewere the legal disputes that had the potential to snowball into the twoscenarios in which the Constitution permitted Congress under its warpowers to close down the courts in respect of detentions, namely,rebellion or invasion. Legal disputes involving state governments49

posed a background risk of civil war. If Article III litigation involvinga state were allowed to begin in state court, and if the state supremecourt and the United States supreme Court on appeal reacheddifferent conclusions, with the national court’s decision adverse to thestate, then the risk of state non-compliance with the national court’sjudgment would likely be greater. Legal disputes involving therepresentatives of foreign governments posed a background risk offoreign war. The use of “State” in Art. III §2 cl. 2's original-jurisdictionsentence is vague and might have been meant to embrace suits towhich foreign states were parties too, as Art. III §2 cl. 1 capitalizes theword “State” both when referring to domestic states and whenreferring 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 instate court, then one state might compromise the nation’s foreignrelations, perhaps even catapulting the nation into internationalconflict.50

The second sentence of Article III §2 cl. 2 recognizes thatCongress may designate other politically-sensitive cases for first-instance attention in the Supreme Court. The linguistic structure ofArticle III shows this to be the purpose of Congress’s power to make“Exceptions” among the “other Cases before mentioned.” The

22

The term “legislative” is here used as a synonym for “Congressional,”51

that is, in an institutional, not an essentialist, sense. See Claus, op cit n. 12, 442-445.


Farrand, op cit n. 14, 21 (Madison’s notes).53

Supreme Court’s power to decide Article III matters is like a fencedfield containing two pastures. Congress has power to remove mattersfrom the appellate pasture, but that action does not let those mattersescape the field, it just shifts them to the original pasture. Congress’sExceptions power is a power to move selected Article III matters fromthe Court’s large residual appellate jurisdiction to join the list ofArticle III matters in the Court’s original jurisdiction. This conclusionfollows from three features of the text: (1) the airtight syllogism of“shalls” that dictates in whom the judicial Power vests and to whatthe judicial Power extends; (2) the requirement that the Court’srelation to the judicial Power be singular and supreme; and (3) thesource of Congress’s power to make “Exceptions” to the Court’sappellate jurisdiction.

Article III is not the source of the legislative powers to which itrefers. If it were, then the Constitution would not separately invest51

Congress with power “[t]o constitute Tribunals inferior to thesupreme Court.” The Virginia Plan’s resolution “that a National52

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 asynonym for “court.” Congress’s legislative power to make exceptionsto the Supreme Court’s appellate jurisdiction comes from Article I §8cl. 18, which confers power to “make all laws which shall be necessaryand proper for carrying into Execution the foregoing Powers and allother Powers vested by this Constitution in the Government of theUnited States, or in any Department or Officer thereof.” Anyexception that Congress makes to the Supreme Court’s appellatejurisdiction must be “necessary and proper for carrying intoExecution” the judicial Power of the United States, or some otherPower that the Constitution confers, consistent with Article III’s vestingof the judicial Power in one supreme Court and with Article III’sextension of the judicial Power to all nine listed categories of matter.The “necessary and proper” criterion authorizes laws that genuinelycarry the Constitution into execution, not laws that change the

23

Constitution’s character. To remove the one supreme Court’sappellate jurisdiction over an Article III matter is to deprive the Courtof supremacy with respect to that matter, unless the matter reappearsin the Court’s original jurisdiction. None of this calls for Congress todo any “vesting” – power to decide all matters within Article III is bythe Constitution vested in the Supreme Court. All that the text’sreference to “Exceptions” does is acknowledge that a law providingfor some matter of national importance to come directly to the Courtwithout prior adjudication is authorized by Congress’s power to makelaws necessary and proper for carrying into execution the judicialPower. Congress may switch the route by which cases come to theSupreme Court. But a law that purports simply to eliminate theSupreme Court’s power to decide an Article III matter is notauthorized by Congress’s power to make laws necessary and properfor carrying into execution the judicial Power, or for carrying intoexecution some other constitutionally-conferred Power, for thejudicial Power extends to the excluded matter and is already vestedin the one supreme Court.

This “route-switching” understanding of Congress’sExceptions power explains why the power applies only to theSupreme Court’s appellate jurisdiction and not to the Court’s originaljurisdiction. If politically sensitive disputes were to be litigated, thefounders definitely wanted those law suits to be channeled to theSupreme Court, and they thought that the class of such suits wouldat least include any cases involving diplomats or state parties. If theorthodoxy were correct, and Congress’s Exceptions power were apower to eliminate Supreme Court jurisdiction over Article III matterscompletely, then putting the Court’s original jurisdiction beyond thereach of that Exceptions power makes less sense. If Congress’sExceptions power were a license for Congress to let some politicalactor or actors other than the Supreme Court decide the answers tosome Article III questions, would not questions affecting diplomatshave been near the top of the list of likely candidates for suchtreatment? Given the political sensitivity of matters involvingdiplomats, might not they have been as likely suitable as any categoryof Article III jurisdiction for designation as political questions? Thosematters were assigned to the Court’s irreducible original jurisdiction,which supports the view that the Exceptions power was notcontemplated to let Congress remove supreme Court jurisdiction – atleast not for the purpose of letting the elected branches conclusivelydetermine the answers to Article III questions.

24

See, e.g., U.S. Const. Art. II § 3.54

Denzil Holles, 1 Baron Holles, The Case Stated Concerning the55 st

Judicature of the House of Peers in Points of Appeals, 45 (1675).

Robert Stevens, Law and Politics: The House of Lords as a Judicial Body,56

1800-1976, 6 (1978). Cf. Appellate Jurisdiction Act, 1876 (UK) §§ 4 (“Every appealshall be brought by way of petition to the House of Lords, praying that the matterof the order or judgment appealed against may be reviewed before Her Majesty theQueen in her Court of Parliament, in order that the said Court may determine whatof right, and according to the law and custom of this realm, ought to be done in thesubject-matter of such appeal.”), 11 (“An appeal shall not lie from any of the courtsfrom which an appeal to the House of Lords is given by this Act, except in mannerprovided by this Act, and subject to such conditions as to the value of the subject-matter in dispute, and as to giving security for costs, and as to the time withinwhich the appeal shall be brought, and generally as to all matters of practice andprocedure, or otherwise, as may be imposed by orders of the House of Lords.”).

Stevens, id.; James S. Hart, Justice Upon Petition: The House of Lords and57

the Reformation of Justice 1621-1675, 3-4, 18-19, 36-37, 224, 260 (1991); IIIBlackstone, op cit n. 32, Ch. 27, 454.

6. The nature of ultimate appellate jurisdiction

Sometimes the Constitution explicitly accompanies its vestingof a power with duties to exercise that power. The original54

Constitution did not, however, explicitly impose a duty on membersof the Supreme Court to determine all matters falling within thejudicial Power, any more than it imposed a duty on members ofCongress to use all of their legislative powers. The concept of ultimateappellate jurisdiction did not inherently imply an obligation toadjudicate – quite the contrary. The House of Lords’ stature in Britainas “the Supreme Court of Judicature to which all persons aggrieved... did apply themselves for relief” carried a discretionary jurisdiction.55

Parties aggrieved by adjudications of the King’s courts petitioned “theKing in Parliament” and the Lords’ reception of those petitions for56

re-adjudication was in principle as discretionary as their reception ofpetitions for new legislation. 57

The due process clause of the fifth and fourteenth amendmentsmay oblige the Supreme Court to determine Article III mattersaffecting lives, liberty or property to the extent that those matters

25

Cf. Laurence H. Tribe, I American Constitutional Law, 3 ed., § 3-5, 27358 rd

(2000).

See 28 U.S.C. §§ 1254, 1257.59

I Farrand, op cit n. 14, 21-22, 244, 292, III id., 600.60

II id., 85, 132-133.61

Id., 85 (Journal).62

would not otherwise receive fair adjudication. Beyond that,58

Congress has power to impose duties to adjudicate. The Court’sappellate jurisdiction is exercisable “under such Regulations as theCongress shall make,” and the necessary-and-proper clause is thesource of Congress’s legislative power to make those regulations.Congress may make appellate review as-of-right, or it may conformits regulation to the constitutional default position and allow theCourt to decide which matters within its appellate jurisdiction willreceive substantive adjudication. But a regulation that purported to59

deny the Court power to determine an Article III matter would not benecessary and proper for carrying into Execution the judicial Powerthat is already vested in the Court. And such a transformation ofconstitutional structure would not be necessary and proper forcarrying into execution any other Power that the Constitution conferseither.

B. Drafting History

In none of the plans presented to the Philadelphia Conventionby Edmund Randolph of Virginia, William Paterson of New Jersey,Alexander Hamilton of New York, and Charles Pinckney of SouthCarolina, was Congress given any power over the Supreme Court’sjurisdiction. Neither did any such power appear in the Convention’s60

resolutions concerning the judiciary that were referred to a Committeeof Detail on July 23, 1787, “for the purpose of reporting a61

Constitution conformably to the Proceedings aforesaid.” The first62

reference to a Congressional power to make exceptions to theSupreme Court’s appellate jurisdiction appeared in a draft preparedduring committee deliberations by Edmund Randolph and edited byJohn Rutledge (angle brackets <>). After setting forth the precursorsto Article III §§ 1 and 2 cl. 1, the draft continued:

26

Id., 147.63

Id., 173.64

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 thelegislature shall organize it8. The whole or a part of the jurisdiction aforesaidaccording to the discretion of the legislature may beassigned 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> affectingAmbassadors (and) other public Ministers <&Consuls>, and those in which a State shall be (one ofthe) <a> Part(ies)<y>, this Jurisdiction shall be original.In all the other Cases beforementioned, it shall beappellate, with such Exceptions and under suchRegulations as the Legislature shall make. TheLegislature may (distribute) <assign any part of> th(is)eJurisdiction <above mentd.,--except the Trial of theExecutive-->, in the Manner and under the Limitationswhich it shall think proper (among) <to> such (other)<inferior> Courts as it shall constitute from Time toTime.64

In Randolph’s draft, “except” refers to Congressional choice tomove matters from the Supreme Court’s appellate jurisdiction to theCourt’s original jurisdiction. Randolph provided separately forCongressional choice to assign original jurisdiction to inferior federalcourts, and recognized that Congress might choose not to do so evenfor matters that stayed in the Supreme Court’s appellate jurisdiction;state courts could adjudicate matters at first instance. Rutledge’s editsto Randolph’s draft began the process of prescribing an originaljurisdiction, by stipulating that the Court’s jurisdiction overimpeachment trials should be original.

Wilson’s draft builds on Rutledge’s suggestion of a

27

constitutionally-prescribed original jurisdiction in the Supreme Courtand the text affords no reason to infer that Wilson’s draft, any morethan the Rutledge edit to Randolph’s, meant to precludeCongressional additions to that original jurisdiction. The mostplausible reading of Wilson’s provision for the Court’s appellatejurisdiction 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 toassign jurisdiction to inferior federal courts – those courts might beinvested with original jurisdiction or with intermediate appellatejurisdiction. That ultimate appellate jurisdiction could not be assignedaway from the Supreme Court necessarily followed from the Court’ssupremacy and the other courts’ inferiority. Wilson’s draft tracksRandolph’s structure, first providing for “exceptions” and thenseparately providing for assigning jurisdiction to inferior courts. Thissuggests that the Congressional “exceptions” power in Wilson’s draft,like that in Randolph’s, had nothing to do with removing ultimatejudgment of some Article III issues from the Supreme Court – that“Exceptions” in Wilson’s draft, like those in Randolph’s, wereinstances of Congress turning appellate jurisdiction original. Theprobability of one member of the committee using the language ofexception to describe a Congressional route-switching role andanother member of the committee producing a later draft that usedthe same structure and language of exception to describe a radicallygreater Congressional role, namely jurisdiction stripping, is surelynegligible. Nothing about Wilson’s draft suggested that his provisionfor the Supreme Court’s original jurisdiction was immutable – likeRutledge’s edit to Randolph’s draft, Wilson’s provision for originaljurisdiction stipulated either a default distribution or a minimumoriginal jurisdiction. The committee’s report to the Conventionconformed to Wilson’s draft.

