Constitutional Text and Institutional Development: Contesting the Madisonian Compromise in the First Congress

Abstract

This article revisits the constitutional dimensions of the debate on inferior courts in the First Congress. The basic question in the debate revealed the contested character of the new constitutional order and probed the extent to which it constituted a displacement of the old confederation order. Advocates of extending the federal courts, led by James Madison and Fisher Ames, employed the text of Article III to insist on the constitutional necessity of inferior courts, while the opposition relied on textual support for legislative discretion in the matter of judicial structure. I contend that by preserving and thus biasing certain arguments and by allowing those arguments to be made in terms of an appeal to higher law, the text lent weight to the Federalist position and thus demonstrated its capacity to shape the direction of institutional development in important ways.