The Online Library of Liberty

A project of Liberty Fund, Inc.

• About the Author
• Preface
• Part 1: The Constitution’s Deep Roots
• Points to Remember
• The Meaning of Constitutional Government
• The Lamp of Experience
• The Constitutions of Antiquity
• English Origins of America’s Constitution
• The Growth of Parliament
• The Challenge of Parliamentary Supremacy
• The Common Law Tradition
• The Republican Tradition and the Struggle For Constitutional Liberty
• The Influence of Continental Thinkers
• The Education of the Founders
• The French and American Revolutions Compared
• Appendix A: Relevant Chapters of Magna Charta (1215)
• Appendix B: Petition of Right (1628)
• Appendix C: The English Bill of Rights (1689) an Act For Declaring the Rights and Liberties of the Subject, and Settling the Succession of the Crown.
• Part 2: America’s First Constitutions and Declarations of Rights
• Points to Remember
• Colonial Governments
• Relations With Great Britain
• Local Government In the Colonies
• Civil Liberties In the Colonies
• The Movement Toward Independence
• The Declaration of Independence
• The Rights Proclaimed
• The First State Constitutions, 1776–1783
• The Articles of Confederation
• Appendix A: the Mayflower Compact
• Appendix B: Fundamental Orders of Connecticut
• Appendix C: Declaration and Resolves of the First Continental Congress
• Appendix D: Declaration of the Causes and Necessity of Taking Up Arms
• Appendix E: the Declaration of Independence (1776)
• Appendix F: Virginia Bill of Rights
• Appendix G: Thoughts On Government
• Appendix H: Massachusetts Constitution of 1780
• Appendix I: Articles of Confederation (1778)
• Part 3: The Achievement of the Philadelphia Convention
• Points to Remember
• The Problems of the Convention
• The Delegates to the Convention
• A Wide Range of Talents
• Plans and Progress At Philadelphia
• The Meaning of “federal”
• The Virginia Plan: a Supreme National Government
• Hamilton’s Concept of a Unified America
• The New Jersey Plan:checks Upon Central Power
• The Benefits of Compromise
• Compromise and Consensus
• Appendix A: Virginia Plan
• Appendix B: New Jersey Plan
• Appendix C: Constitution of the United States of America (1787)
• Part 4: Basic Constitutional Concepts: Federalism, Separation of Powers, and Rule of Law
• Points to Remember
• A.: Federalism
• Powers Delegated to Congress
• Powers Denied to Congress
• Powers Denied to the States
• The Division of Powers
• The Supremacy Clause
• National and State Obligations
• Obligations of the National Government to the States
• Obligations of the States to the National Government
• Obligations of the States to Each Other
• The Role of the States In the Amendment Process
• The Federalism Factor
• The Advantages of Federalism
• The Future of Federalism
• B.: the Separation of Powers
• Checks and Balances
• Checks Upon the Congress
• Checks Upon the President
• Checks Upon the Judiciary
• The Independence of Congress
• The Independence of the President
• The Independence of the Judiciary
• Summary and Review
• Separation of Powers: a Critical Evaluation
• Separation of Powers At the Crossroads
• C.: The Rule of Law
• The Basic Principles of the American Constitution
• Appendix A: the Federalist No. 10
• Appendix B: the Federalist No. 45
• Appendix C: The Federalist No. 47
• Part 5: Defending the Constitution: the Struggle Over Ratification and the Bill of Rights
• Points to Remember
• A.: the Anti-federalist Persuasion
• The Constitution Establishes a Consolidated Empire
• The Constitution Establishes an Aristocracy
• The Constitution Confers Too Much Power
• An Imperial Congress
• An Elected Monarch
• An Omnipotent Judiciary
• B.: the Federalist Response
• The Constitution Limits and Distributes Power
• Congress Is Not an Oligarchy
• The President Is Not a King
• The Judiciary Is the Least Dangerous Branch
• Whether a Bill of Rights Was Necessary
• The Clash of Values
• C.: The Bill of Rights
• The First Amendment: Religious Freedom, and Freedom to Speak, Print, Assemble, and Petition
• The Second Amendment: the Right to Bear Arms
• The Third Amendment: Quartering Troops
• The Fourth Amendment: Search and Seizure
• The Fifth Amendment: Rights of Persons
• The Sixth Amendment: Rights of the Accused
• The Seventh Amendment: Trial By Jury In Civil Cases
• The Eighth Amendment: Bail and Cruel and Unusual Punishments
• The Ninth Amendment: Rights Retained By the People
• The Tenth Amendment: Rights Retained By the States
• Rights Versus Duties
• Appendix A: the Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents
• Appendix B: Northwest Ordinance (1787)
• Part 6: Interpreting and Preserving the Constitution
• Points to Remember
• Principles of Statutory Construction
• The Doctrine of Judicial Review
• The Supreme Court As Final Interpreter
• The States As Final Interpreters
• Strict Versus Loose Construction
• The Independence of the Judiciary
• A.: Origins of Judicial Independence
• B.: the Judicial Power
• C.: Jurisdiction
• Appendix A: Marbury V. Madison
• Appendix B: Martin V. Hunter’s Lessee
• Appendix C: Washington’s Farewell Address (1796)
• Part 7: Changing the Constitution—together With an Explanation of the Amendments Added Since 1791
• Points to Remember
• Our Living Constitution
• Our Changing Constitution
• Amending the Constitution
• The Limits of the Amending Power
• The Amended Constitution
• A.: Amendment Xi (1798)
• B.: Amendment Xii (1804)
• C.: Amendment Xiii (1865)
• D.: Amendment Xiv (1868)
• E.: Amendment Xv (1870)
• F.: Amendment Xvi (1913)
• G.: Amendment Xvii (1913)
• H.: Amendment Xviii (1919)
• I.: Amendment Xix (1920)
• J.: Amendment Xx (1933)
• K.: Amendment Xxi (1933)
• L.: Amendment Xxii (1951)
• M.: Amendment Xxiii (1961)
• N.: Amendment Xxiv (1964)
• O.: Amendment Xxv (1967)
• P.: Amendment Xxvi (1971)
• Q.: Amendment Xxvii (1992)
• Conclusion