Here is the whole of Article III §§ 1 and 2 cll. 1 and 2'sprecursor as it appeared in the report of the Committee of Detail tothe Convention on August 7, 1787:

Sect. 1. The Judicial Power of the United States shall bevested in one Supreme Court, and in such inferiorCourts as shall, when necessary, from time to time, beconstituted by the Legislature of the United States.

28

II id., 186-87 (Madison’s notes).65

Sect. 2. The Judges of the Supreme Court, and of theInferior Courts, shall hold their offices during goodbehaviour. They shall, at stated times, receive for theirservices, a compensation, which shall not be diminishedduring their continuance in office.

Sect. 3. The Jurisdiction of the Supreme Court shallextend to all cases arising under laws passed by theLegislature of the United States; to all cases affectingAmbassadors, other Public Ministers and Consuls; tothe trial of impeachments of Officers of the UnitedStates; to all cases of Admiralty and maritimejurisdiction; to controversies between two or moreStates, (except such as shall regard Territory orJurisdiction) between a State and Citizens of anotherState, between Citizens of different States, and betweena State or the Citizens thereof and foreign States,citizens or subjects. In cases of impeachment, casesaffecting Ambassadors, other Public Ministers andConsuls, and those in which a State shall be party, thisjurisdiction shall be original. In all the other cases beforementioned, it shall be appellate, with such exceptionsand under such regulations as the Legislature shallmake. The Legislature may assign any part of thejurisdiction above mentioned (except the trial of thePresident of the United States) in the manner, andunder the limitations which it shall think proper, tosuch Inferior Courts, as it shall constitute from time totime.65

Art. III § 2 cl. 2's precursor in no way sought to vest theSupreme Court’s jurisdiction, nor to specify the matters to which thatjurisdiction extended. The precursor of Art. III § 1 had accomplishedthe first of those tasks, and the precursor of Art. III § 2 cl. 1 hadaccomplished the second. Art. III § 2 cl. 2's precursor sought only todistribute the Supreme Court’s already constitutionally vestedjurisdiction between original and appellate tiers. The clause’s separate

29

Id., 425 (Journal), 431 (Madison’s notes). 66

Id., 424-5 (Journal).67

provision for assigning jurisdiction to other federal courts wasirrelevant to the reach of the Supreme Court’s jurisdiction, becausethose other federal courts were specified to be inferior to the SupremeCourt, and thus assignments of jurisdiction to them were inevitablysubject to an ultimate appellate jurisdiction in the Supreme Court. Inthe Committee of Detail’s report, the precursor of Art. III §2 cl. 1described its list of case and controversy categories as “[t]heJurisdiction of the Supreme Court.” When Wilson’s draft stipulatedthat for certain matters “this Jurisdiction shall be original” and that“[i]n all the other Cases beforementioned, it shall be appellate, withsuch Exceptions and under such Regulations as the Legislature shallmake,” his referent was the already-established “Jurisdiction of theSupreme Court.” Wilson’s draft let Congress make “Exceptions” tothe 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 wereinstances in which the Court’s jurisdiction was to be original.

After receiving the committee’s report, the Convention rejecteda motion to insert: “`In all the other cases before mentioned thejudicial power `shall be exercised in such manner as the Legislatureshall ̀ direct’.” The Convention Journal also records a motion to add66

immediately after “appellate `both as to law and fact with suchexceptions and under such `regulations as the Legislature shallmake’” the following words: “`But in cases in which the United Statesshall be a Party `the jurisdiction shall be original or appellate as theLegislature ̀ may direct.’” A motion to strike out “original or” passed6-2, but then the amended motion was defeated 5-3. On none of this67

was there recorded debate of the kind that one would expect to findin Madison’s notes had the proposals been for a Congressional rolethat was conceptually different from that proposed in the committee’sdraft. Thus there is no reason to infer that the delegates were doingmore than exploring alternative ways of articulating a Congressionalrole in distributing the Supreme Court’s jurisdiction between originaland appellate tiers. These rejected amendments reinforce the “route-

30

See id., 420 (letter of Gouvernour Morris to Timothy Pickering, Dec. 22,68

1814).

Akhil Reed Amar, Marbury, Section 13, and the Original Jurisdiction of69

the Supreme Court, 56 U.Chi.L.Rev. 443, 465 (1989).

switching” understanding of Congress’s Exceptions power, becausethey show that the Convention, without debating primary principles,was still considering ways to express a Congressional route-switchingrole after receiving the Committee of Detail’s draft, which suggeststhat route-switching was what they understood the Committee’s draftto be doing. The rejected language was ambiguous or superfluous orboth. That the reference to “Exceptions” retained some ambiguitymay, however, have been appreciated and viewed as expedient bysome delegates. Gouverneur Morris suggested as much in a letterwritten 27 years later. Morris’s recollection of how Article III was68

perceived may have been colored, however, by the ensuing 27 years’developments through which the Exceptions power had come to becharacterized as a Congressional power to extinguish Supreme Courtjurisdiction over Article III matters. And to any logical mind readingthe text of Article III holistically, there was no ambiguity at all, foronly a route-switching understanding of the Exceptions powerreconciled all aspects of the text with each other.

Akhil Amar has noted that a route-switching characterizationof Congress’s Exceptions power requires exercise of the power “to dotwo things simultaneously” – remove from appellate jurisdiction andadd to original jurisdiction. “The textual basis for the first half is clearenough; it’s the second half that is the rub.” But that objection69

ignores the founders’ pursuit of linguistic economy. Other phases ofthe drafting process for Article III reveal that participants atPhiladelphia were conscious that constitution-writing called for asmuch concision as clarity would allow. For example, their change ofthe referent in Art III §2 cl. 1 from “the jurisdiction of the SupremeCourt” to “the judicial Power” let the drafters eliminate a wholesentence providing for Congressional assignment of jurisdiction toinferior courts. Where fewer words could be used to achieve the sameresult, that was a recognized virtue. Where a later draft appears tohave inadvertently introduced ambiguity in service of succinctness,

31


Id.71

Id., 551-2 (September 8, 1787) (Madison’s notes).72

the ambiguity should be resolved in favor of the earlier draft’smeaning, unless records of debate evidence an intention to altermeaning. Amar’s inference that a later draft’s diminution of the textreflected a desire to achieve different meaning is not the natural one,and requires supporting evidence that does not exist. Had theCommittee of Detail meant to move from letting Congress decide howthe Supreme Court would exercise its ultimate jurisdiction overArticle III matters (originally or on appeal) to letting Congress decidewhether the Supreme Court would have an ultimate jurisdiction overArticle III matters, surely the Convention would have debated thecommittee’s choice substantially enough to leave records. Such aradical change would have enjoyed no support in the Convention’sresolutions concerning the judiciary that had been referred to thecommittee.

On August 27, James Madison and Gouverneur Morris movedto describe the list of “case” and “controversy” categories not ascomprising “The jurisdiction of the supreme Court” but as comprising“the Judicial power.” Absent specific prohibition, this made the70

listed categories of jurisdiction potentially assignable by Congress toinferior federal courts. The Convention made the change withoutrecorded debate and then, again without recorded debate, deleted thesentence in the committee’s reported draft that had explicitlyprovided for Congressional power to assign jurisdiction to inferiorfederal courts. It had become surplusage. The deleted sentence’s71

reference to Congress assigning “any part” of the Supreme Court’sArt. III §2 cl. 1 jurisdiction to inferior courts meant that any matters inany of the categories could be assigned to inferior courts, as was madeclear by the excepting from this assignment power of one particularclass of matter, namely the trial of presidential impeachments, whichthe Convention ended up removing from Article III completely.72

Randolph’s earlier draft had provided for assigning “[t]he whole ora part of the jurisdiction aforesaid” to “the inferior tribunals, as

32

See III Elliot’s Debates, op cit n. 45, 555-56 (John Marshall, Virginia73

ratifying convention, June 20, 1788); U.S. Const. Amendment XI (adopted inresponse to the Supreme Court’s contrary conclusion in Chisholm v. Georgia, 2 U.S.(2 Dall.) 419 (1793)).

original tribunals,” showing that an assignment of even “the whole”was understood not intrinsically to include an assignment of appellatejurisdiction, let alone of ultimate appellate jurisdiction. The laterversion’s “any part” language likewise in no way suggestedCongressional power to assign ultimate jurisdiction over Article IIImatters to inferior courts, for that was by definition not possible –inferiority precluded ultimacy, for ultimacy is the sine qua non ofsupremacy.

One possibly-unintended effect of the August 27 changes wasthat the Supreme Court’s constitutionally-specified originaljurisdiction became clearly unassignable. In the committee’s reporteddraft there had been a textual inconsistency between Congress’spower to assign most of the Supreme Court’s constitutionally-specified original jurisdiction to inferior federal courts and theexclusion of matters within the Supreme Court’s constitutionally-specified original jurisdiction from the Court’s appellate jurisdiction.Matters within the constitutionally-specified original jurisdictionwould doubtless have seemed like a small set in 1787, particularly inview of the widespread assumption that state governments wouldenjoy sovereign immunity from suit by individuals and the73

relatively few individual-rights limitations on state governments thatthe federal constitutional text imposed prior to the fourteenthamendment’s adoption. In any event, the text’s confinement of theCourt’s appellate jurisdiction to “all the other Cases beforementioned,” with “such Exceptions” but not “such Additions” as theCongress might enact clearly prevented re-routing of matters withinthe Court’s constitutionally-prescribed original jurisdiction to theCourt’s appellate jurisdiction. If the Court could not be givenappellate jurisdiction over those matters, then the Court’s supremacynecessarily implied that only the Court could exercise originaljurisdiction over those matters.

As part of its general failure to appreciate the implications of

33

Judiciary Act 1789, §§ 9 and 13. See Section IID, infra.74

See United States v. Ravara, 2 U.S. (2 Dall.) 297 (C.C.Pa. 1793)75

Börs v. Preston, 111 U.S. 252 (1884) and Ames v. Kansas, 111 U.S. 44976

(1884).

19 U.S. (6 Wheat.) 264, 392-403 (1821).77

Judiciary Act 1789, § 25.78

the Court’s supremacy, Congress in 1789 conferred concurrentjurisdiction on inferior federal courts and permitted concurrentjurisdiction in state courts with respect to some of the mattersconstitutionally specified to be within the Supreme Court’s originaljurisdiction. Wherever original jurisdiction lay, it had to be accessible74

as-of-right, in contrast to ultimate appellate jurisdiction. Inferiorfederal courts affirmed the validity of such concurrent jurisdiction75

over the ensuing 90 years until the Supreme Court did likewise. TheCourt emphasized considerations of practicality and precedent.76

Marshall’s conclusion in Cohens v. Virginia, that Congress could77

expand the Court’s appellate jurisdiction, as Congress had purportedto do, was commensurately expedient, and a result that both should78

and would have been achieved by constitutional amendment but forMarshall’s judicial fiat. The swift adoption of the eleventh amendmentshowed the young nation’s propensity to make desired jurisdictionalamendments, and such an amendment would have been desired bystates that wished to litigate and faced a backlogged original docketin the Supreme Court. Where the operation of unambiguousconstitutive text is impractical, two solutions exist: (1.) amend the text;(2.) ignore the text. The rule of law depends upon systemic preferencefor the first option.

