Academic

Download of the Week

By Lawrence Solum

The Download of the Week is The New Wheel in the Federal Machine: From Sovereignty to Jurisdiction in the Early Republic by Alison L. LaCroix.  Here is the abstract:

The years between 1787 and 1802 witnessed a transformation in American federal theory: from the focus on legislative authority that had occupied constitutional thinkers since the colonial period to a new emphasis on jurisdiction and a corresponding institutional preoccupation with courts. This shift is evident in the decades-long debate concerning the nature and scope of the federal judicial power, which saw repeated efforts by jurists and statecrafters to establish the proper jurisdictional arrangement to mediate between the multiple levels of government set forth in the Constitution. The fruits of these struggles to cement the practical and ideological meanings of federalism were the judiciary acts of 1789 and 1801. The two acts have received remarkably disparate treatment from scholars, with the 1789 act heralded as the basis of the federal judicial system and the 1801 act largely regarded as an embarrassment notable only for its role in the partisan conflict surrounding the election of 1800.

Instead of lionizing the 1789 act and attempting to excuse or dismiss the 1801 act, however, I read the two together to offer new insights into these crucial decades. In the 1801 act, Federalists sought to revive the colonial idea of subject-matter jurisdiction by establishing broad federal jurisdiction, including granting "arising under" jurisdiction to the federal courts and easing the requirements for removal of cases from state to federal court. The election of 1800 and the ensuing repeal of the 1801 act, however, spelled the demise of this idea of jurisdiction and a return to the type of concurrence and overlap among levels of government that had characterized the system set up by the 1789 act. As a chapter in my forthcoming book on the history of the American federal idea, this essay challenges the assumption underlying some modern federalism scholarship that nationalization through the federal judiciary is a relatively new, post-1937 phenomenon. My argument demonstrates the anachronistic nature of such assumptions by highlighting the centrality of the judiciary to early republican debates concerning the scope and extent of national power.

And a bit from the text:

Randolph?s plan (Ed: of 1970 to amend the Judiciary Act of 1789) is important because it demonstrates the degree to which the scope and nature of federal jurisdiction remained a contested issue in the 1790s. Furthermore, the proposal clearly shows Randolph endorsing an expanded vision of ?arising under? jurisdiction at the same time that he was struggling to articulate clearer boundaries between federal and state courts than those set forth in the 1789 act.89 In this way, Randolph?s plan eschewed the relatively welcoming attitude toward concurrent jurisdiction that Hamilton had adopted in his Federalist essays, moving instead toward a notion of the judicial power of the United States as something extraordinary and perhaps beyond the ken of state courts.

Of course, Randolph?s plan did not mandate that cases arising under the laws of the United States fell exclusively within the jurisdiction of the federal courts; the report merely stated that the lower federal courts possessed original jurisdiction over such cases. This capacious view of the federal judicial power, however, hearkened to the subjectmatter- driven analyses of the 1760s and 1770s, insofar as it looked not to the nature of the parties or the jurisdiction in which their case arose but rather to the character of the claim at issue. Randolph?s conception thus also represented a shift away from the 1789 act?s focus on the parties? identity or location, and toward the underlying subject of the cause of action as decisive of jurisdiction.90 In other words, the jurisdictional lines drawn by the attorney general resembled the prewar notion of sovereignty as attaching to specific subjects of regulation.

Highly recommended.

Full post as published by Legal Theory Blog on January 26, 2008 (boomark / email).