Henry Hart put it, that the exceptions "must not be such as to destroy the essential role of the Supreme Court in the constitutional plan." 19 In addition to the difficulty of determining what is the Supreme Court's "essential role," that test would make the Court itself the final arbiter as to the extent of its powers. Despite the clear grant of power to Congress in the Exceptions Clause, no statute could deprive the Court if its "essential role;" but that role would be whatever the court said it was. It is hardly in keeping with the spirit of checks and balances to read such a virtually unlimited power into the Constitution. If the Framers intended so to permit the Supreme Court to define its own jurisdiction even against the will of Congress, it is fair to say that they would have made that intention explicit. Furthermore, the "essential role" test was advanced by Professor Hart in response to the suggestion that Congress could satisfy the Exceptions Clause by removing all but a "residuum of jurisdiction," for example, by withdrawing appellate jurisdiction in "everything but patent cases." Whatever the cogency of Professor Hart's "essential role" test would be to a wholesale withdrawal of jurisdiction, if it were ever attempted by Congress, his test cannot properly be applied to narrowly drawn withdrawals of jurisdiction over particular types of cases. It could hardly be argued that the "essential role" of the Supreme Court depends on its exercising appellate jurisdiction in every type of case involving constitutional rights. Such a contention would be contrary to the clear language of the Exceptions Clause and to the consistent indications given by the Supreme Court itself. A related but more substantial argument against the exercise of Congress' Exceptions Clause power is that Supreme Court review of cases involving important constitutional rights is necessary to ensure uniformity of interpretation and the supremacy of federal statutes over state laws. The argument that fundamental rights should not be allowed to vary from state to state begs the question of whether there is a fundamental right to uniformity of interpretation by the Supreme Court on every issue involving fundamental rights. The argument overlooks the fact that the Exceptions Clause is itself part of the Constitution. As Alexander Hamilton wrote in No. 80 of the Federalist, the Exceptions Clause is a salutary means "to obviate and remove" the "inconveniences" resulting from the exercise of the federal judicial power. Judging from what the Supreme Court has said about it over the years, it is not only an important element of the system of checks and balances, but one which grants a wide discretion to Congress in its exercise. There is, in short, a fundamental right to have the system of checks and balances maintained in working order. Without that system, the more dramatic personal rights, such as speech, privacy, free exercise of religion, would quickly be reduced to nullities. This right to preservation of the system of checks and balances is itself one of our most important constitutional rights. If it be contended that the Exceptions Clause cannot be used to deprive the Supreme Court of appellate jurisdiction in cases involving fundamental constitutional rights, it must be replied that such a limitation can be found neither in the language of the clause nor in its explications by the Supreme Court. Indeed, the Supreme Court's conclusion, prior to 1891, that there was no general right of appeal to that Court in criminal cases surely involved the denial of the right to appeal in cases involving constitutional rights. For what constitutional right is more fundamental than the Fifth Amendment right not to be deprived of life or liberty without due process of law? A withdrawal of Supreme Court appellate jurisdiction and lower federal court jurisdiction over a subject such as same-sex marriage, school prayer or whatever, would not reverse any rulings the Supreme Court had already made on the subject. Some state courts might apply previous Supreme Court decisions but others might not. The constitutional commitment of complete discretion to Congress as to whether even to create lower federal courts, the resulting discretion of Congress to limit that jurisdiction, and the explicitly conferred control of Congress over the appellate jurisdiction, all combine to compel the conclusion that there is no constitutional right to uniformity of interpretation among the states as to constitutional rights. There would therefore be no constitutional obstacle to the effect of H.R. 3313 in permitting each state to make its own decision on the definition and legal incidents of marriage. In his First Inaugural Address, President Abraham Lincoln warned that “the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent 19 Henry Hart, "The Power of Congress to Limit the Jurisdiction of the Federal Courts: An Exercise in Dialectic," 66 Harv. L. Rev. 1362, 1365 (1953). practically resigned the government into the hands of that eminent tribunal." Supreme Court decisions in several areas are distortions of the constitutional intent in matters of substantial importance. It is within the power-and it is the dutyof Congress, to remedy this wrong. The withdrawal of jurisdiction would be a measured and appropriate response. It would be preferable to a constitutional amendment in that it would have no permanent impact on the Constitution. If experience showed