C. “Exceptions” as Constitutional Check on the Judiciary?

Some commentators have characterized Congress’s Exceptionspower as fulfilling the function of inter-branch check on expositoryoverreaching by the courts. Charles Black called ultimateCongressional control of federal jurisdiction “the rock on which rests

34

Charles Black, The Presidency and Congress, 32 Wash.& Lee L. Rev. 841,79

846 (1975). See also Charles Black, Decision According to Law, 37-39 (1981); CharlesE. 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 FederalCourts, 27 Vill. L. Rev. 1030, 1041 (1982).

See Claus, op cit n. 12, 429-30, 447.80

Id., 429.81

Federalist No. 81.82

the legitimacy of the judicial work in a democracy.” But the79

founding generation did not understand the Exceptions power tofulfil that function, and there are powerful reasons of principle for notcasting the power in that role.

Influential founders did consider the risk of judicialoverreaching through exposition of authoritative texts, but inproposing protections against that danger, they made no mention ofthe Exceptions power. Those who foresaw the prospects for judicialreview recognized that any institutional safeguard should itself bedeliberative and should follow judicial action rather than foreclosingsuch action. Missing from the Constitution, some complained, was anappellate check exercisable by directly-accountable political actors.When antifederalists identified the constitutional weakness of anunchecked judiciary, their proposed remedy was the institutionalarrangement that existed in several states and in Britain, namely, anultimate appellate jurisdiction in which legislators participated. In80

seeking to show that such an appellate check was not needed,Alexander Hamilton turned not to the Exceptions power (despitediscussing it in the same paper as a protection against appellatesupplanting of jury verdicts), but to the impeachment power. “[T]he81

important constitutional check which the power of institutingimpeachments in one part of the legislative body, and of determiningupon them in the other, would give to that body upon the membersof the judicial department” was “a complete security,” said Hamilton,against “judiciary encroachments on the legislative authority.” When82

John Marshall later denounced that use of impeachment, Marshall’sproposed alternative remedy was, conversely, not the Exceptions

35

Marshall to Samuel Chase, Jan. 23, 1804, reproduced in III Albert J.83

Beveridge, The Life of John Marshall (1919), between 176 and 177.

A minority of scholars have agreed that the Exceptions power lets84

Congress switch the route by which cases come to the Supreme Court, but amongthese, only William Van Alstyne and Leonard Levy have suggested that theExceptions power might extend to nothing else. See William W. Van Alstyne, ACritical Guide to Marbury v. Madison, 1969 Duke L.J. 1, 31-3; Cf. William W. VanAlstyne, 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 ofJudicial Review, 12 Mich.L.Rev. 538, 540 (1914); II William W. Crosskey, Politics andthe Constitution in the History of the United States, 1041-2 (1953); George LeeHaskins and Herbert A. Johnson, II History of the Supreme Court of the UnitedStates, 201 (1981) (citing evidence, in particular from the submissions of counsel inMarbury (5 U.S. (1 Cranch), at 148-49), that the pre-Marbury Court understood theExceptions power to permit route-switching); David P. Currie, The Constitution inthe 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: TheFirst Hundred Years, 68-9 (1985)); Robert N. Clinton, A Mandatory View of FederalCourt Jurisdiction: A Guided Quest for the Original Understanding of Article III,132 U.Pa.L.Rev 741, 778 (1984).

See Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 330 (1816) (Story,85

J.); Ex parte Yerger, 75 U.S. (8 Wall.) 85, 97 (1869) ( Chase, C.J.). Cf. Ex parteMcCardle, 74 U.S. (7 Wall.) 506 (1869) ( Chase, C.J.).

power, but “an appellate jurisdiction in the legislature.” Judicial83

overreaching was an appreciated risk at the founding, but no onenominated a Congressional power to deprive the Supreme Court ofjurisdiction as an apt safeguard against that risk, let alone as one thatthe proposed constitution provided. While the risk of judicialoverreaching was realized by leading figures at the founding to bereal, depriving the nation of the benefit of judicial deliberation cannever 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 notthe received wisdom. The Supreme Court has never endorsed it,84 85

and legal scholars have shied from it, treating Congress’s power tomake “Exceptions” to the Court’s appellate jurisdiction as judicial

36

See Hart, op cit n. 17; Herbert Wechsler, The Courts and the Constitution,86

65 Colum.L.Rev. 1001, 1005-6 (1965); Lawrence Gene Sager, The Supreme Court,1980 Term, Foreword: Constitutional Limitations on Congress' Authority toRegulate the Jurisdiction of the Federal Courts, 95 Harv. L. Rev. 17 (1981); CharlesBlack, Decision According to Law, 37-39 (1981); Gerald Gunther, CongressionalPower to Curtail Federal Court Jurisdiction: An Opinionated Guide to the OngoingDebate, 36 Stan. L. Rev. 895 (1984); Martin H. Redish & Curtis E. Woods,Congressional Power to Control the Jurisdiction of Lower Federal Courts: A CriticalReview and a New Synthesis, 124 U. Pa. L. Rev. 45 (1975); Martin H. Redish, FederalJurisdiction: Tensions in the Allocation of Judicial Power, 24-45 (2 ed. 1990);nd

Theodore Eisenberg, Congressional Authority to Restrict Lower Federal CourtJurisdiction, 83 Yale L.J. 498 (1974); Leonard G. Ratner, op cit n. 18; Leonard G.Ratner, Majoritarian Constraints on Judicial Review: Congressional Control ofSupreme 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 theFuture 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 theJudiciary Act of 1789, op cit n. 38; Akhil Reed Amar, Reports of My Death AreGreatly 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 andQuality of Decisionmaking Required of Article III Courts, 98 Colum.L.Rev. 696(1998).

Hart, op cit n. 17, 1364-5.87

review’s textual Achilles heel. What explains this? Not the coherence86

of other accounts, for they each evade or trivialize aspects of ArticleIII’s text. Not hostility to judicial review, nor in particular to thenotion that one Court should have power to give ultimate judgmenton constitutional questions. Prevailing scholarly sentimentsympathizes with Henry Hart’s claim that Congressional“Exceptions” should “not be such as will destroy the essential role ofthe Supreme Court in the constitutional plan.” Hart defended theefficacy of that principle by noting that it is no less determinate thanthose “which the Court has evolved to meet other hard situations.”87

But “other hard situations” have been adjudicated by the Court underan unquestioned assumption of jurisdiction. When the hard questionis the Court’s jurisdiction to adjudicate, the authority of the Court’sanswer depends uniquely on persuasiveness. Amorphous claims ofessential role may cut little ice with a President and Congress who

37

Cf. Wechsler, op cit n. 86, 1005-6.88

See, e.g., Luther Martin, Genuine Information, in III Farrand, op cit n. 14,89

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 ofCongress’s acts and condemned the principle. See Nos. 12 and 15, II id., 423-426,437-442.

Federalist No. 81: The Judiciary Continued, and the Distribution of the90

Judicial Authority.

frankly disagree with the Court’s assessment of its “essential role.”88

In no context is the quality of judicial reasoning and the clarity ofjudicial conclusions more critical than when the Court is defending itsown jurisdiction. Why, then, has the persuasive power of theConstitution’s text not been better harnessed? The answer lies indebates surrounding the Constitution’s ratification.

No sooner was the Philadelphia Convention’s text out the door,than its proponents encountered two resounding objections to ArticleIII. The first and less-anticipated objection was that the SupremeCourt’s appellate jurisdiction over questions of fact wouldcompromise the privilege of trial by jury. In Alexander Hamilton’s89

words, Article III’s vesting of appellate jurisdiction in the SupremeCourt had “been scarcely called in question in regard to matters oflaw; but the clamors have been loud against it as applied to mattersof fact ... as an implied supersedure of the trial by jury... .” To the90

exasperation of the Constitution’s proponents, Article III’s explicitreference to Supreme Court appellate jurisdiction over questions offact threatened to sabotage ratification. At the closely-fought Virginiaratifying convention, Edmund Pendleton observed:

The appellate jurisdiction is, therefore, undoubtedlyproper, and would not have been objected to if they hadnot introduced, unfortunately, in this clause, the words“both as to law and fact.” Though I dread no danger, Iwish these words had been buried in oblivion. If theyhad, it would have silenced the greatest objections

38

III Elliot’s Debates, op cit n. 45, 519 (June 18, 1788).91

II Farrand, op cit n. 14, 432-33.92

Id. , 648-49 (September 17, 1787) (Madison’s notes).93

III Elliot’s Debates, op cit n. 45, 654-55 (June 25, 1788).94

II Farrand, op cit n. 14, 430 (August 27, 1787) (Madison’s notes).95

Id., 433.96

against the section.91

The impending storm over the Supreme Court’s jurisdiction tosecond-guess jury findings was probably foreshadowed to those whowere paying attention toward the end of the Philadelphia Convention.Among George Mason’s papers has been found an alternative toArticle III in the handwriting of John Blair, who never spoke on the92

Convention floor. Blair went on to vote for the proposed Constitutionboth at Philadelphia and at the Virginia ratifying convention, and93 94

is thus highly unlikely to have been aiding Mason with counter-proposals after the Philadelphia vote. The Blair-Mason draft tracksArticle III’s language, including the amendment that explicitlyextended federal jurisdiction to cases arising under “thisConstitution.” The “Constitution” amendment did not occur untilAugust 27, suggesting that the Blair-Mason draft post-dated all of95

the August 27 amendments, and was prepared in response to theamendment on that day that explicitly invested the Supreme Courtwith appellate jurisdiction over questions of fact. The alternative draftlimits the Supreme Court’s appellate jurisdiction on questions of factto equity, admiralty, and maritime jurisdiction. The draft also letsCongress create inferior federal courts only in admiralty and maritimejurisdiction, and leaves all other original jurisdiction to state superiorcourts. Congress is given no power to affect the Supreme Court’sjurisdiction beyond regulating the “manner” of admiralty andmaritime appeals, and the Court’s appellate jurisdiction in all othercategories of case is limited by the draft to those “cases where thesubject in controversy or the decree or judgment of the State courtshall be of the value of one thousand dollars.” If that amount-in-96

39

See, e.g., Luther Martin, Genuine Information, in III id., 220-2 and in II97

Storing op cit n. 45, 69-71; Federal Farmer, No. 18, in II Storing, id., 346-7; A Nativeof Virginia, Observations upon the Proposed Plan of Federal Government, IStanislaus Murray Hamilton, ed., The Writings of James Monroe, 384-7 (1898).

controversy limitation was viewed by its proposers as a directsubstitute for the Exceptions power, then perhaps Article III’s“Exceptions” language was perceived even during the Convention toauthorize amount-in-controversy limitations on appeal to theSupreme Court. On the other hand, those who collaborated in thisalternative draft may have had a purely “route-switching”understanding of the Exceptions power, and wished to maximizestate-court responsibility by limiting Supreme Court appeals and byeliminating Congressional power to move Article III matters into theSupreme Court’s original jurisdiction.

Alongside their complaint about the effect of Supreme Courtappellate jurisdiction on the efficacy of jury trials, antifederalistsraised a more general, and more predictable, objection to Article III:the federal judiciary would marginalize state courts, with whichcitizens were familiar and to which the costs of access were likely tobe lower. In response to those antifederalist assaults on Article III,97

federalists seized on the Exceptions power. Congress could carve outsubstantive elements of federal jurisdiction, subsets of Article III’snine categories, and leave ultimate adjudication of those matters tostate courts. The ratification debates reveal a conceptual slide intocommandeering the “Exceptions” language to placate theantifederalist objections that threatened to derail the ratificationprocess.

