Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Article III, Section 2, Clause 1

1: 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;10 –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.

Article III, Section 2 defines the universe of federal jurisdiction (“shall extend to”). The kinds of issues included are defined either by the nature of the cause or the character of the parties. An example of the first is “federal question” jurisdiction, i.e., cases “arising under this Constitution, the laws of the United States and treaties ….” The second might be a dispute “between two or more States.”

This is not necessarily federal court jurisdiction. As some other provisions of the Constitution also underscore, the Framers expected that state courts would be significant, if not the principal, forums for federal jurisdiction. In that vein, the federal courts have never exercised the full federal jurisdiction available under Article III, Section 2. Moreover, unless Congress expressly requires that federal courts exercise exclusive jurisdiction over a matter, state courts have concurrent jurisdiction to hear “federal” issues. Congress rarely imposes such “exclusive” jurisdiction outside bankruptcy, patents, federal taxes, and immigration, and cases involving the United States as a party.

The focus of federal jurisdiction can change. During the early years of the Republic, there were few federal statutes, but much attachment to one’s state, with potential local prejudice against outsiders. Therefore, “diversity” jurisdiction (suits between citizens of different states) was more significant than “federal question” jurisdiction. Today, with the increased homogenization of Americans across states, and the explosion of federal law, the relative importance of the types of jurisdiction is reversed.

Federal courts, then, are courts of limited jurisdiction. The jurisdiction, indeed the very existence, of lower federal courts depends on affirmative grants from Congress. Only the original jurisdiction of the Supreme Court is guaranteed under the Constitution, though academics have argued (and Supreme Court opinions have strongly implied) that the Supreme Court also has the inherent power to review at least those lower court opinions that interpret the Constitution.

Once a federal court is authorized to hear a certain type of issue, it can exercise the full “judicial power,” a somewhat amorphous term that describes what courts “do” (e.g, resolve disputes between parties, issue final relief). However, the judicial power requires “cases” and “controversies.” A “controversy” in this context refers to a civil action or suit. A “case” can be either civil or criminal. The Supreme Court has declared that there is no functional significance from the use of one term or the other in the Constitution.

The “case or controversy” requirement limits the exercise of federal jurisdiction. There must be a concrete matter that involves a “live” dispute between adversaries. About a dozen states, such as Massachusetts, allow designated courts to issue “advisory opinions” on the constitutionality of laws at the request of certain parties, such as the state legislature. This is a common feature in foreign constitutional systems, preeminently the German Constitutional Court, which has emerged as the dominant alternative to the American approach. That system is “centralized” judicial review by a specialized court. The American system is “decentralized” judicial review, as any federal “Article III” court, as well as state courts, can decide constitutional questions. Such American courts also are not specialized, as they decide a host of other legal questions.

In a decentralized system of judicial review, the case or controversy requirement represents an important restraint on the inclination of a vast array of courts to inject themselves into constitutional matters. That said, the judiciary has often found ways to hear cases that appear collusive and to avoid hearing disputes it finds impolitic to decide. Related doctrines, such as the “standing” of a plaintiff to sue (has he suffered a clear enough injury) or the “ripeness” or “mootness” of a dispute (is there yet–or still–enough of a dispute), are very much driven by the facts of the particular case and do not lend themselves to neat and readily-applied tests.

Moreover, the Supreme Court as an institution may expand or contract these doctrines based on the attitudes of the justices towards the role of courts. Thus, the Warren Court greatly expanded the “standing” doctrine and made it easier in a number of ways for litigants to bring their disputes to federal courts. That judicial philosophy changed during the Burger and Rehnquist Courts, beginning in the mid-1970s, as Warren Court-era justices began to be replaced. The latest “standing” cases, decided by the Roberts Court concerning establishment clause claims, continue that trend.

More amorphous and less defined even than standing is the “non-justiciable political questions” doctrine. As early as Marbury v. Madison, the Supreme Court emphasized that there are certain kinds of cases beyond judicial review, even if all other particulars are met that would allow a court to hear the matter. Such cases may involve suits to enjoin the other departments from making discretionary political decisions, or attempts to review decisions by the other branches in military or diplomatic matters.

