Anthony J. Bellia, Jr., Notre Dame, has a new article forthcoming in the Duke Law Journal, The Origins of Article III 'Arising Under' Jurisdiction. Here's the abstract:
Article III of the Constitution provides that the judicial Power of the United States extends to all cases arising under the Constitution, laws, and treaties of the United States. What the phrase arising under imports in Article III has long confounded courts and scholars. This Article examines the historical origins of Article III arising under jurisdiction. First, it describes English legal principles that governed the jurisdiction of courts of general and limited jurisdiction - principles that animated early American jurisprudence regarding the scope of arising under jurisdiction. Second, it explains how participants in the framing and ratification of the Constitution understood arising under jurisdiction to provide a limited means for ensuring the supremacy of federal law. Third, it explains how early American courts, invoking English jurisdictional principles, determined Article III arising under jurisdiction. In particular, the Article explains, in proper historical context, early Marshall Court opinions addressing the scope of Article III arising under jurisdiction, including the landmark 1824 case Osborn v. United States. Contrary to conventional characterizations of these opinions, the Marshall Court did not deem any case that might involve a federal question to be one arising under federal law. Rather, against the background of English jurisdictional principles, the Marshall Court explicated the Arising Under Clause to mean that a federal court could hear cases in which a federal law was determinative of a right or title asserted in the proceeding before it. By observing jurisdictional rules derived from English law, federal courts embraced a practice that enabled them to enforce the supremacy of federal law, but checked the extent to which they would encroach upon the jurisdiction of state courts.