A. Wilson in Pennsylvania

Having hosted the proposed constitution’s gestation,Pennsylvania was swiftest to consider ratification, but the delegatesto its convention were also swift to complain about Article III. As hesought to shepherd the Constitution’s passage through the stateconvention, James Wilson encountered robust objection to theproposed Supreme Court’s appellate jurisdiction over questions of

40

II Farrand, op cit n. 14, 431 (August 27, 1787) (Madison’s notes).98

II Elliot’s Debates, op cit n. 45, 493-4 (Dec. 7, 1787). See also 517-18.99

Id., 494, 517-18.100

II Farrand, op cit n. 14, 147.101

See Wiscart v. D’Auchy, 3 U.S. (3 Dall.) 321 (1796); Section IIE, infra.102

fact. Wilson had cause to feel responsible for the threat to ratificationposed by that objection. He had prompted inclusion in Article III ofthe words that triggered the controversy, by saying of the SupremeCourt’s appellate jurisdiction that “[t]he Committee [of Detail] hebelieved meant facts as well as law & Common as well as Civil law.”98

In defending Article III’s explicit reference to appellate jurisdictionover questions of fact, Wilson reminded delegates that during theRevolutionary War, juries had been reluctant to give boats back, andappeals of jury findings to benches of judges had been critical toproperty-owners’ prospects of recovering their property. He noted99

that appellate review of questions of fact might be necessary in othercases too, and that Congress would control the contours of theSupreme 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 whichappellate jurisdiction with respect to questions of fact could be shapedby Congress. Consistently, Wilson avoided citing the “Exceptions”100

language for jurisdiction stripping. And he adverted to Congressional“regulations” as a means of jurisdictional guidance only in the limitedcontext of appellate review of questions of fact, allowing somelatitude for the notion of a Congressional power to “organize” theCourt, as Randolph had put the function in his earlier draft in theCommittee of Detail. Wilson’s vision of Congressional regulation101

might, for example, have let Congress specify standards of reviewother than de novo for the Court’s exercise of appellate jurisdictionover questions of fact. Such a modest vision of Congress’s jurisdiction-regulating role makes most sense of Wilson’s subsequent reasoningas one of the founding members of the Supreme Court.102

41

Federalist No. 81 (first published June 25 and June 28, 1788).103


Id.105

III id., 588 (attendance records for Hamilton); id., 70 (letter of Alexander106

Hamilton to Rufus King dated August 20, 1787).

I Elliot’s Debates, op cit n. 45, 480-82 (Letter of Yates and Lansing to107

Governor Clinton); III Farrand, op cit n. 14, 588 and 590 (attendance records forLansing and Yates).

B. Hamilton in New York

In two articles first published while the New York ratifyingconvention was sitting, Alexander Hamilton advanced beyondWilson’s position to claim that Congress’s Exceptions power wasArticle III’s panacea for the antifederalists’ jurisdictional concerns. Heimplied that the Philadelphia Convention had deployed the“Exceptions” language at least partly to let Congress eliminateappellate 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 August27, 1787, “to add after the word `appellate’ the words `both as to law& fact.” The Convention did consider the “Exceptions” language at104

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 Commonlaw 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 bythe Convention’s trajectory toward nationhood.107

In another paper, Hamilton argued more generally that theExceptions power would let Congress obviate “partialinconveniencies ... connected with the incorporation of any” of Article

42

Federalist No. 80 (first published June 21, 1788).108

The Examination No. 6, Jan. 2, 1802, op cit n. 45.109

Gordon S. Wood, The Creation of the American Republic, 486 and 487110

n. 24 (1969).

II Elliot’s Debates, op cit n. 45, 413 (July 26, 1788). (The New York111

convention’s vote for ratification was 30-27.)

III’s jurisdictional categories “into the plan.” Hamilton’s assertion108

that Congress could freely leave ultimate adjudication of federalissues to state courts sits at odds with his later observation, after theConstitution was safely in place, that “the right to employ the agencyof the State Courts for executing the laws of the Union, is liable toquestion, and has, in fact, been seriously questioned.”109

C. The Virginia Ratifying Convention

Of all the state ratifying conventions, Virginia’s had greatestclaim to determining the Constitution’s destiny. In Pennsylvania,Massachusetts, Connecticut, New Hampshire, and the Carolinas, “theFederalists had the bulk of talent and influence on their side ̀ togetherwith all the Speakers in the State great and small.’” While110

Maryland’s federalists had to contend with the formidable LutherMartin and Hamilton in New York was embattled by his erstwhilePhiladelphia colleagues, John Lansing and Robert Yates, it was theVirginia Convention that witnessed an even-classed clash of politicaltitans. For the federalists stood James Madison and EdmundRandolph, whose Virginia Plan proposal to the PhiladelphiaConvention had shaped the Constitution more than any other. But theantifederalist cause was championed by Patrick Henry, heroic andeloquent leader of the Revolution, and by George Mason, primaryarchitect of the state’s constitution and declaration of rights. Virginia’sratifying vote was pivotal. New York’s, which had been even lessprobable, followed.111

43

Id., 654-55 (June 25, 1788).112

Id., 653-54 (June 25, 1788).113

See, e.g., III id., 540-41, 546 (June 20, 1788) (Patrick Henry).114

Id., 524-30 (June 18, 1788) (George Mason).115

Id., 534-35 (June 20, 1788) (James Madison).116

Id., 68-69 (June 6, 1788); 572-73, 576 (Sat June 21, 1788) (Edmund117

Randolph).

Id., 559-60 (June 20, 1788) (John Marshall).118

Id., 518-20 (June 18, 1788); 549 (June 20, 1788) (Edmund Pendleton).119

The ultimate vote in the Virginia convention was 89 to 79112

after a motion simply to propose amendments to the other statesbefore deciding whether to ratify was rejected 88 to 80. Among the113

delegates voting against ratification with Henry and Mason wasMadison’s future successor as President, James Monroe. As the votecount reflected, the Constitution’s proponents in Virginia, likeHamilton in New York, had good reason to make every argument thatthey could muster against every objection that their opponents raised.In particular, they had to neutralize the complaint, made adroitly byboth Henry and Mason, that the proposed Supreme Court’s114 115

jurisdiction would diminish ordinary citizens’ access to justice and,most intolerably, would destroy the value of trial by jury. Toovercome those potentially-devastating objections to the Constitution,the Virginia federalists united in presenting precisely the sameargument that Hamilton was simultaneously presenting in New York:Congress could make “Exceptions.”

When they rose to speak, James Madison, Edmund116

Randolph, John Marshall, and Edmund Pendleton each made117 118 119

the same point. Congress’s power to make “Exceptions” or“Regulations” would let Congress remove from the Supreme Court’sappellate 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

44

Id., 518.120

support for such a Congressional power in the text’s reference to“Regulations.” Like Wilson in Pennsylvania, Madison treated thetext’s reference to “Exceptions” as having nothing to do withremoving Article III matters from the Court. As “Exceptions” was themore obvious word to rely on, the posture adopted by Madison andWilson implied that those two leading contributors to the text eachthought the Exceptions power let Congress do something other thanjurisdiction stripping.

Edmund Pendleton, who had not been at Philadelphia, wentmuch further than his fellow federalists. He argued, in flagrantdisregard of the text, that Congress could remove matters from theSupreme Court’s constitutionally-prescribed original jurisdiction too.He made clear that he meant actual reduction of the Court’s originaljurisdiction, not just a vesting of concurrent original jurisdiction inother courts. In making that claim, he revealed that he was not reallyreading the text at all. He was saying what he thought necessary to getthe proposed constitution approved. He added, for good measure,that Congress could tamper with the Court’s original jurisdiction onlyto subtract, never to add, thus precisely inverting the import of thetext.120

Patrick Henry responded. The federalists’ interpretation ofCongress’s “Exceptions” and “Regulations” powers was, he observed,implausible. The future Supreme Court would, he predicted, notinterpret 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. Theverdict of an impartial jury will be reversed by judgesunacquainted with the circumstances. But we are toldthat Congress are to make regulations to remedy this. Imay be told that I am bold; but I think myself, and Ihope 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 orarrange it. It is subject to be regulated, but is it subject to

45

Id., 540-41(June 20, 1788) (Patrick Henry).121

U.S. Const. Amdt. VII: “In Suits at common law, where the value in122

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 common law.”

“I think the court are to be the judges of this. The judges on the bench123

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 notthe court be still judges of the fact consistently with this Constitution?” III Elliot’sDebates, op cit n. 45, 528 (June18, 1788) (George Mason).

Id., 524-26, 528 (June18, 1788) (George Mason); 568 (June 21, 1788)124

(William Grayson).

be abolished? If Congress alter this part, they will repealthe Constitution. Does it give them power to repealitself? What is meant by such words in commonparlance? If you are obliged to do certain business, youare to do it under such modifications as were originallydesigned. Can gentlemen support their argument byregular or logical conclusions? When Congress, byvirtue of this sweeping clause, will organize thesecourts, they cannot depart from the Constitution; andtheir laws in opposition to the Constitution would bevoid. If Congress, under the specious pretence ofpursuing this clause, altered it, and prohibited appealsas to fact, the federal judges, if they spoke thesentiments of independent men, would declare theirprohibition nugatory and void. In every point of view,it seems to me that it will continue in as full force as it isnow, notwithstanding any regulations they mayattempt to make.121

This response suggests that the seventh amendment was122

prompted by genuine disbelief that the Constitution gave Congress apower to remove matters specified in Article III from the SupremeCourt’s jurisdiction, not just by uncertainty as to whether Congress123

would use such a power properly. Though it was not his immediate124

46

Id., 540.125

Id. Cf. Randolph’s use of the word “organize” in his opening draft in the126

Committee of Detail: II Farrand, op cit n. 14, 147.

A change in the votes of two delegates would have changed the outcome127

in New York: II Elliot’s Debates, op cit n. 45, 413 (July 26, 1788).

focus of concern, Henry saw precisely what was wrong with ajurisdiction-stripping vision of the Exceptions power. “If Congressalter this part, they will repeal the Constitution.” If the Exceptions125

power let Congress remove the Supreme Court’s Article IIIjurisdiction, then Congress could remove the Supreme Court’s abilityto say what the Constitution required. If that were true, then thewhole document would be putty in Congress’s hands. And if thatwere true, then Congress would be as omnipotent as the BritishParliament had formerly been. The future Supreme Court, Henrypredicted, would reject the federalists’ interpretation of the“Exceptions” and “Regulations” powers, and would conclude thatCongress had no power to remove Article III matters from the Court’sjurisdiction. “[T]his sweeping clause,” said Henry, had a much moremodest ambit. It just let Congress “organize these courts,”126

consistently with the criteria for tenure and jurisdiction set forth inArticle III.

Henry’s understanding of Article III was not idiosyncratic. Theopposition that he and Mason led almost carried the day. In aconvention in which 168 voted on the ultimate questions, a change ofvote by five delegates on the motion to withhold ratification andsimply send out proposed amendments to the other states would havechanged the outcome. To suggest, therefore, that the ratifyinggeneration were even close to united in their understanding of theExceptions power would clearly be wrong.

The closeness of the Virginia contest also affords a ground forsuspicion that the federalists did not necessarily believe all of theirown arguments. Their expedient claims concerning Congress’s“Exceptions” and “Regulations” powers were probably essential toachieving a majority in favor of ratification. Had Virginia failed toratify, New York would probably have been lost too, and with it the127

47

Amar, op cit n. 69, 468.128

momentum for radical constitutional change. With the fate of theirwhole enterprise deeply uncertain, the federalists unsurprisinglyclosed ranks, and all sang from one song sheet in response to theantifederalists’ jurisdictional objections. The federalists’ unity of voicedrowned out Patrick Henry’s insight that their interpretation wouldrender the text incoherent and would be rejected by the courtsthemselves.

