Judicial Vesting Clause
The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
(ARTICLE III, SECTION 1)
The Constitution’s first three articles contain symmetrical introductory language. Each provides that a basic type of governmental “power”—“legislative” (making laws), “executive” (administering the laws), and “judicial” (expounding laws to decide particular cases)—“shall be vested” in a corresponding institution: “Congress,” the “President,” and “Courts,” respectively. As originally conceived, the Constitution embodied the sovereign will of “We the People,” who delegated power to three independent yet coordinate branches of government.
This separation-of-powers structure incorporated two novel Federalist ideas. First, “judicial power” became a distinct part of government, whereas in England it had been treated as an aspect of executive authority (although the English recognized adjudication as a discrete function). Second, like Congress and the president, federal judges ultimately derived their power from “the People,” even though they were unelected and given tenure and salary guarantees to ensure their impartiality and prestige. This separate and independent judiciary consisted of a Supreme Court and any lower federal tribunals Congress chose to create. The powers of federal courts can most usefully be divided into three components: judicial review, justiciability, and equitable authority.
Since 1787, the central meaning of “judicial power” has remained remarkably consistent: neutrally deciding a case by interpreting the law and applying it to the facts, then rendering a final and binding judgment. The most important cases in Article III are those “arising under th[e] Constitution [and] Laws of the United States.” This clause complements Article VI, which provides that “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land.” There was a general understanding that this language, and the very nature of a written Constitution ordained by “the People,” authorized judicial review of the constitutional validity of government actions. For example, in The Federalist No. 78, Alexander Hamilton reasoned as follows: (1) courts have a duty to resolve cases impartially according to the law, (2) the Constitution is the fundamental and supreme law in which “the People” explicitly limited the political branches, and (3) therefore, judges must follow the Constitution instead of a clearly contrary ordinary law. Hamilton’s Anti-Federalist rival “Brutus,” however, expressed the fear that federal judges would naturally aggrandize their power and that of the central government. “In their decisions,” he said, “they will not confine themselves to any fixed or established rules.” “This power,” he concluded, “will enable them to mold the government into almost any shape they please.”
The early Supreme Court operated on a restricted notion of judicial review, although it did not strike down any statute until Marbury v. Madison (1803). In that case, Chief Justice John Marshall repeated Hamilton’s analysis and then held that Congress, by forcing the Court to assume original jurisdiction over an action involving a writ of mandamus (an order compelling action by an executive official), had plainly violated limitations on such jurisdiction prescribed in Article III. The Court expressly cabined its power to examining “judicial” issues of law rather than “political” questions committed by the Constitution to the executive branch’s discretion.
This relatively constrained view of the judicial function continued until 1857, when the Court next invalidated a federal law—the critical and politically delicate Missouri Compromise—in Dred Scott v. Sandford. This disastrous attempt to transform judicial review into a mandate to substitute the justices’ policy preferences on slavery for those of political officials crippled the Court’s prestige for a generation.
By the late nineteenth century, however, the Court began to interpret the judicial power as allowing it to overturn legislation that did not transgress any explicit constitutional command. Most famously, in Lochner v. New York (1905), it held that a state law restricting workers’ hours violated the Fourteenth Amendment by depriving employers and employees of “liberty” and “property” without “due process of law.” The Court construed this language, which originally had been intended to guarantee procedural protections, as creating a substantive right to contract freely. In 1937, the Court abandoned this approach and announced that economic legislation would be upheld if it had any rational basis. Subsequently, however, the Court has not shown similar deference to social legislation. Instead, it has struck down laws dealing with issues like education, crime, voting, and abortion—areas previously thought to have been left by the Constitution to the political process.
Judicial review can be exercised only over cases that are “justiciable” (i.e., presented in a form suitable for judicial resolution). The Supreme Court has developed many justiciability doctrines, which reflect both Article III requirements and self-imposed prudential limitations.
The Federalist justices swiftly established three bedrock justiciability rules. First, federal court judgments expounding the law are final and cannot be reexamined or revised by Congress or the president. Second, judges will not render legal advice to political officials outside the context of a contested case. Third, even if a federal court possesses Article III jurisdiction over a case, it will decline to issue a decision if the underlying question presented is “political” in the sense of being entrusted by the Constitution exclusively to the president or Congress. Long-recognized examples of such political questions include the conduct of war and foreign affairs and the appointment of executive and judicial officials.
Gradually, several other justiciability doctrines evolved. Most importantly, a plaintiff must establish “standing” to sue by demonstrating the existence of an individualized injury caused by an adverse defendant. Furthermore, courts avoid premature adjudication, especially challenges to administrative agency proceedings, by insisting that claims be “ripe” for review (i.e., sufficiently developed both factually and legally). Finally, cases are usually dismissed as “moot” if the parties’ dispute has ended.
Although the Court has never deviated from its bans on nonfinal judgments and advisory opinions, it has not taken a similarly consistent approach to standing, ripeness, mootness, and the political question doctrine during the modern era. The justices appointed by Franklin D. Roosevelt strengthened all of these doctrines to minimize litigation attacking regulatory and social welfare legislation, which mushroomed during the New Deal. By contrast, the Warren Court relaxed justiciability requirements to broaden access to the federal judiciary, particularly where necessary to vindicate constitutional rights. Perhaps most significantly, the Court interpreted the Constitution as allowing judicial review of several questions formerly viewed as “political,” such as the apportionment of state legislatures, Baker v. Carr (1962), and Congress’s power to judge the qualifications of its Members, Powell v. McCormack (1969).
The Burger, Rehnquist, and Roberts Courts likewise have rejected “political question” defenses in controversial cases involving gerrymandering, the apportionment of congressional districts, procedures for enacting statutes, Indian tribal affairs, assertions of executive privilege, the 2000 presidential election deadlock, and executive branch determinations regarding treaty compliance. Indeed, since the Baker decision, only two issues, impeachment and military training, have been deemed beyond the scope of judicial review. Although the Burger and Rehnquist Courts continued the loose approach to the political question doctrine, they generally strengthened rules of standing, ripeness, and mootness.
In short, the justiciability doctrines have changed over the years and have been employed with varying degrees of rigor. Nonetheless, their purpose has remained constant: to assure the appropriate exercise of judicial power, especially the decision of constitutional cases.
Article III has long been construed as implicitly conferring all auxiliary “inherent” authority necessary for courts to exercise judicial power competently. For instance, because adjudication depends on finding accurate and relevant facts, federal judges inherently have the ability to manage pretrial discovery, make evidentiary rulings, compel witnesses to testify, and appoint experts. Similarly, issuing a judgment is a key component of judicial power, and therefore courts can independently enter and correct their judgments. Finally, courts by their very nature must be able to maintain their authority and supervise the judicial process—for example, by sanctioning disobedience of their orders and courtroom misconduct. Over the past century, the scope of inherent judicial powers has grown dramatically to cope with the vast increase in the amount and complexity of litigation.
Likewise, the judiciary’s equitable discretion has expanded greatly since Brown v. Board of Education (1954), which countenanced broad decrees to remedy unconstitutional discrimination in public schools. Brown and other desegregation cases encouraged federal courts to fashion complex remedies in other major public policy areas, such as prison reform. Congress, however, can limit the range of the federal judiciary’s injunctive powers.
In sum, Article III’s introductory language has always been read as granting federal courts the “judicial power” of deciding cases and any inherent and equitable authority needed to do so properly. The Court has continually adapted the contours of judicial power, however, to address broader legal and political changes.
Robert J. Pushaw Jr.
See Also
Preamble
Article I, Section 1 (Legislative Vesting Clause)
Article I, Section 8, Clause 9 (Inferior Courts)
Article II, Section 1, Clause 1 (Executive Vesting Clause)
Article II, Section 2, Clause 2 (Appointments Clause)
Article VI, Clause 2 (Supremacy Clause)
Suggestions for Further Research
Evan Caminker, Allocating the Judicial Power in a “Unified Judiciary,” 78 TEX. L. REV. 1513 (2000)
Letter from the Justices of the Supreme Court to President George Washington (Aug. 8, 1793), reprinted in STEWART JAY, MOST HUMBLE SERVANTS: THE ADVISORY ROLE OF EARLY JUDGES, at 179–80 (1997)
James S. Liebman & William F. Ryan, “Some Effectual Power”: The Quantity and Quality of Decisionmaking Required of Article III Courts, 98 COLUM. L. REV. 696 (1998)
Robert J. Pushaw, Jr., The Inherent Powers of Federal Courts and the Structural Constitution, 86 IOWA L. REV. 735 (2001)
Robert J. Pushaw, Jr., Justiciability and Separation of Powers: A Neo-Federalist Approach, 81 CORNELL L. REV. 393 (1996)
Significant Cases
Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792)
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32 (1812)
Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816)
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821)
Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824)
Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825)
Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)
United States v. Klein, 80 U.S. (13 Wall.) 128 (1871)
Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590 (1875)
Lochner v. New York, 198 U.S. 45 (1905)
West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937)
Coleman v. Miller, 307 U.S. 433 (1939)
Brown v. Board of Education, 347 U.S. 483 (1954)
Baker v. Carr, 369 U.S. 186 (1962)
United Mine Workers v. Gibbs, 383 U.S. 715 (1966)
Abbott Laboratories v. Gardner, 387 U.S. 136 (1967)
Powell v. McCormack, 395 U.S. 486 (1969)
United States Parole Commission v. Geraghty, 445 U.S. 388 (1980)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)
Bush v. Gore, 531 U.S. 98 (2000)
Hollingsworth v. Perry, 133 S.Ct. 2652 (2013)
Supreme Court
The judicial Power of the United States shall be vested in one supreme Court. . . .
(ARTICLE III, SECTION 1)
When the Constitutional Convention opened in Philadelphia, the very existence of a national judiciary was at issue. Delegates who favored state power argued that national laws could be enforced by state courts, whereas others, such as James Madison, foresaw the need for national judicial power. The “one supreme Court” created by the Constitution reflected ambivalence over the nature and scope of this power, and the Framers left to Congress significant discretion to determine the number of Supreme Court justices; the establishment, structure and jurisdiction of a lower federal judiciary; and the ability to make exceptions to the Court’s appellate jurisdiction.
While considering the question of a unitary executive, the delegates to the Constitutional Convention concluded that the judiciary was to be a legal rather than a political body. The Convention rejected the notion that the judicial branch should be any part of a proposed “council of revision,” which would have overseen the executive power to exercise a veto or to revise laws. Elbridge Gerry remarked that it was foreign to the nature of the judicial office to judge the policy of public measures. Rufus King argued that judges have to consider laws afresh, without having participated in making them.
Following the implicit command of the Constitution, Congress created a Supreme Court in the Judiciary Act of 1789 and set the number of justices at six. The Judiciary Act also established a subordinate federal judicial structure of several district and three circuit courts, each of the latter including two “riding” Supreme Court justices (reduced to one in 1793). The act also gave the Supreme Court appellate jurisdiction over federal questions growing out of litigation in state courts, thus cementing national power, while at the same time allowing state courts to make determinations on federal questions prior to final appeal. However, the act also confined the Supreme Court to questions of law rather than fact—an appellate limitation unusual for the time. This innovation was aimed at calming residual fears of national judicial power overturning local jury findings.
The first chief justice, John Jay, confirmed the intention of the Framers by insisting on the legal, rather than political, function of the Court and its justices. In Hayburn’s Case (1792), he wrote on circuit that Congress could assign only properly judicial tasks to the judiciary, thus upholding federal judges’ refusal to act as pensions claims adjudicators. Jay, speaking for the Court in a letter to President George Washington, also declined to render an advisory opinion Washington had requested concerning treaty interpretation.
In Marbury v. Madison (1803), Chief Justice John Marshall deftly reinforced both federal judicial power and the notion of the Court as a legal body. He did so by refusing to enter into a political dispute on the grounds that Congress could not constitutionally grant to the Court powers not authorized by the Constitution—in this case, original jurisdiction to issue a writ of mandamus. Underlying Marshall’s reasoning is the idea that the Constitution itself is a law to be interpreted by courts, and that courts cannot decide “questions, in their nature political,” or force coequal branches to perform political or discretionary acts.
The Federalist Congress reduced the number of justices sitting on the Supreme Court to five by the Judiciary Act of 1801, hoping to prevent incoming President Thomas Jefferson from appointing a justice when the sixth sitting justice retired. The 1801 act also established separate circuit court judgeships, obviating the need for Supreme Court justices to ride circuit. But such riding—and a Supreme Court of six—were quickly reinstituted in the Judiciary Act of 1802 under Jefferson, who was suspicious of national judicial power and desirous of keeping justices in contact with local mores. As the nation expanded, so did the number of circuits and the number of Supreme Court justices to sit on them. The number of justices also expanded and contracted because of the politics of the Civil War and its aftermath, first from nine to ten to support President Abraham Lincoln’s war policies, then to seven to deprive President Andrew Johnson of several appointments. Since 1869, Congress has set the number of justices at nine, despite an unsuccessful effort by President Franklin D. Roosevelt to increase the Court’s size to suit his political agenda.
There has been a vigorous debate among scholars whether the vesting of judicial power in “one supreme Court” creates a “unitary judiciary” analogous to the idea of a “unitary executive” under Article II, Section 1, Clause 1 (Executive Vesting Clause). The “unitary judiciary” concept has two parts. The first is related to the Supreme Court’s jurisdiction and the extent of its ability to have the final word on all federal question matters. The second part relates to the Supreme Court’s supervisory authority over inferior courts.
Regarding the range of the Supreme Court’s jurisdiction, David Engdahl has argued that the use of the terms “supreme” and “inferior” in relation to courts, unlike the use of “inferior officers” in Article II, does not carry any connotation of hierarchy of authority. At the time of the founding, the terms “supreme” and “inferior” described the breadth of a tribunal’s jurisdiction, geographic scope, or some other status. A “supreme” court did not necessarily have appellate review or ultimate authority to have a final say concerning legal interpretations.
In contrast, Laurence Claus finds it important that the Framers used the lower-case “supreme” instead of the upper-case “Supreme” and that they included only one, instead of several supreme courts. The word “supreme,” he argues, is used as a description, not a title, signifying that the Court has the “last word” on all matters concerning “the judicial Power of the United States.” In the same way that the Constitution, federal law, and national treaties are “the supreme Law of the Land” taking precedence over state constitutions and state laws, the Supreme Court is “supreme” and its rulings take precedence over all “inferior” courts.
James Pfander also declares that the term “supreme” relates to the Supreme Court’s ability to review the decisions of courts “inferior” to it in the federal judicial hierarchy, but he asserts that “inferior” courts may include state courts that Congress may constitute as “inferior tribunals” under Article I, Section 8, Clause 9 (Inferior Courts). But Jason Mazzone notes that under the Judiciary Act of 1789, both inferior federal courts and, to some extent, state courts could reach decisions independent of and unappealable to the Supreme Court.
Steven Calabresi and Gary Lawson also argue, on the basis of the Constitution’s text and structure, that the Supreme Court has ultimate authority over any inferior courts. Significant is the fact that the word “inferior” is only used elsewhere in the Constitution in relation to “inferior officers,” and they conclude that the Supreme Court has authority over inferior courts in the same way the president has authority over inferior officers.
But Amy Barrett counters that the Constitution does not grant the Supreme Court nomination or appointment powers over inferior courts in the way that the president can nominate and appoint inferior officers in the executive branch. Moreover, the Constitution explicitly protects all judges with life tenure during period of good behavior, removing the possibility of Supreme Court judges removing or otherwise punishing inferior judges. Thus, “[i]nferior courts are capable of exercising judicial power wholly independently of the Supreme Court’s direction. They do not depend on the Supreme Court to give them the power, and the Supreme Court cannot take it away.”
The second part of the unitary judiciary concept relates to the supervisory authority of the Supreme Court—not only its ability to have appellate review of decisions of inferior courts, but also to issue procedural, evidentiary, and other types of rules that inferior courts must follow. Congress has granted the Supreme Court some rule-making authority by statute, but the Supreme Court has issued supervisory rules on inferior courts outside of these statutory bounds on the basis of its “inherent authority” that stems from “the judicial Power.” The issue and the history are complex. Scholars similarly argue whether the Court has either explicit or implicit power to make rules for lower federal courts, and to what extent Congress, under the Necessary and Proper Clause, can displace the Supreme Court in making such procedural or evidentiary rules.
Bradley C. S. Watson
See Also
Article I, Section 8, Clause 9 (Inferior Courts)
Article II, Section 1, Clause 1 (Executive Vesting Clause)
Article III, Section 1 (Judicial Vesting Clause)
Suggestions for Further Research
Amy Coney Barrett, The Supervisory Power of the Supreme Court, 106 COLUM. L. REV. 324 (2006)
Steven G. Calabresi & Gary Lawson, The Unitary Executive, Jurisdiction Stripping, and the Hamdan Opinions: A Textualist Response to Justice Scalia, 107 COLUM. L. REV. 1002 (2007)
Laurence Claus, The One Court That Congress Cannot Take Away: Singularity, Supremacy, and Article III, 96 GEO. L.J. 59 (2007)
DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE FIRST HUNDRED YEARS, 1789–1888 (1985)
THE DOCUMENTARY HISTORY OF THE SUPREME COURT OF THE UNITED STATES, 1789–1800, (Maeva Marcus et al. eds., 1985)
David E. Engdahl, What’s in a Name? The Constitutionality of Multiple “Supreme” Courts, 66 IND. L.J. 457 (1991)
1 JULIUS GOEBEL JR., HISTORY OF THE SUPREME COURT OF THE UNITED STATES: ANTECEDENTS AND BEGINNINGS TO 1801 (1971)
Jason Mazzone, When the Supreme Court Is Not Supreme, 104 NW. U. L. REV. 979 (2010)
ORIGINS OF THE FEDERAL JUDICIARY: ESSAYS ON THE JUDICIARY ACT OF 1789 (Maeva Marcus ed., 1992)
James E. Pfander, Federal Supremacy, State Court Inferiority, and the Constitutionality of Jurisdiction-Stripping Legislation, 101 NW. U. L. REV. 191 (2007)
Charles Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 HARV. L. REV. 49 (1923)
Significant Cases
Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792)
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807)
United States v. Palmer, 16 U.S. (3 Wheat.) 610 (1818)
United States v. Furlong, 18 U.S. (5 Wheat.) 184 (1820)
Eakin v. Raub, 12 Serg. & Rawle 330 (Pa. 1825)
United States v. Gooding, 25 U.S. (12 Wheat.) 460 (1827)
United States v. Wood, 39 U.S. (14 Pet.) 430 (1840)
United States v. Murphy, 41 U.S. (16 Pet.) 203 (1842)
Skelly v. Jefferson Branch of the State Bank of Ohio, 9 Ohio St. 606 (1859)
Funk v. United States, 290 U.S. 371 (1933)
Wolfle v. United States, 291 U.S. 7 (1934)
McNabb v. United States, 318 U.S. 332 (1943)
Edmond v. United States, 520 U.S. 651 (1997)
Inferior Courts
The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
(ARTICLE III, SECTION 1)
The clause is discussed in David Engdahl’s essay on the Inferior Courts Clause (Article I, Section 8, Clause 9) on page 155.
