Front Page Titles (by Subject) Different Cases of Jurisdiction - Democracy in America: Historical-Critical Edition, vol. 1
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Different Cases of Jurisdiction - Alexis de Tocqueville, Democracy in America: Historical-Critical Edition, vol. 1 
Democracy in America: Historical-Critical Edition of De la démocratie en Amérique, ed. Eduardo Nolla, translated from the French by James T. Schleifer. A Bilingual French-English editions, (Indianapolis: Liberty Fund, 2010). Vol. 1.
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This bilingual edition of Tocqueville’s work contains a new English translation of the French critical edition published in 1990. The copyright to the French version is held by J. Vrin and it is not available online. The copyright to the English translation, the translator’s note, and index is held by Liberty Fund.
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Different Cases of Jurisdiction
The matter and the person, bases of federal jurisdiction.—Proceedings against ambassadors,—against the Union,—against an individual state.—Judged by whom.—Proceedings that arise from the laws of the Union.—Why judged by the federal courts.—Proceedings relating to breach of contracts judged by the federal judicial system.—Consequence of this.
After having recognized the means to set federal jurisdiction, the law-makers of the Union determined the cases in which that jurisdiction must be exercised.
They acknowledged that there were certain litigants who could only be judged by the federal courts, no matter what the subject of the proceedings.
They then established that there were certain proceedings that could only be decided by these same courts, no matter what the qualification of the litigants.
So the person and the matter became the two bases of federal jurisdiction.
Ambassadors represent nations friendly to the Union; everything that involves ambassadors involves in a way the entire Union. When an ambassador is party to a legal proceeding, the proceeding becomes an affair that touches on the welfare of the nation; it is natural that a federal court decides.
The Union itself can be the subject of proceedings; in this case, it would have been contrary to reason as well as to the custom of nations, to bring it for judgment before courts representing a sovereignty other than its own. It is for the federal courts alone to decide.
When two individuals, belonging to two different states, have a legal proceeding, you cannot, without disadvantage, have them judged by the courts of one of the two states. It is safer to choose a court that cannot incite the suspicion of any of the parties, and the court that very naturally presents itself is that of the Union.
When the two litigants are no longer isolated individuals, but states, this reason for equity is joined by a political reason of the first order. Here the status of the litigants gives a national importance to all proceedings; the smallest litigious issue between two states involves the peace of the entire Union.28
Often the very nature of the proceedings must serve as a rule of jurisdiction. Thus all questions that are related to maritime commerce must be settled by federal courts.29
The reason is easy to point out: nearly all these questions get into an estimation of the law of nations. From this perspective, they essentially involve the whole Union in relation to foreigners. Since the sea, moreover, does not fall into one judicial circumscription rather than another, only the national court system can have a claim on legal proceedings that have a maritime origin.
The Constitution has enclosed in a single category nearly all the proceedings that, by their nature, must be under the jurisdiction of the federal courts.
In this regard, the rule that it indicates is simple, but it comprises in itself alone a vast system of ideas and a multitude of facts.
The federal courts, it says, must judge all proceedings that arise in the laws of the United States.
Two examples will make the thought of the law-maker perfectly clear.
The Constitution forbids the states the right to make laws on the circulation of money; despite this prohibition, a state makes such a law. Interested parties refuse to obey it, understanding that it is contrary to the Constitution. The matter must be brought before a federal court, because the grounds for the case are drawn from the laws of the United States.
Congress establishes a tariff law. Difficulties arise over the understanding of this law. Again, the matter must be presented before the federal courts, because the cause for the proceeding is in the interpretation of a law of the United States.
This rule is in perfect agreement with the bases adopted for the federal Constitution.
The Union, as constituted in 1789, had, it is true, only a limited sovereignty, but the desire was that, within this circle, the Union formed only one and the same people.30 Within this circle, it is sovereign. This point set forth and accepted, all the rest becomes easy; for if you recognize that the United States, within the limits posed by their Constitution, form only one people, the rights belonging to all peoples must surely be granted to them.
Now, since the origin of societies, this point is agreed upon: each people has the right to have all questions relating to the enforcement of its own laws judged by its courts. But you answer: the Union is in the singular position that it forms one people only relative to certain matters; for all others, it is nothing. What is the result? At least for all the laws that relate to these matters, the Union has the rights that would be granted to complete sovereignty. The real point of difficulty is knowing what those matters are. This point settled (and we have seen above, while treating jurisdiction, how it was settled), no question truly speaking remains; for once you have established that a proceeding was federal, that is, came within the portion of sovereignty reserved to the Union by the Constitution, it naturally followed that a federal court alone would decide.
So whenever someone wants to attack the laws of the United States, or invoke them in self-defense, it is the federal courts that must be addressed.
