Vol. 134 No. 1 Introduction The academic indictment of textualism was almost in. Although textualism has in recent decades gained considerable prominence within the federal judiciary, legal scholars...
Vol. 124 No. 4 Scholars have long debated Congress’s power to curb federal jurisdiction and have
consistently assumed that the constitutional limits on Congress’s authority (if any) must
be judicially enforceable and found in the text and structure of Article III. In this
Article, I challenge that fundamental assumption. I argue that the primary
constitutional protection for the federal judiciary lies instead in the bicameralism and
presentment requirements of Article I. These Article I lawmaking procedures give
competing political factions (even political minorities) considerable power to “veto”
legislation. Drawing on recent social science and legal scholarship, I argue that political
factions are particularly likely to use their structural veto to block jurisdiction-stripping
legislation favored by their opponents.