Good Behavior Clause
The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour. . . .
(ARTICLE III, SECTION 1)
The Framers firmly believed that republican liberty could be secured only under the rule of law, and that the rule of law could not be guaranteed without an independent judiciary. The Good Behavior Clause of Article III anchors judicial independence by protecting judges from being removed at the whim of the other branches.
Guaranteed life-tenure for judges had become the rule in England after the Act of Settlement in 1701, though it did not come fully into effect until 1760. Prior to that time, many (including the crown) regarded the “king’s courts” as attached to the executive branch. But as William Blackstone summarized the law in his Commentaries on the Laws of England (1765–1769), “In this distinct and separate existence of the judicial power, in a peculiar body of men, nominated indeed, but not removeable at pleasure, by the crown, consists one main preservative of the public liberty.”
It was different in the colonies. Judges did not have same independence from the crown as they were coming to have in England, leading to the complaint in the Declaration of Independence, “He has made Judges dependent on his Will alone, for the tenure of their offices. . . .” John Adams, wielding great influence during the Second Continental Congress, had pressed for judicial independence. In his Thoughts on Government (April 1776), he urged that judges “should hold estates for life in their offices; or, in other words, their commissions should be during good behavior.”
After independence, the “good behavior” standard appeared in some state constitutions, and in Philadelphia, the Framers approved the phrase with no comment. During ratification, Hamilton defended the clause in The Federalist No. 78, stating:
In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.
The question that arises is whether “good behavior” is simply a code phrase for life-tenure or whether it also establishes a standard for removal of judges different from “high crimes and misdemeanors” in the Standards for Impeachment Clause (Article II, Section 4). In his Thoughts on Government, Adams had suggested that only “misbehavior” should be the cause for impeachment.
Under English law, there remained two methods of removing life-tenured judges, one by joint action of the executive and legislature, and one by the judiciary. The Act of Settlement provided a removal procedure through a formal request by the crown to both houses of Parliament for one who, in the words of Blackstone, had “breach[ed] . . . good behavior.” Additionally, a judge’s misbehavior could still lead to his removal from the bench by means of a writ of scire facias issued by a court of equity by which a patent, charter, or land grant—or in the case of judges, an appointment—could be annulled for “misbehavior.” Prior to independence, some states had similar procedures for the removal of judges.
At the Constitutional Convention, the Framers rejected the first English method of removal. John Dickinson moved to add, after the words “good Behaviour,” the words “Provided that they may be removed by the Executive on the application by the Senate and House of Representatives.” There ensued a vigorous debate, Gouverneur Morris arguing that it would be “a contradiction in terms to say that the Judges should hold their offices during good behavior, and yet be removeable without a trial.” The Dickenson proposal lost by a vote of seven to one, but no mechanism for “trial” was added to the Good Behavior Clause. Instead, two weeks later, the convention settled on the “high crimes and misdemeanors” language for removal of the president, and then, by separate motion, extended the process for impeachment to “all civil officers of the United States,” presumably including judges.
Impeachment is not mentioned in Article III, dealing with the judiciary, though it is in Article I, setting the powers of Congress, and in Article II, dealing with the executive. Nonetheless textually, impeachment is the only method mentioned in the Constitution for the removal of executive officers and of judges.
Hamilton pronounced in The Federalist No. 79 that impeachment was the only method of removing a judge and that any other cause would “be liable to abuse” and would “give scope to personal and party attachments and enmities.” Hamilton did opine that insanity would be a “virtual disqualification,” though he did not speculate on the method by which a judge could be removed for mental incapacity. He made no reference to the common law writ of scire facias.
Thomas Jefferson, perhaps from frustration at not being able to remove Federalist judges, pronounced the “high crimes and misdemeanors” standard a “bungling way of removing Judges . . . an impracticable thing—a mere scarecrow.” But Justice Joseph Story, in his Commentaries on the Constitution of the United States (1833), agreed with Hamilton. “[I]nstances of absolute imbecility would be too rare,” he wrote, “to justify the introduction of so dangerous a provision” of removal other than impeachment.
Except in one instance, Thomas Jefferson’s attempt to attack the federal judiciary through impeachment failed, but he was able to remove the whole cohort of federal circuit judges simply by having Congress legislate their courts out of existence in the Judiciary Act of 1802, an act upheld by the Supreme Court in Stuart v. Laird (1803).
Over the history of the republic, judges have been impeached and removed for a variety of misdeeds, not all of them actual crimes. There have been fifteen cases of judicial impeachment tried before the Senate. Among these fifteen officials were one associate justice of the Supreme Court, one commerce court judge, and thirteen district judges. Their charges ranged from “mental instability and drunkenness on the bench” to “improper business relationship with litigants,” and from “favoritism in the appointment of bankruptcy receivers” to “sexual assault.”
The first judge removed was John Pickering of the federal district court in New Hampshire, whose trial in 1804 was a precursor to Jefferson’s campaign to remove Samuel Chase from the Supreme Court. Pickering was charged with being biased in some of his decisions and for “being a man of loose morals and intemperate habits,” who appeared in court “in a total state of intoxication” and “in a most profane and indecent manner, invoke[d] the name of the Supreme Being,” said actions amounting to “high misdemeanors.” The Senate heard evidence that showed convincingly that Pickering suffered from a debilitating insanity that voided any imputation of criminal intent. It was politically necessary, however, for the Democrats in Congress to convict Pickering so that they could go on to the impeachment of Justice Chase. To avoid the problem of Pickering’s lack of criminal liability, the Democrats agreed to have the question changed from whether Pickering was guilty of “high crimes and misdemeanors” to whether he was “guilty as charged.” By a vote of nineteen to seven, Pickering was convicted and removed from office.
The Pickering case raised the continuing problem of whether impeachment is the only mechanism for removing a judge who has not actually committed a crime. In the impeachment trial of President William Clinton, his counsel affirmed that judges were subject to impeachment, but he argued that the “good Behavior” clause sets a lower standard for the impeachment of judges than does “high crimes and misdemeanors” for a president. A number of scholars, on the other hand, have asserted that Congress, through the Necessary and Proper Clause, can provide the judiciary with a mechanism, analogous to the old common law writ of scire facias, to police themselves and remove a judge incapable of carrying out his duties, without having to have recourse to impeachment.
Throughout the debate, Congress has insisted that (1) the Good Behavior Clause means merely no fixed term (i.e., for life), (2) only Congress can remove federal judges using impeachment, and (3) “high crimes and misdemeanors” does not require the offensive conduct to be a crime. In 1993, the congressionally authorized National Commission on Judicial Discipline and Removal declared that the Good Behavior Clause defines life tenure and is not a separate basis for what constitutes an impeachable offense for judges.
There have been instances where the judiciary itself sought the removal of a judge from office. In 1989, for example, the Judicial Conference of the United States (composed of the senior judges of the federal circuits and the chief justice of the Supreme Court) recommended to the Speaker of the House of Representatives that Judge Alcee Hastings be impeached, even though Hastings had been acquitted of charges of conspiracy to solicit and accept a bribe. The Judicial Conference deferred to the power of Congress to impeach and convict. The House went forward to impeach Hastings and the Senate convicted him.
In 1980, Congress passed the Judicial Councils Reform and Judicial Conduct and Disability Act, empowering Judicial Councils (disciplinary bodies of the circuit courts) to suspend case assignments from judges who were mentally or physically unable to discharge their duties or who had engaged in inappropriate conduct. But, Congress declared, “in no circumstances may the council order removal from office of any judge appointed to hold office during good behavior.”
In Chandler v. Judicial Council of the Tenth Circuit of the United States (1970), the Supreme Court considered the constitutionality of a judicial council’s decision to bar a federal judge, who had been a civil and criminal defendant in a number of proceedings, from hearing cases to which he was assigned, and to prevent further assignment of cases to his docket. In effect, the judicial council had removed the judge from performing his office. The judge asserted that the judicial council had usurped the power of the House of Representatives and of the Senate to impeach and to convict. The Court dismissed the suit on jurisdictional grounds. Justice John M. Harlan, concurring, opined that the Court did have jurisdiction, but on reaching the merits, found that the circuit courts possessed disciplinary authority to prevent a judge from hearing cases. Justices William Douglas and Hugo L. Black vigorously dissented asserting that the judicial council had gone too far and that the only constitutionally permissible method of a removing a judge from his duties was through impeachment.
David F. Forte
See Also
Article I, Section 2, Clause 5 (Impeachment)
Article I, Section 3, Clause 7 (Punishment for Impeachment)
Article I, Section 8, Clause 9 (Inferior Courts)
Article II, Section 4 (Standards for Impeachment)
Suggestions for Further Research
Raoul Berger, Impeachment of Judges and “Good Behavior” Tenure, 79 YALE L.J. 1475 (1970)
William S. Carpenter, Repeal of the Judiciary Act of 1801, 9 AM. POL. SCI. REV. 519 (1915)
History of the Federal Judiciary: Impeachments of Federal Judges, Federal Judicial Center, at http://www.fjc.gov/history/home.nsf/page/judges_impeachments.html (accessed January 7, 2014)
Robert Kramer & Jerome A. Barron, The Constitutionality of Removal and Mandatory Retirement Procedures for the Federal Judiciary: The Meaning of “During Good Behavior,” 35 GEO. WASH. L. REV. 455, 458 (1967)
Saikrishna Prakash and Steven D. Smith, How to Remove a Federal Judge, 116 YALE L.J. 72 (2006)
Martin H. Redish, Response: Good Behavior, Judicial Independence, and the Foundations of American Constitutionalism, 116 YALE L.J. 139 (2006)
G. W. C. Ross, “Good Behavior” of Federal Judges, 12 U. KAN. CITY L. REV. 119 (1944)
Ronald D. Rotunda, An Essay on the Constitutional Parameters of Federal Impeachment, 76 KY. L.J. 707 (1988)
Jeff Sessions & Andrew Sigler, Judicial Independence: Did the Clinton Impeachment Trial Erode the Principle?, 29 CUMB. L. REV. 489 (1999)
Burke Shartel, Federal Judges—Appointment, Supervision, and Removal—Some Possibilities Under the Constitution, 28 Mich. L. Rev. 870 (1930)
Jonathan Turley, The Executive Function Theory, The Hamilton Affair, and Other Constitutional Mythologies, 77 N.C. L. Rev. 1791 (1999)
Martha Andes Ziskind, Judicial Tenure in the American Constitution: English and American Precedents, 1969 SUP. CT. REV. 135 (1969)
Significant Cases
Stuart v. Laird, 5 U.S. 299 (1803)
Chandler v. Judicial Council of the Tenth Circuit of the United States, 398 U.S. 74 (1970)
Nixon v. United States, 506 U.S. 224 (1993)
The Judges, both of the supreme and inferior Courts . . . shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.
(ARTICLE III, SECTION 1)
Along with the Good Behavior Clause, the Judicial Compensation Clause is a guarantee of judicial independence within the Constitution’s separation of powers system. Montesquieu, held in the highest esteem by the Framers, had declared, “[T]here is no liberty, if the judiciary power be not separated from the legislative and executive.” L’Esprit des Lois (1748). In his influential Thoughts on Government (April 1776), John Adams called for an independent judiciary.
[The judges’] minds should not be distracted with jarring interests; they should not be dependent upon any man, or body of men. To these ends, they should hold estates for life in their offices; . . . and their salaries ascertained and established by law.
Three months later, the Declaration of Independence would have as one of its bill of complaints against the king: “He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.”
Justice Joseph Story in his Commentaries on the Constitution of the United States (1833) expressed the same principle: “Without this provision [the Judicial Compensation Clause] the other, as to the tenure of office [the Good Behavior Clause], would have been utterly nugatory, and indeed a mere mockery.” Alexander Hamilton had already made the point in The Federalist No. 79: “Next to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support.” A century and a half after, the Supreme Court would affirm that the purpose of the judicial compensation clause was to preserve judicial “independence of action and judgment” essential to maintaining the Constitution. Evans v. Gore (1920).
The issue at the Constitutional Convention was whether judges’ salaries, like the president’s, should be fixed during their tenures, or whether Congress could allow for increases. The Convention considered James Madison’s resolution that judges receive “fixed compensation for their services, in which no increase or diminution shall be made.” When Gouverneur Morris moved to strike “no increase,” Madison objected that judges would fall under the blandishments of the legislature, which could offer them raises. But Morris retorted that the fluctuations in the value of money, the increase in judicial business, and the evolving style of living might create a necessity for raising judges’ salaries. On the motion to strike the phrase, Morris, supported by Benjamin Franklin, won. Congress may not reduce judges’ salaries, but it may increase them.
Though Congress may not directly diminish a judge’s salary, what of indirect or collateral reductions? What of taxes, or the effect of inflation? There is no question that the Framers were concerned about collateral reductions. Although there was no income tax or cost of living adjustments at the time, the concept of inflation adjustment was not unfamiliar in the 1780s. For example, Hamilton noted in The Federalist No. 79, “It will readily be understood that the fluctuations in the value of money and in the state of society rendered a fixed rate of compensation in the Constitution inadmissible.”
The question of the validity of taxes did not arise until the adoption of the Sixteenth Amendment, providing for a federal income tax, and the subsequent social safety net programs. In Evans v. Gore and Miles v. Graham (1925), the Court held that Congress had no power to tax a federal judge’s salary, stating in Miles that “his compensation is protected from diminution in any form.”
However, in O’Malley v. Woodrough (1939), dealing with the income tax, and United States v. Hatter (2001), addressing the Medicare tax, the Court overruled Miles and Evans respectively. The Court held that the judiciary’s independence was not impaired by congressionally enacted taxation. In Hatter, the Court held that the Judicial Compensation Clause was not a barrier to a “generally applicable, nondiscriminatory tax” to the salaries of federal judges, stating that there “is no good reason why a judge should not share the tax burdens borne by all citizens.” Thus, whether or not a judge was appointed before enactment of the tax did not matter. The Social Security taxes, however, were a different matter, for the law at issue was discriminatory: it had allowed most federal employees to opt out of paying for Social Security, but not federal judges.
In United States v. Will (1980) and Williams v. United States (2002), judges challenged the repeal or the denial of annual cost-of-living adjustments (COLAs) for judicial salaries. In Will, the Court found that some repeals of the COLA were invalid depending upon when they took effect. A similar issue arose in Williams, which dealt with the Ethics Reform Act. That Act had allowed for salary supplements to take account of inflation. However, Congress blocked salary adjustments in 1995, 1996, 1997, and 1999 for federal judges. Though a district court found that Congress could not rescind the adjustments, the United States Court of Appeals for the Second Circuit reversed. The case was appealed, but in Williams, the Supreme Court denied a writ of certiorari, though Justices Stephen Breyer, Antonin Scalia, and Anthony Kennedy found merit in the challenge.
The issue of the adequacy of judicial compensation remains. Chief Justice John Roberts has argued that Congress’s failure to increase judicial compensation “has now reached the level of a constitutional crisis that threatens to undermine the strength and independence of the federal judiciary.” Under his view, “judges are no longer drawn primarily from among the best lawyers in the practicing bar.” However, studies have not established a quantifiable relationship between judicial performance and compensation.
Retirement of judges has also been also part of the question of compensation. At the time of the Constitutional Convention, the state of New York had required its judges to retire at age sixty, which Alexander Hamilton termed “inhumane,” as it left the retired judge with no income. In The Federalist No. 79, Hamilton argued against mandatory retirement: “[F]ew there are who outlive the season of intellectual vigor.” After the Civil War, the question of whether retired judges could receive a salary began to be debated. The Judiciary Act of 1869 provided for judicial retirement and a pension equal to their salary. In 1919, Congress allowed federal judges (excepting those on the Supreme Court) to retire from active service at their salary, but continue to serve where needed, an arrangement that came to be termed “senior status.” When Congress attempted in 1933 to reduce the salary of retired judges, the Supreme Court voided the legislation, holding that when a judge retired from active service, he still retained his “office” and the constitutional guarantee of no diminution of salary. Booth v. United States (1934). Congress extended the option of senior status to Supreme Court justices in 1937.
David F. Forte
See Also
Article III, Section 1 (Good Behavior Clause)
Amendment XVI (Income Tax)
Suggestions for Further Research
James M. Anderson & Eric Helland, How Much Should Judges Be Paid ?, 64 STAN. L. REV. 1277 (2012)
Scott Baker, Should We Pay Federal Circuit Judges More?, 88 B.U. L. REV. 63 (2008)
Stephen B. Burbank, et al., Leaving the Bench, 1970–2009: The Choices Federal Judges Make, What Influences Those Choices, and Their Consequences, 161 U. PA. L. REV. 1 (2012)
Jonathan L. Entin, Getting What You Pay For: Judicial Compensation and Judicial Independence, 2011 UTAH L. REV. 25 (2011)
1 CHIEF JUSTICE JOHN ROBERTS, 2006 YEAR-END REPORT ON THE FEDERAL JUDICIARY (Jan. 1, 2007)
Ronald D. Rotunda, A Few Modest Proposals to Reform the Law Governing Federal Judicial Salaries, 12 THE PROFESSIONAL LAWYER 1 (A.B.A., Fall 2000)
Adrian Vermeule, The Constitutional Law of Official Compensation, 102 COLUM. L. REV. 501 (2002)
Albert Yoon, Love’s Labor’s Lost? Judicial Tenure Among Federal Court Judges: 1945–2000, 91 CAL. L. REV. 1029 (2003)
Significant Cases
Evans v. Gore, 253 U.S. 245, 247 (1920)
Miles v. Graham, 268 U.S. 501 (1925)
Booth v. United States, 291 U.S. 339 (1934)
O’Malley v. Woodrough, 307 U.S. 277 (1939)
United States v. Will, 449 U.S. 200 (1980)
United States v. Hatter, 532 U.S. 557 (2001)
Williams v. United States, 535 U.S. 911 (2002)
A Note on Non–Article III Courts
Article III vests the “judicial Power of the United States” in judges of the supreme and inferior federal courts. It then specifies that all of those judges “shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.” The “judicial Power” is quintessentially the power to adjudicate disputes in accordance with governing law. Nonetheless, most federal adjudications are conducted by persons who are not Article III federal judges. Determining whether and how federal adjudication by non-judges is constitutionally permissible is one of the longest-lived and most perplexing questions in all of constitutional law.
There are three categories of federal adjudication that occur under the Constitution. First, under Article III, life-tenured judges, on both the Supreme Court and the inferior federal courts, exercise the judicial power of the United States as defined in Article III.