But the application of the doctrine is unpredictable, as a review of the federal courts’ recent approach regarding executive power in the conduct of the fight against terrorists shows. On the one hand, the Supreme Court injected itself into the executive’s domain by recognizing, for the first time (and implicitly overruling a contrary precedent), a right to habeas corpus for enemy combatant detainees not held in the U.S. On the other hand, the Court has not injected itself in other related matters, such as the admission of former detainees into the U.S. contrary to federal law and executive decision. Lower courts have cited the non-justiciable political questions doctrine to that end.

Article III, Section 2, clause 1, is also a pillar for the legitimacy of constitutional judicial review itself. It authorizes the courts to hear cases arising under the Constitution. Though the clause does not conclusively settle the question whether courts are free to disregard unconstitutional laws or must let the legislature repeal such laws (as some state courts determined), the federal judges early took the position that they are not bound by unconstitutional actions. During the 1790s, federal courts in several cases declared their power to exercise judicial review over state laws. More significant, one can identify four cases in which the Supreme Court explicitly or implicitly assumed a power to review the constitutionality of acts of Congress. All arose before Marbury.

Marbury v. Madison, decided in 1803, is the iconic case for judicial review. It has often been portrayed as revolutionary in that it “established” judicial review. It is more accurate to say that it is a political manifesto that provided a coherent defense of judicial review, but one that had already been made in other venues, such as Hamilton’s Federalist 78.

With one qualification, Chief Justice Marshall’s opinion is very cautious. As his wont was to avoid conflict with Jefferson, Marshall gave the President the specific result the latter wanted. Striking down the federal law was not novel, and the Jeffersonians’ criticism of the opinion was generally not directed at that part. The critics, instead, complained about Marshall’s implicit (and novel) claim that the Court could even issue direct orders to the President, an idea the Chief Justice tried to implement later, with mixed results, in a subpoena to Jefferson during the Burr treason trial.

Marbury, and Article III, also do not resolve whether the Supreme Court is the final arbiter of constitutional decisions. Presidents Jefferson, Jackson, Lincoln, Franklin Roosevelt, among others, asserted a “departmental theory,” that each branch is supreme within its own functions, lest one become “more equal” than the others. Marbury is best seen as a declaration of independence of the judicial branch from the others in a matter that directly involved the courts’ function. Extravagant notions of courts roaming far and wide as “final” or “ultimate” deciders of constitutional matters embody a more recent judicial conceit. While there are practical reasons that the judges’ views are entitled to respect from the other branches and the people, it is a blow against republican principles to declare that the opinions of judges are the Constitution itself.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at:

7 replies
  1. yguy
    yguy says:

    It’s my understanding that the current definition of “standing” can be said to be crystallized in Lujan v. Defenders of Wildlife, wherein J. Scalia, to support his assertion that

    …a plaintiff raising only a generally available grievance about government — claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large — does not state an Article III case or controversy.

    quoted J. Brandeis from Fairchild v. Hughes (1922) as follows:

    [This is] not a case within the meaning of . . . Article III. . . . Plaintiff has [asserted] only the right, possessed by every citizen, to require that the Government be administered according to law and that the public moneys be not wasted. Obviously this general right does not entitle a private citizen to institute in the federal courts a suit. . . .

    For whatever reason, Scalia failed to include the rest of the last sentence, which reads

    …to secure by indirection a determination whether a statute, if passed, or a constitutional amendment about to be adopted will be valid.

    Clearly, then, the complete quote was not meant to apply a case that is “ripe”, and, to say nothing of the particulars of Lujan, arguably undermines Scalia’s generalized assertion. If a citizen has the right to require that the federal government be administered according to law, and his assertion of that right is pitted against the denial of that right by the government, how can that not be a case or controversy within the meaning of A3S2C1?

  2. yguy
    yguy says:

    [] Article III [] do[es] not resolve whether the Supreme Court is the final arbiter of constitutional decisions.

    I suppose not, but given that members of the other branches also swear an oath to support the Constitution, the proposition that they are neither obliged nor authorized to abide by unconstitutional court rulings seems not to be a matter of legitimate controversy.

  3. Joerg Knipprath
    Joerg Knipprath says:

    I’m sorry I’m coming late to the forum; extremely hectic day today. Thanks for commenting, yguy. I agree that the other branches swear to uphold the Constitution, not judicial opinions about the Constitution. My comment was more directed at those who argue that the Supreme Court is the final word, binding on all others. This is a 20th century notion more than a 19th century one. The upshot of judicial supremacy is the kind of arrogance the plurality opinion in Planned Parenthood v. Casey displayed by telling everyone to stop challenging the Court’s abortion jurisprudence, as if that were somehow illegitimate, rather than healthy democratic dissent. Justice Scalia effectively eviscerated that argument in his partial dissent.

