Is the 'Arising Under' Jurisdictional Grant in Article III Self-Executing?

Dow, David R.

doi:10.2139/ssrn.3577111

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Is the 'Arising Under' Jurisdictional Grant in Article III Self-Executing?

William & Mary Bill of Rights Journal, Vol. 25, No. 1, 2016

65 Pages Posted: 16 Jun 2020

See all articles by David R. Dow

David R. Dow

University of Houston Law Center

Date Written: April 15, 2016

Abstract

Article III of the U.S. Constitution states the judicial power of the United States “shall” extend to certain categories of cases. Despite that mandatory language, numerous commentators and the handful of judges who have addressed the issue have agreed for centuries that the federal courts have only the jurisdiction Congress gives them. This consensus bridges both time and ideology, yet I will argue this widespread agreement rests on a faulty understanding of constitutional history. The conventional wisdom, though long-held, is wrong. Properly understood, the federal courts obtain their power to hear cases directly from the Constitution itself, without the need for congressional enabling.

Keywords: federal question, arising under, article III, judicial power, jurisdiction

Suggested Citation: Suggested Citation

Dow, David R., Is the 'Arising Under' Jurisdictional Grant in Article III Self-Executing? (April 15, 2016). William & Mary Bill of Rights Journal, Vol. 25, No. 1, 2016, Available at SSRN: https://ssrn.com/abstract=3577111 or http://dx.doi.org/10.2139/ssrn.3577111