The second category of adjudications is conducted by “judges” and “courts,” created under either Article I or Article IV, who do not satisfy the criteria specified in Article III. These judges are often appointed and confirmed in the same manner as Article III judges but do not enjoy constitutional protections of life tenure or guarantees against diminishment in salary, though Congress by statute generally provides some measure of (revocable) tenure in office and salary protection. In addition, the work of Article III judges is often supplemented by federal magistrates, who are appointed by federal district judges to eight-year terms and who preside over many pre-trial matters. The four national Article I courts—the Court of Federal Claims, the Tax Court, the Court of Appeals for the Armed Forces, and the Court of Veterans Appeals—and the local courts for the District of Columbia derive their authority from various powers given by Article I to Congress: the payment of money owed by the United States, taxation, regulation of the armed forces, and the governance of the District of Columbia. The Article IV territorial courts—for Guam, the Virgin Islands, the Northern Mariana Islands, and American Samoa—derive their authority from Congress’s power to govern federal territories.
The third category of adjudicators is career employees of the executive branch; immigration judges, for example, are employees of the United States Department of Justice. This is by far the largest group, consisting of around four thousand individuals organized into hundreds of categories. Some have special career tenure protection. Others have no tenure protection other than civil service. And some are political appointees with no career protection. Most of these executive-branch adjudicators are subject to review by political appointees, either in departments or by independent regulatory commissions. In turn, the political appointees’ decisions can be reviewed in Article I or Article III courts.
Territorial judges (including in this category judges for the District of Columbia) have been around since the founding. These judges have never had life tenure or salary guarantees. William Marbury, for instance, held his commission by John Adams as a justice of the peace for the District of Columbia under a five-year term of office; and judges today in Guam, the Virgin Islands, and the Northern Mariana Islands have ten-year terms of office and no constitutional salary guarantees. Judges in American Samoa, who are appointed by the secretary of the interior, have indefinite terms of office. Although a lower court in 1803 held unconstitutional the absence of salary guarantees for these judges, the Supreme Court, in American Insurance Co. v. 356 Bales of Cotton, Canter (1828), broadly approved the use of non–Article III tribunals in federally governed territory on the ground that their jurisdiction “is not a part of that judicial power” described in Article III. Accordingly, tribunals in federal territories may determine all kinds of cases, including criminal cases, without necessarily conforming to the requirements of Article III. Some originalists (and non-originalists) find this jurisdiction incompatible with Article III’s declaration that federal judicial power can only be exercised by Article III judges, but the authority of territorial judges has been settled by history established contemporaneously with the Constitution.
Military courts-martial also exercise essentially criminal jurisdiction, though in a limited sphere. The members of courts-martial need not have Article III tenure and salary guarantees; their authority stems instead from the president’s Article II executive power as commander in chief and from Congress’s Article I powers to “make rules for the government and regulation of the land and naval forces” and to “provide for . . . disciplining, the militia.” As the Supreme Court held in Dynes v. Hoover (1857),
[t]hese provisions show that Congress has the power to provide for the trial and punishment of military and naval offences in the manner then and now practiced by civilized nations; and that the power to do so is given without any connection between it and the 3d article of the Constitution defining the judicial power. . . .
Military justice, in other words, is an exercise of executive and legislative rather than judicial power.
Sovereign immunity provided the rationale for the creation of the first major non–Article III court under Congress’s Article I powers: the Court of Claims. For the first seventy-nine years of the Republic, there was no legally enforceable remedy against the federal government for takings of property, breaches of contract, or governmental torts. Relief against virtually any legal wrong, except imprisonment, was at the whim of the federal government. The only remedy was to implore Congress for a private bill of relief. By the 1850s, more than twenty thousand such bills were pending. Few were dealt with, and corruption in the passage of some resulted in scandal. In 1855, Congress created the Court of Claims to deal with the claims that had led to private bills. In 1887, Congress passed the Tucker Act, creating a life-tenured panel of five judges who heard any claim for money against the United States based on the Constitution, statute, regulation, or contract. Only tort claims were left to congressional discretion. In 1947, Congress also waived sovereign immunity for (at least some) torts and gave to Article III courts jurisdiction over tort claims, subject to certain procedural limitations such as the denial of a jury trial.
Modern statutes permit tax-refund actions, tort actions, and some contract or takings claims involving small amounts to be brought in Article III courts, but many statutory waivers of sovereign immunity require suit to be brought in non–Article III tribunals. Because Congress does not have to permit suit at all, it can set conditions on those suits to which it has consented, including having the “suit” heard by a non–Article III “judge.” United States v. Sherwood (1941). Today, the principal non–Article III tribunals that hear such cases include the Court of Federal Claims, which adjudicates claims against the United States founded in contracts, statutes, regulations, or takings; the Tax Court, which allows taxpayers to challenge their tax liability without first paying the tax and then filing for a refund; and the Court of Veterans Appeals, which determines claims by veterans under relevant benefits statutes. The United States Court of Appeals for the Armed Forces was established to provide a civilian court for the review of court-martial criminal sentences.
All of the national Article I courts are subject to Article III appellate review. The Court of Federal Claims and the Court of Veterans Appeals are subject to appellate review by the Court of Appeals for the Federal Circuit. The Tax Court is subject to appellate review by the circuit in which the taxpayer resides. The United States Court of Appeals for the Armed Forces is subject to Supreme Court review. All Article I judges are appointed by the president with Senate confirmation. They are thus officers of the United States, unlike administrative judges, who the lower courts have held can be appointed without compliance with the Appointments Clause. Their salaries are statutorily tied to district or circuit judge salaries. They all have lengthy tenure by statute, as well as senior status systems, which in the case of the Tax Court and Court of Federal Claims are similar to those of Article III judges.
The federal bankruptcy courts merit special mention. Congress has Article I power to establish uniform bankruptcy rules. Most claims by and against estates in bankruptcy are determined—with finality if there is no appeal—by non–Article III bankruptcy judges, subject to limited appellate review by Article III district judges. The Supreme Court has determined on several occasions that the bankruptcy judges cannot decide common-law contract or tort actions that arise independently from the regulatory regime constructed by the bankruptcy laws. See, e.g, Stern v. Marshall (2011). These cases assume, however, that Congress can allow bankruptcy judges to address in the first instance all non-collateral matters that concern the bankruptcy proceeding.
The most sweeping rationale for non–Article III tribunals is the so-called public rights doctrine. This doctrine originated in 1856 in Murray’s Lessee v. Hoboken Land & Improvement Co., in which the Supreme Court permitted the government to adjudicate deficiencies against its own tax collectors without full judicial process. “Public rights” in that context meant rights of the public against certain government officials. More broadly, public rights were understood in 1932 to involve matters “between the Government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments.” Crowell v. Benson. This broader notion of “public rights” could arguably permit non–Article III adjudication in any cases in which the government is a party pursuant to a regulatory scheme (which, as a matter of original meaning, might seem to be precisely the cases in which requiring an independent Article III judge and a jury would be most appropriate). Modern cases, however, have permitted ordinary administrative agencies to adjudicate even purely private common law rights on the theory that such rights are “public” whenever they are ancillary to a regulatory scheme. Thus, for example, the Commodity Futures Exchange Commission has been allowed to adjudicate common law counterclaims resulting from transactions within its enforcement jurisdiction. Commodity Futures Trading Commission v. Schor (1986). This rationale obviously validates as well ordinary agency adjudication in the administration of regulatory programs. The limits, if any, of Congress’s power to entrust adjudication to non–Article III decision-makers is uncertain. Nor is it clear to what extent the decisions of non–Article III tribunals must be subject to appellate review in Article III courts, although Congress by statute has generally made such review available.
As a matter of original understanding, executive adjudication of any kind may seem problematic, but matters are actually more complicated. Not all adjudication—understood as the application of legal standards to particular facts—requires an exercise of the judicial power. Many exercises of Article II “executive power” are functionally indistinguishable from exercises of the “judicial power,” which is not surprising given the close historical and conceptual connections between executive and judicial power. So long as a particular exercise of power, such as a court-martial or a benefit determination, meets the constitutional definition of “executive power,” it need not be performed by an Article III judge, even if could be performed by such a judge. There can be areas of overlap between the executive and judicial powers, which gives Congress a measure of freedom as to which department to charge with particular adjudicative tasks.
The task of figuring out which adjudicative functions, if any, must be performed only by Article III courts has perplexed originalists and non-originalists alike for more than two centuries. It has also perplexed the courts—the Supreme Court divided four-one-four on the proper approach to these questions in 2011. See Stern v. Marshall (in which the Court held unconstitutional a congressional delegation of jurisdiction to the bankruptcy court to determine an issue that was a matter of state common law).
Loren Smith and Gary Lawson
Suggestions for Further Research
Richard H. Fallon Jr., Of Legislative Courts, Administrative Agencies, and Article III, 101 HARV. L. REV. 915 (1988)
GARY LAWSON & GUY SEIDMAN, THE CONSTITUTION OF EMPIRE: TERRITORIAL EXPANSION AND AMERICAN LEGAL HISTORY, 139–50 (2004)
James E. Pfander, Article I Tribunals, Article III Courts, and the Judicial Power of the United States, 118 HARV. L. REV. 643–776 (2004)
Martin H. Redish, Legislative Courts, Administrative Agencies, and the Northern Pipeline Decision, 1983 DUKE L.J. 197 (1983)
Craig A. Stern, What’s a Constitution Among Friends?—Unbalancing Article III, 146 U. PENN. L. REV. 1043 (1998)
Significant Cases
United States v. More, 7 U.S. (3 Cranch) 159 (1805)
American Ins. Co. v. 356 Bales of Cotton, Canter, 26 U.S. (1 Pet.) 511 (1828)
Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272 (1856)
Dynes v. Hoover, 61 U.S. (20 How.) 65 (1857)
Crowell v. Benson, 285 U.S. 22 (1932)
United States v. Sherwood, 312 U.S. 584 (1941)
Palmore v. United States, 411 U.S. 389 (1973)
Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982)
Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833 (1986)
Stern v. Marshall, 131 S. Ct. 2594 (2011)
Judicial Power
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States. . . .
(ARTICLE III, SECTION 2, CLAUSE 1)
Article III, Section 2 delineates the scope of the federal judicial power by listing nine kinds of “cases” and “controversies” to which the “judicial power” of the United States may extend. By far the most important is the category encompassing “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” This is often referred to as the “federal question” jurisdiction, and, although that is something of a misnomer, it is a convenient label.
From the beginning, the Framers intended the scope of the jurisdiction to be broad. The federal question jurisdiction made its first appearance at the Constitutional Convention in the Virginia Plan, which would have authorized federal courts to hear “questions which may involve the national peace and harmony.” By the time the Committee of Detail began its work, the convention had added to this language a grant of jurisdiction over “Cases arising under the Laws passed by the general Legislature.” When the Committee of Detail reported to the convention, the reference to “national peace and harmony” had disappeared, but the “arising under” language remained.
There was little discussion of this provision at the convention. In the course of a single day, the convention made three important changes. It replaced the reference to “laws passed by the Legislature” with “laws of the United States.” And, on separate motions, it extended the judicial power first to cases arising under the Constitution and then to cases arising under treaties, in addition to the cases arising under federal laws. When the Committee of Style reported to the convention in September, the provision read substantially as it does today: the federal judicial power extends “to all cases, both in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.”
The potential breadth of this language prompted criticism by opponents of the proposed Constitution during the debates over ratification in the key state of Virginia. George Mason, for example, could find no “limitation whatsoever, with respect to the nature or jurisdiction of [the federal] courts.” James Madison, a supporter of ratification, did not dispute this assertion; rather, he asserted that “the judicial power [of the national government] should correspond with the legislative.”
When does a case “arise under” federal law, so that it falls within the judicial power of the United States? The authoritative answer to this question is found largely in two decisions by Chief Justice John Marshall in the early years of the republic.
The better-known of the two decisions is Osborn v. Bank of the United States (1824). Marshall’s delineation of the constitutional scope of the jurisdictional grant proceeds in two steps. First, he declares that a “question” is “federal” if “the title or right set up by the party, may be defeated by one construction of the Constitution or law of the United States, and sustained by the opposite construction, provided the facts necessary to support the action be made out.” In other words, a federal question is a question whose answer depends in some way on federal law. Marshall then says that a case “arises under” the Constitution or laws of the United States if a federal question “forms an ingredient of the original cause”—that is, is an element of the plaintiff’s claim.
The breadth of this definition is made clear by a companion case in which the Court upheld federal jurisdiction over a suit by the Bank of the United States to recover on negotiable notes issued by a state bank. Bank of the United States v. Planters’ Bank of Georgia (1824). The liability of the defendant state bank would appear to have depended solely on state law. How, then, could Marshall have concluded that a federal question formed an element of the “original cause”? Marshall’s answer is that there are some federal questions—for example, the federal bank’s capacity to sue—that necessarily exist in every case brought by the bank, even though the particular proposition is not questioned. Osborn thus establishes that, so long as a proposition of federal law is a logical antecedent of the plaintiff’s claim, it is sufficient as a constitutional matter to support federal judicial power over the case.
Three years before Osborn, in Cohens v. Virginia (1821), the Court considered a challenge to its own authority to exercise appellate jurisdiction over a case originating in state court. The defendants, convicted of a crime under state law, invoked what we would today call a defense of preemption: they “claimed the protection of an act of Congress.” They also asserted that the Supreme Court could consider their appeal because it was a case “arising under” federal law. The state of Virginia disagreed, taking the position that a case could “arise under” the federal Constitution or federal law only if the Constitution or law was the basis for the claim of the party who had initiated the lawsuit.
The state’s interpretation is a plausible reading of the language of Article III, but the Supreme Court rejected it as “too narrow.” The Court said that cases are defined by the rights of both parties, and a case “may truly be said to arise under the constitution or a law of the United States, whenever its correct decision depends on the construction of either.” The Cohens definition thus supports the Supreme Court’s jurisdiction to hear appeals from state courts when those courts have decided federal questions.
Capacious though they are, neither the Osborn definition nor the one in Cohens would necessarily cover all of the cases in which Congress has authorized the removal of actions from state to federal court. But in a series of nineteenth-century decisions the Court made plain that Article III authorizes removal of any case in which a defense under federal law has been invoked, even though the federal issue may prove not to be dispositive.
The leading case is Tennessee v. Davis (1880). James Davis was a federal revenue officer whose duties included seizing illicit distilleries. In the course of one such effort “he was assaulted and fired upon by a number of armed men.” He fired back, killing one of the men, and was prosecuted in state court for murder. Davis removed the case to federal court under an act of Congress that allowed removal of any suit brought against a federal revenue officer on account of any act done “under color of” any revenue law. The state challenged the constitutionality of the removal statute, but the Supreme Court held that the statute was valid. The Court relied heavily on Marshall’s opinion in Cohens. It emphasized that in order to preserve the supremacy of federal judicial power, it is essential that the national government be able to “take control” “whenever and wherever a case arises under the Constitution and laws or treaties of the United States . . . whether it be civil or criminal, in any stage of its progress” (emphasis added).
The Supreme Court’s decisions have thus established that Congress can authorize federal courts to hear cases in which a federal question is (1) a logical antecedent of the plaintiff’s claim (whether or not contested), or (2) the basis of a defense actually raised (even though it may not be dispositive), or (3) the basis of the decision actually made (typically by a state court). The area of uncertainty involves Congress’s power to authorize jurisdiction over cases in which a federal question is an element neither of the original cause nor of the defense, but in which a litigant is a member of a class that Congress seeks to protect (e.g., federal employees sued in state court) or the area is one in which Congress has taken an interest under an Article I grant of power (e.g., consumer protection or nuclear accidents).
Until recently, Supreme Court case law cast little doubt on the breadth of Congress’s authority to vest federal question jurisdiction in federal courts. However, the decision in Mesa v. California (1989) makes clear that the power is not unlimited. In Mesa, the Court construed the statute that allows removal to federal court of suits brought against federal officers for acts done under color of their federal office (a modern-day version of the statute involved in Tennessee v. Davis). The Court held that the statute allows removal only if the officer alleges a federal defense to the state-law claim. The Court explained that if the statute were construed to grant federal jurisdiction simply because a federal officer is a defendant, it would “unnecessarily present grave constitutional problems.” The opinion thus implies that to support “arising under” jurisdiction, a federal question must be present somewhere in the case. However, the Court did not rule out the possibility that, under some circumstances, Congress might be able to vest “arising under” jurisdiction to protect federal interests even in the absence of a federal question.
It is important to emphasize that the broad construction of the “arising under” language of Article III has no bearing on the scope of the statutory grant of federal question jurisdiction, even though the statute uses language identical to that of the Constitution. The Court has read the statutory jurisdiction not to extend as far as it could under the Constitution. Full discussion is beyond the scope of this essay; it is sufficient to note that neither a federal defense (as in Cohens) nor a “logical antecedent” provides a basis for district court jurisdiction under 28 U.S.C. § 1331. Rather, the federal question must be, at a minimum, a necessary element of a “well pleaded complaint”—the plaintiff’s claim for relief.
Finally, it should be made clear that federal jurisdiction extends to cases, not issues. When a federal court has jurisdiction over a case that arises under federal law, the jurisdiction extends to the whole case, and the court will often have power to consider other issues in the case whether state or federal.
The Court defined the boundaries of the constitutional “case” in United Mine Workers v. Gibbs (1966). Under Gibbs, if a federal court has jurisdiction over a case based on the plaintiff’s federal claims, it can also hear non-federal claims as long as the federal and non-federal claims “derive from a common nucleus of operative fact” and are sufficiently related that the plaintiff “would ordinarily be expected to try them all in one judicial proceeding.” Congress codified the substance of the Gibbs decision in 1990 when it recognized “supplemental jurisdiction” in section 1367 of the Judicial Code.
Until 2011, the removal chapter of the Judicial Code included a provision—section 1441(c)—that appeared to go beyond the limits of judicial power as defined in Gibbs. Congress cured this infirmity in the Federal Courts Jurisdiction and Venue Clarification Act of 2011, when it rewrote section 1441(c) to require the district court, upon removal, to sever and remand all claims not within its jurisdiction.
Arthur Hellman
See Also
Article III, Section 2
Suggestions for Further Research
Ray Forrester, The Nature of a “Federal Question,” 16 TULANE L. REV. 362 (1942)
Paul J. Mishkin, The Federal “Question” in the District Courts, 53 COLUM. L. REV. 157 (1953)
G. EDWARD WHITE, THE MARSHALL COURT AND CULTURAL CHANGE 1814–1835, Ch. 8 (Oxford 1991)
Significant Cases
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821)
Bank of the United States v. Planters’ Bank of Georgia, 22 U.S. (9 Wheat.) 904 (1824)
Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824)
Tennessee v. Davis, 100 U.S. 257 (1880)
Mesa v. California, 489 U.S. 121 (1989)
United Mine Workers v. Gibbs, 383 U.S. 715 (1966)
Treaties
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority. . . .
