Early in the nation's history, Justice Joseph Story argued that the words, ''shall be vested'' in Article III dictate that the lower federal courts must exist to exercise judicial power in those cases constitutionally excluded from both the highly limited original jurisdiction of the Supreme Court and the jurisdiction of the state courts. Were the jurisdiction of the lower federal courts not to exist in such cases, the command of Article III that some federal court be available to adjudicate the case—either a lower court or the Supreme Court—would be violated. However, even if Story were correct in his assumption that the words, ''shall be vested'' are to be construed to be a command—by no means an obviously correct construction—he ignored the fact that, given the nature of the Madisonian Compromise that led to the drafting of Article III, there are absolutely no federal cases constitutionally excluded from state court jurisdictional authority. Thus, the entire logic of Story's theory breaks down. It is therefore not surprising that, while the theory has acquired some modern scholarly support, it has been virtually ignored by the courts. See Linda Mullenix, Martin Redish & Georgene Vairo, Understanding Federal Courts and Jurisdiction 7–9 (Matthew Bender 1998).
Now that I have had the opportunity to read this, Thanks for posting it! I have been arguing Congressional authority for several years and finally came across the post Civil War example reading an excellent history book co-written by one of my professors, the one Republican in the school. I had hoped to have time to search the Constitutional Convention debates and the Federalist papers, nice to have so much of the work done for me. If I can find some money I want to attend Law School and would love to argue this point with a knowledgeable prof, the ones I have encountered so far don’t have any idea and just brush the question aside.