Akhil Amar has noted that no one in the ratification debatesarticulated a route-switching understanding of the Exceptionspower. But why would they have? The route-switching128

understanding was not responsive to the antifederalist critique. Noone was complaining that the Supreme Court did not receive enoughoriginal jurisdiction under the plan. Nor were they complaining thatmore original jurisdiction might be added through exercise of theExceptions power. Expanding federal jurisdiction at the expense ofstate courts was what bothered the antifederalists, not expanding onekind of Supreme Court jurisdiction at the expense of another. Theantifederalist complaint was that the federal courts were empoweredby Article III to do too much, which raised the question whether the“Exceptions” language would let Congress do more than re-routecases into the Supreme Court’s original jurisdiction. The issue raisedand answered by the federalists was whether the “Exceptions”language would let Congress eliminate the Supreme Court’sjurisdiction over some Article III matters completely, implementinga Congressional choice to leave some Article III matters to state courtscompletely. Only Edmund Pendleton gratuitously proclaimed thatCongress could not expand the Supreme Court’s original jurisdiction,and he blew his credibility by proclaiming in the same breath thatCongress could take the Supreme Court’s original jurisdiction away.

Amar argues that people had reason to care whether they weretrekking to the national capital sooner rather than later, because adistant original jurisdiction would require that “litigants, witnesses,and physical evidence be ̀ dragged to the centre,’” whereas appellatelitigation would require only that “the record of the case” go to a

48

Id., 472.129

I Senate Journal 10 (1789).130

Edgar S. Maclay (ed.), Journal of William Maclay, United States senator131

from Pennsylvania, 1789-91, 30 (1890). (Entry for May 11, 1789.)

I Senate Journal 84 (1820).132

Maclay, op cit n. 131, 74.133

distant venue. But the antifederalists’ articulated concern was about129

having to trek to the capital at all. They were concerned about federalcourt expansion at the expense of state courts. To the extent that thisconcern was about costs of litigation, it did not have Congressionalroute-switching in its sights, and rightly so, for there was no universalanswer to the question whether Congressional shifting of mattersfrom the Supreme Court’s appellate jurisdiction to the Court’soriginal jurisdiction would have added to or reduced litigants’ costs.The answer to that question would in each case have depended onwhether the particular suit was likely to be pursued by losing partiesbeyond the first instance. If it was, then shifting to original jurisdictionin the Supreme Court might have been a cost-saver. Such arcanepossibilities were not in the antifederalists’ sights – their target wasthe burden of subjection to federal jurisdiction in general.

D. The Judiciary Act

On April 7, 1789, the United States Senate established acommittee “to bring in a bill for organizing the Judiciary of the UnitedStates.” The eight-man committee included Oliver Ellsworth and130

William Maclay. There are no official records of Senate debate on thebill, but Maclay’s journal illuminates invaluably. The draft thatemerged from committee was Ellsworth’s creation, and Maclay did“not like it in any part, or rather I generally dislike it, but we will seehow it looks in form of a bill.” On June 12, 1789, Ellsworth’s131

committee reported the bill to the Senate. Maclay’s enthusiasm had132

not grown. “It was long and somewhat confused.” Maclay was not133

in favor of a far-reaching federal judiciary, but he understood that the

49

Id., 85 (recording Senate debate on June 22, 1789).134

Id., 86-7 (June 23, 1789).135

Constitution provided for one and that Congress had no discretionabout whether to create one, and his criticism of Ellsworth’s bill hadmore to do with its awkward structure than with its extensiveness.Accordingly, he defended the bill’s reach via reasoning that actuallyimplied that the bill was not extensive enough.

Mr. Lee brought forward a motion nearly in the wordsof the Virginia amendment, viz., “That the jurisdictionof the Federal courts should be confined to cases ofadmiralty and maritime jurisdiction.” ... I rose andbegged to make a remark or two. The effect of themotion was to exclude the Federal jurisdiction fromeach of the States except in admiralty and maritimecases. But the Constitution expressly extended it to allcases, in law and equity, under the Constitution andlaws of the United States; treaties made or to be made,etc. We already had existing treaties, and were aboutmaking many laws. These must be executed by theFederal judiciary. The arguments which had been usedwould apply well if amendment to the Constitutionwere under consideration, but certainly wereinapplicable here.134

Debate on Lee’s motion continued the next day. Maclay emphasizedthat “the question expressly turned on this point, ̀ Shall we follow theConstitution or not?’” He elaborated “that the Constitution placed thejudicial power of the Union in one Supreme Court, and such inferiorcourts as should be appointed; and, of course, the State judges, invirtue of their oaths, would abstain from every judicial act under theFederal laws, and would refer all such business to the Federal courts;that if any matter made cognizable in a Federal court should beagitated in a State court, a plea to the jurisdiction would immediatelybe put in and proceedings would be stayed. No reply was made; thequestion was soon taken and the motion was rejected.”135

50

Id., 91-2.136

Id., 97 (July 2, 1789).137

Id., 101 (July 7, 1789).138

Id., 117.139

To Maclay’s frustration, the bill’s federalist promoters werelittle more attentive to the Constitution’s actual requirements for thejudiciary than were its antifederalist opponents. On June 29, 1789, henoted making “a remark where Elsworth in his diction had variedfrom the Constitution. This vile bill is a child of his, and he defends itwith the care of a parent, even with wrath and anger. He kindled, ashe always does, when it is meddled with.” Three days later, he136

recorded:

I really dislike the whole of this bill, but I endeavored tomend it in several places and make it as perfect aspossible, if it is to be the law of the land. But it wasfabricated by a knot of lawyers, who joined hue and cryto run down any person who will venture to say oneword about it. This I have repeatedly experienced, andwhen I am certain (for a man may sometimes be certainof being right) of having made obvious and properamendments, I have been pushed at from both right andleft by them, and not a man to second me. Be it so,however; this is no reason that I should be silent. I ranElsworth hard on the uselessness of part of this bill to-day, and thought I had the advantage in some of theanswers 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 itwill be the gunpowder-plot of the Constitution. So confused and soobscure, it will not fail to give a general alarm. Elsworth has led in thisbusiness ... .” On July 17, 1789, the Senate adopted a Judiciary Bill138

by vote of 14 to 6. Maclay voted against the bill.139

On July 20, 1789, the House of Representatives received the

51

I House Journal 63 (1826).140

Id., 105.141

Id., 109.142

Id.143

Id., 110.144

Id.145

Id., 110-11.146

Id., 112.147

Id., 113.148

I Annals of Congress, op cit n. 45, 928-29.149

Id., 813-14 (August 24, 1789); 826-28 (August 29, 1789).150

Senate’s bill. The Annals of Congress provide reports of House140

deliberations on August 24, 29, and 31, 1789, but fail to provide detailsof further extensive House deliberations on September 9, 11, 12,141 142 143

and 14. On September 14, the bill was tabled with amendments144

proposed by the House Committee of the Whole. The House145

deliberated further on September 15, and 16, and then passed the146 147

Senate bill with amendments on September 17. The House Journal148

and the Annals of Congress record neither the vote nor the House’s149

amendments.

When House debate on the bill opened on August 24, SamuelLivermore moved to strike out a clause that provided for dividing theUnited States into districts for the purpose of creating inferior federalcourts. He argued that inferior federal courts would be duplicative,burdensome and unnecessary. Any possible problem of bias against150

out-of-state parties would find no remedy in dispersed inferior courtsof the kind proposed, because jurors and judges would be the samecombinations of local citizens regardless of whether serving in federal

52

See U.S. Const. Art. III § 2 cl. 3 with Amendments V, VI, and VII151

I Annals of Congress, op cit n. 45, 827 (August 29, 1789).152

Id., 866.153

Id., 831-32 (August 29, 1789).154

courtrooms or in state ones. “The jurors must come from the151

vicinage, and in all probability the district judges will be composed ofgentlemen who preside on the benches of the State courts.” All152

subsequent recorded House debate on the Judiciary Bill pertains toLivermore’s motion, which was defeated on August 31 by a vote of 31to 11.153

William Loughton Smith responded in support of the Senatebill’s provision for inferior federal courts by contending that theConstitution required all matters within the judicial Power of theUnited States to be vested in federal courts.

It is declared by that instrument that the judicial powerof the United States shall be vested in one supreme, andin such inferior courts as Congress shall from time totime establish. Here is no discretion, then, in Congressto vest the judicial power of the United States in anyother tribunal than in the Supreme Court and theinferior courts of the United States. It is further declaredthat the judicial power of the United States shall extendto all cases of a particular description. How is thatpower to be administered? Undoubtedly by thetribunals of the United States; if the judicial power ofthe United States extends to those specified cases, itfollows indisputably that the tribunals of the UnitedStates must likewise extend to them. 154

Egbert Benson argued, to similar effect: “It is not left to the election ofthe Legislature of the United States whether we adopt or not a judicialsystem like the one before us; the words of the constitution are plain

53

Id., 835.155

Id., 850.156

Id., 854 (August 31, 1789).157

Id., 855.158

and full, and must be carried into operation.” Smith subsequently155

observed that “[t]he words, ̀ shall be vested,’ have great energy, theyare words of command; they leave no discretion to Congress to parcelout 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 notgo far enough, for under its terms the federal courts, including theSupreme Court, would have jurisdiction over less than everything inArticle III. The Senate had “directed appeals only to be had in certaincases; this shows that, in their opinion, the articles of the constitutiongave them a latitude.” He then sought to draw an analogy between157

Congress’s normal discretion whether to exercise any particular of itslegislative powers and an alleged Congressional discretion whetherto extend the judicial Power of the United States to any particularcategory of Article III matter.158

Stone’s critique of the federalist position went relevantlyunanswered. The recorded debate was not addressed to the SupremeCourt’s jurisdiction and thus contained no reference to Congress’sExceptions power and no engagement with the question whether thebill gave the Court all of the jurisdiction that the Constitutionrequired. Debate was focused on whether Congress should createinferior federal courts, and seems to have taken for granted that theSupreme Court was being constitutionally established.

As the House debate concluded, the senators’ attentionreturned 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 wasonly about the judiciary. Mr. Morris said he had

54

Maclay, op cit n. 131, 152.159

I Senate Journal, op cit n. 130, 82-3. The Journal records neither the160

amendments nor the committee’s report.

I House Journal, op cit n. 140, 115; 1 Annals of Congress, op cit n. 45, 939.161

I Senate Journal, op cit n. 130, 87.162

I Annals of Congress, op cit n. 45, 88–89.163

Wells and Larson, op cit n. 34, 94.164

See, e.g., Judiciary Act 1789, I Stat. 73, §§ 21, 22.165

followed Elsworth in everything; if it was wrong, hewould blame Elsworth. King said he had never had anopportunity of judging of it. I censured it as freely asever.159

On September 19, Ellsworth delivered to the full Senate acommittee report on the House’s proposed amendments to the Senatebill and the Senate resolved to accept most but not all of the proposedamendments and to propose an amendment of its own to one of theHouse amendments. On September 21 the House accepted the160

Senate’s modified bill. Again, neither the Journal nor the Annals161

record the vote or the negotiated amendments. On September 24,President Washington informed the Senate that the bill had beensigned into law, and supplied the Senate with his nominees for162

judicial office.163

Complicating the first Congress’s comprehension of Article IIIwas the esoteric nature of jurisdictional concepts and nomenclature.That characteristic combined with the novelty of the whole nation-state power-apportioning enterprise to guarantee confusion abouthow the federal judicial system would work. For example, lawyers164

like Oliver Ellsworth were familiar with inferior court finality formatters in which the amount in controversy or size of penalty wassmall, as surely as they were familiar with inferior courts being165

55

See, e.g., Judiciary Act 1789, §9.166

Cf. Judiciary Act1789, § 13, purporting to confer on the Supreme Court167

power to issue writs of mandamus only against officers of the Union, this measureapparently constituting an exclusive “special provision by statute” for purposes of§ 14.

