The judgment power

Georgetown Law Journal

Volumn 96, Issue 6, 2008, Pages 1807-1862

  Baude, William ^a  

^a YALE UNIVERSITY   (United States)

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EID: 50949115820     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (312)

1. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
2. Little v. Barreme, 6 U.S. (2 Cranch) 170, 170 (1804).
3. U.S. CONST. art. II, § 4.
4. Id.; 135 CONG. REC. H1811 (1989).
5. GARY LAWSON & GUY SEIDMAN, THE CONSTITUTION OF EMPIRE: TERRITORIAL EXPANSION & AMERICAN LEGAL HISTORY 160-66 (2004); John Harrison, The Lawfulness of the Reconstruction Amendments, 68 U. CHI. L. REV. 375, 438 (2001).
6. Marshall Field & Co. v. Clark, 143 U.S. 649, 672 (1892) ("The signing by the [S]peaker of the [H]ouse of [Representatives, and by the [President of the [S]enate, in open session, of an enrolled bill, is an official attestation by the two houses of such bill as one that has passed [C]ongress.... The respect due to coequal and independent departments requires the judicial department to act upon that assurance, and to accept, as having passed [C]ongress, all bills authenticated in the manner stated.").
7. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995).
8. Miller v. French, 530 U.S. 327 (2000).
9. Plaut, 514 U.S. at 219-25.
10. Boumediene v. Bush, cert. granted, 127 S. Ct. 3078 (2007).
11. Munaf v. Geren, cert. granted, 128 S. Ct. 741 (2007); Omar v. Geren, cert. granted, 128 S. Ct. 741 (2007).
12. See, e.g., Alliance to End Repression v. City of Chicago, 237 F.3d 799 (7th Cir. 2001) (applying FED. R. CIV. P. 60(b)(5) to modify a consent decree).
13. See, e.g., Presidential Authority To Decline To Execute Unconstitutional Statutes, 18 Op. Off. Legal Counsel 199, 200 (1994); David Barron, Constitutionalism in the Shadow of Doctrine: The President's Non-Enforcement Power, LAW & CONTEMP. PROBS., Winter/Spring 2000, at 61; Frank H. Easterbrook, Presidential Review, 40 CASE W. RES. 905 (1990); John Harrison, The Constitutional Origins and Implications of Judicial Review, 84 VA. L. REV. 333, 368-87 (1998); Dawn E. Johnsen, Presidential Non-Enforcement of Constitutionally Objectionable Statutes, LAW & CONTEMP. PROBS., Winter/Spring 2000, at 7; Gary Lawson & Christopher D. Moore, The Executive Power of Constitutional Interpretation, 81 IOWA L. REV. 1267, 1303-13 (1996); Sanford Levinson, Constitutional Protestantism in Theory and Practice: Two Questions for Michael Stokes Paulsen and One for His Critics, 83 GEO. L.J. 373, 378-79 (1994); Edwin Meese III, The Law of the Constitution, 61 TUL. L. REV. 979 (1987); Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power To Say What the Law Is, 83 GEO. L.J. 217, 267-72 (1994); Saikrishna Bangalore Prakash, The Executive's Duty To Disregard Unconstitutional Laws, 96 GEO. L.J. 1613 (2008); Peter L. Strauss, The President and Choices Not To Enforce, LAW & CONTEMP. PROBS., Winter/Spring 2000, at 107; Christine E. Burgess, Note, When May a President Refuse To Enforce the Law?, 72 TEX. L. REV. 471 (1994).
14. See infra section I.C. 1.
15. Gary Lawson, Mostly Unconstitutional: The Case Against Precedent Revisited, 5 AVE MARIA L. REV. 1, 12 n.40 (2007); Lawson & Moore, supra note 13, at 1313-29; Paulsen, supra note 13, at 276-84; cf. Edward A. Hartnett, A Matter of Judgment, Not a Matter of Opinion, 74 N.Y.U. L. REV 123, 153 (1999) ("I remain agnostic regarding Paulsen's claim that executive disobedience of judgments is legal.").
16. Note, Executive Revision of Judicial Decisions, 109 HARV. L. REV. 2020, 2027-29, 2037 (1996); Leading Cases, 109 HARV. L. REV. 111 (1995).
17. Paulsen, supra note 13, at 211.
18. Id. at 238-40 (citing James Wilson's post-ratification writings on the Constitution, in WORKS OF JAMES WILSON 299-300 (Robert Green McCloskey ed., Harvard Univ. Press 1967) (1790-92)).
19. Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 CARDOZO L. REV. 81, 83-84 (1993) (citing Ex pane Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487)).
20. See, e.g., David A. Strauss, Presidential Interpretation of the Constitution, 15 CARDOZO L. REV. 113, 123-25 (1993).
21. E.g., ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 259-65 (1962); DANIEL FARBER, LINCOLN'S CONSTITUTION 182-88 (2003); Easterbrook, supra note 13; David E. Engdahl, John Marshall's "Jeffersonian" Concept of Judicial Review, 42 DUKE L.J. 279, 312 (1992); John Harrison, Judicial Interpretive Finality and the Constitutional Text, 23 CONST. COMMENT. 33, 42 (2006); Hartnett, supra note 15; Meese, supra note 13; Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 CARDOZO L. REV. 43 (1993); Herbert Wechsler, The Courts and the Constitution, 65 COLUM. L. REV. 1001, 1008-09 (1965).
22. See Richard H. Fallon, Jr., Executive Power and the Political Constitution, 2007 UTAH L. REV. 1, 20-21.
23. Infra section III.A.
24. Infra section III.B.
25. See Jennifer Mason McAward, Congress's Power To Block Enforcement of Federal Court Orders, 93 IOWA L. REV. (forthcoming 2008); see also infra notes 96-98 and accompanying text.
26. See, e.g., Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995).
27. See, e.g., Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421 (1855); see also DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: DEMOCRATS AND WHIGS, 1829-1861, at 192-94 (2005).
28. See, e.g., Akhil Reed Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. REV. 205 (1985); Steven G. Calabresi & Gary Lawson, The Unitary Executive, Jurisdiction Stripping, and the Hamdan Opinions: A Textualist Response to Justice Scalia, 107 COLUM. L. REV. 1002 (2007); Laurence Claus, The One Court that Congress Cannot Take Away: Singularity, Supremacy, and Article III, 96 GEO. L.J. 59 (2007); Henry M. Hart, Jr., The Power of Congress To Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 HARV. L. REV. 1362, 1364-65 (1953).
29. See generally David S. Law, The Paradox of Omnipotence: Courts, Constitutions, and Commitments, 40 GA. L. REV. 407, 426-30 (2006); Eric A. Posner & Adrian Vermeule, Constitutional Showdowns (Univ. of Chi. Law & Econ., Olin Working Paper No. 348,2007), available at http://ssrn.com/ abstract=1002996.
30. E.g., Randy E. Barnett, An Originalism for Non-Originalists, 45 LOY. L. REV. 611 (1999); John Harrison, Forms of Originalism and the Study of History, 26 HARV. J.L. & PUB. POL'Y 83 (2003); Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution's Secret Drafting History, 91 GEO. L.J. 1113, 1124-33 (2003); Gary Lawson, On Reading Recipes... and Constitutions, 85 GEO. L.J. 1823 (1997); Gary Lawson & Guy Seidman, Originalism as a Legal Enterprise, 23 CONST. COMMENT. 47 (2006); Michael Stokes Paulsen, How To Interpret the Constitution (and How Not To), 115 YALE L.J. 2037, 2056-62 (2006); Saikrishna Prakash, Radicals in Tweed Jackets: Why Extreme Left-Wing Law Professors Are Wrong for America, 106 COLUM. L. REV. 2207 (2007) (reviewing CASS R. SUNSTEIN, RADICALS IN ROBES: WHY EXTREME RIGHT-WING COURTS ARE WRONG FOR AMERICA (2005)); Saikrishna B. Prakash, Unoriginalism's Law Without Meaning, 15 CONST. COMMENT. 529 (1998) (reviewing JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION (1996)).
