Assessing the role of history in the federal courts canon: a word of caution.

• Author: Tyler, Amanda L.

INTRODUCTION

One of the most pervasive and important debates in federal courts jurisprudence is over the role that history should play in interpreting Article III of the United States Constitution. To that end, federal courts jurisprudence is not altogether different from constitutional law jurisprudence more generally. But in the federal courts arena--more so than in the broader domain of constitutional law--originalism has always wielded tremendous influence over much of the judicial and scholarly thinking. (1) It is for this reason that a distinct conversation about its role in the federal courts canon is appropriate.

The panel giving rise to the following papers tackled this topic from different angles, and enriched the larger debate. First, on the panel (and elsewhere in their writing), Professors Bellia and Clark made the case for the importance of unearthing the historical backdrop against which the Constitution and early statutes were written as necessary to place the Founding period in its proper legal context. (2) Second, on the panel and in his paper here, Professor Fallon calls attention to the fact that the historical record that nearly everyone implicitly recognizes as pertinent (when not in the throes of a methodological debate) is exceptionally complex and multifaceted. (3) Professor Fallon's paper further proposes an interpretive framework for thinking about these issues that takes us beyond simply fixating on questions of original public meaning--which, he contends, is often indeterminate--and invites attention to a wealth of other historical and functional considerations. (4) Finally, Professor Grove's presentation and paper that follows highlight that many of the hardest questions of federal courts jurisprudence have been debated repeatedly in the legislative branch, and she poses important questions about what to do, if anything, with this political history of the federal courts. (5)

There is little question that in the field of federal courts, historical study has a great deal to contribute to modem debates. Indeed, historical study holds enormous potential to illuminate the founding purpose behind constitutional provisions, to unearth contemporary meanings associated with terms of art that were included in the document, and to uncover important evidence relating to historical practices and context, which in turn can shed light on the background understandings and assumptions that underlie constitutional text. Indeed, much of my own scholarship has been work of this kind, aimed at uncovering the purpose, context, and background understandings that informed the adoption of the Suspension Clause. (6)

But sometimes--if not often--the historical record on important questions of federal courts jurisprudence is absent, incomplete, or more complex than jurists and scholars tend to acknowledge. In keeping with this idea, one should never forget that certain aspects of the Constitution--including Article III and the structural framework within which it is situated--represented major innovations in their time. At the Founding, the concept of federalism--and with it the idea of two sets of courts, state and federal--was entirely new. Further, the separation of powers framework was, at the least, a transformation of the British model, if not a dramatic departure from it. (7) Against this backdrop, it would be curious indeed if the details of the Article III power were fully settled from the outset. More likely, as Madison recognized early on, there would need to be a "liquidation]" of meaning over time, (8) or, as he phrased the matter some forty years after ratification: "That in a Constitution, so new, and so complicated, there should be occasional difficulties & differences in the practical expositions of it, can surprize no one." (9)

Accordingly, I wish to offer a word of caution about making historical arguments in federal courts jurisprudence. Specifically, in undertaking historical inquiry in the field of federal courts, one must be careful about assigning certain data points from the Founding period determinative weight, rather than treating them as part of a larger conversation about the role of the judicial power in our constitutional framework. This is because in studying the early years following ratification of the Constitution, one tends to find both examples of major principles that remained the subject of disagreement as well as examples of early legislation and practices that today we would reject as plainly inconsistent with the constitutional separation of powers. In support of this point, below I offer a few examples that together call into doubt the notion that the early Congresses had fully worked through--and correctly resolved--the many complicated issues affecting the scope of the federal judicial power. Although scholars have long recognized the limitations of reliance on history generally in constitutional interpretation, these examples are offered as a contribution to a key debate in the federal courts arena. In particular, by focusing on these contested and, in some cases, questionable actions of all three branches in the early years of the Republic, I hope to highlight some of the inherent problems with tackling questions regarding the delineations of the Article III power through an exclusively originalist approach.

1. THE INFLUENCE OF THE FOUNDING PERIOD ON FEDERAL COURTS JURISPRUDENCE

   It has long been a principle of constitutional law that special significance is assigned to the practices of and statutes enacted by the first Congress, legislating as it was in the shadow of the Constitutional Convention. As the Supreme Court posited in 1888, an act "passed by the first Congress assembled under the Constitution, many of whose members had taken part in framing that instrument, ... is contemporaneous and weighty evidence of its true meaning." (10) The Court has repeated this refrain on many occasions. (11) As some scholars have argued, moreover, early congressional debates provide "important evidence of what thoughtful and responsible public servants close to the adoption of the Constitution thought it meant." (12)

   This principle has taken on special meaning in the field of federal courts. Take Justice Story's opinion in Martin v. Hunter's Lessee, (13) defending the constitutionality of Supreme Court review of state court decisions. For Justice Story, it was significant that [section] 25 of the Act expressly contemplated such review (albeit only in cases in which asserted federal rights had been denied by the state courts) and that "the judiciary act was submitted to the deliberations of the first congress, composed, as it was, not only of men of great learning and ability, but of men who had acted a principal part in framing, supporting, or opposing that constitution." (14)

   Drawing on this idea, a good deal of federal courts scholarship and jurisprudence focuses on the Founding period, and on the first Judiciary Act of 1789 in particular, as enormously important, if not determinative of many questions at the heart of the federal courts canon. To take but one example in the field, many scholars have pointed to the terms of the 1789 Act as standing for the proposition that the Constitution does not mandate that a federal court (whether supreme or inferior) always be available to hear federal questions, or even constitutional ones. (15) Instead, for those who subscribe to this view, it is significant that the first Judiciary Act of 1789 both failed to vest general federal question jurisdiction in the inferior federal courts and also declined to vest appellate jurisdiction in the Supreme Court over the full range of federal questions coming out of the state courts. (16)

   Just how much weight early practices and statutes should be given by jurists and scholars is not entirely clear, however. Based upon a few notable examples, the next Part suggests that some pause might be in order.

2. WHEN THE HISTORICAL RECORD SUGGESTS A WORK IN PROGRESS

   There is no question that what the Founding generation thought "is surely of interest ... to anyone trying two hundred years later to figure out what the Constitution means." (17) Accepting this premise, I aim nonetheless to promote a healthy dose of skepticism as to whether the early Congresses had either fully agreed upon or entirely worked out every aspect of the federal judicial power. To advance the argument, I offer some examples below.

   1. Hayburn's Case

      Today we teach Hayburn's Case (18) in the federal courts curriculum as a defining moment in the early charting of the contours of the judicial...