Samuel Adams, the Massachusetts patriot, was not enthusiastic about the newly proposed Constitution. He particularly did not like its introductory phrase, “We the People of the United States.” The phrase signaled a departure from the Articles of Confederation that the Constitution was to replace. The constituting authorities for the Articles of Confederation were the states, which had signed the Articles as states in the same way that sovereign countries would sign a treaty. By contrast, the constituting authority for the Constitution was the people. Adams wrote to his friend Richard Henry Lee of Virginia on December 3, 1787, “[A]s I enter the Building I stumble at the Threshold. I meet with a National Government, instead of a Federal Union of Sovereign States.”
I stumble at a smaller but nonetheless important threshold, this one in Article III of the Constitution. The threshold is the word “all,” which appears five times in the first two paragraphs of Section 2. The word, and its meaning, raise the same question the phrase “we the people” raised for Adams. The question was then, and it remains today, the division of authority between—to use Adams’s words—the national government and the sovereign states.
Despite its textual prominence at the beginning of Section 2, the word has received relatively little attention, either in the Framers’ time or in our own. Far from stumbling at the threshold, most people—including the Framers and most modern academics—have stepped over the word without comment. There have been a few notable exceptions, however. For example, as I will discuss in a moment, Justice Story, writing for the Supreme Court in Martin v. Hunter’s Lessee in 1816, relied on the word in explaining his broad view of the constitutionally obligatory jurisdiction of the federal courts. Professor William Crosskey, in his two-volume study of the Constitution in 1953, had a similarly expansive view of federal court jurisdiction. Finally, Professor Akhil Amar has paid close and sustained attention to the word, beginning with his groundbreaking article in 1985. Yet, somewhat to my surprise, no modern writer has read the word in the way I now propose that it should be read.
The first paragraph of Article III, Section 2 sets forth the heads of jurisdiction for the federal courts generally, including but not limited to the Supreme Court. The first paragraph of Section 2 begins with three heads of jurisdiction, each of which is preceded by the word “all”:
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; – to all Cases affecting Ambassadors, other public Ministers and Consuls; – to all Cases of admiralty and maritime jurisdiction . . . .
I will call these federal question, ambassador, and admiralty jurisdiction. The first paragraph then continues with the remaining heads of jurisdiction, none of which is preceded by “all”:
The Judicial Power shall extend . . . – to Controversies to which the United States shall be a Party; – to Controversies between two or more States; – between a State and Citizens of another State; – between Citizens of different States; – between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
The second paragraph of Section 2 more specifically sets forth the jurisdiction of the Supreme Court. It provides that the Supreme Court shall have original jurisdiction in two categories of cases preceded by the word “all”—ambassador cases and cases in which a state is a party. In other categories of cases, the Supreme Court’s jurisdiction is appellate. The second paragraph provides:
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction. 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.
The word “all” thus appears as a lead-in to the first three heads of jurisdiction of the first paragraph dealing generally with subject matter jurisdiction in the federal courts—federal question, ambassador, and admiralty jurisdiction. Then it appears again as the lead-in to the two heads of original jurisdiction in the second paragraph dealing specifically with the subject matter jurisdiction of the Supreme Court—ambassador and state-as-a-party jurisdiction.
As I read the historical evidence, the word “all” applies to, and has the same meaning for, all four heads of jurisdiction specified in the first two paragraphs of Section 2—the federal question, ambassador, and admiralty jurisdiction in the first paragraph, and the ambassador and state-as-a-party jurisdiction in the second paragraph. I say four rather than five heads of jurisdiction because I am counting ambassador jurisdiction only once. As to these four heads of jurisdiction, the word “all” authorizes, but does not require, Congress to confer exclusive jurisdiction on the federal courts.
Under my reading of the word “all,” Congress may specify that some or all cases brought under federal question, ambassador, and admiralty jurisdiction are within the exclusive jurisdiction of the federal courts generally. Similarly, Congress may specify that some or all of the cases brought under ambassador and state-as-a-party jurisdiction are within the exclusive original jurisdiction of the Supreme Court. To the extent that Congress specifies that jurisdiction is exclusive, cases under these heads of jurisdiction can be brought only in the federal courts. As to such cases, the state courts can hear none of them. The federal courts must hear all of them.