it to be unwise, it could be readily repealed by a statute. But it would restore the balance of governmental powers and help to undo some of the unfortunate consequences of judicial excess. BOSTON COLLEGE LAW REVIEW ARTICLE, VOLUME XXVI, NUMBER 5, SEPTEMBER 1985 THE FIRST CONGRESS'S UNDERSTANDING OF WILLIAM R. CASTO I. INTRODUCTION Congress's control of federal court jurisdiction has been a favorite topic of debate for many years.' Commentary on the extent of this legislative power typically has involved two essentially separate analyses. Power over the Supreme Court's jurisdiction has involved construction of a bafflingly simple phrase in article III of the Constitution establishing the Court's appellate jurisdiction “with such Exceptions, and under such Regulations as the Congress shall make." Authority over the lower courts' jurisdiction turns upon a different provision dealing with "inferior Courts." Consistent with the Madisonian Compromise at the Constitutional Convention," the latter provision generally has been considered an appropriate basis for recognizing plenary congressional control over the lower courts' jurisdiction." ↑ Copyright © 1986 Boston College Law School. • Associate Professor of Law, Texas Tech University. B.A., 1970, J.D., 1973, University of Tennessee at Knoxville; J.S.D., 1983, Columbia University. 'Most of the scholarly commentary is collected in a mammoth footnote in Clinton, A Mandatory View of Federal Court Jurisdiction: A Graided Quest for the Original Understanding of Article III, 132 U. PA. L. Rev. 741, 742–44 n.3 (1984) (hereinafter cited as Clinton, Mandatory View). See also Gunther, Congressional Pour to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 STAN. L. REV. 895 (1984) (hereinafter cited as Gunther. Guide). See, eg, P. BAton, P. Mishkin, D. Shapiro, & H. Wechsler, Hart and Wechsler's The FEDERAL COURTs and the Federal System 309-74 (2d ed. 1973) (hereinafter cited as HART & WECHSLER 2d). U.S. CONST. art. III, 2. U.S. CONST. art. III, § 1 ("The judicial Power of the United States, shall be vested....... in such inferior Courts as the Congress may from time to time ordain and establish."). The details of the Madisonian Compromise have been presented elsewhere. Soo, e.g., HART & Wechsler 2d, supra note 2, at 11-12. See also Clinton, Mandatory View, supra note 1, at 763-64. In response to the Convention's approval of a motion that would have denied the national government authority to create lower federal courts, James Madison and James Wilson advanced and the Convention accepted a compromise plan that would postpone consideration of the issue. Instead of mandating lower courts, the Constitution would simply empower Congress to decide whether there should be lower federal courts. 1 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, 124-25 (rev. ed. 1937) (hereinafter cited as Farrand's Reconds). Ser also 2 Farrand's RECORDS at 45-46. •See Gunther, Guide, supra note 1, at 912-14. 1101 1102 BOSTON COLLEGE LAW REVIEW (Vol. 26:1101 In recent years, Professor Julius Goebel' and Professor Robert Clinton have challenged the historical accuracy of the traditional understanding of the Madisonian Compromise. The theses of these two scholars, however, are inconsistent with the enactment of the Judiciary Act of 1789. This brief note will consider the system of federal courts created by the first Congress, giving special emphasis to the private and public papers of Oliver Ellsworth and William Paterson," the principal drafters of the Judiciary Act. These papers, together with the jurisdictional limitations contained in the Act and early interpretations by the Supreme Court and Attorney General Randolph demonstrate a general acceptance of extensive congressional control over federal court jurisdiction. II. THE MANdatory TheSES Professor Goebel's rejection of the Madisonian Compromise is based upon what appears to be a simple editorial revision of article III. The Committee of Detail draft of the Constitution as amended and referred to by the Committee of Style required "such Inferior Courts as shall, when necessary, from time to time, be constituted by the Legislature of the United States.""" During the last few weeks of the Convention, the Committee of Style rewrote this language to require “such inferior courts as Congress may from time to time ordain and establish." Professor Goebel concluded that this change was intended to rescind the Compromise and mandate the creation of a systern of inferior courts vested with the complete judicial power of the United States." If Professor Goebel's thesis were adopted as constitutional doctrine, Congress would have no authority to limit the jurisdiction of the lower Federal courts." This conclusion has been criticized as "uncharacteristically thinly supported and unpersuasive."1 Professor Clinton presented a more sophisticated thesis. He concluded that the framers of the Constitution intended a definite linkage between the jurisdictions of the Supreme Court and the lower courts. Congress can limit any specific federal court's jurisdiction only so long as the aggregate combined original and appellate jurisdiction of the federal judiciary encompasses all cases within article III, section 2 of the Constitution." Under this theory of mandatory aggregate vesting, Congress is free to restrict 'J. GOEBEL, HISTORY OF THE SUPREME Court oF THE UNITED STATES: ANTECEDENTS AND BEGINNINGS To 1801, 240-47 (1971). Clinton, Mandatory View, supra note 1, at 750-54. *The Judiciary Act of 1789, ch. 20, 1 Stat. 73 (1789) (hereinafter cited as Judiciary Act). 