III Blackstone, op cit n. 32, Ch. 7, 110-113, Ch. 27, 438-439.168

Id., Ch. 4, 56. See also Ch. 4, 55; Ch. 25, 411; Ch. 27, 454-455.169

See Wiscart v. D’Auchy, 3 U.S. (3 Dall.) 321, 327 (1796) (Ellsworth, C.J.);170

United States v. More, 7 U.S. (3 Cranch) 159, 173 (1805) (Marshall, C.J.); Durousseauv. United States, 10 U.S. (6 Cranch) 307, 314 (1810), per Marshall, C.J.: “Theappellate powers of this court are not given by the judicial act. They are given by

jurisdictionally limited by such criteria. But these measures of166

adjudicative stakes were inapt to gauge which Article III cases andcontroversies should rise to the Supreme Court’s attention. A federaljudiciary’s most essential remedial power was not going to beawarding damages or property, or imposing sentences; it would beordering government actors to act differently. Those actors might beofficers of the Union, or of the States. Judicial orders of that kind,167

whether issued at common law by writs of mandamus or prohibition,or in equity by injunction, were in England only issuable by superiorcourts of record and were fully appealable to the House of Lords as168

“the supreme court of judicature in the kingdom.” Nothing at169

Philadelphia suggested that the Exceptions power would let Congressdeprive the Supreme Court of power to issue or review such ordersin proceedings that fell within Article III’s categories.

The confusion of the first Congress about what Article IIIaccomplished was reflected in the disorganization and invertedstructure of the Judiciary Act. After providing for the constitutionally-mandated Supreme Court, the Act purported to withhold from theCourt many of the matters within Article III’s nine categories. TheAct’s structure, in purporting to invest the Court with jurisdictionover less than everything in Article III, implicitly treated all federalappellate jurisdiction as in the gift of Congress. The Court ex postcharacterized what Congress had done through the Judiciary Act asan exercise of the Exceptions power. But if senators and170

56

the constitution. But they are limited and regulated by the judicial act, and by suchother acts as have been passed on the subject. When the first legislature of the unionproceeded to carry the third article of the constitution into effect, they must beunderstood as intending to execute the power they possessed of making exceptionsto the appellate jurisdiction of the supreme court. They have not, indeed, madethese exceptions in express terms. They have not declared that the appellate powerof the court shall not extend to certain cases; but they have described affirmativelyits jurisdiction, and this affirmative description has been understood to imply anegative on the exercise of such appellate power as is not comprehended within it.”

Michael Jenifer Stone, I Annals of Congress, op cit n. 45, 855 (Aug. 31,171

1789).


congressmen had widely understood the Exceptions power to be theauthority for their action, then the Act would have been framed asprovision for exceptions to a constitutional grant of jurisdiction.Instead, the Act was framed as a statutory grant of jurisdiction. TheAct’s premise was that jurisdiction had to be conferred by Congressif it was to exist. But the Constitution itself vests the judicial Power ofthe United States in one supreme Court, as surely as the Constitutionvests “[a]ll legislative Powers herein granted” in Congress.

The Constitution no more lets Congress decide what mattersthe Supreme Court can hear than it lets Congress decide whether theSupreme Court will exist. Inferior federal courts are whollydistinguishable in both respects – a corollary of Congressional choiceto create them is Congressional choice of their jurisdictions, for theConstitution does not prescribe how the judicial Power shall beapportioned among them. But constitutional supremacy of itselfprescribes 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 betweenCongress’s normal discretion whether to exercise any particular of itslegislative powers and an alleged Congressional discretion whetherto extend the judicial Power of the United States to any particularcategory of Article III matter was false. The “shalls” of Article III171

oblige Congress to legislate for a Court of the character described inthe Article, as surely as the “shalls” of Article I oblige Congress toconvene at all. The true analogy is between the Constitution’s172

57

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 420 (1821). See also Wisconsin173

v. Pelican Insurance, 127 U.S. 265, 297 (1888).

5 U.S. (1 Cranch) 137 (1803).174

vesting of legislative powers over listed subjects in Congress and theConstitution’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 belongsto those in whom the Constitution vests it, subject to anyconstitutionally-endorsed duties to do so. Congress can choosewhether to exercise its legislative powers, but only the one supremeCourt can choose whether to adjudicate matters listed by Article III aswithin the judicial Power of the United States, subject to any duties toadjudicate that Congress might impose under its regulations power.

In Cohens v. Virginia, Chief Justice John Marshall celebrated theJudiciary Act as compelling evidence of the founding generation’scollective understanding of the Constitution. On that occasion, the173

claim served the result that he wished to reach. He made no suchclaim in Marbury v. Madison, when declaring § 13 of the Act invalid174

to the extent that the section provided for re-routing Article III mattersinto the Supreme Court’s original jurisdiction. The history of the Act’sadoption confirms what the Act’s chaotic structure suggests: that theJudiciary Act might better be described as exhibit A for proving thefirst 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, OliverEllsworth articulated the assumption under which he had written theJudiciary Act: all federal appellate jurisdiction was in the gift ofCongress, and did not exist unless Congress by statute granted it. Mr.Justice James Wilson, author in the Committee of Detail of theConstitution’s reference to “Exceptions,” disagreed. Dissenting from

58

3 U.S. (3 Dall.) 321 (1796).175

Id., 325.176

Ellsworth’s majority opinion in Wiscart v. D’Auchy, Wilson insisted175

that the Constitution directly invested the Supreme Court withjurisdiction over everything to which Article III extended the judicialPower of the United States. Wilson’s dissent evaded the questionwhether, and if so, to what extent, Congress could remove the Court’sconstitutionally-vested jurisdiction. Consistent with his performanceat the Pennsylvania ratifying convention, Wilson’s words weresedulously ambiguous concerning the constitutionality ofCongressional jurisdiction stripping.

The occasion for Wilson’s disagreement with Ellsworth overjurisdictional first principles was the Wiscart Court’s need to decidewhether it could exercise appellate jurisdiction over questions of factin equity and admiralty cases. Ellsworth’s answer for the majority wasno. Wilson’s was yes:

Such an appeal is expressly sanctioned by theConstitution; it may, therefore, clearly in the first viewof the subject, be considered as the most regularprocess; and as there are not any words in the judicialact restricting the power of proceeding by appeal, itmust be regarded as still permitted and approved.Even, indeed, if a positive restriction existed by law, itwould, in any judgment, be superseded by the superiorauthority of the constitutional provision. 176

That sounded as though Wilson denied any Congressional power toremove 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 thesubject; but, it is equally true, that the constitution(which we must suppose to be always in the view of theLegislature) had previously declared that in certainenumerated cases, including admiralty and maritime

59

Id., 326-27.177

cases, “the Supreme Court shall have appellatejurisdiction, both as to law and fact, with suchexceptions, and under such regulations as the Congressshall make.” The appellate jurisdiction, therefore,flowed, as a consequence, from this source; nor had theLegislature any occasion to do, what the Constitutionhad already done. The Legislature might, indeed, havemade exceptions, and introduced regulations upon thesubject; but as it has not done so, the case remains uponthe strong ground of the Constitution, which in generalterms, and on general principles, provides andauthorises an appeal; the process that, in its very nature,(as I have before remarked) implies a re-examination ofthe fact, as well as the law.177

Wilson’s observation that Congress could have made relevantexceptions to the Court’s appellate jurisdiction did not addresswhether such “exceptions” might validly exclude Supreme Courtreview, or could only shift adjudication to the Court’s originaljurisdiction. Nonetheless, the dissent’s assertions seem irreconcilable,for either use of the Exceptions power would effect a “positiverestriction” on the Court’s appellate jurisdiction.

Responding to Wilson’s dissent (and apparently writing onlyfor himself), Ellsworth contended that Congressional failure toprovide for an aspect of the Court’s Article III appellate jurisdictionshould be construed as an implicit exercise of the Exceptions powerto exclude those matters from the Court’s consideration completely.

If Congress has provided no rule to regulate ourproceedings, we cannot exercise an appellatejurisdiction; and if the rule is provided, we cannotdepart from it. The question, therefore, on theconstitutional point of an appellate jurisdiction, issimply, whether Congress has established any rule for

60

Id., 327.178

United States v. More, 7 U.S. (3 Cranch) 159, 173 (1805) (Marshall, C.J.);179

Durousseau v. United States, 10 U.S. (6 Cranch) 307, 314 (1810) (Marshall, C.J.).

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).180

See Ex parte Yerger, 75 U.S. (8 Wall.) 85, 97 (1869); Susan Low Bloch and181

Maeva Marcus, John Marshall’s Selective Use of History in Marbury v. Madison, 1986Wis.L.Rev. 301, 328-9;Amar, op cit n. 69; Louise Weinberg, Our Marbury, 89Va.L.Rev. 1235 (2003); Haskins and Johnson, op cit n. 84, 201.

5 U.S. (1 Cranch) 137, 174-75.182

regulating its exercise? 178

That understanding was repeated by the nation’s next Chief Justice,179

and has sustained the orthodoxy concerning Congress’s Exceptionspower ever since.

2. Marbury v. Madison

The prospects for implementing a coherent vision of Article IIIwere already dim when Chief Justice John Marshall delivered theCourt’s opinion in Marbury. His opinion extinguished them. If180 181

Congress had no power to let the Supreme Court entertain suits atfirst instance for the writ of mandamus against federal officers byplaintiffs other than states or diplomats, then to what did theExceptions power refer? Marshall was wilfully blind to thepossibilities that the constitutional specification of original jurisdictionset only a floor on that jurisdiction, not a ceiling, or that theconstitutional specification of original jurisdiction was a default rule,and subject to whatever necessary and proper redistributions betweenoriginal and appellate the Congress might choose to make. No such182

redistributions between kinds of Supreme Court jurisdiction wouldhave risked the Court’s role as ultimate expositor of federal law underArticle III, whereas Marshall’s reading did. If Congress’s power tomake exceptions to the Court’s appellate jurisdiction were not apower to expand the Court’s original jurisdiction, then where wouldthe exceptions go? If Marshall’s reasoning were right, then Congress’s

61

See letter from Marshall to Samuel Chase, Jan. 23, 1804, op cit n. 83;183

Articles of Impeachment against Samuel Chase reported to the House ofRepresentatives on March 26, 1804, XIII Annals of Congress 1240(1852).

Federalist No. 81.184

See, e.g., letter from Thomas Jefferson to William Branch Giles, April 6,185

1807, excerpted in V Dumas Malone, Jefferson and His Time (Jefferson the PresidentSecond Term 1805-1809), 305 (1974).

power to make exceptions to the Court’s appellate jurisdiction had tolet Congress stop the Court from considering some Article III mattersat all. In his anxiety to establish the principle that his Court coulddecide the constitutionality of Congress’s acts, Marshall cultivated thegreatest textual threat to that principle.

Marshall had cause to be anxious. Hostile incumbentsglowered from the White House and the Congress, threateningimpeachment of the federalist Court. In support of ideological183

impeachment they could cite none less than Marshall’s fellowfederalist, Alexander Hamilton. Had Marshall decided the case as184

he otherwise did without finding §13 of the Judiciary Act invalid to theextent that it afforded the Court jurisdiction to entertain Marbury’ssuit, he would have risked two terrible consequences. The first, andhighly probable one, was that his decision would have been defied.Jefferson would likely have instructed Madison to ignore themandamus and to refuse to deliver Marbury’s commission. Second,Marshall would have added to the looming danger of his ownimpeachment.185

Finding the Judiciary Act unconstitutional as applied toMarbury’s suit avoided those bad consequences, and achieved a goodone. When Marbury’s suit appeared on his docket, Marshall hadevery reason to consider it the safest circumstance he was ever likelyto encounter for asserting the Court’s authority to determine theconstitutionality of Congress’s acts. He had no cause for confidencethat he would again have opportunity to adjudicate theconstitutionality of a statute over which the Jeffersonians did not havepride of authorship and which could be held invalid withoutincensing them. By attacking a law not of their making on the ground

62

III Elliot’s Debates, op cit n. 45, 559-60, (June 20, 1788) (John Marshall,186

Virginia ratifying convention).