B.

THE JUDICIAL POWER

The independence of the Judiciary with respect to the powers it exercises is substantially limited, however, by federalism and the check and balance system of the Constitution. Section 1 of Article III states that the “judicial power” of the Federal government shall be vested in the Federal courts, and Section 2 of Article III lists the kinds of cases or controversies in which this power may be exercised. There are nine such classes of cases: (1) Cases arising under the Constitution, under a Federal law, or under a treaty; (2) cases affecting ambassadors, other public ministers, and consuls; (3) cases of admiralty and maritime jurisdiction; (4) controversies between two or more States; (5) controversies between a State and citizens of another State; (6) controversies between citizens of different States; (7) controversies between citizens of the same State claiming land under grants of different States; (8) controversies between a State and a foreign citizen; and (9) controversies between an American citizen and a foreign citizen. Taken literally, Section 2 would seem to say that the judicial power also extends to controversies between a State or citizen thereof and a foreign State. Under established principles of sovereignty and the law of nations, however, a foreign State cannot be sued without its consent. Thus, Mexico would be immune from a suit filed by the State of Texas or a citizen thereof. As a result of the Eleventh Amendment, which shall be examined later, this immunity also works in reverse, and the State of Texas would be immune from a suit filed by a citizen of Mexico.

Another way of understanding what kinds of cases the Federal courts are empowered to hear is to divide them into two categories: (1) the nature of the dispute; (2) the parties to the dispute. Under this first category fall cases arising under the Constitution, a Federal law or treaty, cases arising under admiralty and maritime jurisdiction, and cases involving title to land that is claimed because of land grants of two or more States. The second category, based on the parties to the dispute, covers cases in which the United States government is a party, cases in which a State is a party, cases in which the parties are citizens of different States, and cases that affect foreign ambassadors, ministers, and consuls.

