On Being 'Bound Thereby'
Part of a symposium titled “Rewriting the U.S. Constitution,” this essay proposes rewriting Article VI, paragraph 2 – the Supremacy Clause – of the Constitution to vest the Supreme Court with appellate jurisdiction to review state-court decisions. The proposal seeks to fill the textual gap between Article III and the Supremacy Clause on a long-disputed question of constitutional law and federal jurisdiction. Since at least Martin v. Hunter’s Lessee (1816), the Court’s power to review state-court decisions has been established as a virtually supra-textual structural understanding through a blend of textual, doctrinal, and statutory arguments. But this common-law constitutional amalgam has also left ample room for critics of the Court to challenge its appellate review under the Exceptions Clause of Article III. Drawing on the various mechanisms of federal control over states proposed during the founding period, I argue that revision of the Supremacy Clause is necessary in order to ground the clause’s sweeping, self-executing definition of the “supreme law of the land” in a specific legal institution.