31. Compare, e.g., Michael Stokes Paulsen, Protestantism and Comparative Competence: A Reply to Professors Levinson and Eisgruber, 83 GEO. L.J. 385, 385 (1994) (asking "Will nobody defend judicial supremacy anymore?"), with Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 HARV. L. REV. 1359, 1369-70 (1997) (defending judicial supremacy while effectively conceding Paulsen's historical analysis).
32. Cf. John Harrison, Would All the Laws but One Be Close Enough for Government Work?, 2 GREEN BAG 2D 333, 336-37 (1999) ("[T]he inquiry into the respective roles of the judicial and executive powers can be pretty dull. The constitutional separation of executive and judicial power has given rise to some of the Supreme Court's most notoriously arcane, tedious, and unedifying decisions.").
33. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 138-39 (J.P. Mayer ed. & George Lawrence trans., Harper & Row 1988) (1835).
34. Cf. Amar, supra note 28, at 207 n.7 (justifying "heavy, if not exclusive, reliance on constitutional text, history, and structure" in interpreting Article III because "the scholarly literature has thus far been waged largely on interpretivist terms").
35. U.S. CONST. art. III, §1.
36. 1 JAMES WILSON, Of Government (1790), reprinted in COLLECTED WORKS OF JAMES WILSON 689, 703 (Kermit L. Hall & Mark David Hall eds., 2007).
37. E.g., McConnell v. Kenton, 1 Ky. (1 Hughes) 257, 288 (1799); Wroe v. Harris, 2 Va. (2 Wash.) 126, 129-30 (1795).
38. See 2 JAMES WILSON, The Subject Continued: Of Sheriffs and Coroners (1790), reprinted in COLLECTED WORKS OF JAMES WILSON, supra note 36, at 1012, 1015.
39. Id. 40. Id.
40. Paulsen, supra note 13, at 238-40.
41. 1 ST. GEORGE TUCKER, BLACKSTONE'S COMMENTARIES app. D at 354 (photo, reprint 1996) (Philadelphia, Birch & Small 1803). Tucker's invocation of "life, liberty, or property" may also have implications for the relationship between judicial power and due process. U.S. CONST. amend. V.; id. amend. XIV; see also Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 217-18 (1995); id. at 247-48 (Stevens, J., dissenting).
42. 1 TUCKER, supra note 42, at 353.
43. At the time, opinions were rarely even written down by their authors. See, e.g., Buckner v. Finley, 27 U.S. (2 Pet.) 586, 591 (1829); Letter from James Kent to Thomas Washington (Oct. 6, 1828), in 3 VA. L. REG. 563, 568 (1897) ("The opinions from the bench were delivered ore tenus. We had no law of our own, & nobody knew what it was.").
44. Id. at 354 (first two emphases added).
45. THE FEDERALIST No. 47, at 251 (James Madison) (George W. Carey & James McClellan eds., 2001).
46. 1 M. DE SECONDAT, BARON DE MONTESQUIEU, THE SPIRIT OF LAWS bk. 11, ch. 6 (G. Bell & Sons, Ltd. 1914) (Thomas Nugent trans., 1752) ("[T]here is no liberty, if the judiciary power be not separated from the legislative and executive."); cf. id. ("[T]he judiciary power" is that which "punishes criminals, or determines the disputes that arise between individuals.").
47. THE FEDERALIST No. 47, supra note 46, at 252.
48. THE FEDERALIST No. 48, at 259 (James Madison) (George W. Carey & James McClellan eds., 2001) (quoting THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA (1784)) (emphases omitted).
49. Id. For exploration of the rejected practice, see Christine A. Desan, The Constitutional Commitment to Legislative Adjudication in the Early American Tradition, 111 HARV. L. REV. 1381 (1998).
50. THE FEDERALIST No. 81, at 419 (Alexander Hamilton) (George W. Carey & James McClellan eds., 2001).
51. Id; see also Calder v. Bull, 3 U.S. (3 Dall.) 386, 389 (1798) (Chase, C.J.) (stating that bills of attainder are forbidden by the Constitution because they are "legislative judgments; and an exercise of judicial power").
52. 9 U.S. (5 Cranch) 115, 136 (1809) ("If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.").
53. THE FEDERALIST No. 64, at 335 (John Jay) (George W. Carey & James McClellan eds., 2001).
54. Brutus, Essay XI (Jan. 31, 1788), reprinted in THE ESSENTIAL ANTIFEDERALIST 185 (W.B. Allen & Gordon Lloyd eds., 2002). Brutus was a pseudonymous critic of the work of the Constitutional Convention. The consensus view is that his real identity is a New York judge named Robert Yates, but the issue is not settled. See Paulsen, supra note 13, at 245 n.93, and sources cited there.
55. Brutus, supra note 55, at 185.
56. Id. at 188.
57. Brutus, Essay XV (Mar. 20, 1788), reprinted in THE ESSENTIAL ANTIFEDERALIST, supra note 55, at 196, 197.
58. Id.
59. Alexander Hamilton's response to Brutus, in The Federalist, is too ambiguous to endorse or reject this Article's view of the judgment power. See infra section I.C.2.
60. Pension Act of 1792, ch. 11, § 2, 1 Stat. 243, 244.
61. Id. § 4.
62. See generally Hayburn's Case, 2 U.S. (2 Dall.) 409, 410-14 (1792).
63. For more background, see DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE FIRST HUNDRED YEARS, 1789-1888, at 6-9 (1985).
64. Letter from the Circuit Court for the District of Pennsylvania (Justice Wilson, Justice Blaine, and Judge Peters) to President George Washington (Apr. 18, 1792), reprinted in Hayburn's Case, 2 U.S. (2 Dall.) at 410-11, (emphases in original). The Circuit Court's cryptic parenthetical notation that "(its opinions are its judgments)" is puzzling. See generally Hartnett, supra note 15 (demonstrating why opinions are not judgments). Most likely, this comment was meant to explain why the Act implicated the judgment power at all. The Court is emphasizing that the written opinions called for by the statute were-in a constitutional sense-judgments and therefore that the principle of judgment supremacy applied to them. See Pension Act of 1792, ch.11, § 2, 1 Stat. 243, 244 (requiring judges to render "opinion in writing" that was submitted for executive review). Or perhaps the comment was simply written in panic. See Letter from the Circuit Court for the District of Pennsylvania, supra at 412 (The incident "excited feelings in us, which we hope never to experience again.").
65. Opinion for the Circuit Court for the District of New York (Chief Justice Jay, Justice Cushing, and Judge Duane) (Apr. 5,1791), reprinted in Hayburn's Case, 2 U.S. (2 Dall.) at 410.
66. Letter from Justice Iredell and Judge Sitgreaves to President George Washington (June 8, 1792), reprinted in Hayburn's Case, 2 U.S. (2 Dall.) at 413.
