COLLINSBOOK 10/25/2005 5:20 PM VIRGINIA LAW REVIEW VOLUME 91 NOVEMBER 2005 NUMBER 7 ARTICLES THE FEDERAL COURTS, THE FIRST CONGRESS, AND THE NON-SETTLEMENT OF 1789 Michael G. Collins* The extent of Congress’s power to curtail the jurisdiction of the federal courts has produced a long-running debate. Article III tradi- tionalists 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 tradi- tionalists and their “aggregate vesting” critics are on common ground in supposing that the Constitution is indifferent as to whether Article III cases within the Supreme Court’s appellate jurisdiction are heard initially in a state court or in an inferior court that Con- gress 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 con- gressional power rest. Instead, the debates over the 1789 Judiciary Act reveal a widely voiced understanding that state courts were con- stitutionally disabled from hearing certain Article III matters in the first instance—such as federal criminal prosecutions and various * Visiting Professor, University of Virginia School of Law. Robert A. Ainsworth Professor of Courts and the Federal System, Tulane Law School. J.D., Harvard; M.A., Stanford; B.A., Pomona College. I would like to thank Anthony Bellia, Brad Clark, Earl Dudley, Laura Fitzgerald, Jonathan Nash, Caleb Nelson, George Rutherglen, Keith Werhan, Ann Woolhandler, and Larry Yackle for their comments on earlier drafts of this Article. 1515 COLLINSBOOK 10/25/2005 5:20 PM 1516 Virginia Law Review [Vol. 91:1515 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 the- ory of mandatory aggregate vesting of federal question cases or other Article III business, this underappreciated constitutional di- mension of the debate is better viewed as supporting a limited notion of constitutionally driven jurisdictional exclusivity. INTRODUCTION................................................................................. 1517 I. BACKGROUND TO THE DEBATES ............................................. 1523 A. The Senate Bill and the Lower Federal Courts................. 1523 B. The Uncertain Goal of Livermore and the House Opposition............................................................................ 1524 1. Livermore’s Understanding.......................................... 1525 2. Understanding Livermore ............................................ 1528 C. Sounding Prudential Themes ............................................. 1530 II. THE CONSTITUTIONAL ARGUMENT FOR LOWER FEDERAL COURTS ....................................................................................... 1533 A. Constitutionally Mandated Exclusivity.............................. 1534 1. Jurisdictional Exclusivity and the Vesting Clause ...... 1535 2. Exclusivity as to Some or All Article III Matters? ..... 1539 B. Constitutionally Mandated Lower Federal Courts........... 1543 C. Constitutionally Mandatory Aggregate Vesting?.............. 1545 D. Outsourcing Article III: State Courts and the Federal Judicial Power...................................................................... 1548 E. Reluctance and Constitutional Doubt................................ 1553 III. MADISON’S UNCOMPROMISING POSITION ............................... 1555 A. Article II Limits on the “Transfer” of Article III Power . 1555 B. Compromising the Compromise? ...................................... 1560 IV. “SEVERAL GENTLEMEN HAVE MISTAKEN THIS IDEA”......... 1563 V. DRAWING LESSONS FOR ARTICLE III ...................................... 1567 A. Revising Revisionism and Traditionalism......................... 1568 COLLINSBOOK 10/25/2005 5:20 PM 2005] The Non-Settlement of 1789 1517 B. Enclaves of Exclusivity ....................................................... 1570 C. Congressional Versus State Court Obligations................. 1574 CONCLUSION..................................................................................... 1575 INTRODUCTION RTICLE III’s safeguards for judicial independence—life ten- A ure and non-reduction in salary—extend, by their terms, only to federal judges.1 Yet state courts, whose judges ordinarily lack comparable safeguards as a matter of state law, routinely hear cases and controversies to which the federal judicial power ex- tends. Hardly anyone sees a constitutional problem with this ar- rangement.2 State courts are said to be constitutionally competent to hear all of the cases on the Article III menu that are within the Supreme Court’s appellate jurisdiction. Even though there are de- bates over state and federal court “parity” in a variety of settings, such debate ordinarily is limited to the arena of policy, not the Constitution. Where there is a perceived problem with state courts’ hearing certain Article III business in the first instance, it is left to Congress to assign such jurisdiction to lower federal courts—either exclusively, or by giving litigants a choice to come to federal court 3 with their Article III cases. 1 See U.S. Const. art. III, § 1. 2 See, e.g., Richard H. Fallon, Jr., Of Legislative Courts, Administrative Agencies, and Article III, 101 Harv. L. Rev. 915, 941 (1988) (noting that “there is no anomaly in the national Constitution’s setting a higher fairness standard for the courts of the na- tional government than it imposes on state courts”). Occasionally, scholars have ar- gued that due process problems may arise if state courts hear certain Article III mat- ters. See, e.g., Martin H. Redish & Lawrence C. Marshall, Adjudicatory Independence and the Values of Procedural Due Process, 95 Yale L.J. 455, 496–98 (1986) (suggesting due process might require state courts hearing federal law chal- lenges to state action to have Article III-style protections “to remove possible bias”); cf. Steven P. Croley, The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law, 62 U. Chi. L. Rev. 689, 726–29 (1995) (questioning faithfulness of elected judici- aries to constitutional rights and rule of law values). These arguments, however, do not suggest that Article III itself imposes such a limit. 3 See, e.g., Barry Friedman, Under the Law of Federal Jurisdiction: Allocating Cases Between Federal and State Courts, 104 Colum. L. Rev. 1211, 1213, 1218 & n.16 (2004) (viewing problem of jurisdictional allocation as largely involving subconstitu- tional questions). COLLINSBOOK 10/25/2005 5:20 PM 1518 Virginia Law Review [Vol. 91:1515 Such views regarding state court competence to hear Article III judicial business despite the absence of Article III safeguards are unremarkable and are shared by both sides in a long-running de- bate over congressional power to curtail federal court jurisdiction. Under what is now the traditional view, the text, structure, and framing of Article III reflect a constitutional decision to leave the creation of lower federal courts to Congress’s discretion and to al- low Congress to give them as much or as little of the jurisdiction under Article III as it chooses. Under this view, the creation of lower federal courts was not mandatory, much less the exercise by such courts of any particular slice of jurisdiction to which the fed- eral judicial power extended. In addition, the traditional view holds that the Constitution permits any Article III business excluded from the lower federal courts to be heard in the first instance in the state courts. In the absence of lower federal courts, federal judicial review of such cases could take place in the Supreme Court, sub- ject to Congress’s considerable power to make “exceptions” to the Court’s appellate jurisdiction. 4 Critics of the traditional view tend not to dispute the notion that state courts are competent to hear Article III business in the first instance. Some believe, however, that Article III’s vesting language requires that cases listed under Article III,5 or perhaps some subset of them, be able to be heard in a federal court either originally or on appeal.6 For critics of the traditional view, state courts are com- petent to hear all cases within the Supreme Court’s appellate juris- diction as an original matter, but they challenge the extent to which state courts may have the “last word”7 on such cases. For example, critics argue that Congress might not be able to make exceptions to 4 For defenses of the traditional view, see, e.g., John Harrison, The Power of Con- gress to Limit the Jurisdiction of Federal Courts and the Text of Article III, 64 U. Chi. L. Rev. 203 (1997); Daniel J. Meltzer, The History and Structure of Article III, 138 U. Pa. L. Rev. 1569 (1990); Julian Velasco, Congressional Control Over Federal Court Jurisdiction: A Defense of the Traditional View, 46 Cath. U. L. Rev. 671