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Public Law & Legal Theory


This Article provides a new interpretation of the origins of three central obsessions of federal-courts and constitutional-law scholarship: the question whether lower federal courts are constitutionally required; the relative powers of Congress, the Supreme Court, and the lower federal courts to define federal jurisdiction; and judicial supremacy. The Article argues that the extension of federal judicial power to the lower federal courts was a crucial element of the Federalists' project of building national supremacy into the Republic’s structure. Chief Justice John Marshall, like many other federalist theorists who were affiliated with the Federalist Party, viewed the lower federal courts as essential to the establishment of a union in which national supremacy was instantiated through judicial structure. Marshall and his fellow federalists/Federalists shared a substantive commitment to structure – namely, a judiciary-centric federalism. In the early nineteenth century, most notably in two cases involving the Second Bank of the United States – Bank of the United States v. Deveaux (1809) and Osborn v. Bank of the United States (1824) – the Marshall Court carried out through case law what the political branches had been unable to do following the election of 1800: grant the lower federal courts the power to hear all cases arising under federal law. Judge-made doctrines therefore operated as a substitute for a legislative grant of jurisdiction, and federal courts throughout the period opposed Congress’s attempts to claim ultimate authority over federal jurisdiction. The traditional story of the Marshall Court’s nationalism has overlooked both this link between law and politics and the importance of the lower federal courts to early republican beliefs about federal structure.



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