Article III in the Political Branches

This Essay was prepared for a panel on “The Role of History in the Federal Courts Canon” at the 2015 Annual Meeting of the Association of American Law Schools. In many separation of powers debates, scholars excavate the practices and constitutional interpretations of Congress and the executive branch in order to discern the scope of various constitutional provisions. I argue that similar attention to political branch practice is warranted in the Article III context. That is true, in large part because much of the constitutional history of the federal courts has been written not by the federal judiciary, but by the legislative and executive branches. To illustrate this point, this Essay focuses on the Exceptions Clause of Article III. The Supreme Court has said little about the meaning of this provision, leaving the legislative and executive branches largely on their own in defining the scope of the “exceptions power.” The debates over this provision shed light not only on how the political branches have construed Article III but also on how the political branches approach constitutional interpretation more generally. This Essay concludes by raising questions about whether, or the extent to which, the practices and constitutional interpretations of the political branches should inform the way in which the judiciary interprets Article III