Publication Date



The Third Branch of our federal government has
traditionally been viewed as the least of the three in
terms of the scope of its power and authority. This
view finds validation when one considers the
extensive authority that Congress has been permitted
to exercise over the Federal Judiciary. From the
beginning, Congress has understood itself to possess
the authority to limit the jurisdiction of inferior
federal courts. The Supreme Court has acquiesced to
this understanding of congressional authority
without much thought or explanation.
It may be possible, however, to imagine a more
robust vision of the Judicial Power through closer
scrutiny of the history and text of Article III of the
U.S. Constitution. The Constitution vests Judicial
Power of the United States exclusively in "one
supreme Court, and in such inferior Courts as the
Congress may from time to time ordain and
establish." This Article reviews historical evidence
that reveals that delegates to the Federal Convention
considered and rejected language that would have
given Congress express authority to manipulate the
jurisdiction of inferior federal courts. This fact,
coupled with repeated indications by the Framers and
by the delegates to state ratifying conventions that the
independence of the Judicial Branch from each of the
other branches was of paramount importance, may
give some weight to an understanding of the Judicial
Power that challenges-or at least may moderate-

our understanding of Congress's authority to
withhold from the inferior federal courts some portion
of the Judicial Power vested in them under Article III.