(ARTICLE III, SECTION 2, CLAUSE 1)
Throughout the Constitutional Convention, the Framers consistently expressed the desire that a national judiciary have jurisdiction over legal issues arising from the nation’s international rights and obligations. Nevertheless, while such a proposition was part of both the Virginia and New Jersey Plans, the delegates were unable to reach a consensus, putting forward numerous alternative formulations. They wanted, in Edmund Randolph’s words, to protect “the security of foreigners” and “the harmony of states and the citizens thereof.”
It was not until August 27, 1787, when the delegates were refining the Committee of Detail’s jurisdictional language, that John Rutledge of South Carolina moved to include the words “and treaties made or which shall be made under their authority” after the “United States” in the first clause of what would become Article III, Section 2. That language guaranteed the federal judiciary jurisdiction over all treaties entered into by the United States from the moment of its independence. The proposal was unanimously approved. During ratification, Alexander Hamilton explained the provision in The Federalist No. 80, reasoning that because “the peace of the whole ought not to be left at the disposal of a part . . . the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned,” which “have an evident connection with the preservation of the national peace.”
The Judiciary Act of 1789 granted limited jurisdiction, and limited rights of appeal, to the newly created federal court system. Under Section 25, the Supreme Court was allowed to hear appeals from the states’ highest courts when such decisions touched on the “validity of a . . . treaty . . . or against any title, right, privilege, or exemption set up or claimed under any . . . treaty.” Outside of the appeals permitted by the Judiciary Act, the Court would not go. It refused to offer advisory opinions on the construction of treaties, as President George Washington had asked it to do in 1793, or to review veterans’ pension claims at congressional request. In the latter instance, the Court claimed that such review would exceed the judicial function and was contrary to the separation of powers.
Chief Justice John Marshall provided the earliest construction of the Article III Treaties Clause in Owings v. Norwood’s Lessee (1809), a case concerning the property claims of British subjects whose lands had been confiscated during the Revolution. The Treaty of Paris of 1783 had explicitly preserved the “just rights” of such persons to reclaim lands in certain instances. Marshall, explaining the origin of the Treaties Clause, and enforcing the application of the Treaty’s provisions, explained:
The reason for inserting that clause in the constitution was, that all persons who have real claims under a treaty should have their causes decided by the national tribunals. It was to avoid the apprehension as well as the danger of state prejudices. . . . Each treaty stipulates something respecting the citizens of the two nations, and gives them rights. Whenever a right grows out of, or is protected by, a treaty, it is sanctioned against all the laws and judicial decisions of the States; and whoever may have this right, it is to be protected. But if the person’s title is not affected by the treaty, if he claims nothing under a treaty, his title cannot be protected by the treaty.
The mere existence of a treaty, and its application to any one party in a dispute, however, does not assure federal jurisdiction. Mayor, Alderman and Inhabitants of the City of New Orleans v. De Armas (1835). While jurisdiction may extend “without regard to the character of the parties” involved in any dispute, Cohens v. Virginia (1821), the legal rights asserted by the parties must in fact flow from an enforceable treaty.
Federal jurisdiction also requires that the legal right claimed under any treaty actually be contested. For example, in Martin v. Hunter’s Lessee (1816), Justice Joseph Story noted that a claimant must have relied on a treaty provision to his detriment, with such error evident from the record. At the same time, Story declared that the record need not refer to the disputed interpretation of a treaty in specific terms, for treaties are part of “the supreme law of the land of which all courts must take notice.”
As far as the relationship between treaties and the “laws of Congress” is concerned, the Court has made a clear distinction between those cases involving claims that “grow directly out of [a] treaty” and are “thus clearly dependent upon it,” and those cases where Congress has acted upon a treaty and created legislation to effect its obligations thereunder. In the latter case, the claim must be founded on the act of Congress. United States v. Weld (1888).
Historically, the construction of treaties, especially when they are applied as domestic law, has been understood as the “peculiar province of the judiciary,” except in “cases purely political.” Jones v. Meehan (1899). But under the political-question doctrine, the courts will not determine whether a treaty obligation with another nation has been broken. Clark v. Allen (1947). And while treaties can have the force of domestic law, the Constitution remains the supreme law of the land; neither a statute nor a treaty can override the Constitution where specific constitutional guarantees are in issue. Reid v. Covert (1957).
Over the years, the Court has crafted a number of prudential rules in its interpretation of treaties. Assuming that a treaty’s text is self-executing (i.e., enforceable as domestic law without need for implementing legislation), all interpretations begin with the explicit meaning of its text. Medellin v. Texas (2008). Unambiguous textual provisions are controlling unless their plain meaning would be clearly “inconsistent with the intent or expectations” of the treaty’s signatories. Maximov v. United States (1963). The question of signatory “intent” is especially controversial. The courts will rely on clarifications, interpretations, and understandings of a treaty formulated by the executive branch. But the courts will not infer an obligation from a treaty that has not been articulated in clear terms. Society for the Propagation of the Gospel in Foreign Parts v. New Haven (1823).
Where ambiguities do exist, courts can turn to any number of other sources: (1) ratification history, Air France v. Saks (1985); (2) the understanding entertained by the political branches, Charlton v. Kelly (1913); (3) the interpretations held by administrative agencies typically charged with a treaty’s enforcement, Kolovrat v. Oregon (1961); or (4) the opinions of “sister signatories,” or those nations with which the United States has entered into the treaty, Abbott v. Abbott (2010).
Traditionally, the courts were less likely to accord the legislative branches a say in the interpretation of a treaty. Jones v. Meehan. The text would govern, Maximov v. United States, unless an ambiguity caused recourse to ratification history for clarification. See Air France v. Saks. In Sumitomo Shoji America, Inc. v. Avagliano (1982), the Court went so far as to suggest that the parties’ intent would control even over the text. Justice Antonin Scalia vigorously objected to this proposition in United States v. Stuart (1989), where the majority had limited its investigation of treaty intent to Senate floor debates. Scalia condemned the “unprecedented” use of such materials: “The question before us in a treaty case is what the two or more sovereigns agreed to, rather than what a single one of them, or the legislature of a single one of them, thought it agreed to.”
As a rule, courts will only recognize the legal validity of a treaty, and legal claims arising therefrom, if it has been “executed” into federal law. This can be accomplished in two ways. In the first instance, a treaty may convey an intention that it be “self-executing,” and acknowledged as such during congressional ratification. Foster v. Neilson (1829). In the second, the treaty may require “legislation to carry [it] into effect.” Whitney v. Robertson (1888). The courts will not enforce “non–self-executing treaties” until they are carried into law by an act of Congress. (See Article VI, Clause 2). Whether a given treaty is self-executing or requires special implementing legislation to give force and effect to its provisions is generally understood as a question for the courts. Diggs v. Richardson (1976).
Federal statutes and properly executed treaties have equal status in law, the later in time taking precedence. Therefore, if Congress passes a statute that contradicts earlier treaty obligations of the United States, the courts will enforce the statute over the treaty. In order to avoid such a conflict, however, the courts will construe a law not to be in conflict with extant treaty obligations if such a construction is at all reasonable.
The jurisdictional statute regulating treaty review is currently 28 U.S.C. § 1257. It allows appeal by writ of certiorari to the Supreme Court if the validity of a treaty or of a state statute under a treaty is questioned or if “any title, right, privilege, or immunity is specially set up or claimed” under a treaty. Furthermore, under 28 U.S.C. § 1331, “district courts shall have original jurisdiction of all civil actions arising under . . . treaties of the United States.” District courts may also take jurisdiction over cases brought in state court involving treaties under the complicated rules of pendent jurisdiction.
Dennis W. Arrow
See Also
Article I, Section 10, Clause 1 (State Treaties)
Article II, Section 2, Clause 2 (Treaty Clause)
Article VI, Clause 2 (Supremacy Clause)
Suggestions for Further Research
Dennis W. Arrow, Federal Question Doctrines and American Indian Law, 14 OKLA. CITY U. L. REV. 263 (1989)
Martin S. Flaherty, History Right? Historical Scholarship, Original Understanding, and Treaties as “Supreme Law of the Land,” 99 COLUM. L. REV. 2095 (1999)
Julian G. Ku, Treaties as Laws: A Defense of the Last-in-Time Rule for Treaties and Federal Statutes, 80 IND. L.J. 319 (2005)
John Norton Moore, Treaty Interpretation, the Constitution and the Rule of Law, 42 VA. J. INT’L. L. 163 (2001)
Peter J. Spiro, Treaties, International Law, and Constitutional Rights, 55 STAN. L. REV. 1999 (2003)
Michael P. Van Alstine, The Judicial Power and Treaty Delegation, 90 CAL. L. REV. 1305 (2002)
John C. Yoo, Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding, 99 COLUM. L. REV. 1955 (1999)
John C. Yoo, Treaty Interpretation and the False Sirens of Delegation, 90 CAL. L. REV. 1305 (2002)
Ernest A. Young, Treaties as “Part of Our Law,” 88 TEX. L. REV. 91 (2009)
Significant Cases
Owings v. Norwood’s Lessee, 9 U.S. (5 Cranch) 344 (1809)
Smith v. Maryland, 10 U.S. (6 Cranch) 286 (1810)
Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816)
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821)
Society for the Propagation of the Gospel in Foreign Parts v. New Haven, 21 U.S. (8 Wheat.) 464 (1823)
Foster v. Neilson, 27 (2 Pet.) 253 (1829)
United States v. Arredondo, 31 U.S. (6 Pet.) 691 (1832)
Mayor, Alderman and Inhabitants of the City of New Orleans v. De Armas, 34 U.S. 224 (1835)
Gill v. Oliver’s Executors, 52 U.S. (11 How.) 529 (1850)
United States v. Weld, 127 U.S. 51 (1888)
Whitney v. Robertson, 124 U.S. 190 (1888)
De Geofroy v. Riggs, 133 U.S. 258 (1890)
New York Indians v. United States, 170 U.S. 1 (1898)
Jones v. Meehan, 175 U.S. 1 (1899)
Devine v. City of Los Angeles, 202 U.S. 313 (1906)
Muskrat v. United States, 219 U.S. 346 (1911)
Charlton v. Kelly, 229 U.S. 447 (1913)
Gully v. First National Bank in Meridian, 299 U.S. 109 (1936)
Bacardi Corp. of America v. Domenech, 311 U.S. 150 (1940)
Clark v. Allen, 331 U.S. 503 (1947)
Reid v. Covert, 354 U.S. 1 (1957)
Kolovrat v. Oregon, 366 U.S. 187 (1961)
Maximov v. United States, 373 U.S. 49 (1963)
Oneida Indian Nation of New York State v. Cnty. of Oneida, 414 U.S. 661 (1974)
Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125 (1974)
Diggs v. Richardson, 555 F.2d 848 (D.C. Cir. 1976)
British Caledonian Airways Ltd. v. Bond, 665 F.2d 1153 (D.C. Cir. 1981)
Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176 (1982)
Air France v. Saks, 470 U.S. 392 (1985)
United States v. Stuart, 489 U.S. 353 (1989)
Medellin v. Texas, 552 U.S. 491 (2008)
Abbott v. Abbott, 130 S. Ct. 1983 (2010)
Ambassadors
The judicial Power shall extend . . . to all Cases affecting Ambassadors, other public Ministers and Consuls. . . .
(ARTICLE III, SECTION 2, CLAUSE 1)
At the Constitutional Convention, William Paterson put forward the New Jersey Plan designed to counter the more nationalist plan set out by Virginia. Despite its focus on the rights of the states, Paterson’s plan nonetheless acknowledged the necessity of national competency and supremacy in a number of areas. It proposed to authorize, for example, the federal judiciary to hear appeals from state courts in “all cases touching the rights of Ambassadors.” The provision excited no discussion, and the Committee of Detail penned the final version, including placing the subject within the original jurisdiction of the Supreme Court. (See Article III, Section 2, Clause 2.)
All, including the Anti-Federalist Brutus, seemed to agree with the sentiments of Alexander Hamilton that placing the jurisdiction of cases dealing with foreign ministers had “an evident connection with the preservation of the national peace.” The Federalist No. 80. Justice Joseph Story in his Commentaries on the Constitution of the United States (1833) thought that every question involving the “rights, powers, duties, and privileges” of public ministers was “so intimately connected with the public peace, and policy, and diplomacy of the nation, and touches the dignity and interest of the sovereigns of the ministers concerned so deeply, that it would be unsafe, that they should be submitted to any other, than the highest judicature of the nation.”
In Osborn v. Bank of the United States (1824), the Supreme Court declared that the foreign diplomat need not be a party to the case to trigger federal jurisdiction, although original jurisdiction is not mandated when the diplomat is merely a victim of a crime. United States v. Ortega (1826). Federal jurisdiction under this clause applies to foreign, not United States, diplomats, Ex parte Gruber (1925). It does not apply to divorce suits involving foreign diplomats, Ohio ex rel. Popovici v. Agler (1930), or to suits involving former foreign diplomatic agents or those whose tours of duty in the United States have ended, Farnsworth v. Sanford (1941). Furthermore, although the Ambassadors Clause speaks of “Ambassadors, other public Ministers and Consuls,” as early as 1890 the Supreme Court held that consuls representing foreign countries but who are United States citizens invested with only commercial duties are not subject to this provision. In re Baiz (1890). Under modern practice, consuls in general are not normally regarded as diplomatic agents.
The fact that the Constitution lodges these cases in the federal judiciary does not preclude the foreign diplomatic agent from pleading diplomatic immunity. Under traditional international law principles, codified in the Vienna Convention on Diplomatic Relations (1961), accredited foreign ambassadors and other ministers may plead immunity from suits in the courts of the host country. The United States became a party to the Convention in 1972, and in 1978 Congress passed the Diplomatic Relations Act implementing the Vienna Convention. In addition, Congress decided that there was no justification for continuing to vest original jurisdiction solely in the Supreme Court and gave district courts concurrent original jurisdiction over civil actions brought against members of diplomatic missions and their families. Actions initiated by foreign diplomats or their families, however, remain solely under the original jurisdiction of the Supreme Court.
David F. Forte
Article III, Section 2, Clause 2 (Appellate Jurisdiction Clause)
Significant Cases
Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824)
United States v. Ortega, 24 U.S. (11 Wheat.) 467 (1826)
In re Baiz, 135 U.S. 403 (1890)
Ex parte Gruber, 269 U.S. 302 (1925)
Ohio ex rel. Popovici v. Agler, 280 U.S. 379 (1930)
Farnsworth v. Sanford, 115 F.2d 375 (5th Cir. 1940), cert. denied, 313 U.S. 586 (1941)
Admiralty
The judicial Power shall extend . . . to all Cases of admiralty and maritime Jurisdiction. . . .
(ARTICLE III, SECTION 2, CLAUSE 1)
In England, a separate system of courts that dated to the reign of Edward III dealt with maritime and admiralty issues. “Maritime” originally applied to the high seas, while “admiralty” applied to areas such as harbors and inlets, though the two terms eventually became synonymous. The substance of traditional admiralty law lay in the civil law, in opposition to and competition with the common law. It covered activities in the country’s territorial sea, and beyond, as permitted by international law. According to Sir William Blackstone in Commentaries on the Laws of England, these courts had jurisdiction “to determine all maritime injuries, arising upon the seas, or in parts out of the reach of the common law.” In the English tradition, then, admiralty jurisdiction did not reach land or inland waters, which were subject to the common law. Thus, when England enforced the Stamp Act (1765) through the admiralty courts, the colonists rebelled against losing their “inestimable” common law right of trial by jury (admiralty and maritime cases typically involve bench trials).
During the Revolution, maritime states exercised their own admiralty jurisdiction. But state prize courts often violated international law by condemning prizes belonging to sister states or nations that were neutral or even allies of the United States. The Articles of Confederation divided admiralty jurisdiction between the states and the United States, but the Constitution gave the national government exclusive admiralty and maritime jurisdiction. In Philadelphia, the only debate among the Framers of the Constitution was whether to lodge admiralty questions in a separate court or, as they finally decided, in the federal judiciary. There was unanimity, even among the Anti-Federalists, that this power should be national.
Admiralty law covers (1) damages to ships and cargo on the high seas as well as torts, injuries, and crimes and (2) contracts and activities bearing on shipping, transport, and cargoes on the sea. It was obvious to the founding generation that the federal courts would be applying a pre-existing body of maritime law that was observed by most maritime nations. Both John Adams and Alexander Hamilton practiced admiralty law. According to Chief Justice John Marshall, maritime cases before federal courts do not “arise under the Constitution or laws of the United States” but “are as old as navigation itself.” American Ins. Co. v. 356 Bales of Cotton, Canter (1828).
Though there is no grant of power in the Constitution to Congress to regulate maritime law as such, Congress has in fact modified its content. Some Supreme Court decisions assume that the Commerce Clause provides Congress that power. Justice Joseph Bradley, however, held that the Commerce Power was neither a source nor a limitation of Congress’s power to regulate maritime affairs. Rather, because maritime law is national law, “the power to make such amendments [to maritime law] is coextensive with that law. It is not confined to the boundaries or class of subjects which limit and characterize the power to regulate commerce; but, in maritime matters, it extends to all matters and places to which the maritime law extends.” In re Garnett (1891).
Congress, under the Judiciary Act of 1789, gave the district courts exclusive jurisdiction over admiralty and maritime cases, now codified in 28 U.S.C. § 1333. The Admiralty Clause also accords exclusive federal jurisdiction to captures and prize cases, codified in 28 U.S.C. § 1333(2). See Glass v. The Sloop Betsey (1794); The Paquete Habana (1900). Until 1875, maritime states continued to pass laws regulating activities in their adjacent waters, and federal courts often applied such state law. But in The Lottawanna (1874), the Supreme Court declared that the substance of admiralty law was exclusively federal. In fact, the Court has insisted that Congress’s broad power to alter traditional admiralty and maritime rules does not include the capacity to delegate such power to the states (in contrast to Congress’s power under the Commerce Clause). Knickerbocker Ice Co. v. Stewart (1920).
In 1845, breaking from English precedent that had limited admiralty jurisdiction to the seas and the ebb and flow of the tides, Congress extended admiralty jurisdiction to include inland navigable lakes and rivers. In an approving response, the Supreme Court held that English statutes restricting admiralty jurisdiction from inland waters were not part of American law at the time of the Constitution. Waring v. Clarke (1847); Genessee Chief v. Fitzhugh (1852).
Admiralty jurisdiction in England also did not cover acts committed on land. But in 1815, Justice Joseph Story declared in DeLovio v. Boit that admiralty jurisdiction includes “all contracts, (wheresoever they may be made or executed, or whatsoever may be the form of the stipulations,) which relate to the navigation, business or commerce of the sea.” See also United States v. Wiltberger (1820); Waring v. Clarke.
