YALE LAW JOURNAL

Vol. XVIII

NOVEMBER, 1908.

No. I

THE EXTENT OF THE JUDICIAL POWER

OF THE UNITED STATES

In marking out the powers of the three departments of the government of the United States, quite different forms of expression are employed.

Art. 1, Sec. 1, declares that "All legislative Powers herein granted shall be vested in a Congress of the United States." Art. 1, Sec. 8, provides that "The Congress shall have Power to" pass laws on certain specified subjects, and also "all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or officer thereof."

Art. II, Sec. 1, declares that "The Executive Power shall be vested in a President of the United States of America;" and that he shall take an oath that he will faithfully execute the office “of President of the United States." Art. II, Sections 2 and 3, confer upon him certain specified powers, one being that "he shall take care that the Laws be faithfully executed."

Art. III, declares (Sec. 1.) that "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;" and (Sec. 2) that

"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;-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."

"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. 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 Tenth Amendment provides that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

In legal theory, the people of the several States of the United States, by the action of a majority of the people in each State taken within that State, delegated certain powers, which either these States or peoples or the whole people of the United States had theretofore possessed, to the United States of America.

It was not clear, on the face of the Tenth Amendment, whether in the provision that the powers not so delegated were reserved to the States respectively or to the people, the word "people" meant the people of the States respectively, or the people of the United States as a whole.

The phrase "or to the people" was added to the draft of the Amendment as originally reported to the first Congress, on the motion of Roger Sherman, and without debate. He probably

designed to leave what these words meant to be settled later by the courts. To have made the alternative reservation expressly to the people of the United States would have been unpalatable to the small States. To have made it expressly to the people of each State respectively would have been unpalatable to the nationalists.

In framing the Constitution of the Confederate States of America, adopted March 11, 1861, the language of the Tenth Amendment was incorporated, with the addition at the end of the word "thereof;" and in the same spirit the language of the Ninth Amendment was incorporated with the addition at the end of the

words "of the several States." It is significant that while these changes were obviously made in the interest of the "States" Rights" doctrine, no substantial alteration was introduced in following the terms of Art. III of the Constitution of the United States respecting the establishment of the judicial power.

It may safely be said that those who framed that instrument meant to have it both create and define that power, and that the people in adopting it believed that this had been done. None of those who spoke against its ratification in the State Conventions ever claimed that any judicial powers were granted except those expressly enumerated, and such as were properly incident to them. It was argued with great force that some of the enumerated powers were too broad, but no one suggested that there were other powers, inherent in sovereignty, which the government, as reconstituted, would therefore possess. Had it been suggested and generally admitted, the Constitution would, in all probability, never have been ratified.

James Wilson, in the Pennsylvania Convention, gave particular attention to the defence of the scheme of a Federal judiciary, and assumed from the outset that it made specific grants of authority. "Upon a distinct examination," he said, "of the different powers, I presume it will be found that not one of them is unnecessary. I will go farther-there is not one of them but will be discovered to be of such a nature as to be attended with very important advantages."

The Federalist treated the subject in a similar way. In No. LXXX, after a discussion of the principles that ought a priori to regulate the constitution of the Federal judiciary, Publius (i. e. Hamilton) continues thus: "We will proceed to test by these principles the particular powers of which, according to the plan of the Convention, it is to be composed."

The provisions made having been then stated, he observes that "This constitutes the entire mass of the judicial authority of the United States." He then examines each provision by itself, and concludes thus:

"From this review of the particular powers of the federal judiciary, as marked out in the constitution, it appears, that they are all conformable to the principles which ought to have governed

1 Davis, Rise and Fall of the Confederate Government, I, 672; Cf. ibid., 146, 158.

2 Elliot's Debates, II, 486.

the structure of that department, and which were necessary to the perfection of that system."

Continuing the discussion in No. LXXXI, he says that "The amount of the observations hitherto made on the authority of the judicial department is this: That it has been carefully restricted to those causes which are manifestly proper for the cognizance of the national judicature."

In No. LXXXIII, after remarking that Congress has only certain enumerated powers and no general legislative authority, he makes this explicit observation:

"In like manner, the authority of the federal judicatures, is declared by the constitution to comprehend certain cases particularly specified. The expression of those cases, marks the precise limits beyond which the federal courts cannot extend their jurisdiction; because the objects of their cognizance being enumerated, the specification would be nugatory, if it did not exclude al! ideas of more extensive authority."

In Chisholm v. Georgia, Justice Jay, after premising that the preamble of the Constitution declared one of its main purposes was to "establish justice," proceeded thus:

"It may be asked, what is the precise sense and latitude in which the words 'to establish justice,' as here used, are to be understood? The answer to this question will result from the provisions made in the Constitution on this head. They are specified in the 2d section of the 3d article, where it is ordained, that the judicial power of the United States shall extend to ten descriptions of cases, viz. Ist. To all cases arising under this Constitution; because the meaning, construction, and operation of a compact ought always to be ascertained by all the parties, or by authority derived only from one of them. 2d. To all cases arising under the laws of the United States; because as such laws constitutionally made, are obligatory on each State, the measure of obligation and obedience ought not to be decided and fixed by the party from whom they are due, but by a tribunal deriving authority from both the parties."

Then follows a similar statement of each remaining one of the ten grants, with its justification, concluding in these words: "Even this cursory view of the judicial powers of the United States, leaves the mind strongly impressed with the importance

8 Ru. Should or read not?