Although the Constitution vests the "Judicial Power" of the United States in the Supreme Court and in any inferior courts that Congress establishes, both Congress and the Court have long propounded the traditional view that the inferior courts may be deprived cognizance of some of the cases and controversies that fall within that power. Is this view fully consonant with the history and text of Article III? One possible reading of those sources suggests that the Constitution vests the full Judicial Power of the United States in the inferior federal courts, directly extending to them jurisdiction over matters that Congress may not abridge. This position is controversial and has been rejected. However, my goal here is to explore whether the text, structure, and history of Article III provide any support for this contention.

When one consults the record of debates surrounding the drafting and adoption of the Constitution and analyzes the constitutional text in light of insights gained from those debates, it seems that the "plan of the Convention" was to create an independent and equal branch of government fully capable of exercising the Judicial Power of the United States free from the control of the other branches and empowered to give greater effect to the superior authority of the central government and its laws than had been the case under the Articles of Confederation. Indeed, the Framers of the Constitution expressly considered and rejected language that would have undermined that central plan by investing Congress with the very authority over the Federal Judiciary that Congress and the Court have presumed to exist. Thus, although our system envisions certain checks and balances among the three branches of government, conceding congressional authority to manipulate the jurisdiction of inferior federal courts is in some tension with notions of judicial independence the Framers seemingly embraced and pursued.

There have been only a few challenges to the received wisdom blessing congressional control over inferior court jurisdiction, even though there is a long tradition of scholarship-penned by the likes of Justice Joseph Story and Professor Henry Hart- that has otherwise thoroughly analyzed the nature of Congress's authority with respect to the Federal Judiciary. This Article does not take up that challenge so much as it attempts to revive the debate.

This Article proceeds as follows: Part II examines the debates in the Federal Constitutional Convention and those of the various state ratifying conventions to discover the original understanding of the nature and scope of the Judicial Power. These discussions, as well as the proposal and amendment process of the Framers during the Federal Convention, will be combined with the perspective offered in The Federalist to arrive at a general understanding of the plan of the Convention with respect to the Judicial Power and the Federal Judiciary. Part III details the traditional view that Congress has the authority to limit the jurisdiction of inferior federal courts. Part IV offers a possible alternative to this traditional view, questioning Congress's authority to pare down the Judicial Power to be exercised by inferior Article III courts-the constitutional vesting thesis-and concludes with a discussion of some implications of this idea.

Document Type


Publication Date

Fall 2011

Publication Information

46 Georgia Law Review 1-68 (2011)