In DeLovio, the Court had broken new ground by extending admiralty jurisdiction to maritime insurance contracts. But this only created a new problem: when was a contract truly maritime? Whether a contract is “purely maritime” has been a central question in determining the extent of admiralty jurisdiction. For example, in People’s Ferry Co. v. Beers (1858), the Court held that a construction contract to build a ship, as opposed to a repair contract, was not under maritime jurisdiction.
Until recently, the Court has held that contracts that had to be performed on both land and sea were cognizable in admiralty only if the application of the contract to land was “merely incidental.” But in 2004, the Supreme Court found that where the primary purpose of the contract is to ship something over water, even if the goods are also shipped over land, the contract is a maritime contract and the federal courts have admiralty jurisdiction. Norfolk Southern Ry. Co. v. James N. Kirby, Pty Ltd. (2004).
Much of admiralty jurisdiction deals with torts, injuries, and prize cases, including shipwrecks and the like. In 1948, Congress expanded admiralty jurisdiction to “include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.” At first, the Court, in Gutierrez v. Waterman Steamship Corp. (1963), held that this act covered injuries that occur to a person while on a dock loading or unloading a vessel; but in Victory Carriers, Inc. v. Law (1971), the Court limited Gutierrez only to situations where the injury is “caused by an appurtenance of a ship.”
Even though the federal courts have expanded the reach of admiralty jurisdiction, nonetheless, Congress has often sought to preserve the states’ jurisdiction wherever possible. States retain jurisdiction over maritime matters in two ways: geographically and substantively. Thus, although federal maritime law now extends to the interior navigable waters of a state, the state courts still have territorial jurisdiction over actions that occur there. When a case involving maritime law is heard in state court, the state judge must apply federal maritime law over state law.
Substantively, Congress has tried to make room for the application of the states’ common law. This has created line-drawing difficulties for the courts. The Judiciary Act of 1789 created an exception known as the savings clause, which defers to the states’ common law jurisdiction. The savings clause reads, “saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it.” It is currently codified in 28 U.S.C. § 1333(1). In Waring v. Clarke, the Court stated that the purpose behind the savings clause was to preserve a right to trial by jury (a common law right) whenever possible.
In The Moses Taylor (1866), the Court made the distinction that federal courts have exclusive jurisdiction over in rem suits and concurrent jurisdiction with the states over in personam suits, but only insofar as in personam jurisdiction is part of the state’s traditional common law jurisdiction. The great majority of cases, however, are in personam, and thus in fact state courts and federal courts have concurrent jurisdiction over most maritime actions. A later Supreme Court case allowed a state to obtain jurisdiction even over an in rem proceeding if the state is seeking the common law remedy of forfeiture. C. J. Hendry Co. v. Moore (1943).
A state’s concurrent jurisdiction over in personam suits is not without limits, however. The scope of those limits has been a highly disputed subject in the Supreme Court’s jurisprudence. For many decades, the Supreme Court held, for example, that state worker’s compensation laws as applied to maritime injuries invaded the exclusive jurisdiction of Congress. Southern Pacific Co. v. Jensen (1917). In response, Congress tried to allow some range of state jurisdiction in the Longshore and Harbor Workers’ Compensation Act in 1927, which reserved application of the federal act only after a remedy under state law had been held to be inapplicable. The post-1938 Court upheld the act. Parker v. Motor Boat Sales, Inc. (1941). But Congress’s attempt to protect the concurrent jurisdiction of the states was dealt a blow by the Court in Calbeck v. Travelers Insurance Co. (1962). Justice William J. Brennan Jr., writing for the majority, essentially deleted recourse to state jurisdiction from the statute. As a result, the federal statute now applies regardless of whether an appropriate state remedy is available. Justices Potter Stewart and John M. Harlan dissented on the ground that the majority was rewriting the clear language and undoing the legislative history of the statute. Since that time, both Congress and the Court have continued to try to define the appropriate limits to state jurisdiction in statutes and cases. See United States v. Locke (2000); Lewis v. Lewis & Clark Marine, Inc. (2001).
Prior to 1875, the Supreme Court exercised appellate review over both the facts and the law in admiralty and maritime suits. In fact, Justice Joseph Story has argued that the real goal of the controversial Appellate Jurisdiction Clause (Article III, Section 2, Clause 2) “was to retain the power of reviewing the fact, as well as the law, in cases of admiralty and maritime jurisdiction.” But in an effort to relieve the Supreme Court of a rather cumbersome caseload, Congress has limited appellate review over admiralty and maritime disputes to issues of law.
David F. Forte
See Also
Article III, Section 2, Clause 2 (Appellate Jurisdiction Clause)
Amendment XI (Suits Against a State)
Suggestions for Further Research
David J. Bederman, Admiralty and the Eleventh Amendment, 72 NOTRE DAME L. REV. 935 (1997)
HENRY J. BOURGUIGNON, THE FIRST FEDERAL COURT: THE FEDERAL APPELLATE PRIZE COURT OF THE AMERICAN REVOLUTION, 1775–1787 (1977)
William R. Casto, The Origins of Federal Admiralty Jurisdiction in an Age of Privateers, Smugglers, and Pirates, 37 AM. J. LEGAL HIST. 117 (1993)
Jonathan M. Gutoff, Original Understandings and the Private Law Origins of the Federal Admiralty Jurisdiction: A Reply to Professor Casto, 30 J. MAR. L. & COM. 361 (1999)
Matthew J. Harrington, The Legacy of the Colonial Vice-Admiralty Courts, 26 J. MAR. L. & COM. 581 (1995) and 27 J. MAR. L. & COM. 323 (1996)
GERALD J. MANGONE, UNITED STATES ADMIRALTY LAW (1997)
THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW (2004)
Graydon S. Staring, The Lingering Influence of Richard II and Lord Coke in the American Admiralty, 41 J. Mar. L. & Com. 239 (2010)
Significant Cases
Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793)
Glass v. The Sloop Betsey, 3 U.S. (3 Dall.) 6 (1794)
United States v. McGill, 4 U.S. (4 Dall.) 426 (C.C.D. Pa. 1806)
DeLovio v. Boit, 7 F. Cas. 418 (C.C.D. Mass. 1815) (No. 3776)
United States v. Wiltberger, 18 U.S. (5 Wheat.) 76 (1820)
American Ins. Co. v. 356 Bales of Cotton, Canter, 26 U.S. (1 Pet.) 511 (1828)
Waring v. Clarke, 46 U.S. (5 How.) 441 (1847)
New Jersey Steam Nav. Co. v. Merchants’ Bank of Boston, 47 U.S. (6 How.) 344 (1848)
Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443 (1852)
People’s Ferry Co. v. Beers, 61 U.S. (20 How.) 393 (1858)
The Moses Taylor, 71 U.S. (4 Wall.) 411 (1866)
The Daniel Ball, 77 U.S. (10 Wall.) 557 (1870)
The Lottawanna, 88 U.S. (21 Wall.) 558 (1874)
Ex parte Easton, 95 U.S. 68 (1877)
The Abbotsford, 98 U.S. 440 (1878)
In re Garnett, 141 U.S. 1 (1891)
The Paquete Habana, 175 U.S. 677 (1900)
Martin v. West, 222 U.S. 191 (1911)
Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917)
North Pacific Steamship Co. v. Hall Bros. Marine Ry. & Shipbuilding Co., 249 U.S. 119 (1919)
Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920)
Western Fuel Co. v. Garcia, 257 U.S. 233 (1921)
Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469 (1922)
Panama R. Co. v. Johnson, 264 U.S. 375 (1924)
Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109 (1924)
Washington v. W. C. Dawson & Co., 264 U.S. 219 (1924)
Langnes v. Green, 282 U.S. 531 (1931)
Marine Transit Corp. v. Dreyfus, 284 U.S. 263 (1932)
United States v. Flores, 289 U.S. 137 (1933)
Parker v. Motor Boat Sales, Inc., 314 U.S. 244 (1941)
Davis v. Dep’t of Labor & Industries, 317 U.S. 249 (1942)
C. J. Hendry Co. v. Moore, 318 U.S. 133 (1943)
O’Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36 (1943)
Madruga v. Superior Court of California, 346 U.S. 556 (1954)
Romero v. International Terminal Operating Co., 358 U.S. 354 (1959)
Kossick v. United Fruit Co., 365 U.S. 731 (1961)
Calbeck v. Travelers Ins. Co., 370 U.S. 114 (1962)
Gutierrez v. Waterman Steamship Corp., 373 U.S. 206 (1963)
Nacirema Operating Co. v. Johnson, 396 U.S. 212 (1969)
Victory Carriers, Inc. v. Law, 404 U.S. 202 (1971)
Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249 (1972)
Sun Ship v. Pennsylvania, 447 U.S. 715 (1980)
Foremost Ins. Co. v. Richardson, 457 U.S. 668 (1982)
Sisson v. Ruby, 497 U.S. 358 (1990)
Exxon Corp. v. Central Gulf Lines, 500 U.S. 603 (1991)
American Dredging Co. v. Miller, 510 U.S. 443 (1994)
Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995)
United States v. Locke, 529 U.S. 89 (2000)
Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438 (2001)
Norfolk Southern Ry. Co. v. James N. Kirby, Pty Ltd., 543 U.S. 14 (2004)
Federal Party
The judicial Power shall extend . . . to Controversies to which the United States shall be a Party. . . .
(ARTICLE III, SECTION 2, CLAUSE 1)
Among the numerous jurisdictional grants to the new federal court system, one of the least controversial was the proposition that the federal courts should have jurisdiction over any case to which the United States was a party. The provision for jurisdiction over cases to which the United States is a party was a comparatively late addition to the Constitution, adopted long after the Committee of Detail had completed its work. It seemed to reflect nothing more than a correction of an oversight. As Alexander Hamilton said of this jurisdictional grant in The Federalist No. 80, “any other plan would be contrary to reason.” Even the Constitution’s most vigorous opponents in the Anti-Federalist camp acknowledged the logic of this position. Later, Chief Justice John Jay noted in Chisholm v. Georgia (1793) that federal jurisdiction over cases involving the United States was necessary “because in cases in which the whole people are interested, it would not be equal or wise to let any one state decide and measure out the justice due to others.”
Today, the interesting legal questions about this clause involve determinations of precisely what entity is the “United States” and when the United States has consented to be a party to a lawsuit.
The text of the Federal Party Clause, of course, allows for jurisdiction when the United States acts as a plaintiff, but that circumstance (in which the affirmative act of filing a suit is, effectively, also a consent to the jurisdiction of the court) is far less problematic or controversial than when the United States has been named as a party defendant. The Supreme Court early on held that the United States, as a legal entity, had an inherent right to bring suit without authorization from Congress, Dugan v. United States (1818), although the Judiciary Act of 1789 channeled civil suits brought by the United States to federal district courts.
The more difficult issue relates to the United States’ status as a defendant in a suit. The clause, while providing for federal jurisdiction over suits to which the United States is a party, does not specify the situations in which such suits are in fact permitted. When the United States is named as a defendant, the general rule has become that, absent a waiver, sovereign immunity shields the federal government and its agencies from suit. As Alexander Hamilton said, “It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.” The Federalist No. 81. Early Supreme Courts cases affirmed the doctrine. Cohens v. Virginia (1821); United States v. Clarke (1834). Consent can only be manifested when Congress passes a statute expressly waiving the United States’ claim of sovereign immunity from suit for a particular case or class of cases. The waiver must be unequivocal. FAA v. Cooper (2012). Further, “when Congress attaches conditions to legislation waiving the sovereign immunity of the United States, those conditions must be strictly observed, and exceptions thereto are not to be lightly implied.” Block v. North Dakota ex rel. Board of Univ. and School Lands (1983).
Many examples of these waivers exist in the law today. Agencies, such as the Federal Deposit Insurance Corporation, are often created with the power to “sue or be sued.” And the United States frequently consents to subject itself to generally applicable laws, as it has done in permitting itself to be sued by private parties for alleged environmental violations. A most frequent source of suits against the United States, however, is the Federal Tort Claims Act of 1948, which waives the sovereign immunity of the United States for certain torts committed by federal employees “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” This provision captures a large host of conduct, ranging from medical malpractice of army doctors to traffic accidents of federal employees. Then, in 1976, an amendment to the Administrative Procedure Act waived sovereign immunity for suits against the United States that do not involve monetary damages. As a result of these various waivers, the Federal Party Clause has become a significant source of litigation in the federal courts.
Finally, it bears noting that the United States, as a distinct entity, may in many circumstances be distinguished from either federal officers acting in their official capacity or distinct federal entities and instrumentalities. The law regarding this distinction is complex. In some instances, for example, the United States may be substituted as a party for a federal official sued in his official capacity. In that situation the suit becomes grounded in the constitutional grant of jurisdiction over “controversies to which the United States is a party.” In other cases, the official or the instrumentality stands apart from the United States, and suits in federal court must rely on different jurisdictional grants, such as the statutory grant of federal-question jurisdiction.
Paul Rosenzweig
Significant Cases
Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793)
Dugan v. United States, 16 U.S. (3 Wheat.) 172 (1818)
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821)
United States v. Clarke, 33 U.S. (8 Pet.) 436, 444 (1834)
Federal Housing Administration v. Burr, 309 U.S. 244 (1940)
United States v. Sherwood, 312 U.S. 584 (1941)
Block v. North Dakota ex rel. Bd. of Univ. and School Lands, 461 U.S. 273 (1983)
FAA v. Cooper, 132 S. Ct. 1441 (2012)
Interstate Disputes
The judicial Power shall extend . . . to Controversies between two or more States. . . .
(ARTICLE III, SECTION 2, CLAUSE 1)
Though of modest jurisprudential importance today, the clause providing for federal-court jurisdiction over disputes between two states is emblematic of the issues at the heart of the constitutional founding. The movement to adopt a Constitution grew out of substantial dissatisfaction with the operation of the Articles of Confederation, including the Confederation’s difficulty in settling disputes between states over economic policies and territorial claims. Establishing federal jurisdiction to resolve such disputes reflects the political sea change involved in the movement from a confederation to a federal union.
Under Article IX of the Articles of Confederation, disputes between the states (which mostly involved the settlement of land claims to the west) were settled in a convoluted manner: Congress would name thirty-nine individuals (three from each state) as potential commissioners to resolve the dispute. The opposing states would then each alternately strike names from the list until thirteen names remained, from which seven or nine names would be drawn by lot. Those selected were to determine the dispute. This process had some success. Article IX courts, advancing the conception that the states could be subjected to a higher authority, resolved a few land disputes between states. However, as might be imagined, this cumbersome process often proved to be an impediment to dispute resolution.
Initially, the Committee of Detail retained this method for adjudicating interstate disputes in the draft of the Constitution. After further consideration, the Framers provided for federal court jurisdiction over interstate disputes generally, but retained the Confederation Article IX method for resolving territorial and jurisdictional questions. It was not until rather late in the process, on August 24, 1787, that the Convention chose to adopt the simpler system of federal court jurisdiction for arbitrating all disputes between two or more states. As John Rutledge of South Carolina said in making the proposal, the provision of a national judiciary made the Article IX–type provisions for resolving interstate disputes “unnecessary.”
As the Supreme Court noted in the modern case of New York v. United States (1992), “[i]n the end, the Convention opted for a Constitution in which Congress would exercise its legislative authority directly over individuals rather than over States.” Nonetheless, providing for federal jurisdiction to monitor disputes between states is an unavoidable exception to that general principle. As Alexander Hamilton explained, “The reasonableness of the agency of the national courts in cases in which the State tribunals cannot be supposed to be impartial speaks for itself. No man ought certainly to be a judge in his own cause, or in any cause in respect to which he has the least interest or bias.” The Federalist No. 80.
The logic of this position was such that even Anti-Federalists, such as “Brutus,” conceded the utility of the provision, and there is little or no recorded opposition to this grant of federal jurisdiction in the ratifying debates. Thus, the Convention had come to the view that, as Justice Joseph Story later summarized in his Commentaries on the Constitution of the United States (1833), federal jurisdiction over interstate disputes was appropriate “because domestic tranquility requires, that the contentions of states should be peaceably terminated by a common judicatory; and, because, in a free country, justice ought not to depend on the will of either of the litigants.”
The Constitution neither compels nor limits the Supreme Court in deciding what kinds of disputes between states it will hear. Rhode Island v. Massachusetts (1838). In the early years of the republic, boundary cases constituted the principal source of disputes that states brought before the Supreme Court, but subsequently the Court has heard, among others, cases dealing with water rights, natural gas, and contractual and other financial conflicts. The predominant contemporary application of this clause is that, in conjunction with the Original Jurisdiction provisions of Clause 2 (see Article III, Section 2, Clause 2), it provides a mechanism for resolving border and water-resource disputes between neighboring states. Two recent examples of such suits are the dispute between New York and New Jersey to settle title to Ellis Island, New Jersey v. New York (1998), and the dispute among several states allocating the water flowing in the North Platte River. Nebraska v. Wyoming and Colorado (2001). Typically, such cases are resolved by the Supreme Court directly, after extensive factual inquiry and a report from an appointed special master. When it is appropriate, the Court has permitted private parties whose rights may also be affected to intervene in and participate in these disputes, though this is a relatively rare occurrence. South Carolina v. North Carolina (2010).
Paul Rosenzweig
See Also
Article I, Section 10, Clause 3 (Compact Clause)
Article III, Section 2, Clause 2 (Original Jurisdiction)
Suggestion for Further Research
Vincent L. McKusick, Discretionary Gatekeeping: The Supreme Court’s Management of Its Original Jurisdiction Docket Since 1961, 45 ME. L. REV. 185 (1993)
Significant Cases
Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816)
New Jersey v. New York, 30 U.S. (5 Pet.) 284 (1831)
Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657 (1838)
New York v. United States, 505 U.S. 144 (1992)
New Jersey v. New York, 523 U.S. 767 (1998)
Nebraska v. Wyoming & Colorado, 534 U.S. 40 (2001)
South Carolina v. North Carolina, 130 S. Ct. 854 (2010)
Citizen-State Diversity
The judicial Power shall extend . . . to Controversies . . . between a State and Citizens of another State . . . and between a State . . . and foreign States, Citizens or Subjects.
(ARTICLE III, SECTION 2, CLAUSE 1)
Article III’s provisions extending the federal judicial power “to Controversies between a State and Citizens of another State” and “between a State . . . and foreign States, Citizens or Subjects” are generally known as the Citizen-State Diversity Clauses. Although these clauses have a variety of applications, they have played a primary role in enduring controversies over the scope of state sovereign immunity in suits by private parties.
