The District of Columbia and Article III
71 Pages Posted: 13 May 2018 Last revised: 25 May 2019
Date Written: April 30, 2018
Today, it is black-letter law that Congress may create non-Article III courts in the District of Columbia and staff them with judges who lack salary protection and life tenure. Forty-five years ago, the Supreme Court upheld the District’s non-Article III court system. And since that decision, judges and scholars alike have accepted that the District is an exception to Article III.
This Article challenges that consensus. It shows that, as a historical matter, Article III’s judicial protections were long believed to apply to the District. And it demonstrates that the various functional justifications for non-Article III adjudication do not apply to courts in the capital. In short, this Article demonstrates that the current D.C. court system likely violates Article III.
This conclusion should be significant in its own right, since the right to an Article III judge has long been viewed as an essential constitu-tional safeguard. Indeed, the modern history of the D.C. court sys- tem reveals the troubling influence of crime and race on Congress’s decision to create a non-Article III court system in the capital. But the historical research presented in this Article also has broader implica-tions outside the seat of government. Most directly, it suggests a new limit on Congress’s power to create non-Article III tribunals on public lands.
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