Thread by @CBHessick

In modern America, federal courts don’t have the authority to create new federal crimes.
But the history is overwhelming that they possessed the power to create new crimes at the Founding.
Why does that matter for the debate over Bivens? Well…..

https://twitter.com/jonathanurick/status/1434285618754985994

I have not done the historical work to know what authority federal judges possessed over civil causes of action. So I don’t know what the original understanding of federal court power would have been on this issue.

But twice in the past five years, I did the historical work to examine two oft-repeated claims about narrow federal court authority in criminal cases. And both of those claims were just wrong.
Federal (and state) courts possessed enormous power to shape the criminal law.

If you’re interested, here are the two papers that talk about criminal law authority.

papers.ssrn.com/sol3/papers.cf…

papers.ssrn.com/sol3/papers.cf…

What does this have to do with Bivens?
I’m no expert on torts or civil causes of action. But it seems unlikely that federal courts possessed enormous non-statutory powers when it came to criminal law. I mean, maybe they did. But it’s hard to imagine why.

More generally, I have come to distrust blanket statements about the narrow authority of federal courts.

There’s no doubt that modern conventional wisdom (and some doctrine) endorse that view.

But the history is entirely different. Judges possessed enormous powers.

Of course, just because judges had a lot of power at the Founding doesn’t mean they need to be allowed the same sweeping powers now.

As a country, we are free to change our views of the appropriate role for the courts and separation of powers.

But, people like @jonathanurick and many of the current justices, profess to be bound by the original understanding of the Constitution.

And for them, this history poses a real challenge because it can’t be squared with their substantive preference for judicial minimalism.