67. See, e.g.. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218 (1995) ("Congress cannot vest review of the decisions of Article III courts in officials of the Executive Branch."); Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113-14 (1948) ("It has also been the firm and unvarying practice of Constitutional Courts to render no judgments... that are subject to later review or alteration by administrative action." (citations omitted)); Gordon v. United States, 117 U.S. 697, 702 (1885) ("The award of execution is a part, and an essential part of every judgment passed by a court exercising judicial power. It is no judgment, in the legal sense of the term, without it."); United States v. Ferreira, 54 U.S. (13 How.) 40, 47 (1852) ("[The judge] is required to transmit, both the decision and the evidence... to the Secretary of the Treasury; and the claim is to be paid if the Secretary thinks it just and equitable, but not otherwise.... It is too evident for argument on the subject that such a tribunal is not a judicial one."); Hunt v. Palao, 45 U.S. 589, 590-91 (1846) ("[I]t would be useless and vain for this court... to proceed to judgment... when... no means or process is authorized by which our judgment could be executed.").
68. Paulsen, supra note 13, at 303.
69. Convention Between the French Republic and the United States of America, art. IV, 8 Stat. 178, 178, 180 (1801).
70. U.S. v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 (1801).
71. Id. at 109.
72. Restoration Under Treaty with France, 1 Op. Att'y Gen. 114, 117-19 (1802).
73. Restitution Under Treaty with France, 1 Op.Att'y Gen. 119 (1802).
74. Id. at 122.
75. Id.
76. Lincoln added, "In all other cases in which the Executive or other courts are obliged to act, they must decide for themselves; paying a great deference to the opinions of a court of so high an authority as the supreme one of the United States, but still greater to their own convictions of the meaning of the laws and constitution of the United States, and their oaths to support them." Id. (emphasis added).
77. Ex parte Gilchrist, 10 F. Cas. 355 (C.C.D.S.C. 1808) (No. 5420). For more discussion, see I CHARLES WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 324-38 (1922); Jerry L. Mashaw, Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801-1829, 116 YALE L.J. 1636, 1678-79 (2007).
78. Mashaw, supra note 78, at 1678.
79. See Letter from Attorney General Cesar Rodney to President Thomas Jefferson (July 15, 1808), in 1 AM. L.J. 429, 433-39 (1808); see also Mashaw, supra note 78, at 1679.
80. Letter from Attorney General Cesar Rodney, supra note 80, at 435.
81. 1 WARREN, supra note 78, at 338.
82. Mashaw, supra note 78, at 1679-85.
83. See, e.g., Fallon, supra note 22, at 7-8; Paulsen, supra note 13, at 306-07.
84. In this vein, sundry rumors about what Andrew Jackson might have done in Georgia if he had gotten the chance, see Fallon, supra note 22, at 8-9, are also fairly non-probative.
85. Letter from President Thomas Jefferson to Mrs. John Adams (Sept. 11, 1804), in 11 THE WRITINGS OF THOMAS JEFFERSON 49, 51 (Albert Bergh ed., 1905) [hereinafter JEFFERSON] ("[T]he executive, believing the law to be unconstitutional, were bound to remit the execution of it; because that power has been confided to them by the Constitution.").
86. See John Harrison, Pardon as Prerogative, 13 FED. SENT'G REP. 147, 147 (2001); Michael B. Rappaport, The President's Veto and the Constitution, 87 NW. U. L. REV. 735, 776-79 (1992).
87. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803); Paulsen, supra note 13, at 306-08 (citing Letter from Thomas Jefferson to William Johnson (June 12, 1823), in 15 JEFFERSON, supra note 86, at 439, 447-48). Jefferson's letter does not actually say as much, although it does express an unmistakable tone of scorn and outrage, and accuse Marshall of going beyond his jurisdiction. See also 1 WARREN, supra note 78, at 264-65. But see Louise Weinberg, Our Marbury, 89 VA. L. REV. 1235, 1275-77 (2003) (questioning the conventional story that Jefferson would have defied Marbury if it had been decided the other way).
88. See Letter from Thomas Jefferson to William Johnson (June 12,1823), supra note 88, at 447-48.
89. See, e.g.. Letter from Thomas Jefferson to George Hay (June 2, 1807), in 11 JEFFERSON, supra note 86, at 213, 215; see also infra notes 111-119 and accompanying text (explaining the role of "coram non judice" in private law).
90. For more on aspects of the immunity issue, see Clinton v. Jones, 520 U.S. 681 (1997); Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1866); JAMES HART, THE AMERICAN PRESIDENCY IN ACTION: 1789, at 44-47 (1948); Akhil Reed Amar & Neal Kumar Katyal, Executive Privileges and Immunities: The Nixon and Clinton Cases, 108 HARV. L. REV. 701 (1995).
91. Paulsen, supra note 13, at 307.
92. See generally H. JEFFERSON POWELL, A COMMUNITY BUILT ON WORDS: THE CONSTITUTION IN HISTORY AND POLITICS 122-27 (2002) (detailing the saga of the Olmstead Affair and the Olmstead Case); Protest of Pennsylvania Against the Decision of the Supreme Court in the Case of Gideon Olmstead, in 2 AMERICAN STATE PAPERS: MISCELLANEOUS 2 (Walter Lowrie ed., Gales & Seaton 1834) (same); Gary D. Rowe, Constitutionalism in the Streets, 78 S. CAL. L. REV. 401, 408-453 (2005) (same).
93. United States v. Peters, 9 U.S. (5 Cranch) 115 (1809).
94. Letter from Governor Simon Snyder to President James Madison (Apr. 3, 1809), in 2 AMERICAN STATE PAPERS: MISCELLANEOUS, supra note 93, at 11-12.
95. Letter from President James Madison to Governor Snyder (Apr. 13, 1809), in 2 LETTERS AND OTHER WRITINGS OF JAMES MADISON 438, 438-39 (Philadelphia, J.B. Lippincott 1865). The version of the letter reported in the American State Papers differs slightly, eliminating the shorthand, adding commas, and replacing "especially" with "expressly." See Letter from President James Madison to Governor Snyder (Apr. 13, 1809), in 2 AMERICAN STATE PAPERS: MISCELLANEOUS, supra note 93, at 12. The differences seem unimportant to me.
96. Militia Act of 1795, ch. 36, § 2, 1 Stat. 424, 424; see also Insurrection Act of 1807, ch. 39, 2 Stat. 443 (giving the same power to call forth the army and navy); cf. POWELL, supra note 93, at 126 & n.12 (also implying that Madison meant the Militia Act).
97. Judiciary Act of 1789, ch. 26, § 27, 1 Stat. 73, 87; An Act for the Punishment of Certain Crimes Against the United States, ch. 9, § 22, 1 Stat. 112, 117 (1790).
98. See infra section I.D.
99. Compare Paulsen, supra note 13, at 309 (accusing Madison of contradicting his earlier position in The Federalist in his letter to Synder), with POWELL, supra note 93, at 126 ("Snyder... had entirely misread Madison's position.").
100. Letter from Thomas Jefferson to James Madison (May 22,1809), in 9 JEFFERSON, supra note 86, at 241-42, quoted in POWELL, supra note 93, at 127.
101. E.g., Paulsen, supra note 13, at 297 n.275; Michael Stokes Paulsen, The Civil War as Constitutional Interpretation, 71 U. CHI. L. REV. 691, 719 (2004) (reviewing FARBER, supra note 21) [hereinafter Paulsen, Civil War]; Strauss, supra note 20, at 123 ("The executive autonomy view, in nearly all its manifestations, pulls its punches in a way that suggests a deeper incoherence.").
