In undertaking historical inquiry in the field of federal courts, one must be careful about assigning certain data points from the Founding period determinative weight, rather than treating them as part of a larger conversation about the role of the judicial power in our constitutional framework. This is because in studying the early years following ratification of the Constitution, one tends to find both examples of major principles that remained the subject of disagreement as well as examples of early legislation and practices that today we would reject as plainly inconsistent with the constitutional separation of powers. In support of this point, below I offer a few examples that together call into doubt the notion that the early Congresses had fully worked through— and correctly resolved—the many complicated issues affecting the scope of the federal judicial power. Although scholars have long recognized the limitations of reliance on history generally in constitutional interpretation, these examples are offered as a contribution to a key debate in the federal courts arena. In particular, by focusing on these contested and, in some cases, questionable actions of all three branches in the early years of the Republic, I hope to highlight some of the inherent problems with tackling questions regarding the delineations of the Article III power through an exclusively originalist approach.
Amanda L. Tyler,
Assessing the Role of History in the Federal Courts Canon: A Word of Caution,
Notre Dame L. Rev.
Available at: http://scholarship.law.nd.edu/ndlr/vol90/iss5/1