• About
    • Login
    View Item 
    •   DiscoverArchive Home
    • Law School
    • Vanderbilt Law School Faculty Works
    • View Item
    •   DiscoverArchive Home
    • Law School
    • Vanderbilt Law School Faculty Works
    • View Item
    JavaScript is disabled for your browser. Some features of this site may not work without it.

    The Constitutionality of Federal Jurisdiction-Stripping Legislation and the History of State Judicial Selection and Tenure

    Fitzpatrick, Brian T. (Brian Timothy), 1975-
    : http://ssrn.com/abstract=2091684
    : http://hdl.handle.net/1803/6705
    : 2012

    Abstract

    Few questions in the field of Federal Courts have captivated scholars like the question of whether Congress can simultaneously divest both lower federal courts and the U.S. Supreme Court of jurisdiction to hear federal constitutional claims and thereby leave those claims to be litigated in state courts alone. Such a divestiture is known today as “jurisdiction stripping,” and, despite literally decades of scholarship on the subject, scholars have largely been unable to reconcile two widely held views: jurisdiction stripping should be unconstitutional because it deprives constitutional rights of adjudication by independent judges and jurisdiction stripping is nonetheless perfectly consistent with the text and original understanding of the Constitution. In this article, I show how the scholarly impasse that has pitted constitutionalism and judicial independence on the one hand versus text and history on the other can be overcome. In particular, I show that something important has changed in the years since the Constitution was ratified: the gap between the independence of state and federal judges. At the time of the founding, much like their federal counterparts, no state judges were elected and the vast majority of them enjoyed life tenure. Precisely the opposite is true today. As such, the consequences of depriving federal courts of jurisdiction to hear constitutional claims were much different then than they are today. Because state courts were the background against which Article III of the Constitution was written and ratified, these changes enable the answer to the question of whether jurisdiction stripping is constitutional to change as well. In other words, just because jurisdiction stripping was constitutional in 1789 does not mean it must be constitutional today, and it does not mean we must ignore the original understanding of the Constitution to reach that conclusion. The history I have uncovered in this article has the potential to reshape many other jurisdictional doctrines of the federal courts.
    Show full item record

    Files in this item

    Icon
    Name:
    Constitutionality of Federal ...
    Size:
    3.707Mb
    Format:
    PDF
    Description:
    published article
    View/Open

    This item appears in the following collection(s):

    • Vanderbilt Law School Faculty Works

    Browse

    All of DiscoverArchiveCommunities & CollectionsBy Issue DateAuthorsTitlesSubjectsThis CollectionBy Issue DateAuthorsTitlesSubjects

    My Account

    Login
    Give Now
    Support the Jean and Alexander Heard Library

    Gifts to the Library support the learning and research needs of the entire Vanderbilt community.

    Learn More
    Follow Us
    • Twitter
    • Facebook
    • RSS
    • Jean and Alexander Heard Library
    • 419 21st Avenue South
    • Nashville, TN 37203
    • 615-322-7100
    • Hours
    • About
    • Employment
    • Staff
    • Contact