support from Yale Law Review (1974)

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Posted by Paul Andrew Mitchell, B.A., M.S. on September 30, 1998 at 23:56:42:

In Reply to: Paul Mitchell's letter to Dan Meador, 9/29/98 posted by Paul Andrew Mitchell, B.A., M.S. on September 30, 1998 at 01:03:30:


: 16. Another somewhat technical approach is to show that,
: if Congress did elect to create district courts inside
: the 50 states, those courts would, per force, be limited to
: original jurisdiction over matters listed in the Arising Under
: and Supremacy Clauses (which mirror each other). One can
: easily infer what subject matters would HAVE to be granted there.
: Here's how: itemize the 9 matters listed in 3:2; then,
: subtract the ones over which the Supreme Court has original
: jurisdiction. What is left are the subject matters over
: which the Supreme Court has appellate jurisdiction,
: necessarily implying that the courts of original jurisdiction
: are SOME OTHER (INFERIOR) COURTS. The Convention debates reached
: a compromise here, with many arguing, forcefully, that the
: courts of original jurisdiction should be the courts of
: the several states.

: We can argue that Article III clearly constrains Congress
: to create CONSTITUTIONAL COURTS ONLY within the 50 states,
: insofar as those federal courts are given original
: jurisdiction over matters arising under the Supremacy Clause.


[begin quote]

I. May Congress Abolish the Lower Federal Courts?


Section 2 [of Article III] gives the federal
judiciary power to hear in the first instance
many cases which are not within the Supreme Court's
original jurisdiction. Thus, there is a gap
between the full reach of federal judicial
power and that which is conferred originally
by the Constitution on the Supreme Court.
This gap, when read in conjunction with the
"shall" of 1, suggests that there must be
inferior courts to exercise the residuum of
federal jurisdiction withheld from the Supreme Court.
This proposition is supported as well by the fact
that 2 originally read "the jurisdiction of the
Supreme Court" and was changed to read "The judicial
Power." It thus seems clear that lower courts
were intended to be covered.

[end quote]

The author goes on to cite Martin v. Hunter's Lessee,
14 U.S. (1 Wheat.) 304, 328-31 (1816) (dictum), and
3 J. Story, "Commentaries on the Constitution,"
1590-94, at 409-12 (1891). Story agreed that:

"... congress [was] bound to create some inferior
courts, in which to vest all that jurisdiction which,
under the constitution, is exclusively vested
in the United States, and of which the supreme
court cannot take original cognizance."
Martin supra at 331.

In footnote 25, Eisenberg goes on to state that:

"This theory originated not with Justice Story
but with Gouvernor Morris." See p. 502 infra.

Source: "Congressional Authority to Restrict
Lower Federal Court Jurisdiction," by
Theodore Eisenberg, Yale Law Journal,
vol. 83, no. 3, January 1974, pgs. 498-533.

Sincerely yours,

/s/ Paul Andrew Mitchell, B.A., M.S.

Counselor at Law, Federal Witness,
and Private Attorney General

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