102. Mills v. Duryee, 11 U.S. (7 Cranch) 481 (1813); Douglas Laycock, Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law, 92 COLUM. L. REV. 249, 289-305 (1992).
103. Pennoyer v. Neff, 95 U.S. 714, 733 (1877); A. Benjamin Spencer, Jurisdiction to Adjudicate: A Revised Analysis, 73 U. CHI. L. REV. 617, 621 (2006) ("By 1945, the notion that the law of state court jurisdiction was a matter with which the Due Process Clause was concerned was not fairly open to challenge,").
104. Caleb Nelson, Originalism and Interpretive Conventions, 70 U. CHI. L. REV. 519, 594-97 (2003); Ralph U. Whitten, The Original Understanding of the Full Faith and Credit Clause and the Defense of Marriage Act, 32 CREIGHTON L. REV. 255, 349-50 (1998).
105. Kempe's Lessee v. Kennedy, 9 U.S. (5 Cranch) 173 (1809).
106. Id. at 186; cf. Christmas v. Russell, 72 U.S. 290, 302 (1866) ("Where the jurisdiction has attached the judgment is conclusive for all purposes, and is not open to any inquiry upon the merits.").
107. 11 U.S. (7 Cranch) 481, 485 (1813).
108. Congress, for example, appears to have thought the Mills interpretation incorrect - both before and after it was decided. See generally Stephen E. Sachs, Full Faith and Credit in the Early Congress 29-80 (Nov. 26, 2007) (unpublished manuscript), available at http://ssrn.com/abstract=1032676.
109. Lucas v. Bank of Darien, 2 Stew. 280, 312 (Ala. 1830) ("[A] decision of a Court of competent jurisdiction, being res judicata, is conclusive and binding on all other Courts of concurrent jurisdiction."); Richardson v. Hobart, 1 Stew. 500, 504 (Ala. 1828); Griswold v. Bigelow, 6 Conn. 258, 264 (1826) ("The decrees of a court of competent jurisdiction, are conclusive, while they remain unreversed, on every question, which they profess to decide." (citation omitted)); Rockwell v. Sheldon, 2 Day 305, 312-13 (Conn. 1806) ("[T]he decrees of a court of probate having competent jurisdiction, are conclusive, while they remain unreversed, on every question which they profess to decide."); Roach v. Lessee of Martin, 1 Del. (1 Harr.) 548, 558 (1835); Picquet v. M'Kay, 2 Blackf. 465, 468 (Ind. 1831) ("The position is unquestionably correct, that the judgment of a Court of competent jurisdiction is conclusive between the parties, the same matter being in controversy."); Moore v. Tanner's Adm'r, 21 Ky. (T.B. Mon.) 42, 45 (1827); Carlyle v. Long, 15 Ky. (5 Litt.) 167, 169 (1824) ("[N]o principle is better settled, than that which recognizes the decision of any matter by a court of competent jurisdiction, to be conclusive between the same parties, when again drawn in question in any court of concurrent or co-ordinate jurisdiction."); Simpson v. Simpson's Ex'x, 13 Ky. (3 Litt.) 141, 147 (1823) ("[I]t is an established principle, that the decision of a matter by a court of competent jurisdiction, is conclusive between the same parties in all courts of concurrent jurisdiction."); Moffett v. White, 11 Ky. (1 Litt.) 324, 324 (1822) ("[I]t is an established rule, that the decision of a court of competent jurisdiction is conclusive between the same parties on the same matter, in all other courts of co-ordinate jurisdiction."); Thomas v. Clarke, 11 Ky. (1 Litt.) 287, 288-89 (1822); Hayden v. Boot, 9 Ky. (2 A.K. Marsh) 353, 354 (1820) ("[I]t is, accordingly, a settled rule, that judgment of a court of competent jurisdiction is as a plea, a bar, and, as evidence, conclusive between the same parties, upon the same matter directly in question, in the same or any other court."); Leonard v. Leonard, 31 Mass. (14 Pick.) 280, 283 (1828) ("In general, the judgment of a court of competent jurisdiction is conclusive against the parties."); Tilton v. Gordon, 1 N.H. 33, 35 (1817) ("[N]o legal question is more fully settled and at rest than that the merits of a judgment recovered in a court of competent jurisdiction, whilst unreversed, is conclusive as to the subject matter of it, to every intent and purpose, and cannot be re-examined in a new action founded on evidence, which would have made a defence to the original suit."); Le Guen v. Gouverneur, 1 Johns. Cas. 436,493, 510 (N.Y. 1800); Aldridge v. Giles, 13 Va. (3 Hen. & M.) 136, 140 (1808) (Tucker, J.).; Robinson v. Swift, 3 Vt. 283, 289-90 (1830).
110. See Note, Filling the Void: Judicial Power and Jurisdictional Attacks on Judgments, 87 YALE L.J. 164,164 (1977) ("For over three centuries it has been black-letter law that the judgment of a court without jurisdiction over the subject matter of the action before it is null and void in its entirety.") (footnotes omitted).
111. See Case of the Marshalsea (1613) 10 Co. Rep. 68b, 76a, 77 Eng. Rep. 1027 (K.B.).
112. Cooper v. Reynolds, 77 U.S. 308, 316 (1870).
113. D'arcy v. Ketchum, 52 U.S. 165 (1851).
114. Id. at 176 ("[I]nternational law... among the states" is what we might now call the federal common (or general) law of interstate relations.); cf. Nelson, supra note 105, at 593-97 (noting "founding generation" viewed Full Faith and Credit Clause against backdrop of choice of law rules in the general common law).
115. Mills v. Duryee, 11 U.S. (7 Cranch) 481, 486-87 (Johnson, J., dissenting). That worry had briefly been realized in Massachusetts, for example. See Commonwealth v. Green, 17 Mass. 515, 545-46 (1822), overruled by Hall v. Williams, 23 Mass. 232, 245-46 (1828). As Hall put it, Mills, "when first referred to in this Court in the case of the Commonwealth v. Green, was supposed to have put an end to all questions on this subject, and to have established... that a judgment... was absolute and incontrovertible, and would admit of no inquiry even as to the jurisdiction of the court which rendered it." Hall, 23 Mass. at 242-43. "[B]ut," the court went on, "having the general question now brought distinctly before us.... [w]e... are all of opinion, that" a judgment may be examined for jurisdiction. Id. at 246; see also James Weinstein, The Federal Common Law Origins of Judicial Jurisdiction: Implications for Modern Doctrine, 90 VA. L. REV. 169, 177 n.31 (2004) .
116. D'arcy, 52 U.S. at 174. Justice Story, the author of Mills, later wrote that full faith and credit "d[id] not prevent an inquiry into the jurisdiction of the Court, in which the original judgment was rendered, to pronounce the judgment...." JOSEPH STORY, COMMENTARIES ON THE CONFLICT OF LAWS 509 (Boston, Hilliard, Gray, & Co. 1834).
117. 50 U.S. 336, 350 (1850) ("It may be difficult in some cases to draw the line of jurisdiction so as to determine whether the proceedings of a court are void or only erroneous.... The inquiry should be, have the requisites of the statute been complied with, so as to subject the property in controversy to the judgment of the court, and is such judgment limited to the property named in the bill. If this cannot be answered in the affirmative, the proceedings of the court beyond their jurisdiction are void.").
