Article III and the Scottish Judiciary

75 Pages Posted: 11 Nov 2010 Last revised: 20 May 2014

Date Written: 2011


Historically-minded scholars and jurists invariably turn to English law and precedents in attempting to recapture the legal world of the framers. Blackstone’s famous Commentaries on the Laws of England offer a convenient reference for moderns looking backwards. Yet the generation that framed the Constitution often relied on other sources, including Scottish law and legal institutions. Indeed, the Scottish judicial system provided an important, but overlooked, model for the framing of Article III. Unlike the English system of overlapping original jurisdiction, the Scottish judiciary featured a hierarchical, appellate-style judiciary, with one supreme court sitting at the top and an array of inferior courts of original jurisdiction down below. What’s more, the Scottish judiciary operated within a constitutional framework – the so-called Acts of Union that combined England and Scotland into Great Britain in 1707 – that protected the role of the supreme court from legislative re-modeling.

This Article explores the influence of the Scottish judiciary on the language and structure of Article III. Scotland provided a model for a single “supream” court and multiple inferior courts, and it defined inferior courts as subordinate to, and subject to the supervisory oversight of, the sole supreme court. Moreover, the Acts of Union entrenched this hierarchical judicial system by limiting Parliament to “regulations” for the better administration of justice. Practice under this precursor to Article III’s Exceptions and Regulations Clause establishes that a supreme court’s supervisory authority over inferior courts would survive restrictions on its as-of-right appellate jurisdiction. The Scottish model thus provides important historical support for the scholarly claim that unity, supremacy, and inferiority in Article III operate as textual and structural limits on Congress’s jurisdiction-stripping authority.

Keywords: federal jurisdiction, separation of powers, jurisdiction-stripping, Supreme Court, history of federal judiciary, Scottish legal history

JEL Classification: K40, K19, K10

Suggested Citation

Pfander, James E. and Birk, Daniel D., Article III and the Scottish Judiciary (2011). Harvard Law Review, Vol 124, page 1613 (2011), Northwestern Public Law Research Paper No. 10-73, Available at SSRN:

James E. Pfander (Contact Author)

Northwestern University School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

Daniel D. Birk

Chicago-Kent College of Law ( email )

565 W. Adams St.
Chicago, IL 60661-3691
United States

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