Article III and the Scottish judiciary

James E Pfander, Daniel D. Birk

Research output: Contribution to journalArticlepeer-review

18 Scopus citations


Historically minded scholars and jurists invariably turn to English law and precedents when attempting to recapture the legal world of the Framers. Blackstone's famous Commentaries on the Laws of England offers a convenient reference for moderns looking backward. Yet the generation that framed the Constitution often relied on other sources, including Scottish law and legal institutions. Indeed, the Scottish judicial system provided an important, but presently overlooked, model for the Framing of Article III. Unlike the English system of overlapping and primarily original jurisdiction, the Scottish judiciary featured a hierarchical, appellate-style judiciary, with one supreme civil court sitting at the top and an array of inferior courts of original jurisdiction below. What is more, the Scottish judiciary operated within a constitutional framework - the so-called Acts of Union that combined England and Scotland into Great Britain in 1707 - that protected the role of their supreme court from legislative remodeling. This Article explores the heretofore invisible influence of the Scottish judiciary on the language and structure of Article III. Scotland provided a model for a single "supream" court and multiple inferior courts, and it defined inferior courts as subordinate to, and subject to the supervisory oversight of, the sole supreme court. Moreover, the Acts of Union entrenched this hierarchical judicial system by limiting Parliament to "regulations" for the better administration of justice. Practice under this precursor to Article III's Exceptions and Regulations Clause established that a supreme court's supervisory authority over inferior courts would survive restrictions on its as of right appellate jurisdiction. The Scottish model thus provides an important historical perspective on the scholarly claim that unity, supremacy, and inferiority in Article III operate as textual and structural limits on Congress's jurisdiction-stripping authority.

Original languageEnglish (US)
Pages (from-to)1613-1687
Number of pages75
JournalHarvard Law Review
Issue number7
StatePublished - May 2011

ASJC Scopus subject areas

  • Law


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