The Founding generation seems generally to have accepted the notion that the states enjoyed some form of sovereign immunity, derived from the common law that shielded them against suits by private individuals. Article III’s express provision for federal court jurisdiction over suits between individuals and state governments thus raised the possibility that ratification of the Constitution would override this common law immunity. Some Framers, such as Edmund Randolph and James Wilson, seemed to embrace this possibility as a means for ensuring that state governments would honor their debts; Randolph, for example, asked, “Are we to say that we shall discard this government because it would make us all honest?” Anti-Federalists, on the other hand, opposed Article III based on the same expectation. George Mason emphasized the threat of private lawsuits to a state’s dignity, inquiring, “Is this state to be brought to the bar of justice like a delinquent individual?” Others stressed the practical consequences of state suability, given the financially precarious position of the states following the Revolutionary War. In particular, many feared that suits by private parties to enforce the states’ war debts in federal courts might bankrupt the nascent state governments. The Anti-Federalist writer Brutus, for example, warned that Article III would “produce the utmost confusion, and in its progress, will crush the states beneath its weight.”
James Madison, Alexander Hamilton, and other Federalists reacted to these concerns by insisting that Article III left the states’ preexisting immunities intact. At the Virginia ratifying convention, Madison explained that the Citizen-State Diversity Clauses were designed to allow state governments to come into federal court as plaintiffs, not to allow private citizens to overcome a state’s immunity as a defendant. John Marshall agreed: “The intent is, to enable states to recover claims of individuals residing in other states.” And Hamilton acknowledged the states’ fundamental immunity from such suits in The Federalist No. 81, stating that “[i]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. . . . [T]he exemption . . . is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States.”
The Supreme Court rejected Madison’s and Hamilton’s reading, however, in Chisholm v. Georgia (1793). That case involved a suit by a South Carolina citizen to recover Revolutionary War debts owed by the State of Georgia. The state insisted that it was immune from such suits, but the Court upheld its jurisdiction. While Justice James Wilson rejected the very notion of state sovereign immunity on the broad ground that it was antithetical to republican government, Justices John Jay, John Blair, and William Cushing relied primarily on the Citizen-State Diversity Clauses. They argued that those clauses had in fact done precisely what the Anti-Federalists feared—that is, overridden the common law immunity that the states would otherwise have enjoyed in a suit by a private individual. Only Justice James Iredell dissented, primarily on the ground that Congress had not passed any statute that clearly authorized private suits against state governments in the federal courts.
The Court would later say, in Hans v. State of Louisiana (1890), that Chisholm “created such a shock of surprise throughout the country that, at the first meeting of Congress thereafter, the Eleventh Amendment to the Constitution was almost unanimously proposed, and was in due course adopted by the legislatures of the States.” That amendment provided that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Several commentators have noted the extent to which the latter part of the amendment tracks the language of the Citizen-State Diversity Clauses; the “diversity theory” of the amendment thus infers that it was intended simply to “repeal” the Citizen-State Diversity Clauses in all cases in which a nonconsenting state is the defendant. Others have advanced somewhat different interpretations of the amendment’s text and intent; the important point for present purposes is simply that the proper reading of the Eleventh Amendment—and the scope of state sovereign immunity generally—remains bound up with disputes about what the Framers intended to accomplish with the Citizen-State Diversity Clauses.
Ernest A. Young
See Also
Amendment XI (Suits Against a State)
Suggestions for Further Research
William A. Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather Than a Prohibition Against Jurisdiction, 35 STAN. L. REV. 1033 (1983)
CLYDE JACOBS, THE ELEVENTH AMENDMENT AND SOVEREIGN IMMUNITY (1972)
Caleb Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction, 115 HARV. L. REV. 1559 (2002)
Ann Woolhandler & Michael G. Collins, State Standing, 81 VA. L. REV. 387 (1995)
Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793)
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821)
Hans v. Louisiana, 134 U.S. 1 (1890)
Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985)
Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996)
Alden v. Maine, 527 U.S. 706 (1999)
Diversity Clause
The judicial Power shall extend . . . to Controversies . . . between Citizens of different States. . . .
(ARTICLE III, SECTION 2, CLAUSE 1)
The clause authorizing diversity of citizenship jurisdiction was intended to protect out-of-state litigants from local bias in state courts. The records of the Constitutional Convention contain surprisingly little discussion of the clause. The reason for this silence, however, may have been that most delegates shared Alexander Hamilton’s belief that “the reasonableness of the agency of the national courts in cases in which the state tribunals cannot be supposed to be impartial speaks for itself.” The Federalist No. 80. Some of the Framers appear to have been less worried about state court partiality. In the Virginia ratification debates, James Madison is said to have conceded that diversity jurisdiction might well have been left to the state courts; and Chief Justice John Marshall is reported to have given only half-hearted support to the Diversity Clause. But as Marshall later remarked in the classic statement of the purpose of the clause, however impartial the state courts may be in fact, “the Constitution itself either entertains apprehensions on this subject, or views with such indulgence the possible fears and apprehensions” of potential out-of-state litigants that it authorizes the extension of the federal judicial power to controversies between citizens of different states. Bank of the United States v. Deveaux (1809).
Although the Diversity Clause authorizes such extension, the actual grant of power to try diversity cases is conferred by statute. Congress has never conferred this power to the full extent authorized by the clause. For example, it has always limited the federal courts’ jurisdiction over diversity cases to those in which the amount in controversy between the parties exceeds a certain sum; and it has refused to allow a defendant to invoke diversity jurisdiction for the purpose of removing a case from a state court to the federal system when the defendant is a citizen of the state in which the suit was brought (and when, consequently, he would generally have nothing to fear from any local bias on the part of a state court).
Chief Justice Marshall interpreted the clause as not applying to residents of the District of Columbia, Hepburn v. Ellzey (1805), but Congress later extended federal diversity jurisdiction to the district’s residents by statute. 28 U.S.C. §1332. In National Mutual Insurance Co. of the District of Columbia v. Tidewater Transfer Co. (1949), the Supreme Court upheld Congress’s authority to accord the District of Columbia the status of a state for diversity purposes, but the Court did so with shifting majorities and conflicting rationales.
Chief Justice Marshall also excluded corporations from qualifying as parties under the clause, Bank of the United States v. Deveaux, but later Court decisions allowed corporations to be parties under the fiction that their shareholders were citizens of the state of incorporation. See Marshall v. Baltimore & Ohio Railroad Co. (1853).
More recently, Congress specified that a corporation is deemed to be a citizen not only of the state in which it is incorporated but also the state of its principal place of business; the effect was to make it more difficult for defendant corporations to remove cases to federal court. However, in 2010, the Supreme Court made diversity removal easier for corporate defendants by specifying that a corporation’s “principal place of business” means its “nerve center,” or the place where the officers direct, control, and coordinate the corporation’s activities. Hertz Corp. v. Friend (2010). Hertz enables a corporation to utilize diversity removal from state court even in states where it does a plurality of its business, so long as that state is not its “nerve center.”
The Supreme Court has recognized certain limitations on the federal courts’ diversity jurisdiction. Most importantly, the Court has required (with a few exceptions) that parties to a lawsuit based on diversity jurisdiction be “completely” diverse: that is, no party on one side of the dispute may be a citizen of the same state as any party on the other side. To qualify under the clause, the parties must actually be domiciled in different states. Differential residency alone is not sufficient.
For many years, the substantive law that federal courts applied in diversity cases was its own federal common law. Swift v. Tyson (1842). Through statute, however, the courts applied the procedural law of the state in which the court sat. That formula was reversed in Erie Railroad Co. v. Tompkins (1938). Subsequently, a complex body of law has developed governing which law the federal court will apply. In the main, a federal court will apply the substantive law of the state in which the court sits, including the state’s conflict-of-laws rules, but the federal court will follow federal procedural practice, unless the state’s procedure would be material in determining the outcome of the case. See Guaranty Trust Co. v. York (1945). In most cases, the federal court is bound to apply state law as determined by the state’s highest court. Although drastically reduced by the Erie decision, federal common law still governs in some areas of peculiar federal concern, such as relations with other nations. Banco Nacional de Cuba v. Sabbatino (1964).
Despite a longstanding prejudice against diversity jurisdiction by legal academics and jurists, Congress has significantly broadened it over the last two decades. In the early 1990s, Congress enlarged the class of claims and parties that a federal court must entertain as part of a single diversity “case” to include both related state law claims (“pendent” jurisdiction) as well as claims relating to third parties that would otherwise defeat diversity of citizenship (“ancillary” claims). The Supreme Court has expanded diversity jurisdiction even beyond what Congress apparently intended. See Exxon Mobil v. Allapattah Servs., Inc. (2005), which held that federal courts can entertain diversity jurisdiction even in cases where not all the claimants assert claims over the dollar minimum specified by statute.
In 2002, Congress eliminated the requirement that all plaintiffs and defendants be citizens of different states (“complete diversity”) for mass torts involving the deaths of at least seventy-five individuals in an accident in one location (the Multiparty, Multiforum Trial Jurisdiction Act). In 2005, Congress further provided that so long as there was diversity of citizenship between any two plaintiffs and defendants, a class action lawsuit could be removed to federal court no matter how large was the class (the Class Action Fairness Act of 2005). In neither case was Congress concerned with bias against out-of-state defendants. Rather, it acted simply to further judicial efficiency (MMTJA) and to address the lack of uniformity that would occur when multiple state courts handled large consumer-oriented class action suits against national corporations (Class Action Fairness Act).
Not only did Congress’s expansion of the availability of diversity jurisdiction in the early 2000s arguably go beyond the original purpose for diversity jurisdiction, which was to remedy state court bias, but it amounted to a significant transfer of judicial authority from the state courts to the federal courts. For this reason, some commentators have suggested the new, expansive rules distort the federalist structure envisioned by the Framers.
Many academics and federal judges continue to believe that diversity jurisdiction should be curtailed or abolished. They argue that it is anachronistic because there is little danger today of bias against out-of-state litigants, that it encourages forum-shopping, that it has an innate bias against the states, and that it results in an inefficient use of judicial resources. On the other side, a widespread belief that federal judges are better qualified than their state court counterparts leads many practitioners to oppose further restrictions. Moreover, many practitioners continue to insist that local bias persists, especially in rural areas (where state courts are somewhat more likely to be located); and they counsel against departing from the precaution of the Framers.
Terence J. Pell
Article IV, Section 2, Clause 1 (Privileges and Immunities Clause)
Suggestion for Further Research
C. Douglas Floyd, The Limits of Minimal Diversity, 55 HASTINGS L.J. 613 (2004)
Henry J. Friendly, The Historical Basis of Diversity Jurisdiction, 41 HARV. L. REV. 483 (1928)
James M. Underwood, The Late, Great Diversity Jurisdiction, 57 CASE W. RES. L. REV. 179 (2006)
Significant Cases
Hepburn v. Ellzey, 6 U.S. (2 Cranch) 445 (1805)
Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806)
Bank of the United States v. Deveaux, 9 U.S. (5 Cranch) 61 (1809)
Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842)
Marshall v. Baltimore & Ohio R.R. Co., 57 U.S. (16 How.) 314 (1853)
Dodge v. Woolsey, 59 U.S. (18 How.) 331 (1856)
Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)
Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487 (1941)
Guaranty Trust Co. v. York, 326 U.S. 99 (1945)
National Mutual Ins. Co. of the District of Columbia v. Tidewater Transfer Co., 337 U.S. 582 (1949)
Lumbermen’s Mutual Casualty Co. v. Elbert, 348 U.S. 48 (1954)
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964)
Finley v. United States, 490 U.S. 545 (1989)
Carden v. Arkoma Assocs., 494 U.S. 185 (1990)
Dole Food Co. v. Patrickson, 538 U.S. 468 (2003)
Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567 (2004)
Lincoln Property Co. v. Roche, 546 U.S. 81 (2005)
Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546 (2005)
Wachovia Bank N.A. v. Schmidt, 546 U.S. 303 (2006)
Hertz Corp. v. Friend, 130 S. Ct. 1181 (2010)
Land Grant Jurisdiction Clause
The judicial Power shall extend . . . to Controversies . . . between Citizens of the same State claiming Lands under Grants of different States. . . .
(ARTICLE III, SECTION 2, CLAUSE 1)
Derived from Article IX of the Articles of Confederation, the Land Grant Jurisdiction Clause was included with the Citizen-State Diversity Clause in order to promote “peace and harmony” among the states. The clauses provide, as Justice Joseph Story put it, an impartial federal tribunal in matters where “a state tribunal might not stand indifferent in a controversy where the claims of its own sovereign were in conflict with those of another sovereign.” Town of Pawlet v. Clark (1815).
The Framers were mindful of the possibility of serious disputes over the western lands among the states and between citizens of the several states and of the same state. It was the same concern that had led to the predecessor clause in the Articles of Confederation. Maryland refused to ratify the Articles of Confederation until 1781—four years after the Continental Congress had approved the document—because of conflicting land claims. Maryland’s primary concern was that Virginia would be able to dominate the national congress should it prevail in its extensive claim to all the lands west “to the South Sea,” as conveyed in its initial royal charter. Moreover, several other states—Massachusetts, Connecticut, North Carolina, South Carolina, and Georgia—had similar, overlapping claims, derived from their own royal charters, and New York, as “suzerain of the Iroquois Indians,” also laid claim to vast expanses of land west of the Delaware River. These conflicting claims threatened to embroil the states in a series of border disputes that were significant enough to place the new union itself at risk.
Virginia’s cession of the lands northwest of the Ohio River in 1783, the parallel cessions of the western lands by the other states over the following decade, and the passage of the Northwest Ordinance while the Constitutional Convention was meeting all defused much potential conflict. These often-overlooked cessions demonstrated the commitment and the sacrifice that the states made for the sake of the future stability of the union. Nonetheless, boundary disputes among ten of the states convinced the Framers of the need of a federal forum to settle such conflicts. The convention rejected a proposal to lodge jurisdiction in the Senate in favor of making it a judicial concern. Further agreements and compromises by the states have largely rendered the Land Grant Jurisdiction Clause obsolete.
A few minor border disputes have occasionally arisen involving citizens of the same state. Schroeder v. Freeland (1951) dealt with a private dispute over ownership of land between Iowa and Nebraska affected by accretion of the Missouri River. The more serious land disputes, over which the Supreme Court has original jurisdiction, typically involve the states themselves. For example, in 1998, the Supreme Court resolved a dispute over portions of Ellis Island in favor of New Jersey over New York. New Jersey v. New York (1998).
The Land Grant Jurisdiction Clause is currently implemented by 28 U.S.C. § 1354, which gives federal district courts jurisdiction without regard to the amount in controversy, United States v. Sayward (1895). Unlike the general diversity jurisdiction clause (Article III, Section 2, Clause 1), which the Court has strictly interpreted to require complete diversity of citizenship between the parties, a lower court has held that jurisdiction under this Clause is not destroyed by the fact that the dispute also extends to citizens of other states, as long as there is at least one defendant who is a citizen of the “same state” claiming under a grant from another state than the plaintiff’s claim. Port of Portland v. Tri-Club Islands, Inc. (1970).
Disputes entirely between citizens of different states, claiming land under grants from different states, can have their cause heard in federal court only under the Citizen-State Diversity Clause. Stevenson v. Fain (1904). Nevertheless, the Land Grant Jurisdiction Clause stands for two important propositions: the federal courts should decide cases in which the state courts would have an apparent bias, and too great a geographic imbalance between members of the union was a threat to the body politic.
John C. Eastman
See Also
Article III, Section 2, Clause 1 (Citizen-State Diversity Clause)
Suggestions for Further Research
CHARLES MOORE, THE NORTHWEST UNDER THREE FLAGS: 1635–1796 (1900, REPRINT 1989)
SHOSUKE SATO, HISTORY OF THE LAND QUESTION IN THE UNITED STATES (1886)
PAYSON JACKSON TREAT, THE NATIONAL LAND SYSTEM, 1785–1820 (1910)
Significant Cases
Town of Pawlet v. Clark, 13 U.S. (9 Cranch) 292 (1815)
United States v. Sayward, 160 U.S. 493 (1895)
Stevenson v. Fain, 195 U.S. 165 (1904)
Schroeder v. Freeland, 188 F.2d 517 (8th Cir. 1951)
Port of Portland v. Tri-Club Islands, Inc., 315 F. Supp. 1160 (D. Or. 1970)
New Jersey v. New York, 523 U.S. 767 (1998)
Citizen-State Diversity
The judicial Power shall extend . . . to Controversies . . . between a State and Citizens of another State . . . and between a State . . . and foreign States, Citizens or Subjects.
(ARTICLE III, SECTION 2, CLAUSE 1)
This clause is discussed in Ernest A. Young’s essay on the Citizen-State Diversity Clause on page 328.
Original Jurisdiction
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.
(ARTICLE III, SECTION 2, CLAUSE 2)
The Supreme Court’s original jurisdiction is limited to a narrow but important range of cases. The grant of appellate jurisdiction under Article III is far broader, although Congress has some discretion to modify it. However, the Court has been assiduous in protecting the Constitution’s core grant of original jurisdiction from congressional expansion. The Court declared in Marbury v. Madison (1803) that Congress cannot add to the Supreme Court’s original jurisdiction. Under Section 13 of the Judiciary Act of 1789, Congress had granted the Court mandamus power (the power to order lower courts or executive officials to perform duties required by law). In Marbury, Chief Justice John Marshall held that the mandamus power as applied to executive officials was actually a grant of original jurisdiction, and that Congress could not constitutionally expand the original jurisdiction of the Supreme Court. Writing for the Court, the chief justice declared Section 13 unconstitutional and denied the relief sought. Marshall’s carefully crafted opinion reinforced the significance of original jurisdiction by (1) limiting its scope to the categories of cases contained in the text and, as a consequence, (2) shifting its focus from executive matters to suits between states. Similarly, in Hodgson v. Bowerbank (1809), Marshall, invalidated Section 11 of the Judiciary Act of 1789 because it provided for federal jurisdiction “in all suits in which an alien is a party,” and that section also unconstitutionally extended Article III jurisdiction.
The Original Jurisdiction Clause has both theoretical and practical importance. Although Marshall’s opinion is an example of textual interpretation, it also made practical sense that Article III should limit the power of Congress to add to the Court’s original jurisdiction. If Congress could have expanded the Court’s original docket, citizens would have been forced to litigate in the national capital, which was often inconvenient and distant. But even as narrowly written and construed, in state-versus-state cases original jurisdiction still played an indispensable role in eliminating the bias and parochialism of state courts and lower federal courts (where judges were likely to be drawn from the same pool of local lawyers). The need for original federal power in state-versus-state cases had been a concern of the Constitution’s drafters: “Whatever practices may have a tendency to disturb the harmony between the States are proper objects of federal superintendence and control.” The Federalist No. 80.