118. E.g., Aldrich v. Kinney, 4 Conn. 380, 383-84 (1822) ("Admitting, as I do most fully, that a judgment rendered in a sister state, by a court which has jurisdiction of the subject matter sad parties, is conclusive and unimpeachable; I am equally clear, that where the defendant neither appeared, nor had legal notice to appear, a judgment against him is invalid...."); Hall, 23 Mass. at 244 ("[I]n all instances, the jurisdiction of the court rendering the judgment may be inquired into."); Bank of U.S. v. Merchs. Bank, of Balt., 7 Gill 415, 429-30 (Md. 1848) ("It is certainly true, that unless the court rendering the judgment, had jurisdiction, both of the cause and of the parties, it would be treated as a nullity."); see also sources cited supra note 110 (describing a court "of competent jurisdiction" as being a prerequisite to a binding judgment).
119. See infra section III.A.
120. M'Cormick v. Sullivant, 23 U.S. (10 Wheat.) 192 (1825).
121. Ex parte Watkins, 28 U.S. (3 Pet.) 193 (1830).
122. Michael G. Collins, Jurisdictional Exceptionalism, 93 VA. L. REV. 1829, 1859 (2007) (internal citations omitted).
123. Id.
124. Sullivant, 23 U.S. (10 Wheat.) at 195 (argument of Mr. Doddridge).
125. Id. at 199-200. The expansion to cases "in which the record affirmatively showed that jurisdiction was bad," only came more than fifty years later. Collins, supra note 123, at 1861 (citing Des Moines Navigation & R.R. Co. v. Iowa Homestead Co., 123 U.S. 552, 558-59 (1887)).
126. Collins, supra note 123, at 1853.
127. See infra section III.A (suggesting an alternative to this principle).
128. Ex parte Watkins, 28 U.S. (3 Pet.) 193, 209 (1830).
129. For more on courts of inferior and general jurisdiction, see David E. Engdahl, What's in a Name? The Constitutionality of Multiple "Supreme" Courts, 66 IND. L.J. 457, 466-68 (1991); Ann Woolhandler, Demodeling Habeas, 45 STAN. L. REV. 575, 588-90 (1993).
130. Turner v. Bank of North-America, 4 U.S. (4 Dall.) 8 (1799).
131. Id. at 11.
132. Id.
133. Id.
134. Paulsen, supra note 13, at 297 n.275.
135. See infra section III.B.1.
136. Kempe's Lessee v. Kennedy, 9 U.S. (5 Cranch) 173, 186 (1809) (Marshall, C.J.) (discussed supra notes 106-07).
137. THE FEDERALIST No. 64, supra note 54, at 335.
138. Id.
139. Id.
140. See, e.g., U.S. CONST. art. IV; id. amend. XIII et. seq.
141. See Propeller Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443, 453 (1851) (statute granting admiralty jurisdiction is constitutional only if it does not exceed the admiralty jurisdiction of Article III); Mossman v. Higginson, 4 U.S. (4 Dall.) 12, 14 (1800) (legislative grant of alien jurisdiction confined by terms of Article III).
142. U.S. CONST. art. I, § 7 (veto); id. art. II, § 2 (pardon).
143. THE FEDERALIST No. 78, at 404 (Alexander Hamilton) (George W. Carey & James McClellan eds., 2001).
144. Id. at 402.
145. Id. (emphases in original).
146. Id.
147. 1 TUCKER, supra note 42, at 356.
148. See Lawson & Moore, supra note 13, at 1322-23 ("[T]his statement is... too cryptic to count for very much.").
149. I am grateful to Sai Prakash for this suggestion.
150. Paulsen, supra note 13, at 334-35.
151. One paragraph later, Hamilton conceded that "individual oppression may now and then proceed from the courts of justice," which seemed to acknowledge that at least some incorrect judgments would not be subject to executive review. THE FEDERALIST No. 78, supra note 144, at 402.
152. E.g., Ex parte Merryman, 17 F. Cas. 144 (C.C. Md. 1861) (Case No. 9487); Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
153. Restitution Under Treaty with France, 1 Op. Att'y Gen. 119, 122 (1802); see also supra notes 70-77 and accompanying text.
154. Lawson & Moore, supra note 13, at 1325-26.
155. 2 WILSON, supra note 38, at 1016.
156. Id. at 1016 & editors' note 5.
157. Suspension of the Privilege of the Writ of Habeas Corpus, 10 Op. Att'y Gen. 74, 80 (1861).
158. 2 WILSON, supra note 38, at 1015.
159. Judiciary Act of 1789, ch. 20, § 27, 1 Stat. 73, 87 (1789).
160. HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 154 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994); Harrison, supra note 13, at 385-87.
161. Akhil Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1506-12 (1987); Mashaw, supra note 78, at 1682-83.
162. John Harrison, Jurisdiction, Congressional Power, and Constitutional Remedies, 86 GEO. L.J. 2513, 2518 (1998) (discussing how "the Due Process Clause can operate through the sanction of nullity").
163. U.S. CONST. art. III, § 1.
164. Saikrishna Prakash & Steven D. Smith, How to Remove a Federal Judge, 116 YALE L.J. 72, 89-102 (2006).
165. Compare id., with Martin H. Redish, Good Behavior, Judicial Independence, and the Foundations of American Constitutionalism, 116 YALE L.J. 139, 141 (2006).
166. Prakash & Smith, supra note 165, at 87; Redish, supra note 166, at 149-50.
167. E.g., 1 ANNALS OF CONG. 474 (Jun. 16, 1789) (statement of Rep. Ames) ("[The President] must... have assistants. But in order that he may be responsible to his country, he must have... a control over them, with power to remove them."); Myers v. United States, 272 U.S. 52, 132-35 (1926); DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE SECOND CENTURY, 1888-1986, at 194-95 (1990).
168. David P. Currie, Ex Parte Young After Seminole Tribe, 72 N.Y.U. L. REV. 547, 548 (1997).
169. Cf. United States v. Wilson, 32 U.S. 150, 160 (1833) ("As th[e pardon] power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect [of it]....").
170. See F.W. MAITLAND, THE CONSTITUTIONAL HISTORY OF ENGLAND 134 (1908) (discussing the medieval period in which "we must not, for a long time yet, think of the judges as enjoying any great degree of independence; they are still the king's servants; they hold their offices for centuries to come during the king's good pleasure, and occasions on which the royal will is allowed to interfere with the course of royal justice are but too frequent").
171. 10 WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH LAW 415 (1938).
172. MAITLAND, supra note 171, at 479.
173. J.H. BAKER, AN INTRODUCTION TO ENGLISH LEGAL HISTORY 144 (2d ed. 1979).
174. See 5 HOLDSWORTH, supra note 172, at 428-31.
175. Prohibitions del Roy (1608) 12 Co. Rep. 63, 64, 77 Eng. Rep. 1342, 1343 (K.B.); see Ronald G. Usher, James I and Sir Edward Coke, 18 ENG. HIST. REV. 664 (1903) (discussing competing accounts of the incident, and concluding that Coke's account was partly, though not entirely, honest).
176. 5 HOLDSWORTH, supra note 172, at 430; see also id. at 431 ("This scene between Coke and the king settled nothing.").
177. See Colt & Glover v. Bishop of Coventry & Lichfield, (1612) Hobart, 140, 80 Eng. Rep. 290 (K.B.); Harold J. Berman, The Origins of Historical Jurisprudence: Coke, Selden, Hale, 103 YALE L.J. 1651, 1675-76 (1994).
178. 5 HOLDSWORTH, supra note 172, at 440-41.
179. See BAKER, supra note 174, at 144-45 (crediting Coke); 10 HOLDSWORTH, supra note 172, at 415-16 (same); MAITLAND, supra note 171, at 478-79 (same).
