Academic journal article
By Robert J Pushaw, Jr.
Brigham Young University Law Review , Vol. 1997, No. 4
Robert J. Pushaw, Jr.*
Article III of the Constitution1 is so complex that its meaning has never been established conclusively, despite two centuries of intensive analysis. A perfect reading of the judiciary article will likely continue to prove elusive. Therefore, a more realistic goal is to determine which of the many competing interpretations of Article III best explains its text, structure, and history. This Article argues that the "Neo-Federalist" approach, developed originally by Akhil Amar2 and revised by me,3 provides an account of Article III that is more satisfying than John Harrison's recent modification of Henry Hart's dominant interpretation.4
I. THE RIVAL INTERPRETATIONS OF ARTICLE III
A. The Hart School
Professor Hart claimed that Article III grants Congress nearplenary control over federal jurisdiction.5 He relied primarily upon the Supreme Court's construction of two constitutional provisions. First, Ex parte McCardle upheld Congress's broad discretion to make "Exceptions" and "Regulations" to the Court's appellate jurisdiction.6Second, the Court has long read the constitutional provisions authorizing Congress to establish inferior courts as implying absolute control over their jurisdiction.7 By combining these two powers, Congress generally can strip the Court of appellate jurisdiction and not assign that jurisdiction to lower federal courts, thereby leaving the exempted matter to state tribunals.8
For three decades, the legal academy-most notably Professors Bator, Gunther, Ratner, Redish, Tribe, and Wechsler-accepted the premise that Congress has vast control over federal court jurisdiction.9 The Hart school's reading of the "Exceptions" and "Inferior Courts" Clauses, while reasonable, does not fully account for other provisions in Article III or for its underlying history and political theory.
B. The Neo-Federalist Approach
To fill such gaps, Professor Amar presented his "Neo-Federalist" view in 1985. He sought to provide a "holistic" interpretation of Article III by parsing its language, examining its internal structure, and describing its relationship to broader constitutional principles such as separation of powers and federalism.lo
Furthermore, Amar exhaustively analyzed Article III's drafting, ratification, and implementation by the early Congress and Supreme Court, with a special focus on the five leading Federalist thinkers: James Madison, James Wilson, Alexander Hamilton, John Marshall, and Joseph Story.ll Finally, Amar integrated this textual, structural, and historical evidence into a comprehensive theory that helped explain the evolution of the federal system.la
Amar argued that Article III creates two tiers of federal jurisdiction. First, it declares that federal judicial power "shall be vested" in independent federal courts and "shall extend" to "all Cases" involving federal law, admiralty, or foreign ministers. Amar labeled this tier "mandatory" because Congress "shall" (i.e., must) grant federal courts jurisdiction, either original or appellate, over "all" (i.e., every one) of these cases.13 Thus, he rejected Hart's assumption that such matters could be committed ultimately to state courts, which lack the federal judiciary's independence and cannot always be trusted to enforce federal law.l4 Second, Article III omits the word "all" in denoting six types of "Controversies" involving specified parties (e.g., the United States, states, foreign nations, and citizens of these governments). Amar deemed this tier "permissive" because Congress could-but did not have to-grant federal courts jurisdiction over such disputes.l5
Because Amar premised his textual argument on the presence and absence of "all," he discounted the significance of Article III's shift from "Cases" to "Controversies." Characterizing these terms as "legally synonymous," Amar suggested that "the different wording simply represents yet another way-in addition to the selective usage of 'all' and the distinction between party-defined and subject matter-defined jurisdiction-in which the first three jurisdictional categories were set off as structurally different from the last six. …