The District of Columbia and Article III

68 Pages Posted: 13 May 2018 Last revised: 23 Sep 2018

James Durling


Date Written: April 30, 2018


Today, everyone assumes that the District of Columbia is an exception to Article III. They assume, in other words, that Congress may create non-Article III courts in the District and staff them with judges who lack salary protection and life tenure. Indeed, forty-five years ago, the Supreme Court upheld the use of non-Article III courts in the capital. And since that decision, judges and scholars alike have accepted the District’s exceptionalism.

This Article challenges that consensus. Drawing upon research into the original meaning of the Seat of Government Clause and nineteenth-century historical practice, it shows that Article III’s judicial protections were long believed to apply to the District. In addition, it demonstrates that the various functional justifications for non-Article III adjudication do not apply to courts in the nation’s capital. In short, this Article shows that D.C.’s local court system is very likely unconstitutional.

For the thousands of individuals who go before non-Article III tribunals in the District each year, this conclusion should be significant in its own right. In fact, the modern history of the D.C. court system reveals the troubling influence of crime and race on Congress’s decision to create non-Article III courts in the capital. But the historical research presented in this Article also has broader implications outside the Seat of Government. Most directly, it suggests a new limit on Congress’s power to create non-Article III tribunals. And more broadly, it offers new substantive and methodological insights about the scope of Article III.

Suggested Citation

Durling, James, The District of Columbia and Article III (April 30, 2018). 107 Georgetown Law Journal, 2019, Forthcoming. Available at SSRN: or

James Durling (Contact Author)

Independent ( email )

No Address Available

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