The Volokh Conspiracy

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Federal Courts

The Constitutionality of Territorial Courts

Adjudication Outside Article III (part two)

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I posted yesterday about my general claim that state courts, territorial courts, and the like are constitutional even though they do not comply with Article III. Here I'll post about why.

The key is in four words of Article III that we don't usually pay that much attention. It says: "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."

The four key words are "of the United States." That means that Article III does not speak to who can exercise the judicial power of other governments. And that is why there is no Article III problem with state courts, which exercise the judicial power of their respective states—the judicial power of the state of Connecticut, and so on.

All of this might seem obvious, but it extends to less obvious conclusions. The U.S. territories, for instance, are not states. But they have been governed by non-Article-III courts more or less since the founding. The Supreme Court upheld these courts in a confusing opinion known as American Insurance Co. v. Canter, but people aren't quite sure why.

The answer is that territorial courts exercise the judicial power of their territories, just as state courts exercise the judicial power of their states. Indeed, the territorial courts upheld during the 19th century had their powers described in just those terms.

And that is true even though they were created by Congress. Congress has the power to govern territories and set up territorial governments, but those territorial governments have always been thought to exercise the powers of their own territories. That's why territorial legislatures don't have to be appointed by the President, and the same logic goes for territorial courts. (It also answers one of the several questions at issue in the PROMESA litigation about Puerto Rico bankruptcy, though as I've written that statute is unconstitutional for other reasons.)

The same logic also explains the constitutionality of tribal courts, of foreign, multinational, and international tribunals, and of some of the motley courts that Congress has recognized over time. As always, for more on this feel free to read the long article.

Tomorrow I'll explain why military courts and so-called "Article I courts" are different.