Thus, the jurisdiction of the courts of the Union expands or contracts depending on whether the sovereignty of the Union itself expands or contracts.
We have seen that the principal aim of the law-makers of 1789 had been to divide sovereignty into two distinct portions. In one, they placed the direction of all the general interests of the Union; in the other, the direction of all the interests particular to some of its parts.
Their principal concern was to arm the federal government with enough power for it to be able to defend itself, within its sphere, against the encroachments of the individual states.
As for the latter, the general principal adopted was to leave them free in their sphere. Within that sphere, the central government can neither direct them nor even inspect their conduct.
I have indicated in the chapter on the division of powers that this last principle had not always been respected. There are certain laws that an individual state cannot enact, even though the laws apparently involve only that state.
When a state of the Union enacts a law of this nature, the citizens who are harmed by the execution of this law can appeal to the federal courts.b
Thus, the jurisdiction of the federal courts extends not only to all the proceedings that have their source in the laws of the Union, but also to all those that arise in the laws that the individual states have enacted unconstitutionally.
The states are forbidden to promulgate ex post facto laws in criminal matters; the man who is sentenced by virtue of a law of this type can appeal to the federal judicial system.
The Constitution also forbids the states to make laws that can destroy or alter rights acquired by virtue of a contract (impairing the obligations [sic:obligation] of contracts).31
From the moment when an individual believes that he sees a law of his state that harms a right of this type, he can refuse to obey and appeal to the federal justice system.32
To me, this disposition seems to attack the sovereignty of the state more profoundly than all the rest.c
The rights granted to the federal government, for ends clearly national, are defined and easy to understand. Those that are indirectly conceded to it by the article that I have just cited are not easily felt, and their limits are not easily traced. There is, in fact, a multitude of political laws that act upon the existence of contracts, and that could therefore furnish grounds for encroachment by the central power.
[28. ] The Constitution says as well that the proceedings that can arise between a state and the citizens of another state will be under the jurisdiction of the federal courts. Soon the question arose of knowing if the Constitution meant all proceedings that can arise between a state and the citizens of another state, whether the ones or the others were plaintiffs. The Supreme Court decided affirmatively; but this decision alarmed the individual states who feared being brought despite themselves, for the slightest reason, before the federal court system. So an amendment was introduced to the Constitution, by virtue of which the judicial power of the Union could not extend to judging the cases that had been initiated against one of the United States by the citizens of another. See Story’s Commentaries, p. 624.
[29. ] Example: all acts of piracy.
[30. ] A few restrictions were certainly placed on this principle by introducing the individual states as independent powers in the Senate, and by having them vote separately in the House of Representatives in the case of election of the President; but these are exceptions. The opposite principle is the dominant one.
[b. ] “Other defect of federal jurisdiction. The federal courts can only be apprised by an individual interest. Now, what would happen if a state passed an unconstitutional act that harmed only the sovereignty of the Union? Nearly impossible case” (YTC, CVh, 1, pp. 50-51).
[31. ]It is perfectly clear, says Mr. Story, p. 503, that every law that expands, contracts or changes in whatever way the intention of the parties, such as result from the stipulations contained in a contract, impairs this contract. In the same place, this same author carefully defines what federal jurisprudence understands by a contract. The definition is very broad. A concession made by a state to an individual and accepted by him is a contract, and cannot be taken away by the effect of a new law. A charter granted by the state to a company is a contract, and binds the state as well as the concessionary. The article of the Constitution that we are speaking about therefore assures the existence of a great portion of vested rights, but not all. I can very legitimately own a property without its having passed into my hands by a contract. Its possession is for me a vested right, and this right is not guaranteed by the federal constitution.
[32. ]Here is a remarkable example cited by Mr. Story, p. 508. Darmouth [Dartmouth (ed.)] College, in New Hampshire, had been founded by virtue of a charter granted to certain individuals before the American Revolution. Its administrators formed, by virtue of this charter, a constituted body, or, following the American expression, a corporation. The legislature of New Hampshire believed it necessary to change the terms of the original charter and transferred to new administrators all the rights, privileges and immunities that resulted from this charter. The former administrators resisted and appealed to the federal court, which agreed to hear the case, understanding that, since the original charter was a true contract between the state and the concessionaries, the new law could not change the disposition of this charter without violating the vested rights of a contract and consequently violating article I, section X, of the Constitution of the United States.
[c. ] In a first version: “≠. . . than all the rest. But it is so difficult to calculate in advance the impact of laws, that it is not unusual to see the most numerous assemblies consecrate long discussions to uninteresting points, while an article that will lead to the most characteristic effect of the law is precisely the one that passes unnoticed and is revealed only by experience.≠”