This reading of the word “all” implies a negative. As for the remaining heads of jurisdiction which are not preceded by the word “all”—such as diversity jurisdiction—Congress cannot provide for exclusive jurisdiction in the federal courts. The absence of the word “all” means that federal court jurisdiction over these cases can be no more than concurrent with the state courts.
Very little evidence in the records of the delegates to the Constitutional Convention exists to support this interpretation. The word “all” appeared fairly late in the drafting process, particularly the “all” that applies to the Supreme Court’s original jurisdiction. The delegates may have had—indeed, probably did have—a precise meaning in mind for the word, but that meaning is not articulated in the record that has been preserved.
There is, however, helpful evidence in Alexander Hamilton’s Federalist No. 82. Hamilton, who had been a delegate to the convention, wrote that the federal courts’ jurisdiction in Article III was of two kinds. The first kind could be either exclusive in the federal courts or concurrent with the state courts. In Hamilton’s words, this kind of jurisdiction extended to “cases which may grow out of, and be peculiar to, the Constitution to be established.” That is, this kind of jurisdiction extended to cases that were made possible only because of the creation of the new national government. The most obvious example was cases arising under federal law. If Congress intended that this jurisdiction be exclusive, it must explicitly so provide. The other kind of jurisdiction could be only concurrent. This was jurisdiction over cases of which the states had had “previous cognizance” as part of their “primitive” jurisdiction. The most obvious example was diversity cases. Congress had no power to make this kind of jurisdiction exclusive.
Hamilton never refers to the word “all” in Federalist No. 82. Nor do his two categories map perfectly onto the use of the word in Article III. Federal question and ambassador jurisdiction were cases made possible only by the creation of the national government; and one could make an argument that state-as-a-party jurisdiction also fell in that category. But admiralty jurisdiction clearly did not, for state courts had routinely heard admiralty cases under the Articles of Confederation. Perhaps, given his audience, Hamilton preferred to argue at a level of general principle rather than fine-grained textual analysis. But despite his failure to mention the word “all” (or indeed to quote any of the text of Article III), and despite his somewhat imprecise sorting of the two types of cases, Hamilton’s argument tells us to read the heads of subject matter jurisdiction in Article III as authorizing either exclusive or concurrent jurisdiction for some suits and only concurrent jurisdiction for others.
The first Judiciary Act, adopted in September 1789 during the first session of the first Congress, provides additional, and stronger, evidence. The three primary drafters of the Act were prominent lawyers, all of whom had been delegates to the Convention. They were Oliver Ellsworth of Connecticut, previously a judge on the state trial court and later Chief Justice of the United States; William Paterson of New Jersey, previously the state’s attorney general and later Justice of the United States Supreme Court; and Caleb Strong of Massachusetts, previously a judge on the state trial court and later governor of Massachusetts.
The Judiciary Act was extremely precise in its division between exclusive and concurrent jurisdiction. As will be seen, that division corresponds exactly to the use, and nonuse, of the word “all” in Article III, Section 2. First, in Section 9 of the Act, Congress conferred jurisdiction on the district courts. Those courts were given exclusive jurisdiction over “crimes and offences . . . cognizable under the authority of the United States.” Such jurisdiction was almost certainly seen as coming under federal question jurisdiction because any criminal prosecution for a crime against the United States was almost certainly seen as a crime in violation of federal law. The district courts were also given exclusive jurisdiction over suits against consuls or vice-consuls. This jurisdiction obviously came under ambassador jurisdiction. Finally, the district courts were given exclusive jurisdiction over admiralty cases, subject only to the famous “saving to suitors” clause. In other words, the district courts were given exclusive jurisdiction over some of the cases that fell under each of the three heads of jurisdiction preceded by the word “all” in the first paragraph of Article III, Section 2—federal question, ambassador, and admiralty.
Second, in Section 11 of the Act, Congress conferred jurisdiction on the circuit courts. The circuit courts heard appeals from the district courts. In the exercise of that appellate jurisdiction, they had the same exclusive and concurrent jurisdiction as the district courts did under Section 9 of the Act. But the circuit courts were primarily courts of original jurisdiction. Congress gave them original exclusive jurisdiction over criminal offenses against the United States, just as it gave such jurisdiction to the district courts. And Congress gave them original jurisdiction over diversity cases, but that jurisdiction was concurrent with the state courts.
