Article IX, Article III, and the First Congress: The Original Constitutional Plan for the Federal Courts, 1787-1792

By Thomas H. Lee
April 19, 2021

This Article describes the original constitutional plan for the U.S. Supreme Court and the lower federal courts as set out in Article III of the U.S Constitution, debated at the Constitutional Convention and state ratifying conventions, implemented by the First Congress, and realized with the first case docketed at the Supreme Court, from 1787 to 1792. In so doing, it relies on close readings of three primary sources: Article IX of the Articles of Confederation, the Judiciary Act of 1789, and the Process Act of 1789. The First Judiciary Act is well known but not often read and analyzed holistically as a single, integrated enactment designed to address concerns voiced during the state ratification conventions. Article IX and the First Process Act are neither well known nor identified as key sources of Article III of the Constitution and its original meaning. This Article enlarges modern conventional wisdoms about the early U.S. federal courts by showing:

  • Their distinctly pro-foreigner orientation as befitting a new weak state,
    in sore need of inbound foreign trade, credit, and investment;
  • The essentiality of the Supreme Court’s original jurisdiction to promote international and interstate peace and harmony;
  • The controversial nature of the Court’s appellate jurisdiction “both as to Law and Fact” when the Constitution was discussed and adopted (1787–1788), based on the example of the national appeals court for captures under Article IX of the Articles of Confederation;
  • The limited scope of state law rules of decision and procedures within the Article III categories of federal judicial power that the First Congress actually vested;
  • The relatively limited importance of Article III “arising under” federal jurisdiction as an original matter outside of federal crimes and revenue laws; and
  • The overall “nationalist” orientation of the federal courts, to subordinate state interests to the overwhelming national survival interest in international and interstate peace and commerce.