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The Keystone of the Arch: The Text and History of Article III and the Constitution's Promise of Access to Courts


When the Constitution was framed, the promise of access to the federal courts was at the heart of a new system of government accountable to the people. As John Marshall— soon to become our Nation’s greatest Chief Justice—observed, “[t]o what quarter will you look for protection from an infringement on the Constitution, if you will not give the power to the judiciary? There is no other body that can afford such a protection.” The federal judiciary, with the Supreme Court at its head, would be the “keystone of the arch,” establishing a binding rule of law for the nation. In Article III, the Framers created the federal judiciary as a co-equal branch of government vested with the power of expounding and enforcing the laws in cases and controversies. Today, the Framers’ constitutional vision is in shambles. Over the last several decades, conservative Justices on the Supreme Court have emasculated this fundamental constitutional principle, filling the United States Reports with arcane and impenetrable doctrines that do violence to the rule-of-law values at the Constitution’s core. In filling a vacancy on the Court, left by the passing of Justice Antonin Scalia, progressives have a chance to restore basic constitutional first principles that give Americans their day in court to redress legal wrongs and prevent abuse of power by the government. The story laid out in the pages that follow shows why this is what the Constitution’s text and history requires.

CAC released The Keystone of the Arch at an event hosted at Georgetown Law School's Supreme Court Institute on November 3, 2016.