180. 2 WILLIAM R. ANSON, THE LAW AND CUSTOM OF THE CONSTITUTION 297 (3d ed. 1908). 182. See Prakash & Smith, supra note 165, at 92-102.
181. JOHN DYKSTRA EUSDEN, PURITANS, LAWYERS, AND POLITICS IN EARLY SEVENTEENTH- CENTURY ENGLAND 142-43 (1958).
182. Paulsen, supra note 13, at 300 n.283; see also John O. McGinnis, Models of the Opinion Function of the Attorney General: A Normative, Descriptive, and Historical Prolegomenon, 15 CARDOZO L. REV. 375, 392 (1993) (finding the English model of the Judiciary at the time of the framing a reason why Paulen's independent authority model is unpersuasive).
183. See supra notes 176-178 and accompanying text; 1 WILLIAM BLACKSTONE, COMMENTARIES, *257, *261; Prakash & Smith, supra note 165, at 131.
184. U.S. CONST. pmbl.; 1 TUCKER, supra note 42, at 354-55 ("[T]he courts of the United States derive all their powers, in like manner as the legislative and executive department derive theirs," that is, from the Constitution.).
185. Paulsen, supra note 13, at 300 n.283 (emphasis in original) (citations omitted); cf. MONTESQUIEU, supra note 47, at bk. 11, ch. 6 (describing judicial power as one of the two kinds of executive power).
186. U.S. CONST. art. II, § 3; id. § 2, cl. 2.
187. Id. § 2, cl. 2 (vested appointments must be given to executive department heads or to judges). There may also be some limits on Congress's ability to constrain appointments by statute. See Hanah Metchis Volokh, The Two Appointments Clauses: Statutory Qualifications for Federal Officers, 10 U. PA. J. CONST. L. (forthcoming 2008).
188. 1 WILSON, supra note 36, at 703.
189. E.g., 5 U.S.C. 701(a)(2) (2000) (precluding statutory judicial review where "agency action is committed to agency discretion by law").
190. WILLIAM RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED STATES 199 (2d ed. 1829).
191. THE FEDERALIST No. 47, supra note 46, at 251, quoted in Paulsen, supra note 13, at 300 n.283.
192. THE FEDERALIST No. 47, supra note 46, at 250-51. The only one missing from American practice was the power to demand advice from judges, which the Justices of the Supreme Court refused to give. See Letter from Chief Justice John Jay and the Associate Justices to President George Washington (Aug. 8, 1793), in HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 66-67 (Paul M. Bator et al. eds., 3d ed. 1988).
193. Brutus, supra note 58, at 196.
194. Paulsen, supra note 13, at 323-24.
195. Id. at 284.
196. Id. at 284-88.
197. Id. at 285.
198. Id. at 309.
199. Lawson & Moore, supra note 13, at 1313-29.
200. Id. at 1325.
201. Id. at 1319-21.
202. Id. at 1321-22.
203. Id. at 1322-23.
204. Id. at 1323.
205. Id. at 1322.
206. STORY, supra note 117, at 499.
207. Larry Alexander & Frederick Schauer, Defending Judicial Supremacy: A Reply, 17 CONST. COMMENT. 455 (2000) [hereinafter Alexander & Schauer, Defending]; Alexander & Schauer, supra note 31.
208. Alexander & Schauer, Defending, supra note 209, at 478-82; Alexander & Schauer, supra note 31, at 1378-82, 1386-87.
209. Alexander and Schauer concede that this historical answer may well be what the Constitution purports to require. But they are indifferent to this point, because they believe that the Constitution's views on judicial supremacy should not be binding. Alexander & Schauer, Defending, supra note 209, at 459-61. But see Alexander & Schauer, supra note 31, at 1377-79 (arguing that people should follow the Constitution's answer to normative questions, not their own).
210. Indeed, a historical pedigree is quite doubtful given the state of early opinions, which were underreported, often unwritten, and often seriatim. See Hartnett, supra note 15, at 126-31; Frederick G. Kempin, Jr., Precedent and Stare Decisis: The Critical Years, 1800 to 1850, 3 AM. J. LEGAL HIST. 28, 34 (1959); see also Buckner v. Finley, 27 U.S. (2 Pet.) 586, 591 (1829); Harrison, supra note 21; Letter from James Kent, supra note 44 ("The opinions from the bench were delivered ore tenus. We had no law of our own, & nobody knew what it was."). Even a modern pedigree is not unproblematic. See Mondragon v. Thompson 519 F.3d 1078, 1081 (10th Cir. 2008) ("The formalism of the Federal Rules of Civil Procedure" forbids "confusjmg] an opinion with a judgment.").
211. See Evan Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 STAN. L. REV. 817, 828-39 (1994) (exploring and critiquing these possibilities).
212. Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214, 1219 (1996) (codified at 28 U.S.C. § 2254(d)(1) (2000)) (permitting habeas relief from "a [state court] decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"). This assumes the not-obvious-to-me conclusion that Congress can impose such rules of decision on state courts.
213. See, e.g., Paulsen, supra note 13, at 297 n.275; Paulsen, supra note 19, at 105; Paulsen, Civil War, supra note 102, at 719; see also Lawson & Moore, supra note 13, at 1324.
214. Durfee v. Duke, 375 U.S. 106, 111 (1963).
215. Attempts to codify the modern doctrine's shift from an analysis of judicial power to an analysis of fundamental fairness can be found at RESTATEMENT OF JUDGMENTS §§ 4-8, 10 (1942) and RESTATEMENT (SECOND) OF JUDGMENTS §§ 10, 12 (1982).
216. RESTATEMENT (SECOND) OF JUDGMENTS § 12 (1982). ("[M]odern decisions" have reduced the scope of the original rule.); see also Note, supra note 111, at 174 ("The Supreme Court, in a series of decisions between 1931 and 1963 - with the main decisions coming in a sixteen-month period between 1938 and 1940 - fundamentally altered the relationship between finality and judicial power in the United States."); Developments in the Law, Res Judicata and Jurisdiction: The Bootstrap Doctrine, 53 HARV. L. REV. 652 (1940).
217. FARBER, supra note 21, at 191.
218. Baldwin v. Iowa State Traveling Men's Ass'n, 283 U.S. 522, 525-26 (1931).
219. Id. at 525 ("Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties.").
220. See Sherrer v. Sherrer, 334 U.S. 343, 349-51 (1948); Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 403-04 (1940); Treinies v. Sunshine Mining Co., 308 U.S. 66, 76-78 (1939); Stall v. Gottlieb, 305 U.S. 165, 176-77 (1938); Bennet Boskey & Robert Braucher, Jurisdiction and Collateral Attack: October Term, 1939, 40 COLUM. L. REV. 1006 (1940); see also Durfee v. Duke, 375 U.S. 106, 112 & n.11 (1963) (citing all these cases).
221. For a suggestion that the original civil procedures are consistent with some jurisdictional preclusion, see Collins, supra note 123, at 1876-98.
222. See generally Stephen B. Burbank, Interjurisdictional Preclusion, Full Faith and Credit, and Federal Common Law: A General Approach, 71 CORNELL L. REV. 733 (1986); Ronan E. Degnan, Federalized Res Judicata, 85 YALE L.J. 741 (1976).
223. See supra notes 129-134 and accompanying text; cf. Sherrer, 334 U.S. at 346 (noting that decision had not been challenged on appeal to state high court); Treinies, 308 U.S. at 76 (noting non-inferiority of prior tribunal); Stoll, 305 U.S. at 172 n.14 (same).