While Congress cannot add to the Supreme Court’s original jurisdiction, the Court has accepted a reduction of the power through Congress’s creation of concurrent jurisdiction with lower federal courts over some kinds of original matters (suits against ambassadors and consuls and suits between the United States and a state, for example). Parochial biases are less prevalent in these cases and, in any event, when filed in the lower federal courts, these cases can later be transferred to the Court’s appellate docket. The current jurisdictional statute, 28 U.S.C. § 1251, sends controversies between two or more states exclusively to the Supreme Court and provides for concurrent jurisdiction over all other categories of original cases.
From the beginning, the most important suits between states were disputes over boundaries. These suits presented precisely those situations where the forces of provincialism and self-interest were most likely to compromise a state or lower federal court. Between 1790 and 1900, boundary disputes were the only suits between states the Court heard on its original docket. By the twentieth century, the category of original disputes expanded to include other important matters, such as water-rights cases and Commerce Clause claims (related to the use of state economic, regulatory, or tax powers). These kinds of cases continue to this day. See, e.g., Maryland v. Louisiana (1981), which deals with Louisiana’s severance tax on natural gas. On occasion, when purely legal and urgent constitutional challenges are raised, the Court has also permitted suits to be filed on an original basis by states against the United States. See South Carolina v. Katzenbach (1966) (the Voting Rights Act of 1965).
Original cases are not heard before the Supreme Court as of right, even though its jurisdiction is exclusive. Original cases are commenced by a petition for leave to file a complaint. Such petitions are frequently denied, sometimes because the Court believes that a matter between states is too trivial (e.g., whether state universities breached a contract to play football) or, conversely, when the Court considers that the subject matter is too broad or unmanageable (e.g., issues of interstate water or air pollution) or simply because the Court is not ready to hear the matter.
Once the Court grants the states’ petitions to file a complaint, it usually appoints a special master to make factual and legal recommendations. The special master, in turn, holds hearings and takes testimony, guided in a general way by the Federal Rules of Civil Procedure and the Federal Rules of Evidence. See Rule 17 of the Rules of the Supreme Court of the United States (2010). Unlike appeals of district court decisions under the Federal Rules of Civil Procedure, the master is given no formal deference on findings of fact by the Supreme Court, although such findings are often accepted by the Court. The parties also present briefs, arguments, and proposed recommendations, after which the special master issues a final report. The parties can take exceptions to that report to the Supreme Court, where it is briefed and argued and proceeds much like a traditional appellate or certiorari case. One issue of continuing interest is whether non-state entities, ranging from water districts to cities to private parties, are allowed to intervene in original cases. The Court monitors such requests closely. See South Carolina v. North Carolina (2010).
There have been fewer than two hundred state-versus-state original cases in the history of the republic, less than one per year of the Constitution’s life. There have been only two original cases under the “affecting Ambassadors” section of the clause. Despite these relatively modest numbers, original jurisdiction continues to serve an indispensable purpose in resolving matters of high moment between states. No forum other than the Supreme Court can act with the authority and dignity necessary to resolve what are in effect diplomatic encounters between contending sovereigns under our constitutional system.
Paul R. Verkuil
Suggestions for Further Research
Vincent L. McKusick, Discretionary Gatekeeping: The Supreme Court’s Management of Its Original Jurisdiction Docket Since 1961, 45 ME. L. REV. 185 (1993)
James E. Pfander, Marbury, Original Jurisdiction, and the Supreme Court’s Supervisory Powers, 101 COLUM. L. REV. 1515 (2001)
Significant Cases
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
Hodgson v. Bowerbank, 9 U.S. (5 Cranch) 303 (1809)
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821)
Ames v. Kansas ex rel. Johnston, 111 U.S. 449 (1884)
Kansas v. Colorado, 185 U.S. 125 (1902)
South Carolina v. Katzenbach, 383 U.S. 301 (1966)
Maryland v. Louisiana, 451 U.S. 725 (1981)
New Jersey v. New York, 523 U.S. 767 (1998)
Nebraska v. Wyoming & Colorado, 534 U.S. 40 (2001)
Alaska v. United States, 546 U.S. 413 (2006)
New Jersey v. Delaware, 552 U.S. 597 (2008)
South Carolina v. North Carolina, 558 U.S. 256 (2010)
Appellate Jurisdiction Clause
In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
(ARTICLE III, SECTION 2, CLAUSE 2)
The phrase in the Appellate Jurisdiction Clause that raised the most serious concerns was the grant to the Supreme Court of appellate jurisdiction “both as to Law and Fact.” The Anti-Federalist opposition was certain it meant the end of the civil jury and allowed a second trial of those criminally charged at the appellate level.
The Anti-Federalist Brutus argued:
Who are the supreme court? Does it not consist of the judges? and they are to have the same jurisdiction of the fact as they are to have of the law. They will therefore have the same authority to determine the fact as they will have to determine the law, and no room is left for a jury on appeals to the supreme court.
Alexander Hamilton responded in The Federalist No. 81, arguing that for common law cases “revision of the law only” would be proper for the Supreme Court, but for civil law cases, such as prize cases, review of facts “might be essential to the preservation of the public peace.” Hamilton added that the grant of appellate jurisdiction would not abolish the right to trial by jury and that Congress possessed the power to restrict the Supreme Court in this area: “The legislature of the United States would certainly have full power to provide that in appeals to the Supreme Court there should be no re-examination of facts where they had been tried in the original causes by juries.”
Following Hamilton’s lead, Justice Joseph Story suggested in his Commentaries on the Constitution of the United States (1833) that the object of the clause’s reference to jurisdiction over “law and fact” was to allow for the review of law and fact in cases of admiralty and maritime jurisdiction. Ultimately, the Seventh Amendment and the Double Jeopardy Clause of the Fifth Amendment mollified the Anti-Federalists’ concerns by removing jury findings of fact from appellate review. See Amendment VII, Reexamination Clause; Amendment V, Double Jeopardy.
The Appellate Jurisdiction Clause also seemingly grants Congress unbounded authority to make “exceptions” to the appellate jurisdiction. The convention delegates at first rejected a clause providing that “the Judicial power shall be exercised in such manner as the Legislature shall direct”; but later, after the judicial power was defined in what eventually became Article III, the Framers appended this clause, permitting, as Federalists like John Marshall claimed, a broad power of Congress to regulate the appeals process to the Supreme Court. Justice Story later opined that Congress possessed “the utmost latitude” in limiting classes of cases that could reach the Supreme Court, so long as “the whole judicial power” was “vested either in an original or appellate form, in some courts created under [Congress’s] authority.” Martin v. Hunter’s Lessee (1816).
Early on, Chief Justice Oliver Ellsworth had gone further and suggested that “If Congress has provided no rule to regulate our proceedings, we cannot exercise an appellate jurisdiction.” Wiscart v. D’Auchy (1796). In dissent, Justice James Wilson maintained that the Supreme Court’s appellate jurisdiction flowed directly from the Constitution until Congress took steps to make exceptions to it. Justice Wilson’s dissenting view in Wiscart prevailed unanimously in Durousseau v. United States (1810). Chief Justice John Marshall’s opinion in the latter case recognized that the appellate jurisdiction is created by the Constitution, not by the Judiciary Act of 1789. Nevertheless, applying standard rules for statutory interpretation, Marshall explained that Congress had described particular aspects of the Court’s jurisdiction in that statute, “and this affirmative description has been understood to imply a negative on the exercise of such appellate power as is not comprehended within it.” In other words, by providing for certain classes of appeals to reach the Supreme Court, Congress tacitly intended to “except” all others from Supreme Court review. In fact, then, the Judiciary Act of 1789 withdrew almost all federal questions from the Supreme Court’s jurisdiction by not providing an appeal mechanism to the Court.
In Martin v. Hunter’s Lessee and in Ableman v. Booth (1859), Justice Story and Chief Justice Roger B. Taney each described the need to provide for Supreme Court review of decisions of the states’ highest courts, in order, as Taney put it, “to secure the independence and supremacy of the General Government in the sphere of action assigned to it; [and] to make the Constitution and laws of the United States uniform, and the same in every State.”
The seminal decision on jurisdiction-stripping statutes under the Appellate Jurisdiction Clause came shortly after the Civil War. Ex parte McCardle (1869) involved a newspaper editor in military custody, who had appealed a lower federal court’s denial of habeas corpus relief to the United States Supreme Court, pursuant to the Habeas Corpus Act of 1867. After the Supreme Court heard oral argument, Congress repealed the provisions of the statute that had authorized Supreme Court review. The Court concluded that, pursuant to Congress’s power under the Appellate Jurisdiction Clause, it had no jurisdiction to decide the case. The Court also expressed a deferential view toward legislative acts in this context, noting: “We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.”
Shortly thereafter, the Supreme Court found that a different jurisdiction-stripping statute did not fall within Congress’s Appellate Jurisdiction Clause power. In United States v. Klein (1871), Congress had enacted a statute which provided that persons whose property had been seized during the Civil War could recover proceeds of their property if they proved they had not given aid to the rebellion during the war. The Supreme Court had previously held that a presidential pardon for such activities was proof that a person had not given aid to the rebellion. United States v. Padelford (1870). In Klein, the claimant had succeeded in the lower court, but the government had appealed. While the case was pending in the Supreme Court, Congress passed a law that attempted to reverse the holding in Padelford. The new law required courts to treat the pardon as proof of disloyalty, and on proof of such pardon, the jurisdiction of the court would cease and the suit be dismissed.
The Klein Court noted that, if Congress had “simply denied the right of appeal in a particular class of cases,” the act would have been a valid exercise of legislative power under the Appellate Jurisdiction Clause. However, the Court determined that the statute withheld jurisdiction only as a means to an end, and that its purpose was to negate the legal effect of a presidential pardon, which was exclusively in the president’s hands. Congress did have the power, the Court averred, to change underlying substantive law upon which the claim had been litigated, Pennsylvania v. Wheeling & Belmont Bridge Co. (1856), but Congress could not do so by invading the president’s power to pardon, nor to direct a particular decision in a pending case. Nor could Congress dictate to a Court how to decide the substance of a case before it under the guise of regulating its appellate jurisdiction.
Klein was a rare case. Although it showed that Congress cannot use its powers over jurisdiction to override a constitutional provision (such as the president’s pardon power, or, by extension, a provision of the bill of rights), the Supreme Court has affirmed Congress’s broad power to make exceptions to its jurisdiction, The Francis Wright (1881), and its equally broad power to change underlying substantive law even if that change affects the outcome in a pending case. Robertson v. Seattle Audubon Society (1992). Congress, however, may not by legislation reopen a case already decided and finalized, that is, when the time for appeal has passed. Plaut v. Spendthrift Farm, Inc. (1995).
Recent debate over the Appellate Jurisdiction Clause has centered on proposals for legislation that would remove parts of existing Supreme Court jurisdiction. Constitutional scholars strongly disagree as to how far Congress may go in removing Supreme Court jurisdiction under the clause. The traditional view, exemplified by Gerald Gunther, is that the text gives Congress power to remove the Supreme Court’s appellate jurisdiction with little or no internal Article III limitation. Gunther and Ronald Rotunda argue that extrinsic restraints, such as those found in the Bill of Rights and elsewhere in the Constitution, could be applied. However, Gunther notes that under McCardle, the Court must still avoid looking into Congress’s “motivations” except where an extrinsic restraint (such as those found in the Bill of Rights) so requires.
Henry Hart and others have suggested that the Appellate Jurisdiction Clause may not be used to “destroy the essential role of the Supreme Court in the constitutional plan.” As Gunther noted, however, there is no “essential functions” limit on the face of the Appellate Jurisdiction Clause, and McCardle provides precedent for judicial deference to congressional limitations of appellate jurisdiction.
Ira Mickenberg and Robert Clinton distinguish between the words “exceptions” and “regulations” in the Constitution. Clinton argues that the phrase “such exceptions” refers to the class of cases assigned to the original, not appellate, jurisdiction of the Supreme Court under Article III. Mickenberg suggests that an “exception” could not abolish all appellate jurisdiction, and supports limits to the exception power as a matter of original intent. David Engdahl, Gary Lawson, and Steven Calabresi argue that the Appellate Jurisdiction Clause is not an express grant of power, but rather a cross-reference to Congress’s enumerated powers under Article I, specifically, the Necessary and Proper Clause (Article I, Section 8, Clause 18). They hold that Congress can only divide federal jurisdiction among the federal courts and the Supreme Court, but not remove any Article III grant of jurisdiction entirely. Their view, however, would contradict the assumptions behind the Judiciary Act of 1789 and the holding of Chief Justice Marshall in Marbury v. Madison (1803). Paul Bator recognizes Congress’s power to strip the Court of its appellate jurisdiction, but, as a matter of policy and in light of intended constitutional structure, argues that such an act would violate “the spirit of the Constitution.”
Lawrence Sager takes the view that although Congress has broad authority to regulate appellate jurisdiction, Congress cannot remove jurisdiction with regard to a federal constitutional question from both the lower courts and the Supreme Court. In a variation, Akhil Amar has argued that Article III provides for two tiers of jurisdiction. Those grants of jurisdiction phrased with the emphatic “shall” must be left somewhere in the federal judicial system; the remaining grants may be removed or excepted by Congress. Justice Joseph Story, in dictum, made a similar claim in Martin v. Hunter’s Lessee. John Harrison disputes Amar’s thesis on the basis of a careful textual analysis of Article III.
For almost a century, Congress has rarely attempted to take away a whole swath of subject matter from the appellate jurisdiction of the Court. However, over the past decade, due to the government’s response to the terrorist attacks of September 11, 2001, the Court has perforce become an actor in a constitutional contest between the executive, legislative, and judiciary branches. The “jurisdiction-stripping” power of the Appellate Jurisdiction Clause has played its part in this contest, and the way in which the Court has handled it (or the way in which the Court has worked itself around it) has only increased the scholarly debate on the issue.
In Rasul v. Bush (2004), the Supreme Court interpreted the federal habeas corpus statute to extend to the detainees at Guantanamo Bay. Congress responded by passing the Detainee Treatment Act of 2005. The DTA limited jurisdiction over habeas corpus petitions originating from detainees at Guantanamo Bay exclusively to the U.S. Court of Appeals for the District of Colombia Circuit, thereby making an exception to the Supreme Court’s appellate jurisdiction over the matter. But in Hamdan v. Rumsfeld (2006), the Supreme Court avoided the issue of Congress’s removal of its appellate jurisdiction by stating that the statute had not yet come into effect regarding habeas petitions.
Congress once again responded to the Supreme Court by passing a new statute, the Military Commissions Act of 2006, affirmatively making the limitation of the Court’s appellate jurisdiction come into effect. In Boumediene v. Bush (2008), the Court held that that statute was actually an invalid suspension of the writ of habeas corpus under Article I, Section 9, Clause 2, because it did not provide an adequate substitute for the writ. The question of the extent to which Congress can remove the appellate jurisdiction of the Court was left unanswered.
Scholars have different opinions of what Boumediene means for future Supreme Court jurisprudence and Congress’s power over federal jurisdiction. Some have argued that Boumediene will result in Congress’s retaining power over the Court’s jurisdiction while others have argued that Boumediene will result in a limit on Congress’s powers.
Steven Calabresi and Gary Lawson argue that a proper textual and structural analysis of Article III would result in the conclusion that there is one judicial power vested in the Supreme Court, signifying that the Supreme Court must have the last word on any federal or constitutional question. Laurence Claus makes a similar case and concludes that, the idea of a “unitary judiciary” is not only apparent from the text of the Constitution, but it is what the Framers originally intended based on the convention’s proceedings. Paul Taylor disagrees, and concludes that the Appellate Jurisdiction Clause was originally understood as a constraint on the federal courts.
Thus far, the Supreme Court has remained aloof from the scholarly contest, leaving its precedents to stand at present for broad congressional authority to limit the appellate jurisdiction of the Supreme Court. Thus far, the Court has followed the lead of John Marshall, who stated in the Virginia ratifying convention, “Congress is empowered to make exceptions to the appellate jurisdiction, as to law and fact, of the Supreme Court. These exceptions certainly go as far as the legislature may think proper for the interest and liberty of the people.”
Andrew S. Gold and David F. Forte
See Also
Article III, Section 2, Clause 1 (Judicial Power)
Amendment V (Double Jeopardy)
Amendment VII (Reexamination Clause)
Suggestions for Further Research
Akhil R. Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. REV. 205 (1985)
Paul M. Bator, Congressional Power Over the Jurisdiction of the Federal Courts, 27 VILLANOVA L. REV. 1030 (1982)
Steven G. Calabresi & Gary Lawson, The Unitary Executive, Jurisdiction Stripping, and the Hamdan Opinions: A Textualist Response to Justice Scalia, 107 COLUM. L. REV. 1002 (2007)
Laurence Claus, The One Court That Congress Cannot Take Away: Singularity, Supremacy, and Article III, 96 GEO. L.J. 59 (2007)
Robert N. Clinton, A Mandatory View of Federal Court Jurisdiction: A Guided Quest for the Original Understanding of Article III, 132 U. PA. L. REV. 741 (1984)
David E. Engdahl, Intrinsic Limits of Congress’ Power Regarding the Judicial Branch, 1999 BYU L. REV. 75 (1999)
Richard H. Fallon, Jr., Jurisdiction-Stripping Reconsidered, 96 VA. L. REV. 1043, 1088 (2010)
Brian T. Fitzpatrick, The Constitutionality of Federal Jurisdiction-Stripping Legislation and the History of State Judicial Selection and Tenure, 98 VA. L. REV. 839 (2012)
Alex Glashausser, A Return to Form for the Exceptions Clause, 51 B.C. L. REV. 1383 (2010)
Gerald Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 STAN. L. REV. 895 (1984)
John Harrison, The Power of Congress to Limit the Jurisdiction of Federal Courts and the Text of Article III, 64 U. CHI. L. REV. 203 (1997)
Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 HARV. L. REV. 1362 (1953)
Martin J. Katz, Guantanamo, Boumediene, and Jurisdiction-Stripping: The Imperial President Meets the Imperial Court, 25 CONST. COMMENT. 377, 400 (2009)
Ira Mickenberg, Abusing the Exceptions and Regulations Clause: Legislative Attempts to Divest the Supreme Court of Appellate Jurisdiction, 32 AM. U. L. REV. 497 (1983)
Robert J. Pushaw, Jr., Creating Legal Rights for Suspected Terrorists: Is the Court Being Courageous or Politically Pragmatic? 84 NOTRE DAME L. REV. 1975 (2009)
Martin H. Redish, Constitutional Limitations on Congressional Power to Control Federal Jurisdiction: A Reaction to Professor Sager, 77 NW. U. L. REV. 143 (1982)
Ronald D. Rotunda, Congressional Power to Restrict the Jurisdiction of the Lower Federal Courts and the Problem of School Busing, 64 GEO. L.J. 839 (1976)
Lawrence G. Sager, Constitutional Limitations on Congress’ Authority to Regulate the Jurisdiction of the Federal Courts, 95 HARV. L. REV. 17 (1981)
Heather P. Scribner, A Fundamental Misconception of Separation of Powers: Boumediene v. Bush, 14 TEX. REV. LAW & POL. 90 (2009)
Mark Strasser, Taking Exception to Traditional Exceptions Clause Jurisprudence: On Congress’s Power to Limit the Court’s Jurisdiction, 2001 UTAH L. REV. 125 (2001)
Paul Taylor, Congress’s Power to Regulate the Federal Judiciary: What the First Congress and the First Federal Courts Can Teach Today’s Congress and Courts, 37 PEPP. L. REV. 847 (2010)
William W. Van Alstyne, A Critical Guide to Ex Parte McCardle, 15 ARIZ. L. REV. 229 (1973)
Julian Velasco, Congressional Control Over Federal Court Jurisdiction: A Defense of the Traditional View, 46 CATH. U. L. REV. 671 (1997)
Significant Cases
Wiscart v. D’Auchy, 3 U.S. (3 Dall.) 321 (1796)
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
United States v. More, 7 U.S. (3 Cranch) 159 (1805)
Durousseau v. United States, 10 U.S. (6 Cranch) 307 (1810)
Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816)
Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421 (1856)
Ableman v. Booth, 62 U.S. (21 How.) 506 (1859)
Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869)
Ex parte Yerger, 75 U.S. (8 Wall.) 85 (1869)
United States v. Padelford, 76 U.S. (9 Wall.) 531 (1870)
United States v. Klein, 80 U.S. (13 Wall.) 128 (1871)
The Francis Wright, 105 U.S. 381 (1881)
United States v. Sioux Nation of Indians, 448 U.S. 371 (1980)
Morrison v. Olson, 487 U.S. 654 (1988)
Robertson v. Seattle Audubon Society, 503 U.S. 429 (1992)
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995)
Felker v. Turpin, 518 U.S. 651 (1996)
Edmond v. United States, 520 U.S. 651 (1997)
Miller v. French, 530 U.S. 327 (2000)
Rasul v. Bush, 542 U.S. 466 (2004)
Hamdan v. Rumsfeld, 548 U.S. 557 (2006)
Boumediene v. Bush, 553 U.S. 723 (2008)
Criminal Trials
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
(ARTICLE III, SECTION 2, CLAUSE 3)
The American right to a trial by a jury of one’s peers traces its lineage back to 1297 and the Magna Carta. By the mid-sixteenth century, the jury (known as the petit jury as opposed to the grand jury) had already taken on the form it retains to this day in federal courts and some state courts—twelve citizens were summoned to sit in sworn judgment of the criminal allegations against one of their peers.