    Standing and ripeness often overlap factually, but are conceptually distinct. Even if there arguably is a “ripe” case, in that the government is doing something untowards, constitutionally speaking, only someone who can demonstrate a particularized harm can sue. A generalized interest in constitutional government must be resolved at the ballot box. The standing concept is sufficiently protean to allow the courts sufficient flexibility to find particularized harm in interesting ways. The larger the “harmed” group, the more likely there is merely a generalized grievance, but that does not mean that a large group, or some members thereof, cannot show standing. There are class action suits, after all. The more people there are that can show a concrete injury, the more likely it also is that the matter can be resolved through political action.

    Regarding taxpayer suits, the courts have long indicated an aversion to litigating the constitutionality of government expenditures (in contrast to taxes), except in the context of the establishment clause.

    Your understanding of Lujan is correct, but I don’t think it clashes with the Brandeis position (something Brandeis reiterated in other cases, too).

    Again, thanks for your comments.

    • Ralph T. Howarth, Jr.
      Ralph T. Howarth, Jr. says:

      I personally think that if the standing doctrine is supplemented by a “non-subjective” doctrine meaning a controversy without a specified “Subject” as in People v. State, it may have a chilling effect on government overreach. On one hand, standing is valuable in keeping litigation from becoming to frivolous and denying legitimate controversies with a speedy relief; but on the other hand, any government action that takes the color of becoming a “general warrant” affects everybody regardless if a direct harm comes to a particular individual. The 4th Amendment guards against the old time practice of general warrants where Red Coats had license to go anywhere and arbitrarily kick people’s doors down and muzzle butt their sons and daughters in the head. This raises alarm among the populace where indirectly their lives are denied a certain degree of liberty that they are not free to go about their livelihood activities. This is akin to the alarm that a group insurance policy goes about denying a claim of one person sends a message to all other group members that something explicitly covered is not being covered. Further, people who are harmed typically are defrauded much of the means of livelihood such that they are disadvantaged in being able to muster any resources to sue the government. Such as it would be when a family had to flee into the woods because Red Coats had burned their home to the ground. And in these present times their are many legal aid groups who provide much pro bono assistance in a shadow proxy way. If a”non-subjective” doctrine is adopted, then that proxy relationship advocacy of those who cannot defend themselves would change to becoming more direct. The implications are numerous because other expansive doctrines such as the “Privileges and Immunities” controversies that have been a new avenue to bring lawsuits within states that do not allow what another state allows consequently brings the controversies into federal courts.

  4. steve B.
    steve B. says:

    Has the scotus ever subjected an executive order of the president to judicial review? In the essay on article 3 section 3 clause 1 the statement is made “Executive acts,when performed,remain subject to judicial scutiny” Has this ever happened? Steve B.

    • Ralph T. Howarth, Jr.
      Ralph T. Howarth, Jr. says:

      The problem with SCOTUS review of Executive Orders is that EOs are rather a new thing. When it comes to suing the government over breaking a law; but an EO is not law and so breaking an EO is somehow not law, it is the judge who looks at both law and fact. If there is no law there, then what is the judge to judge on? One can only argue and file grievance that an EO itself breaks a law and not whether or not a government action breaks an EO. As judges give deference to the other departments to be autonomous in their own actions the SCOTUS rather not deliberate EOs and actions upon EOs because that is such a slippery political slope to follow.

    • Ralph T. Howarth, Jr.
      Ralph T. Howarth, Jr. says:

      Another upshot is that it is Congress that demurred its law making power to the mechanism of the EO and so any controversy of an EO really puts the ball in the court of the Congress to determine if EOs keep within the bounds of the EO procedural law Congress created. So the SCOTUS has a whole other reason to avoid review of EOs because to do so would subvert the supervisory power Congress delegated to the Executive and bring to question whether Congress has the power to do so in the first place, constitutionally. So EO review is a very politically loaded gun because it involves two very big kids on the block: Congress, and the POTUS; and the SCOTUS knows that it has no power to make either one of them do anything. SCOTUS sole function is only to make decisions on controversies and cases between two parties. Nothing more, and has no power to enforce any of its decisions accept make contrary opinions on other judges’ decisions to the possible defamation of the careers of such judges.


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