The Judicial Power and the Inferior Federal Courts: Exploring the Constitutional Vesting Thesis

68 Pages Posted: 15 Nov 2011

Date Written: November 1, 2011


The third branch of our federal government has traditionally been viewed as the least of the three in terms of the scope of its power and authority. This view finds validation when one considers the extensive authority that Congress has been permitted to exercise over the Federal Judiciary. From the beginning, Congress has understood itself to possess the authority to limit the jurisdiction of inferior federal courts. The Supreme Court has acquiesced to this understanding of congressional authority without much thought or explanation.

It may be possible, however, to imagine a more robust vision of the Judicial Power through closer scrutiny of the history and text of Article III of the U.S. Constitution. The Constitution vests the Judicial Power of the United States exclusively in “one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” This Article reviews historical evidence that reveals that delegates to the Federal Convention considered and rejected language that would have given Congress express authority to manipulate the jurisdiction of inferior federal courts. This fact, coupled with repeated indications by the Framers and by the delegates to state ratifying conventions that the independence of the Judicial Branch from each of the other branches was of paramount importance, may give some weight to an understanding of the Judicial Power that challenges — or at least may moderate — our understanding of Congress’s authority to withhold from the inferior federal courts some portion of the Judicial Power vested in them under Article III.

Keywords: Judicial Power, Article III, Federal Courts, Necessary and Proper, Constitutional Convention

JEL Classification: K00, K10, K19, K39, K40

Suggested Citation

Spencer, A. Benjamin, The Judicial Power and the Inferior Federal Courts: Exploring the Constitutional Vesting Thesis (November 1, 2011). Georgia Law Review, Vol. 46, No. 1, 2011, Washington & Lee Legal Studies Paper No. 2011-22, Available at SSRN:

A. Benjamin Spencer (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

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