224. See, e.g., Dan B. Dobbs, The Validation of Void Judgments: The Bootstrap Principle (pt. I), 53 VA. L. REV. 1003 (1967); Dan B. Dobbs, The Validation of Void Judgments: The Bootstrap Principle (pt. II), 53 VA. L. REV. 1241 (1967); Note, supra note 111, at 182-224.
225. This is likely to be a real problem if one thinks that Presidents rarely make legal determinations that differ from their policy preferences. See Frederick Schauer, Ambivalence About the Law, 49 ARIZ. L. REV. 11, 24-26 (2007).
226. See, e.g., Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 673-74 (1950) (discussing "jurisdictional limitations" of the Declaratory Judgments Act).
227. Cf. supra note 88 and accompanying text (discussing the possibility that Jefferson was prepared to ignore the Supreme Court's writ for lack of jurisdiction, were a writ issued).
228. Some people, for example, may think that even my recursive regime gives courts too much power to resolve jurisdictional questions given the modern reality that each phase of high-stakes litigation may end up before the same court - the Supreme Court. One plausible alternative might be to make executive determinations of judicial jurisdiction (but only jurisdiction) final. Another might be to allow different courts to resolve one another's jurisdictions, but never to allow a single court to conclusively resolve its prior jurisdiction, even in later cases. I have not yet seen (but am open to) an argument that this could be squared with the law or history of federal jurisdiction. The same result might be achieved through appropriate congressional jurisdiction- stripping.
229. See infra section III.B.2.
230. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 90 (1998) (internal quotations omitted).
231. See Fauntleroy v. Lum, 210 U.S. 230, 234-35 (1908) ("No doubt it sometimes may be difficult to decide whether certain words in a statute are directed to jurisdiction or to merits, but the distinction between the two is plain. One goes to the power, the other only to the duty, of the court.").
232. United States v. Cotton, 535 U.S. 625, 630 (2002); Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908); Wallace v. Anderson, 18 U.S. (5 Wheat.) 291 (1820). The waivability of sovereign immunity is a good reason that the doctrine should be seen, as it historically was, as a doctrine of personal rather than subject-matter jurisdiction. See generally Caleb Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction, 115 HARV. L. REV. 1559 (2002).
233. Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379, 382 (1884) ("This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it."); Capron v. Van Noorden, 6 U.S. (2 Cranch) 126, 127 (1804) ("[I]t was the duty of the Court to see that they had jurisdiction, for the consent of parties could not give it.").
234. Kontrick v. Ryan, 540 U.S. 443, 454 (2004).
235. Id. at 455.
236. Id. at 456.
237. Eberhart v. United States, 546 U.S. 12, 19-20 (2005).
238. Arbaugh v. Y & H Corp., 546 U.S. 500, 503 (2006).
239. Bowles v. Russell, 127 S. Ct. 2360, 2366 (2007).
240. Id. at 2367 (Souter, J., dissenting).
241. John R. Sand & Gravel Co. v. United States, 128 S. Ct. 750, 753 (2008).
242. Id. (quoting Bowles, 127 S. Ct. at 2364). Justice Breyer was one of the Bowles dissenters.
243. The major exceptions are Alex Lees, Note, The Jurisdictional Label: Use and Misuse, 58 STAN. L. REV. 1457 (2006), and Howard Wasserman, Jurisdiction and Merits, 80 WASH. L. REV. 643 (2005). See also Scott Dodson, In Search of Removal Jurisdiction, 102 NW. U. L. REV. 55 (2008); Evan Tsen Lee, The Dubious Concept of Jurisdiction, 54 HASTINGS L.J. 1613, 1614 (2003) (claiming, in the face of history and doctrine, that "jurisdiction is conceptually indistinct from the merits").
244. Posting of Tony Mauro to The BLT: The Blog of Legal Times (Jan. 8, 2008, 14:42 EST), http:/legaltimes.typepad.com/blt/2008/01/sand-gravel-and.html.
245. See, e.g., Tenet v. Doe, 544 U.S. 1, 12 (2005) (Scalia, J., concurring) (endorsing this doctrine); Decatur Liquors, Inc. v. District of Columbia, 478 F.3d 360, 362 (D.C. Cir. 2007); In re African-American Slave Descendants Litigation, 471 F.3d 754, 757 (7th Cir. 2006); Crowley Cutlery Co. v. United States, 849 F.2d 273, 276 (7th Cir. 1988); see also 13B CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3564 (2007) and cases cited therein.
246. Rosado v. Wyman, 397 U.S. 397, 404 (1970).
247. Yazoo County Indus. Dev. Corp. v. Suthoff, 454 U.S. 1157, 1159 (1982) (Rebnquist, J., dissenting from denial of certiorari).
248. Crowley Cutlery Co., 849 F.2d. at 277.
249. See 13B WRIGHT, supra note 247, § 3564 ("[I]t is reasonable to expect that more will be heard of [Rehnquist's] proposal" to revise the frivolous-claims rule.).
250. Kontrick v. Ryan, 540 U.S. 443, 455 (2004).
251. Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9,487).
252. President Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in LINCOLN: SELECTED SPEECHES AND WRITINGS 284, 289-90 (Don E. Fehrenbacher ed., 1992).
253. Letter from President Abraham Lincoln to General Winfield Scott (Apr. 27, 1861), in LINCOLN, supra note 254, at 298-99. It is an interesting semantic question whether there is a difference between suspending "the privilege of the writ," U.S. CONST. art. I, § 9 (emphasis added), as the Constitution calls it, and suspending the writ itself, the phrase Lincoln used and now the common one. See Ex parte Milligan, 71 U.S. (4 Wall.) 2, 130-31 (1866) ("The suspension of the privilege of the writ of habeas corpus does not suspend the writ itself."); BRIAN MCGINTY, LINCOLN AND THE COURT 77 (2008) (exploring the difference).
254. See generally MCGINTY, supra note 255, at 65-91; WILLIAM H. REHNQUIST, ALL THE LAWS BUT ONE: CIVIL LIBERTIES IN WARTIME 11-45 (1998); CARL B. SWISHER, THE TANEY PERIOD: 1836-64, at 841-54 (The Oliver Wendell Holmes Devise, History of the Supreme Court of the United States, vol. 5, 1974).
255. Merryman, 17 F. Cas. at 152.
256. SWISHER, supra note 256, at 846-47. Merryman was paroled shortly after Lincoln addressed Congress and was ultimately released. MCGINTY, supra note 255, at 88.
257. President Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), in LINCOLN, supra note 254, at 300, 307.
258. Id.
259. Id. Compare Michael Stokes Paulsen, The Constitution of Necessity, 79 NOTRE DAME L. REV. 1257 (2004), with Saikrishna Prakash, The Constitution as Suicide Pact, 79 NOTRE DAME L. REV. 1299 (2004).
260. See U.S. CONST. amend. IX (reminding readers not to infer that a limit on power implies that the power is otherwise granted).
261. See U.S. CONST. art. I, § 9, cl. 7 ("No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law...."); id. amend. III ("No soldier shall... be quartered in any house, without the consent of the Owner... in time of war, but in a manner to be prescribed by law."); cf. LINCOLN, supra note 254, at 300, 307 ("But the Constitution itself, is silent as to which, or who, is to exercise the [suspension] power.").
262. See FARBER, supra note 21, at 162-63; Stephen I. Vladeck, The Field Theory: Martial Law, the Suspension Power, and the Insurrection Act, 80 TEMP. L. REV. 391, 395-96 (2007) [hereinafter, Vladeck, Field Theory]; Stephen I. Vladeck, Note, Emergency Power and the Militia Acts, 114 YALE L.J. 149, 176-80 (2004).
