Guest Essayist: Horace Cooper, Director of the Center for Law and Regulation at the Institute for Liberty

Federalist Paper 80 was printed in the Independent Journal in New York on June 21, 1788.  Hamilton sets out to outline the jurisdiction of the Federal judiciary as outlined in the new Constitution.  He explains that federal jurisdiction involves “all cases in law and equity arising under the 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 and grants of different States; and between a State or the citizens thereof and foreign states, citizens, and subjects.”

In his view in order to best evaluate the “the proper extent of the federal judicature” it is necessary to understand the appropriate role of federal judges. Hamilton outlines five instances which constitute “appropriate” areas of responsibility for federal judges:  first, litigation that arise as a result of conflict over the laws passed by Congress or the United States Constitution, second litigation resulting from disputes with the President and his administration while carrying out Congressional statutes, third any disputes in which the United States government is a party, fourth disputes between states and/or foreign nationals, fifth litigation involving the high seas which are of maritime origin, and lastly any disputes which state judges might be thought to be partial or biased.

Hamilton rightly observes that a key ingredient in the operation of a federal system is a judicial system with the authority to oversee disputes arising from the federal power.  He cites the obvious example of 13 different courts assessing the same set of facts and reaching different outcomes as a key reason that the states should not have this power.  Hamilton calls such an outcome a “hydra in government, from which nothing but contradiction and confusion can proceed.”

One area that Hamilton mentions that should receive further explanation for federal jurisdiction are instances involving disputes between two states, between one state and citizens of another and between citizens of different states.  Suggesting that there are disputes that lead to war and insurrection, Hamilton cites the Imperial Chamber the High Court in Germany created in the latter part of the 15th century by the Holy Roman Empire for the “vast influence of that institution in appeasing the disorders and establishing the tranquillity of the empire.”  It is perhaps a curious choice as an example by Hamilton because the Imperial Chamber was notoriously slow in carrying out its deliberations.  Lawsuits involving territories often took more than 100 years before rulings were issued.  In fact, when the Court was finally dissolved in 1806 there were cases pending that were over 300 years in age.  Compared to the Imperial Chamber, the American judicial system travels at the speed of light.

This seemingly simple exposition of the appropriate jurisdiction masks a sophisticated understanding that exists in the United States — we are a system of dual jurisdictions.  Thus there are significant areas of litigation that — not only would Hamilton not have mentioned — is primarily left to state courts to address.

One of the earliest examples of the dispute between Federal and state authority arose in 1818 in a case called United States v. Bevans, 16 U.S. (3 Wheat.) 336 (1818).  The case involved a federal prosecution of a murder that took place on board a military combat ship the Independence that was anchored in the Boston harbor in Massachusetts.  In this case, the defense successfully argued that this case should not be tried in Federal Court under admiralty law because the ship was docked in the state of Massachusetts.   In its ruling for the defense the Supreme Court explained, “The article which describes the judicial power of the United States is not intended for the cession of territory or of general jurisdiction…  It is difficult to compare the two sections together, without feeling a conviction, not to be strengthened by any commentary on them, that, in describing the judicial power, the framers of our constitution had not in view any cession of territory; or, which is essentially the same, of general jurisdiction.”  The Supreme Court notably upheld the very distinctions that Hamilton outlined in Federalist #80.

Tuesday, August 17th, 2010


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