A Return to Form for the Exceptions Clause

68 Pages Posted: 23 Apr 2010 Last revised: 2 Dec 2010

See all articles by Alex Glashausser

Alex Glashausser

Washburn University School of Law

Date Written: November 30, 2010


This article challenges the prevailing doctrinal, political, and academic view that the Exceptions Clause – which provides that “the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make” – gives Congress a license to strip the Supreme Court of jurisdiction. Properly interpreted, the facially ambiguous clause instead allows Congress to shift cases within the Court’s jurisdiction from appellate to original form. The word “Exceptions,” that is to say, applies not to “Jurisdiction” but rather to “appellate.” In its initial draft, the clause unmistakably affected only the form, not the existence, of jurisdiction: “[T]his supreme jurisdiction shall be appellate only, except in those instances, in which the legislature shall make it original . . . .” The article traces the devolution of that clear language into the final nebulous version, explaining at each step of the editing process why the Constitutional Convention delegates tinkered with the wording. As a result of what they thought were innocuous changes, the legislative exceptions power became susceptible to the misconception that it was confiscatory. It was meant to be transformative, allowing Congress to empower the Supreme Court by shifting important cases from appellate to original form. In short, the clause was designed not to eliminate cases, but to expedite them.

Keywords: jurisdiction, federal courts, article III, Supreme Court, Congress, jurisdiction-stripping, Constitutional Convention, Exceptions Clause

JEL Classification: K10

Suggested Citation

Glashausser, Alex, A Return to Form for the Exceptions Clause (November 30, 2010). Boston College Law Review, Vol. 51, p. 1383, 2010. Available at SSRN: https://ssrn.com/abstract=1594375

Alex Glashausser (Contact Author)

Washburn University School of Law ( email )

1700 College Avenue
Topeka, KS 66621
United States
785-670-1662 (Phone)

HOME PAGE: http://washburnlaw.edu/faculty/glashausser-alex.php

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