263. U.S. CONST. art. II.
264. Id. § 3 ("[H]e may, on extraordinary Occasions, convene both Houses, or either of them."). Lincoln had ordered Congress to convene forty-two days after being inaugurated and less than two weeks before authorizing Scott to suspend the writ. President Abraham Lincoln, Proclamation Calling Militia and Convening Congress, in LINCOLN, supra note 254, at 296.
265. LINCOLN, supra note 254, at 300, 307 ("[A]s the provision was plainly made for a dangerous emergency, it cannot be believed the framers of the instrument intended, that in every case, the danger should run its course, until Congress could be called together, the very assembling of which might be prevented, as was intended in this case, by the rebellion."). Of course, one should not understate the volume of contrary opinion. See sources cited in David P. Currie, The Civil War Congress, 73 U. CHI. L. REV. 1131, 1137 n. 26 (2006).
266. An Act to Increase the Pay of the Privates in the Regular Army and in the Volunteers in the Service of the United States, and for Other Purposes ch. 63, § 3, 12 Stat. 326, 326 (1861) ("[A]ll acts, proclamations, and orders of the President of the United States after [March 4, 1861] respecting the army and navy of the United States... are hereby approved and in all respects legalized and made valid, to the same intent and with the same effect as if they had been issued and done under the previous express authority and direction of the Congress of the United States."). But see CONG. GLOBE, 37th Cong., 1st Sess. 442 (1861) (statement of Rep. Fessenden) ("[This bill] refers simply to the proclamations that were made for, and the employment of volunteers.... The bill avoids all questions with regard to the habeas corpus...."); Currie, supra note 267, at 1139-40.
267. FARBER, supra note 21, 189-92.
268. Ex parte Yerger, 75 U.S. 85, 103 (1869) ("These considerations forbid any construction giving to doubtful words the effect of withholding or abridging [appellate habeas corpus] jurisdiction.").
269. Ableman v. Booth, 62 U.S. 506, 515-16 (1858).
270. Id. at 523.
271. 16 ANNALS OF CONG. 414 (1807) (statement of Rep. Nelson).
272. Trevor W. Morrison, Suspension and the Extrajudicial Constitution, 107 COLUM. L. REV. 1533 (2007).
273. Id. at 1602-15.
274. See MCGINTY, supra note 255, at 88-90; Paulsen, supra note 19, at 90 n.27; Vladeck, Field Theory, supra note 264, at 1 n.2, and sources cited therein.
275. See Durfee v. Duke, 375 U.S. 106, 111 (1963).
276. Ex parte Merryman, 17 F. Cas. 144, 148 (C.C. Md. 1861) (Case No. 9487); see also REHNQUIST, supra note 256, at 40-41 (criticizing Taney's hastiness and the "want of process" in deciding Merryman).
277. Merryman, 17 F. Cas. at 148.
278. See supra section III.A.
279. Cf. REHNQUIST, supra note 256, at 45 (Although several legal scholars wrote about the merits of Merryman, "there was no extended public criticism of the administration's disregard of the decision.").
280. LINCOLN, supra note 254, at 307.
281. See Suspension of the Privilege of the Writ of Habeas Corpus, 10 Op. Att'y Gen. 74 (1861).
282. Id. at 77 ("[I]t is quite possible for the same identical question (not case) to come up legitimately before each one of the three departments, and be determined in three different ways, and each decision stand irrevocable, binding upon the parties to each case") (last emphasis added); id. ("[T]he judgment of one [department] is not binding upon the other two, as to the arguments and principles involved in the judgment. It binds only the parties to the case decided.") (emphasis added); id. at 78 ("It is the especial function of the judiciary to hear and determine cases, not... so as to conclude any person but the parties and privies to the cases adjudged."); id at 80 ("The right of the courts to call out the whole power of the country to enforce their judgments, is as old as the common law.").
283. Id. at 85.
284. Id at 80.
285. Id at 86.
286. Id.
287. Cf. Amanda L. Tyler, Is Suspension a Political Question?, 59 STAN. L. REV. 333 (2006); Scott Keller, Stripping Habeas Corpus Jurisdiction over Non-Citizens Detained Outside the United States: Boumediene v. Bush & the Suspension Clause, 8 ENGAGE 89, 93-94 (2007) (criticizing Tyler, supra).
288. 10 Op. Att'y Gen. at 86-87 (citing Ex parte BoUman, 8 U.S. (4 Cranch) 75, 100 (1807)); see also Ex parte Yerger, 75 U.S. 85, 98 (1869) (endorsing Bollman). Bates characterized Taney as sitting "at chambers," rather than riding circuit, a fact on which this argument depended. 10 Op. Att'y Gen. at 86; see Vladeck, Field "Theory, supra note 264, at 1 n.2.
289. See supra note 91 and accompanying text.
290. See generally Nelson, supra note 234.
291. See, e.g., Luther v. Borden, 48 U.S. 1, 47 (1849) (describing what is now the political question doctrine as a "boundary] which limit[s the Court']s own jurisdiction"). Whether Bates was correct to see the doctrine as a jurisdictional rule is beyond the scope of this Article.
292. 10 Op. Att'y Gen. at 86. There had been comments from Marshall, Story, and in Merryman itself suggesting that parts of a suspension determination were nonreviewable. See Ex parte Bollman, 8 U.S. (4 Cranch) 75, 101 (1807) (Marshall, J.); 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1336 (Boston, Billiard, Gray, & Co. 1833); Merryman, 17 F. Cas. at 151-52 (quoting them both). But if part of the determination was nonreviewable that did not mean all of it was. Cf. Tyler, supra note 289, at 367 (conceding that the "public safety" prong of the suspension clause might not be reviewable even if the invasion-or-rebellion prong is). Even if the propriety of legislative suspension were not reviewable, that did not have to mean the Judiciary was generally powerless to determine if non-legislative suspension were possible.
293. See REHNQUIST, supra note 256, at 44 ("It was not a very good opinion.").
294. See Little v. Barreme, 6 U.S. (2 Cranch) 170, 179 (1804).
295. 10 Op. Att'y Gen. at 87.
296. Id.
297. See supra note 273 and accompanying text.
298. 16 ANNALS OF CONG. 414 (1807) (statement of Rep. Nelson).
299. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb - A Constitutional History, 121 HARV. L. REV. 941, 999 (2008).
300. See generally Jerry L. Mashaw, Recovering American Administrative Law: Federalist Foundations, 1787-1801, 115 YALE L.J. 1256, 1258-70 (2006).
301. Mashaw, supra note 78, at 1661-74.
302. Id. at 1708.
303. Barron & Lederman, supra note 301, at 999.
304. AKHIL REED AMAR, AMERICA'S CONSTTTUTION: A BIOGRAPHY 122 & 544 n.41 (2005).
305. Ex parte Menyman, 17 F. Cas. 144, 147 (C.C. Md. 1861) (Case No. 9487). Thanks to Marty Lederman for pointing this out.
306. Id. at 144.
307. Id. at 148.
308. FARBER, supra note 21, at 190-91; see also AMAR, supra note 306.
309. FARBER, supra note 21, at 191-92.
310. See id. at 192.
311. See ERIC A. POSNER & ADRIAN VERMEULE, TERROR IN THE BALANCE: SECURITY, LIBERTY, AND THE COURTS 50-51, 149-50, 272 (2007) (suggesting that something like this is the traditional paradigm).
312. Brutus, supra note 55, at 186.