The Federal Courts, the First Congress, and the Non-Settlement of 1789

The extent of Congress’s power to curtail the jurisdiction of the federal courts has produced a long-running debate. Article III traditionalists defend broad congressional power to withhold jurisdiction from the federal courts altogether, while critics argue that some or all Article III business—most notably cases arising under federal law—must be heard in an Article III tribunal, at least on appeal. But traditionalists and their “aggregate vesting” critics are on common ground in supposing that the Constitution is indifferent to whether Article III cases within the Supreme Court’s appellate jurisdiction are heard initially in a state court or an inferior court that Congress chooses to create. Indeed, this is the settled understanding of Article III. This Article suggests that the First Congress likely did not share the common ground on which these competing visions of congressional power rest. Instead, the debates over the 1789 Judiciary Act reveal a widely-voiced understanding that state courts were constitutionally disabled from hearing certain Article III matters in the first instance—such as federal criminal prosecutions and various admiralty matters—and that Congress could not empower state courts to hear them. Many in Congress therefore also supposed that lower federal courts were mandated if such cases were to be heard at all. Although a vocal minority countered with the now-dominant view of state court power and the constitutional non-necessity of lower federal courts, they did so as part of a losing effort to eliminate the proposed federal district courts. The debates pose problems for traditionalists as well as their critics, but they are ultimately more problematic for the critics. Rather than providing support for a theory of mandatory aggregate vesting of federal question cases or other Article III business, this underappreciated constitutional dimension of the debate is better viewed as supporting a limited notion of constitutionally-driven jurisdictional exclusivity.