1 See W. BROWN, THE LIFE OF Oliver EllsworтH (1905) (hereinafter cited as BROWN'S ELLSWORTH); R. Lettieri, Connecticut's Young Man of the REVOLUTION: OLIVER ELLSWORTH (1978) (hereinafter cited as LETTIERI's ELLSWORTH). 11 See J. O'CONNOR, William Paterson Lawyer and Statesman 1745-1806 (1979) (hereinafter cited as O'CONNOR'S PATERSON). it 2 FARRAND'S RECORDS, supra note 5, at 575, quoted in J. GOEBEL, supra note 7, at 246. 132 FARRAND'S RECORDS, supra note 5, at 600, quoted in J. GORBEL, supra note 7, at 246. "J. GOEBEL, supra note 7, at 247. "The discretion left to Congress was the authority to settle the institutional pattern at the lower level of judicial administration and to arrange how the jurisdiction conferred by section 2 of Article III was there to be disposed." Id. * Hart & Wechsler 2d, rupra note 2, at 13 n.46. Most scholars concur in the rejection of Professor Goebel's analysis. Sør Clinton, Mandatory View, supra note 1, at 794 n. 169; Redish & Woods, Congressional Power to Control the Jurisdiction of Lower Federal Courts: A Critical Review and a New Synthesis, 124 U. PA. L. Rev. 45, 61 (1975); Sager, Constitutional Limitations On Congress' Authority to Regulate the Jurisdiction of the Federal Courts, 95 Harv. L. Rev. 17, 34 n.47 (1981). "The thesis of mandatory aggregate vesting is summarized and resummarized in Clinton, September 1985] FIRST CONGRESS'S UNDERSTANDING 1103 the jurisdiction of the lower federal courts only insofar as the Supreme Court is vested with appellate jurisdiction over state court adjudications of the excluded cases. Similarly, Congress may limit the Supreme Court's appellate jurisdiction to the extent that a lower federal court is vested with power over the excluded cases. The thesis of mandatory aggregate vesting has some anomalous policy implications,1 but the theory is founded in history -not policy. The remainder of the present note suggests a significant weakness in Professor Clinton's — and incidentally Professor Goebel's analysis. Although Professor Clinton has meticulously analyzed the records of the Constitutional Convention and the ratification process for material relevant to congressional control over federal court jurisdiction, the subsequent enactment of the Judiciary Act of 1789 receives comparatively cursory consideration." That Act, however, deserves more attention because many of the leading participants in the Constitutional Convention and the subsequent ratification process were members of the first Congress, 20 III. THE JUDICIARY ACT Oliver Ellsworth and William Paterson were influential delegates to the Philadelphia Convention, and they later served together in the first Congress and on the Supreme Court. Ellsworth was a member of the Committee of Detail that prepared the first draft of the Constitution." Paterson is best known for his small states plan that resulted in the Great Compromise of the Convention: a Senate in which each state has equal representation." Both men were present when the Madisonian Compromise initially was struck,25 but they left the Convention before the Committee on Style reported a number of changes in the last two weeks of the Convention. Nevertheless, they kept in touch with the political ebb and flow in Philadelphia."5 Mandatory View, supra note 1, at 749-54 & 841-45. A similar theory is presented in Sager, supra note 16, at 61-68. ≫ For example, Professor Clinton's analysis seems to recognize a congressional power to limit the Supreme Court's power to the narrow original jurisdiction in article III as long as a system of lower federal courts is retained. But this absurd suggestion is so unlikely to be implemented that it cannot be taken as a serious criticism. Professor Clinton suggests, however, that elimination of the lower courts' diversity jurisdiction might be impermissible unless the Supreme Court is vested with appellate jurisdiction over state court diversity cases. Clinton, Mandatory View, supra note 1, at 854 n.369. Elimination of diversity jurisdiction is by no means an absurd proposition. One wonders about a constitutional theory that would require Congress to create a presumably discretionary appellate jurisdiction that the Supreme Court certainly would never use. 19 See id. at 846-51. * See ENCYCLOPEDIA OF AMERICAN HISTORY 145 (R. Morris 6th ed. 1982); Sager, supra note 16, at 31 n.37. #12 FARRAND'S Records, supra note 5, at 97. "See generally C. ROSSITER, 1787: THE GRAND CONVENTION Ch. 10 (1966); O'Connor's PaterSON, Jupra note 11, ch. 7. "The Madisonian Compromise was approved initially on June 5 and finally on July 18, 1787. See HART & WECHSLER 2d, supra note 2, at 11-12. Paterson left the Convention on July 23, 1787. 3 FARRAND'S RECORDS, supra note 5, at 589. Ellsworth left sometime between August 23 and August 27, 1787. Id. at 487. The Convention concluded its business on September 17, 1787. Id. at 641-50. The Committee on Style submitted its report on September 12, 1787. 2 FARBAND'S RECORDS, supra note 5, 582. Paterson and Ellsworth left in late July and August. See supra note 23. "See, eg, Letter from fellow New Jersey Delegate David Brearley to William Paterson (Aug. 21, 1787), reprinted in 3. FARRAND'S RECORDS, supra note 5, at 73; Letter from William Paterson to Oliver Ellsworth (Aug. 23, 1787) (inquiring, "What are the Convention about? When will they |