The "Exceptions Clause" (Art. III, Sec. 2, cl. 2)

Some conservatives, such as David Barton, have been saying that Congress can use that clause to stop federal courts from hearing certain kinds of cases (e.g., prayer at high school football games). This is what one has been hearing from various conservatives on TV for some years.

But what Barton and others say is NOT TRUE.

I'll tell you what it really means:

Article III, U.S. Constitution, establishes the federal courts:

Sec. 2, cl. 1 enumerates the categories of cases federal courts are allowed to hear. 

Sec. 2, cl. 2 distributes the "judicial power" (the authority to hear cases) between the supreme Court and the lower federal courts to be created by Congress:

            In TWO of the categories of cases listed in Sec. 2, cl. 2, the Constitution grants "original" [i.e., "trial"] jurisdiction to the supreme Court:  (1) All cases affecting Ambassadors, other public Ministers & Consuls; and (2) Those in which a State is a Party.  For these TWO categories of cases, the supreme Court acts as the trial court.

            In all the other enumerated categories of cases:

 "...the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

Alexander Hamilton tells us precisely what this clause means in the last five paragraphs of Federalist Paper No. 81. The quoted phrase merely addresses technical issues respecting the mode of doing appeals:  Will the appeal be heard by a jury, or by judges?  Will the appellate court be able to revisit issues of Fact, or will it be restricted to reviewing rulings on issues of Law?  Will the mode of doing appeals be the same for cases involving the "common law" and the "civil law", or will it be different for each? Congress will decide. That's what it means.

Any intelligent lawyer who is experienced in appellate litigation should be able to understand that this is precisely what Alexander Hamilton is saying in the last five paras of Federalist Paper No. 81.

Today, American appellate lawyers are accustomed to having our appeals normally heard by a 3 judge panel (unless one gets an en banc panel) instead of by another Jury; and of having appeals generally limited to Issues of Law instead of Issues of Fact.  But that’s now.  At the beginning of our Country, these were open questions! THAT’s what Hamilton – a litigation attorney -  is talking about!  This clause in the Constitution simply empowers Congress to make rules determining the mode of doing appeals.

The Constitution lists the categories of cases federal courts may hear.  In Federalist No. 80, Hamilton explains each category of case.  ANY RESTRICTIONS OR EXPANSIONS OF THAT LIST CAN ONLY BE DONE BY AMENDMENT TO THE CONSTITUTION!  Look at the Eleventh Amendment (ratified 1795).  It withdrew from federal courts the power to hear a certain category of case.  Congress may NOT make a law diminishing the constitutionally granted powers of the federal courts.

I expect David Barton means no harm; he just doesn’t understand what is involved in appellate litigation, and so doesn’t understand Art. III, Sec. 2, cl. 2; and apparently never looked it up in Federalist No. 81, last 5 paras.  He apparently just read in his own understanding.

It is true that federal judges have long been hearing cases which they have no constitutional authority to hear.   But the remedy for that is to impeach them & remove them from the bench (Federalist No. 81, 8th para). 

For most things in the Constitution, one need not have a law degree or have been a practicing appellate litigation attorney to understand.  But it seems that the so-called “exceptions” clause is an “exception” to that rule.  

It really is important that we all get this right.

Questions?  Is it clear?