See Ex parte Yerger, 75 U.S. (8 Wall.) 85, 97 (1869).187

Van Alstyne, op cit n. 84, 8.188

Id.189

5 U.S. (1 Cranch) 137, 155, 158: “It appears, from the affidavits, that in190

compliance with this law, a commission for William Marbury as a justice of peacefor the county of Washington, was signed by John Adams, then president of theUnited States; after which the seal of the United States was affixed to it; but thecommission has never reached the person for whom it was made out. ... Thecommission being signed, the subsequent duty of the secretary of state is prescribedby law, and not to be guided by the will of the President. He is to affix the seal ofthe United States to the commission, and is to record it.”

that it gave too much power to him, Marshall asserted power byabdicating power in a way that disarmed his detractors. In pluckinga chance to elevate the Court’s authority from a scenario that lookedset to undermine the Court’s authority, Marshall paid a price thatmust have to him seemed small. He was already on record in supportof reading Congress’s Exceptions power to permit jurisdictionstripping. Marbury took that reading only a modest step further, by186

implicitly insisting that jurisdiction stripping was the only thing thatthe Exceptions power let Congress do. But Marshall’s reasoningcemented the otherwise-contestable jurisdiction-strippingunderstanding of “Exceptions” by rendering its coherent, route-switching alternative unsalvageable.187

Did Marshall decide Marbury as he did just so that he coulddeclare an Act of Congress unconstitutional? T w o p i e c e s o fevidence support that conclusion. First, he violated even the thinnestrecusal standards. But for an ulterior motive, he would surely have188

leapt with gratitude on his involvement in the underlying dispute toavoid sitting on the case. Marshall had sealed and recorded Marbury’scommission, and Marshall’s younger brother, who had been inMarshall’s office at the time, testified by affidavit to Marshall’sconduct that night. Marshall’s opinion sought to emphasize the189

ministerial nature of his role, but the office of Secretary of State was190

63

Haskins and Johnson, op cit n. 84, 183-84.191

19 U.S. (6 Wheat.) 264, 392-403 (1821).192


hardly clerical. It made him the first-ranked member of the Adamscabinet, and presumptively fixed him with a favorable opinion on themerits of Marbury’s appointment as a Justice of the Peace. And it wasMarshall’s own oversight in not arranging dispatch of the commissionbefore departing the office that had let his successor withhold deliveryand thus had triggered the suit. As party to the commission’s191

creation Marshall arguably would have had standing to be Marbury’sco-complainant in the suit.

The pretextual character of Marshall’s Marbury adjudication isalso evidenced by the contrast between his reasoning in the case andhis reasoning in Cohens v. Virginia. In Cohens, Marshall held that192

Congress could expand the Court’s appellate jurisdiction to includelitigation involving state parties, notwithstanding the text’s explicitconfinement of the appellate jurisdiction to those Article III mattersnot falling within the Court’s constitutionally-prescribed originaljurisdiction. The text provided for “Exceptions” to the appellatejurisdiction, not “Additions” to it, and nowhere provided for“Exceptions” to the Court’s original jurisdiction. The textual case forholding that Congress could not expand the Court’s appellatejurisdiction was much clearer than the case that Marshall made inMarbury for his conclusion that Congress could not expand theCourt’s original jurisdiction. Marshall’s failure in Marbury, surelyfeigned, to notice that not all legal rules are mandatory rules, left thejudicial branch’s ability to participate in inter-branch constitutionaldiscourse 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 Writof Habeas Corpus shall not be suspended, unless when in Cases ofRebellion or Invasion the public Safety may require it” is listed193

64

I Farrand, op cit n. 14, 23; III id., 595, 599.194

III id., 427, 428. (Letter of Charles Pinckney to John Quincy Adams, Dec.195

30, 1818).

Id., 599.196

Id., 501-13.197

among Article I § 9's limitations on the Congressional powersconferred in Article I § 8. It necessarily implies that those legislativepowers – in particular, Congress’s war powers when read with thenecessary-and-proper clause – might otherwise authorize suspendingthe jurisdiction of the courts to review the legality of federaldetentions in circumstances beyond a fighting war on American soil.But it also necessarily implies that those legislative powers can beused at most to suspend the detention-reviewing jurisdiction of thecourts, which means that those powers do not let Congress remove allsuch jurisdiction. The jurisdiction-stripping understanding of ArticleIII puts the text of the Article at war, not only with itself, but also withthe suspension clause.

The suspension clause appears in the version of CharlesPinckney’s plan of government that he supplied over three decadesafter the Philadelphia Convention and alleged to be identical with theversion presented to the Convention on May 29, 1787 except in194

“form & unessentials.” The later-delivered version contained the195

following clause:

The United States shall not grant any title of Nobility ---- The Legislature of the United States shall pass no Lawon the subject of Religion, nor touching or abridging theLiberty of the Press nor shall the Privilege of the Writ ofHabeas Corpus ever be suspended except in case ofRebellion or Invasion.196

Madison subsequently criticized Pinckney for representing that thePinckney plan foreshadowed the Constitution to a greater degree thanit had. Other records from the Convention suggest that Pinckney197

was indeed the moving force behind the suspension clause, but that

65

II id., 341 (Madison’s notes); 334 (Journal).198


“N.H. ay. Mas. ay. Ct. ay. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. no. S. C.200

no. Geo. no. [Ayes--7; noes-- 3.]” Id., 438 (Madison’s notes).

Id.201

if his original plan had provided anything on the subject, thatprovision did not so closely conform to the eventual Constitution. OnAugust 20, 1787, Pinckney proposed the following:

The privileges and benefit of the Writ of Habeas corpusshall be enjoyed in this Government in the mostexpeditious and ample manner; and shall not besuspended by the Legislature except upon the mosturgent and pressing occasions, and for a limited timenot exceeding months. [sic]198

On August 28, the provision was taken up in Convention debate.Pinckney moved that habeas corpus “should not be suspended but onthe most urgent occasions, & then only for a limited time notexceeding twelve months.” John Rutledge preferred to declare habeascorpus “inviolable,” because he thought it inconceivable “that asuspension could ever be necessary at the same time through all theStates.” 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 mayrequire it.” All state delegations agreed to the guarantee in the199

provision’s opening phrase, and the three delegations from the deepSouth resisted letting Congress suspend the writ even in the twolimited circumstances identified by Morris, reflecting the doubt felt200

even by James Wilson that suspension would ever be necessary, giventhe extent of judicial discretion to refuse bail. Luther Martin201

complained during ratification that the power to suspend during“rebellion” would be exploited to silence legitimate political

66

Luther Martin, Genuine Information (address to the Maryland202

Legislature, November 29, 1787), III id., 172, 213.

opposition in the states. 202

Morris’s revision of the Pinckney proposal responded toRutledge’s view that the national government would never need tosuspend habeas corpus, by identifying two circumstances in whichsuch action might be necessary. Rebellion and invasion are the twocircumstances in which the national government might be engaged inactive combat with an enemy on American soil. Congress maysuspend judicial review of federal executive detentions on Americansoil if and only if the national executive is operating under battlefieldconditions on American soil. The clause is perspicaciously practical.When rounding up apparent enemies on a battlefield, militarycommanders should not have to gather evidence. Evidence-gatheringis inefficient, and battle is a context where the stakes for efficiency areexceptionally high, for on efficiency depend one’s own soldiers’ lives,military success, and ultimately the public safety. Suspending the writunder battlefield conditions may indirectly protect detainees, for ifmilitary commanders were subjected to judicial process and second-guessing when detaining and holding suspected enemy combatantson a battlefield, those commanders might not bother. Summaryexecutions might displace summary detentions of captured orsurrendering adversaries. The founders understood the dynamics ofdomestic combat, for they had just emerged from a shooting war athome. When the homeland truly becomes a battlefield due to rebellionor invasion, Congress may close down the courts, suspending thejurisdiction that courts would otherwise have to determine thelegality of federal executive detentions.

The suspension clause’s primary guarantee insists, however,that Congress’s war powers not be used pretextually – war abroaddoes not justify shutting down courts at home. The suspension clauseexists precisely to prevent the Orwellian specter of a governmentperpetually omnipotent and unaccountable because perpetually “atwar.” If, after homeland fighting subsides, the federal governmentwishes to hold domestic prisoners in the longer term, then it hadbetter come up with evidence in support of their detention and make

67

U.S. Const. Art. II § 2 cl. 1. See Ex parte Merryman, 17 F.Cas. 144, 151-52203

(1861) (Taney, C.J., citing Story, J.)

an appropriate case to the courts. Only in the unique circumstances ofa homeland fighting war may one branch of government (Congress)insulate another branch of government (the President, as Commanderin Chief ) from scrutiny by the third branch of government with203

respect to detention of persons in America.

The suspension clause tells us something important about theproper interpretation of Article III, because the suspension clausenecessarily implies that there is something to suspend. In limiting thecircumstances in which the war powers let Congress suspend courts’jurisdiction to determine the legality of federal detentions, thesuspension clause necessarily implies that no power lets Congresssimply prevent all courts from having that jurisdiction in the firstplace.

The suspension clause presupposes that jurisdiction to issuethe writ of habeas corpus to determine the legality of federaldetentions exists in at least one court. The clause then sets forth thelimited circumstances in which Congress may use its war powers tosuspend – not eliminate, for the concept of suspension is intrinsicallytemporary – the operation of that jurisdiction. But the suspensionclause does not of itself vest jurisdiction in any court. And nothing elsein the Constitution (a.) obliges states to enact laws vesting state courtswith jurisdiction to issue the writ of habeas corpus to determine thelegality of federal detentions, (b.) prevents Congress from makingfederal jurisdiction to determine the legality of federal detentionsexclusive, or (c.) obliges Congress to enact laws to create anyparticular inferior federal court with jurisdiction to issue the writ ofhabeas corpus to determine the legality of federal detentions. Nor didthe original Constitution contain a due process clause. The only placein the Constitution where Congress is subjected to a duty to invest aparticular court with jurisdiction to determine the legality of federaldetentions is Article III §§ 1 and 2, where the Constitution insists thatthe judicial Power be vested in one supreme Court and that thejudicial Power extend to matters arising under the Constitution andlaws of the United States.

68

Cf. Hamdan v. Rumsfeld, 126 S.Ct. 2749, 2818-19 (Scalia, J., joined by204

Thomas and Alito, JJ., dissenting).

See Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850).205

If Congress’s power to make exceptions to the Supreme Court’sappellate jurisdiction lets Congress eliminate the Court’s jurisdictionto determine the legality of federal detentions, then Congress’s choiceto do so would not be a suspension of the Court’s jurisdiction, itwould be an extinction of that jurisdiction. And if the constitutionally-required jurisdiction to issue the writ of habeas corpus were a floaterthat constitutionally had to exist except during rebellion or invasionbut did not constitutionally have to exist in any particular court, then204

there would be more sense in speaking of removing or extinguishing thejurisdiction during rebellion or invasion. But the Constitution seemsto assume that the jurisdiction to determine legality of federaldetentions cannot be removed – that such jurisdiction can at most besuspended. By limiting the circumstances in which mere suspensioncan occur, the Constitution seems to assume a background jurisdictionsomewhere that cannot be extinguished. But if that jurisdiction wereotherwise only in an inferior federal court or in a state court, then ofcourse that jurisdiction could be extinguished. Congress could abolishthe inferior federal court, or change that court’s jurisdiction howeverCongress pleased. States could change state court jurisdictions or205

Congress could exclude state courts from review of federal action. Theassumption that even in rebellion or invasion a jurisdiction to review thelegality of federal detentions will exist and can only at most besuspended presupposes no Congressional power to extinguish thatjurisdiction in at least one court that has that jurisdiction. And thatcounts robustly against the jurisdiction-stripping interpretation ofCongress’s Exceptions power and to a complete absence ofCongressional ability to remove habeas corpus jurisdiction from theSupreme Court.