The Constitution speaks of the “judicial power,” but the term is nowhere defined. What did the Framers mean when they conferred the “judicial power” of the United States on the Federal courts? In answering this question, it is important to understand the difference between authority and power. In general, the authority to act is the right to act, whereas the power to act is the capacity to do so. Thus a policeman may have the power or capacity to conduct a search,but whether he has the authority or right to take such action often depends upon whether he has obtained a valid search warrant.

The judicial power, as explained by the Supreme Court, is “the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.” It should not be confused with the “jurisdiction” of a court, which is the authority of a court to exercise “judicial power” in a particular case. If a court lacks jurisdiction over a case, then it cannot exercise judicial power and decide the case. In other words, the scope of the judicial power is limited by the jurisdictional requirement.

A careful reading of Article III of the Constitution reveals that the judicial power is limited in a number of ways. First, it is limited by federalism. The Federal judicial power can be exercised only in certain kinds of cases, not in every conceivable type of dispute that may come before a tribunal. If, for example, one citizen of Kentucky sues another citizen of Kentucky for wrongful injury (tort), the aggrieved party can bring an action to require the other party to pay damages. He would be required to sue in a Kentucky State court, however, because the Federal judicial power does not extend to controversies between citizens of the same State where the dispute involves negligent conduct. As a general rule, therefore, private disputes between citizens of the same State are reserved to the State courts. This is one reason why most cases are decided in the State rather than the Federal courts.

Bearing in mind that there were no national courts under the Articles of Confederation, the Framers were careful to extend the Federal judicial power only to those kinds of cases in which the national interest was at stake, or in those where the States had delegated their powers to the Federal government. These would include cases where a State court decision might interfere with a treaty or the conduct of foreign relations, where it might produce hostility or even armed conflict among the States and disrupt the Union, where uniform rules were needed to facilitate trade and commerce, where the States were unable to act, and where a Federal forum was needed for the convenience of the parties or a just resolution of the dispute. At the risk of oversimplification of these complex matters, it may be said that the judicial power reserved to the States under Article III corresponds roughly to the power reserved to the States elsewhere in the Constitution, and that the Federal judicial power, which is designed to protect the national interest, is derived from and closely relates to the delegated powers of Congress and the powers of the President.

The principle of federalism also serves to limit the Federal judicial power in another way. The fact that the Constitution grants power to the Federal courts in certain types of cases does not, of itself, exclude State courts from exercising concurrent jurisdiction. Congress, as we shall see, is free to make the jurisdiction exclusive or concurrent. Under present law, for example, the Federal courts have exclusive jurisdiction in cases involving patent and copyright laws; but their jurisdiction is concurrent in cases where the parties are citizens of different States. We noted earlier that the State courts would have exclusive jurisdiction in a dispute between two citizens of Kentucky over a case involving personal injury. What is the rule if one of the parties is a citizen of Kentucky and the other party is a citizen of Indiana, in light of the provision in Article III stating that the judicial power shall extend to cases in which the parties are citizens of different States? Congress has decided, by statute, that in diversity of citizenship cases, the case may be decided by the Federal courts or the State courts if the dispute involves more than $10,000, and that if the sum is less, it shall be tried in the State courts.

The power of Congress to regulate and control the Federal courts, it may thus be seen, is formidable. The judicial power is not self-executing and generally may not be exercised unless Congress has enacted a law authorizing Federal courts to take jurisdiction. The Constitution confers the judicial power on the Federal courts, but it is the Congress which confers jurisdiction; and without jurisdiction, a Federal court cannot decide the case. In brief, the responsibility of limiting the power of the Federal Judiciary under our checks and balances system rests primarily with the Congress; and this is accomplished by the second clause of Article III, Section 2, which authorizes Congress to regulate the jurisdiction of the Federal courts.