The English practice of using juries continued in America from the very first settlements. The Charter of the Virginia Company in 1606 declared that the colonists who were to settle there would enjoy all the rights of Englishmen, which included the right to jury trial. Juries played a vital role in the mid-eighteenth century in resisting English authority in the contest that ultimately led up to the American Revolution. The most noted of the colonial cases was the trial of John Peter Zenger, a New York printer whom the jury acquitted on charges of seditious libel, forty-one years before the drafting of the Declaration of Independence.
King George III responded to such jury nullification of English laws by expanding the jurisdiction of non-jury courts, such as the admiralty courts, and increasingly using those courts as the vehicles for enforcement. Thus it was that in 1776 the Declaration of Independence listed as a grievance against George III his “depriving us . . . of the benefits of trial by jury.” As a consequence, Article III—the portion of the Constitution governing the role of the judiciary—makes clear that judges are not the only judicial actors of constitutional significance. It provides a crucial role for the jury.
There was little debate about this portion of the Constitution, because the need for the criminal jury was one of the few subjects of agreement between Federalists and Anti-Federalists. Alexander Hamilton observed in The Federalist No. 83 that “[t]he friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury.” The only distinction to be drawn, in his view, was between the Federalist view that it is “a valuable safeguard to liberty” and the Anti-Federalist view that it is “the very palladium of free government.”
Indeed, Thomas Jefferson believed so strongly in the jury that he noted, “[w]ere I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative.” John Adams shared Jefferson’s praise of the jury, observing that “the common people . . . should have as complete a control, as decisive a negative, in every judgment of a court of judicature” as they have in the legislature.
Because judges themselves were part of the government, many Framers feared they would not be an adequate check on government abuse of the criminal process. The jury, therefore, was made part of the original structure of government in order to provide a mechanism for ensuring that individuals would not lose their liberty under a criminal law until the people themselves concurred.
In many criminal cases in the nation’s early history, the jury not only applied the law to the facts it found, but decided questions of law themselves. Thus, many judges refused to tell jurors that they were obliged to accept the judge’s view of the law, and lawyers argued questions of law before the jury in some cases.
Over time, however, this power eroded. In 1895, the Supreme Court concluded in Sparf and Hansen v. United States that the jury did not have the “right” to decide legal questions. As a result, today judges can—and do—instruct juries that they must accept the judge’s view of the law, and lawyers are no longer allowed to argue the merits of the law to the jury. Because the jury possesses authority to issue an unreviewable general verdict of acquittal, the jury nevertheless retains the raw power to check general laws with which it disagrees in individual cases. But because the trial judge does not instruct the jury that it has this authority, the jurors may not know that they have it. In addition, even if the jurors are aware of this power, they must exercise it knowing it is contrary to the judge’s instructions. Hence, there are many cases in which the jury does not exercise that power and instead follows the judge’s instructions, even when the jury itself disagrees with the law in question, with the judge’s interpretation of the law, or with the law’s application in the case before it.
The jury’s power has eroded in a second respect. Prior to 1930, jury trials in federal court, like jurisdictional provisions, could not be waived, reflecting the mandatory language in Article III that the trial of all crimes “shall” be by jury. In Patton v. United States (1930), however, the Supreme Court concluded that a defendant could waive a jury trial in favor of a bench trial. Nonetheless, the prosecutor may still insist upon, and the court must grant, a jury trial.
There are two additional trends in criminal justice that have further diminished the jury’s ability to check the government in criminal cases. First, the vast majority of cases never reach the jury because of the increase in the number of cases resolved by plea bargain.
The second major trend involves the changing nature of sentencing. Congress and many state legislatures have shifted from a model that vested broad sentencing discretion with judges to a regime in which the legislature (or a sentencing commission) specifies in generally applicable laws how particular findings of fact must affect the defendant’s sentence. Thus, these laws are indistinguishable from other criminal laws: they identify blameworthy behavior and specify the criminal punishment for that behavior. But there is a crucial exception: the legislature insists that judges, not juries, apply these laws.
But there are limits to what the legislature can prescribe. In Apprendi v. New Jersey (2000), the Supreme Court held that the legislature does not have unbounded authority to label criminally blameworthy facts as sentencing factors (instead of substantive elements of the criminal offense itself), because such authority could undercut the jury’s constitutional role. The Court in Apprendi therefore held that it is unconstitutional for the legislature to remove from the jury the assessment of facts (other than recidivism) that increase the statutorily prescribed range of penalties to which a defendant is exposed. In Blakely v. Washington (2004), the Court made clear that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant . . . without any additional findings.” This subsequently led the Supreme Court to conclude that the federal sentencing guidelines in their mandatory form ran afoul of the Constitution’s jury guarantee because they required judges, as opposed to jurors, to find facts that “the law makes essential” to a defendant’s punishment by mandating that they must increase a sentence in a particular way. United States v. Booker (2005). As a remedy, the Court made the federal guidelines “advisory” instead of mandatory.
Article III (and the Sixth Amendment) also contain provisions relating to venue, the place where a case is to be tried, and vicinage, the place from which the members of the jury pool trying the case are to be drawn. The Declaration of Independence condemned the English practice of transporting colonial defendants overseas to England for trial by juries of Englishmen. In response, the Constitution guarantees a criminal defendant both the right to be tried in the state where his alleged crime was committed and by a jury drawn from the population of the state and district where the alleged crime occurred.
Rachel E. Barkow
See Also
Amendment V (Double Jeopardy)
Amendment VI (Jury Trial)
Amendment VII (Right to Jury in Civil Cases)
Suggestions for Further Research
JEFFREY B. ABRAMSON, WE, THE JURY: THE JURY SYSTEM AND THE IDEAL OF DEMOCRACY (1994)
Albert W. Alschuler & Andrew G. Deiss, A Brief History of the Criminal Jury in the United States, 61 U. CHI. L. REV. 867 (1994)
Andrew J. Gildea, The Right to Trial by Jury, 26 AM. CRIM. L. REV. 1507 (1989)
Matthew P. Harrington, The Law-Finding Function of the American Jury, 1999 WISC. L. REV. 377 (1999)
Mark DeWolfe Howe, Juries as Judges of Criminal Law, 52 HARV. L. REV. 582 (1939)
Stanton D. Krauss, An Inquiry into the Right of Criminal Juries to Determine the Law in Colonial America, 89 J. CRIM. L. & CRIMINOLOGY 111, 123 (1998)
Significant Cases
Sparf and Hansen v. United States, 156 U.S. 51 (1895)
Patton v. United States, 281 U.S. 276 (1930)
Duncan v. Louisiana, 391 U.S. 145 (1968)
Apprendi v. New Jersey, 530 U.S. 466 (2000)
Blakely v. Washington, 542 U.S. 296, 303 (2004)
United States v. Booker, 543 U.S. 220, 232 (2005)
Treason
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
(ARTICLE III, SECTION 3, CLAUSE 1)
The word treason, as transmitted to the English language from the Latin through the French, means “giving or delivering up.” The common law understood treason as treachery or breach of faith. It was therefore a crime committed between parties who enjoyed an established relationship of mutual benefit and trust. Petit treason referred to a wife’s killing her husband, or a servant’s or ecclesiastic’s killing his lord or master. High treason involved a breach between subject and sovereign, a betrayal of (or neglect of duty or renunciation of allegiance to, in word or deed) a sovereign to whom a subject owed allegiance by birth or residence. Sir Edward Coke, Baron de Montesquieu, Sir Matthew Hale, and Sir William Blackstone considered treason the highest of crimes and declared that it must be precisely defined to prevent its abuse by governmental authorities. In England, commencing during the reign of Edward III, Parliament narrowed the definition of treason but later widened it according to political exigencies.
The laws of the American colonies reflected the broad outlines of the common law of England, both as to breadth of the offense and severity of punishment, though sometimes the definitions of treason in the colonies were broader than the definition in England. By the eighteenth century, laws began more consistently to reflect the English law of treason, and eventually, during the Revolutionary period, came to require more precise definitions, more exacting standards of proof, and more lenient punishments. During the Revolution, many states adopted language recommended by the Continental Congress and its “Committee on Spies,” defining treason as adherence to the king of Great Britain (including accepting commissions from him) or to other “Enemies,” giving them “Aid and Comfort.”
Reflecting the American Founders’ concern with protecting individual rights and their fear of arbitrary governmental power, the Framers of the Constitution sought a precise and permanent definition of treason, the permissible means of proving it, and the limitations on the punishment for it. The drafters of the Constitution reached back (as had the Continental Congress) to language in the Statute of Treasons, 25 Edw. 3, 1351, ch. 2, stat. 5, which limited treason, among other things, to compassing or imagining the death of the king, levying war against the king, or adhering to the king’s enemies, giving them aid and comfort. But the Framers’ definition was even narrower. It did not include the language of “compassing or imagining,” which had been the basis of the English doctrine of “constructive treason,” an effective and easily abused method for dealing with political opponents. Thus, in the Constitution, treason consists only in levying war against the United States or adhering to its enemies by giving them aid and comfort. It may be proved only by confession in open court or on the testimony of no fewer than two witnesses to the same overt act.
The debates in the Constitutional Convention show an awareness of English common law and legislative history. James Madison suggested that the proposed definition reported by the Committee of Detail—limiting treason to the levying of war and adherence to enemies—was imprudently narrow and would effectively disallow the wisdom of experience. Others, such as John Dickinson, argued in favor of narrow wording. In the end, the phrase “giving them aid and comfort” was added to restrict even further the definition of the crime, and evidentiary requirements were tightened by the addition of the phrase “overt act.” Furthermore, as James Wilson noted in his 1791 Lectures on Law, treason requires generalized grievances and aims against the United States or its government as a whole, rather than particularized, essentially private grievances or aims. Respecting the federal nature of the union, the constitutional definition leaves open the possibility of concurrent state laws for treasons against them in their respective sovereign capacities.
When it came time to defend the Constitution, Madison left behind his earlier aversion to a narrow definition of treason and, in The Federalist No. 43, lauded the Convention’s wisdom as raising a constitutional bar to “new-fangled and artificial treasons” (understood as the results and instruments of faction), and as limiting the consequences of guilt. In The Federalist No. 84, Alexander Hamilton mentions the definition of treason as one of the guarantors of rights that make a separate bill of rights unnecessary.
The Supreme Court has had occasion to pronounce on treason, albeit infrequently. In Ex parte Bollman (1807), Chief Justice John Marshall rejected the idea of “constructive treason” and held that for treason to be established on the ground of levying war against the United States, an accused must be part of an actual assemblage of men for a treasonable purpose. Conspiracy short of the actual levying of war is insufficient. But in the related case of United States v. Burr (1807), Marshall tacked slightly. He again rejected constructive treason, but did so by holding that Aaron Burr, if not physically present in an assemblage of men, could still be convicted of treason on the testimony of two witnesses that he actively helped effect or aid such an assemblage—in effect, aided in the levying of war. Together, these cases made a treason conviction exceedingly difficult for anything other than manifest participation in a treasonable act.
After Burr, the leading treason cases grew out of World War II, for adherence to enemies. In Cramer v. United States (1945), the Supreme Court held that a specific intent—adherence to the enemy, and therefore to harm the United States—is necessary, rather than the simple rendition of aid. Further, the majority came close to holding that such adherence requires proof, not just of an act that on its face is “commonplace” (such as a meeting) but a manifestly treasonable overt act, evidenced by the testimony of at least two witnesses. But in Haupt v. United States (1947)—the Court’s first affirmation of a treason conviction—the Court effectively relaxed the standard of proof in Cramer by holding that the testimony of two witnesses to overt acts might be supported by other evidence as to the accused’s treasonable intent, including out-of-court confessions and admissions. In a concurring opinion, Justice William O. Douglas (who dissented in Cramer) affirmed that the separate elements of intent and overt act are amenable to different modes of proof, and only the latter triggers the constitutional requirement of testimony by two witnesses.
In Kawakita v. United States (1952), the Supreme Court held that dual citizenship does not diminish a citizen’s allegiance to the United States, and, in a treason prosecution, whether someone intends to renounce American citizenship hinges on particular facts and may be a question for a jury.
Lower courts have had occasion to enter verdicts of treason, commencing with the Whiskey Rebellion, some of them arguably on broader grounds than what the Supreme Court would later countenance. For example, courts held that armed resistance to the collection of taxes constituted constructive treason. A number of cases arising out of the Civil War also suggested, without directly interpreting the Constitution, that Confederate activities amounted to treason (although the general amnesty of December 25, 1868, pardoned all Confederates). Because of the particular and high constitutional standards associated with the definition and proof of treason, hostile or subversive acts falling short of treason but directed toward the whole polity have been prosecuted under various laws of Congress, including those dealing with espionage (for example, the conviction and execution of Ethel and Julius Rosenberg in 1953) and, more recently, terrorism. The exercise of federal prosecutorial discretion has also led to the prosecution on other grounds of individuals for acts that arguably amount to treason (for example, John Walker Lindh captured in Afghanistan in 2001), or to failure to prosecute at all.
In 2006, Adam Yahiye Gadahn—who, like Lindh, was a convert to Islam—became the first American to be charged with treason since Tomoya Kawakita in 1952. He remains at large but is accused of treason by knowingly adhering to and giving aid and comfort to an enemy of the United States by appearing in al Qaeda videos threatening Americans and the United States with violence. He is also accused of aiding and abetting al Qaeda through the provision of material support and resources.
Bradley C. S. Watson
Suggestions for Further Research
Henry Mark Holzer, Why Not Call It Treason? From Korea to Afghanistan, 29 S.U. L. REV. 181 (2002)
JAMES WILLARD HURST, THE LAW OF TREASON IN THE UNITED STATES: COLLECTED ESSAYS (1971)
Significant Cases
Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807)
United States v. Burr, 25 F. Cas. 55 (C.C.D. Va. 1807) (No. 14,693)
Cramer v. United States, 325 U.S. 1 (1945)
Haupt v. United States, 330 U.S. 631 (1947)
Kawakita v. United States, 343 U.S. 717 (1952)
Punishment of Treason
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
(ARTICLE III, SECTION 3, CLAUSE 2)
Under English common law, punishment for treason generally included drawing, hanging, beheading, and quartering. As with other crimes carrying sentence of death, those adjudged guilty of treason and finally sentenced were considered attaint, or stained, meaning dead in the eyes of the law—even before execution. Once attainder was established, the attainted forfeited his real estate to the crown—a requirement symbolizing lack of entitlement to the benefits of society. Attainder also worked corruption of blood, preventing the attainted from inheriting or transmitting property and preventing any person from deriving title through the attainted. Forfeitures and corruption of blood worked hardship on dependents and relatives in order to provide maximum deterrence. Eventually, Parliament modified the laws of forfeiture and corruption of blood to protect the innocent.
According to the Constitution, punishment can be set by Congress, but cannot include corruption of blood or forfeiture extending beyond the offender’s life. Quite apart from this limitation, Justice Joseph Story notes in his Commentaries on the Constitution of the United States (1833) that the explicit grant of congressional power over punishment was intended as a leniency, to preclude the assumption of the common law punishment’s harshest elements. The First Congress used its constitutional power of declaring the punishment for treason by establishing the penalty of death, with seven years’ imprisonment for misprision of treason.
The actual punishments for those convicted of the federal crime of treason have generally been more lenient than the statutory maximums. President George Washington pardoned those convicted for their part in the Whiskey Rebellion. The United States government regarded Confederate activity as a levying of war, but all Confederates were pardoned by presidential amnesty. Max Haupt, convicted for giving aid and comfort to his alien son, was spared death and sentenced to life imprisonment. (His son, Herbert, was convicted by a military tribunal for his role as saboteur and executed in 1942.) Tomoyo Kawakita, convicted of treason for abusing American prisoners of war, was sentenced to death but had his sentence commuted to life imprisonment by President Dwight D. Eisenhower. By contrast, the Ethel and Julius Rosenbergs’ espionage convictions brought death sentences.
Of the two successful prosecutions for treason at the state level—Thomas Dorr in Rhode Island in 1844 and John Brown in Virginia in 1859—only Brown was executed. Dorr was pardoned, and elements of the political agitations for which he was convicted were soon adopted into law in Rhode Island.
Bradley C. S. Watson
See Also
Article I, Section 9, Clause 3 (Bill of Attainder)