The underlying logic of the relation between Article III and thesuspension clause explains Chief Justice Salmon Chase’s perplexitywhen the Reconstruction Congress displayed an inclination toreplicate the effect of wartime suspension through peacetime

69

See Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869); Ex Parte Yerger, 75206

U.S. (8 Wall.) 85 (1869).

Yerger, 75 U.S. (8 Wall.) 85, 102-03 (1869).207

Id., 97.208

extinction. Conceding that Congress’s Exceptions power permitted206

jurisdiction stripping, Chase noted that nonetheless “it is too plain forargument that the denial to this court of appellate jurisdiction in thisclass of cases must greatly weaken the efficacy of the writ, deprive thecitizen in many cases of its benefits, and seriously hinder theestablishment of that uniformity in deciding upon questions ofpersonal rights which can only be attained through appellatejurisdiction, exercised upon the decisions of courts of originaljurisdiction.” Wistfully, he observed that but for Marbury,207

Congress’s Exceptions power might have received a route-switchingcharacterization.

If the question were a new one, it would, perhaps,deserve inquiry whether Congress might not, under thepower to make exceptions from this appellatejurisdiction, extend the original jurisdiction to othercases than those expressly enumerated in theConstitution; and especially, in view of theconstitutional guaranty of the writ of habeas corpus, tocases arising upon petition for that writ. But, in the caseof Marbury v. Madison, it was determined, upon fullconsideration, that the power to issue writs ofmandamus, given to this court by the 13th section of theJudiciary Act, is, under the Constitution, an appellatejurisdiction, to be exercised only in the revision ofjudicial decisions. And this judgment has ever sincebeen accepted as fixing the construction of this part ofthe Constitution.208

A route-switching understanding of Article III makes sense ofthe Article’s relation to the suspension clause. Jurisdiction to issue thewrit of habeas corpus to review the legality of federal detentions must

70

See Dallin H. Oaks, The “Original” Writ of Habeas Corpus in the209

Supreme Court, 1962 S. Ct. Rev. 153; Ex parte Bollman; ex parte Swartout, 8 U.S. (4

Cranch) 75 (1807) (Marshall, C.J.).

II Samuel Johnson, Dictionary of the English Language 1953 (1755)210

(defining “supreme” as “1. Highest in dignity; highest in authority. ... 2. Highest;most excellent.”).

exist in the one supreme Court. If that habeas jurisdiction is alsopossessed by state courts or has been invested by Congress in inferiorfederal courts, then the Supreme Court’s appellate jurisdiction affordsit power of ultimate judgment concerning the legality of federaldetentions. But if no state or inferior federal courts possess209

jurisdiction to determine the legality of a federal detention, thenCongress is obliged to expand the one supreme Court’s originaljurisdiction to cover the case. The suspension clause requires no less.So does the fifth amendment’s due process clause, and that clauseextends the obligation of Congress to ensure judicial fora beyondissues 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 SamuelJohnson’s dictionary, the text’s reference to Congress’s Exceptions210

power should not have seemed ambiguous. Only one meaning of“Exceptions” coheres with the “shalls” of Article III and thecomparison with Articles I and II that shows those “shalls” to bemandatory. Unlike any other court in the common law world at itsbirth, Article III’s one supreme Court was not the creation of amonarch or even of a legislature. It was created directly through adocument designed to stand above executives and legislatures. Itsorganization was left to a legislature, but its character was prescribedin the higher text that created it. Congress’s duty was to organize aCourt of the character described in Article III. If what the Court candecide is completely within Congress’s discretion, then theConstitution’s guarantee of the Court’s existence is empty, for theCourt’s identity is indistinguishable from what the Court can do.

71

I Farrand, op cit n. 14, 124 (Madison’s notes) (June 5, 1787).211


Id., 95 (Journal), 104-5 (Madison’s notes) (June 4, 1787).213

The supremacy clause (U.S. Const. Art. VI cl. 2) does not explicitly bind214

state courts to observe Supreme Court precedent, but see Cooper v. Aaron, 358 U.S.1, 17-19 (1958).

Early in the life of the Philadelphia Convention, John Rutledgerose to argue that the future national judiciary need not includeinferior federal courts and “that the State Tribunals might and oughtto be left in all cases to decide in the first instance[,] the right of appealto the supreme national tribunal being sufficient to secure the nationalrights & uniformity of Judgmts.” In response, James Madison“observed that unless inferior tribunals were dispersed throughoutthe Republic with final jurisdiction in many cases, appeals would bemultiplied to a most oppressive degree.” As their colloquy was211

predicated on the critical importance of securing “the national rights& uniformity of Judgmts,” Madison’s vision of inferior court finalitycannot have been one of finality by reference to issue, but of finality byreference to adjudicative stakes, measured, in civil cases, by amountin controversy, and in criminal cases by size of penalty. If the inferiorfederal courts “dispersed throughout the Republic” were investedwith the last word on an issue arising within the judicial Power of theUnited States, then the “uniformity of Judgmts” would not besecured, any more than if state courts enjoyed the last word on thatissue. Madison’s argument for inferior federal courts depended uponthe importance of adjudicative consistency, for if consistency wereunnecessary, then state courts could have been left with ultimatejudgment of some federal issues. The Convention had, just theprevious day, amended the Virginia delegation’s resolution for “oneor more supreme tribunals” to stipulate that there should be just212

one. 213

Madison had to mean that inferior federal courts could bebetter relied on than state courts to observe Supreme Court precedenton federal questions, and thus amount-in-controversy limitations on214

appeal from federal courts would be acceptable even though

72

Judiciary Act 1789, § 22.215

Judiciary Act 1789, § 25. (The Act made no provision for Supreme Court216

review of any court’s decisions on questions of fact, and, of course, the sameCongress proposed the seventh amendment.)

See Pfander, op cit n. 20, 1458-1462.217

See 28 U.S.C. §§ 1254, 1257. (For provenance, see the Circuit Court of218

Appeals Act of 1891 (the Evarts Act), 26 Stat. 826, providing for discretionarySupreme Court review on writ of certiorari regardless of amount in controversy.)

comparable finality in state courts would not. Consistent with thatvision, the Judiciary Act imposed a $2,000 amount-in-controversylimitation on Supreme Court review of federal circuit court decisionson questions of law but no amount-in-controversy limitation on215

Supreme Court review of state supreme court decision on questionsof the constitutionality and legality of federal action or the (federal)unconstitutionality of state action. Madison may also have216

contemplated that the Supreme Court would inherently possess apower of discretionary review in respect of “final” judgments ofinferior federal courts. 217

As the national experience has proven, leaving the SupremeCourt with discretion to decide which matters to adjudicatesubstantively, rather than arbitrarily limiting access by reference toamounts-in-controversy or size of penalties, is the optimal way tokeep the Court functional while preserving its supremacy in relationto the matters within the judicial Power of the United States. But218

jurisdictional restrictions calibrated to adjudicative stakes are asecond-best solution. They leave the Court power to exercise ultimatejudgment over less than all legal matters that fall within the judicialPower of the United States, but do not necessarily frustrate theCourt’s ability to exercise ultimate judgment over all legal issues thatfall within the judicial Power of the United States. Such jurisdictionallimitations may co-exist, albeit awkwardly, with an understandingthat the Court’s supremacy calls for ultimacy on legal issues. Such co-existence is possible, however, only if adjudicative-stakes restrictionson jurisdiction do not exclude from the Court every instance of any

73

Cf. Ratner, op cit n. 18, 201, arguing that the Exceptions power must not219

be used to negate the “essential constitutional functions of maintaining theuniformity and supremacy of federal law,” and therefore must not precludeSupreme Court review of “every case involving a particular subject.”

See, e.g.,”DeLay says Federal Judiciary Has `Run Amok,’ Adding220

Congress Is Partly to Blame,” New York Times, April 8, 2005, Section A, 21 ([Housemajority leader] “DeLay alluded to Congressional authority to ̀ set the parameters’of courts’ jurisdictions”). See also the examples cited in Carl A. Auerbach, TheUnconstitutionality of Congressional Proposals to Limit the Jurisdiction of FederalCourts, 47 Mo.L.Rev. 47 (1982); Sager, op cit n. 86, 18 n. 3; Clinton, op cit n. 84, 744-5nn. 4-10.

United States v. Klein, 80 U.S. (13 Wall.) 128, 145-48 (1872).221

particular Article III issue of law. And the seventh amendment now219

independently regulates Article III’s provision for the Court’sultimacy on issues of fact.

History has called forum non conveniens a ground on whichCongress’s Exceptions power lets Congress prevent the SupremeCourt from deciding Article III matters. The legacy with which we areleft, however, is a Congress whose members think themselvesempowered to deprive the nation’s Supreme Court of jurisdiction fora different reason. Periodically they threaten to legislate “Exceptions,”not because of the kinds of considerations raised at the founding, butbecause they do not like the way in which the Court has decided, orlooks likely to decide, particular legal issues that fall within the judicialPower of the United States. 220

The history of the Constitution’s adoption joins the logic of itslanguage in recognizing no power to remove jurisdiction from ArticleIII’s one supreme Court by reference to issue. Even in the depths ofjudicial deference to Congressional jurisdiction stripping, theReconstruction Supreme Court condemned a statute through whichCongress purported to strip the Court of appellate jurisdiction byreference to issue. The statute in United States v. Klein purported to221

let the Court decide appeals in a class of matters (and let the Court ofClaims decide those matters in the first instance) only when thosematters did not implicate the Supreme Court’s conclusion on aparticular constitutional issue, namely, the effect of a Presidential

74

See Planned Parenthood v. Casey, 505 U.S. 833, 855-57 (1992).222

3 U.S. (3 Dall.) 321 (1796). See Section IIE, supra.223

See Section IA-6., supra.224

pardon. Klein provides pedigree in precedent for departing from thecurrent orthodoxy and concluding that Congress cannot makeexceptions to the Supreme Court’s appellate jurisdiction by referenceto issue.

B. Stare Decisis

Changing current doctrine to condemn issue-drivenjurisdiction stripping would compromise no citizen-reliance interestsof the kind that have on other occasions encouraged the SupremeCourt to maintain contested precedents. No participant in American222

life has changed how she lives in reliance on Congress’s allegedjurisdiction-stripping powers. Reliance interests of the kind thataccrete around decisions affirming and defining individual rightswould accrete around a decision rejecting Congressional power toremove the Supreme Court’s jurisdiction. Those interests do notprotect decisions recognizing such a Congressional power. Moreover,Congress’s reliance on the orthodox understanding of its Exceptionspower warrants little solicitude, for use of the power to removeSupreme Court jurisdiction by reference to issue is antithetical to theliberty of the citizen. And Congress’s reliance on having power toremove jurisdiction by reference to issue has in fact been negligible.

What of Article III jurisdiction about which Congress has beensilent? The orthodoxy, ever since Wiscart v. D’Auchy, has been that223

Congressional silence implicitly exercises the Exceptions power todeny the Court jurisdiction over Article III matters. That conclusioncould change without conferring on any litigant a right to ultimateappellate adjudication, for ultimate appellate jurisdiction is, in default,wholly discretionary. An ultimate appellate Court may reasonably224

forbear from exercising jurisdiction over matters sufficientlyadjudicated by other courts and for which there is no explicit statutory

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 readlaw. They just get told about it. But the miscellany of mixed messagesthat they receive is hardly sufficient basis for deciding authoritativelywhat the law mandates. The rule of law in America depends uponAmerican governments, and courts in particular, taking English-language meanings of legal words seriously. And only one meaningof “supreme” makes sense of Article III. America’s Constitution callsAmerica’s Supreme Court supreme in substance, not just in name.

Documents

THE ONE COURT THAT CONGRESS CANNOT TAKE AWAY: … · 10/6/2006 · 5 4 Detainee Treatment Act 2005 § 1005 (e) and (h). 5 126 S.Ct. 2749, 2762-2770 (2006) (Stevens, J., opinion of