Third, in Section 13 of the Act, Congress specified the jurisdiction of the Supreme Court. Section 13 authorized exclusive original jurisdiction in the Supreme Court over suits against ambassadors and other public ministers, and original, but not exclusive, jurisdiction over suits brought by ambassadors or other public ministers. Also in Section 13, Congress authorized exclusive original jurisdiction in the Supreme Court over suits between states, and concurrent original jurisdiction over suits between a state and its citizens and between a state and citizens of other states or aliens This is the only section of the Judiciary Act of 1789 in which a federal court was granted exclusive jurisdiction where the head of subject matter jurisdiction was not federal question, ambassador, or admiralty, as provided in the first paragraph of Article III, Section 2. But the basis for exclusive original jurisdiction in the Supreme Court was not the first paragraph of Section 2. Rather, it was the second paragraph, which provided for original jurisdiction over “all” ambassador and state-as-a-party cases.
Finally, Justice Story’s opinion in Martin v. Hunter’s Lessee, written in 1816, provides at least a modicum of helpful evidence. There is some reason to be suspicious of Story’s interpretation of Article III. Story was not a member of the Framers’ generation, and he made no claim to know firsthand what the Framers had intended. Moreover, he was an ardent advocate of the expansion of federal judicial power, and his jurisdictional interpretations and arguments in his speeches, treatises, and opinions were all in the service of such expansion. For example, Story campaigned for the elimination of the last sentence of Section 25 of the Judiciary Act of 1789, which restricted the Supreme Court’s review of state court judgments to the federal question providing the basis for the Court’s jurisdiction. Story’s enthusiasm for admiralty jurisdiction was so great that his contemporaries joked that he would assert admiralty jurisdiction over a corn cob floating in a bucket of water. Nonetheless, we should take Story’s views seriously, for his was one of the preeminent legal minds of his generation.
In Martin v. Hunter’s Lessee, Justice Story argued that Congress was constitutionally required to confer on the federal courts the full extent of the jurisdiction authorized in Article III, Section 2, including not only the heads of jurisdiction preceded by the word “all,” but also the other heads of jurisdiction not preceded by “all.” Story contended that the heads of jurisdiction preceded by the word “all” could be—or perhaps should be—made exclusive in the federal courts.
What is the modern significance of this reading of the word “all”? One may prefer Professor Amar’s reading of the word because of its relevance to the jurisdiction-stripping debates that arise when Congress (or, more recently, the President) is extremely unhappy with decisions by the federal courts. Under Professor Amar’s reading, Congress cannot strip the federal courts of any of their constitutionally authorized federal question, ambassador, or admiralty jurisdiction. Under his reading, Congress is required by the word “all” to authorize subject matter jurisdiction in some federal court—either originally or on appeal—to the full extent of the constitutionally available jurisdiction under these three heads. Under my reading, an argument against jurisdiction stripping by Congress cannot rely on the word “all,” although it can rely on other grounds. This result may be regarded as an unfortunate consequence of my reading of the word. But I am not so sure.
One of the abiding difficulties in our democracy is reconciling the exercise of judicial power, especially the power to declare Acts of Congress unconstitutional, with our sense that we should be governed by our collective democratic will. The late Professor Charles Black recognized that the power of Congress over the jurisdiction of the federal courts may help achieve that reconciliation. Professor Black loved to tell the story—perhaps true, perhaps not—of a renowned French priest sailing into New York, in the days when people came to the United States by sea. As his ship came into the harbor, the priest said to waiting reporters, “It is wonderful to breathe the sweet air of legitimacy!”
The legitimacy of our government is produced by the mutually reinforcing actions of the political and judicial branches. If the federal judiciary has the power of judicial review, and if it chooses to leave Acts of Congress undisturbed, the judiciary has to that degree accepted and legitimized the exercise of Congress’s power. And if Congress has the power to strip the federal courts of their jurisdiction, and if it chooses to leave their jurisdiction undiminished, Congress has to that degree in turn accepted and legitimized the exercise of judicial power.
Copyright © 2010 Duke University Law Journal.
William A. Fletcher is a Judge on the U.S. Court of Appeals for the Ninth Circuit.
This Legal Workshop Editorial is based on the following Lecture: William A. Fletcher, The Meaning of the Word “All” in Article III, based on 59 DUKE L.J. 929 (2010). The original Lecture was delivered on November 11, 2008 as the Brainerd Currie Lecture.
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