The "Madisonian Compromise" is Bunk

This post is specifically for people who are Federal Courts geeks, like me. If you don't know anything about Fed Courts, or don't care, I will not be insulted if you stop reading right here.

My issue is with the so-called "Madisonian Compromise Argument," harped on by originalists and certain professors. The argument goes like this: (1) Under the "Madisonian Compromise," the Constitution created only the Supreme Court, and left it in the hands of Congress to "from time to time ordain and establish" any other federal courts. (2) Therefore, the Constitution did not anticipate there needing to be any lower federal courts. (3) The Constitution should be interpreted in such a way that would be compatible with there being no lower federal courts. This, in turn, leads to all sorts of bizarre interpretations of various constitutional provisions, including the Suspension Clause, the 10th Amendment, and various jurisdictional issues.

There are, as I see it, four reasons why this argument doesn't work.




(1) "Originalism is Bunk." The short version of this response is that the spirit of the 14th Amendment fundamentally changed the the federal/state relationship, and the "Constitutional Moment" of the New Deal fundamentally changed the nature of the federal government. In this view, the Constitution can no longer contemplate a situation of "no lower federal courts."

(2) The Federalists Won (eventually). This is not a rigorous logica argument, but it is the observation that the same people who wanted a large federal government also wanted federal courts, and the people who wanted a small federal government did not want federal courts. Thus, there is nothing inconsistent about saying that while the Constitution did not require lower federal courts, the policy preferences of the founders point indicate the following: If there ended up being large federal government, then we needed lower federal courts for the Constitutional system to function.

(3) Perhaps the most convincing argument (which I owe to a friend), is that the Ordain and Establish Clause can be interpreted with an expansive view rather than a minimalist view. Consider the 14th Amendment: The text of the 14th Amendment made everybody happy, because for southerners, vague phrases like "equal protection" did not really guarantee any specific rights, while for northerners, the open-ended language allowed it to guarantee any right. Similarly, the Ordain and Establish Clause can be viewed as embodying a policy of requiring no specific federal courts, but it can also be viewed as embodying a policy of allowing unlimited federal courts, to deal with any size government Congress could create. Under this view, we need not concern ourselves with what would happen if Congress created no federal courts, because that world did not obtain.

(4) Finally, the limited language of Article III does not render nugatory other clauses of the Constitution, including the Suspension Clause and the Due Process Clause. Thus, although Congress did not have to create lower federal courts under Article III, it had to create them under Article I and the 5th Amendment. It would be an unconstitutional violation of rights if Congress did not at least create a "habeas tribunal" to hear habeas petitions. It would be unconstitutional—especially given all of John Marshall's rhetoric about every right requiring a remedy—if there was not some court that could issue a writ of mandamus on Marbury's behalf.