The Act of April 20, 1940, c. 117, 54 Stat. 143 (now 28 U.S.C. §
1332), conferred on the federal district courts jurisdiction of
civil actions (involving no federal question) between citizens of
the District of Columbia and citizens of a State. A District of
Columbia corporation instituted in the Federal District Court for
Maryland an action against Virginia corporation wherein the
jurisdiction depended solely on diversity of citizenship. The
District Court held the Act unconstitutional, and dismissed the
complaint. The Court of Appeals affirmed.
Held: the Act is constitutional, and the judgment is
reversed. Pp.
337 U. S.
583-585,
337 U. S.
604.
165 F.2d 531 reversed.
A District of Columbia corporation sued a Virginia corporation
in the Federal District Court for Maryland, the jurisdiction
depending solely on diversity of citizenship. The District Court
dismissed the complaint. The Court of Appeals affirmed. 165 F.2d
531. This Court granted certiorari. 333 U.S. 860.
Reversed, p.
337 U. S.
604.
Page 337 U. S. 583
MR. JUSTICE JACKSON announced the judgment of the Court and an
opinion in which MR. JUSTICE BLACK and MR. JUSTICE BURTON join.
This case calls up for review a holding that it is
unconstitutional for Congress to open federal courts in the several
states to action by a citizen of the District of Columbia against a
citizen of one of the states. The petitioner, as plaintiff,
commenced in the United States District Court for Maryland an
action for money judgment on a claim arising out of an insurance
contract. No cause of action under the laws or Constitution of the
United States was pleaded, jurisdiction being predicated only upon
an allegation of diverse citizenship. The diversity set forth was
that plaintiff is a corporation created by District of Columbia
law, while the defendant is a corporation chartered by Virginia,
amenable to suit in Maryland by virtue of a license to do business
there. The learned District Judge concluded that, while this
diversity met jurisdictional requirements under the Act of
Congress, [
Footnote 1] it did
not comply with diversity requirements of the Constitution as to
federal jurisdiction, and so dismissed. [
Footnote 2] The Court of Appeals, by a divided court,
affirmed. [
Footnote 3] Of
twelve district courts that had considered the question up to the
time review in this Court was sought, all except three had held the
enabling Act unconstitutional, [
Footnote 4] and the two Courts of Appeals which had
Page 337 U. S. 584
spoken on the subject agreed with that conclusion. [
Footnote 5] The controversy obviously
was an appropriate one for review here, and writ of certiorari
issued in the case. [
Footnote
6]
The history of the controversy begins with that of the Republic.
In defining the cases and controversies to which the judicial power
of the United States could extend, the Constitution included those
"between citizens of different States." [
Footnote 7] In the Judiciary Act of 1789, Congress
created a system of federal courts of first instance and gave them
jurisdiction of suits "between a citizen of the State where the
suit is brought and a citizen of another State." [
Footnote 8] In 1804, the Supreme Court,
through Chief Justice Marshall, held that a citizen of the District
of Columbia was not a citizen of a State within the meaning and
intendment of this Act. [
Footnote
9] This decision closed federal courts in the states to
citizens of the District of Columbia in diversity cases, and, for
136 years, they remained closed. In 1940, Congress enacted the
statute challenged here. It confers on such courts jurisdiction if
the action
"is between citizens of different States, or
Page 337 U. S. 585
citizens of the District of Columbia, the Territory of Hawaii,
or Alaska, and any State or Territory. [
Footnote 10]"
The issue here depends upon the validity of this Act, which, in
substance, was reenacted by a later Congress [
Footnote 11] as part of the Judicial Code.
[
Footnote 12]
Before concentrating on detail, it may be well to place the
general issue in a larger perspective. This constitutional issue
affects only the mechanics of administering justice in our
federation. It does not involve an extension or a denial of any
fundamental right or immunity which goes to make up our freedoms.
Those rights and freedoms do not include immunity from suit by a
citizen of Columbia or exemption from process of the federal
courts. Defendant concedes that it can presently be sued in some
court of law, if not this one, and it grants that Congress may make
it suable at plaintiff's complaint in some, if not this, federal
court. Defendant's contention only amounts to this -- that it
cannot be made to answer this plaintiff in the particular court
which Congress has decided is the just and convenient forum.
The considerations which bid us strictly to apply the
Constitution to congressional enactments which invade fundamental
freedoms or which reach for powers that would substantially disturb
the balance between the Union and its component states are not
present here. In mere mechanics of government and administration,
we
Page 337 U. S. 586
should, so far as the language of the great Charter fairly will
permit, give Congress freedom to adapt its machinery to the needs
of changing times. In no case could the admonition of the great
Chief Justice be more appropriately heeded -- " . . . we must never
forget, that it is
a constitution we are expounding."
[
Footnote 13]
Our first inquiry is whether, under the third, or Judiciary,
Article of the Constitution, [
Footnote 14] extending the judicial power of the United
States to cases or controversies "between citizens of different
States," a citizen of the District of Columbia has the standing of
a citizen of one of the states of the Union. This is the question
which the opinion of Chief Justice Marshall answered in the
negative, by way of dicta if not of actual decision.
Hepburn and Dundas v.
Ellzey, 2 Cranch 445. To be sure, nothing was
before that Court except interpretation of a statute [
Footnote 15] which conferred
jurisdiction substantially in the words of the Constitution with
nothing in the text or context to show that Congress intended to
regard the District as a state. But Marshall resolved the statutory
question by invoking the analogy of the constitutional provisions
of the same tenor, and reasoned that the District was not a state
for purposes of the Constitution, and, hence, was not for purposes
of the Act. The opinion summarily disposed of arguments to the
contrary, including the one repeated here, that other provisions of
the Constitution indicate that "the term state is sometimes used in
its more enlarged sense." Here, as there, "on examining the
passages quoted, they do not prove what was to be shown by them."
6 U. S. 2 Cranch
445,
6 U. S. 453.
Among his contemporaries, at least, Chief Justice Marshall was not
generally censured for undue literalness in interpreting the
language
Page 337 U. S. 587
of the Constitution to deny federal power and he wrote from
close personal knowledge of the Founders and the foundation of our
constitutional structure. Nor did he underestimate the equitable
claims which his decision denied to residents of the District, for
he said that
"It is true that, as citizens of the United States and of that
particular district which is subject to the jurisdiction of
congress, it is extraordinary that the courts of the United States,
which are open to aliens and to the citizens of every state in the
union, should be closed upon them. But this is a subject for
legislative, not for judicial, consideration. [
Footnote 16]"
The latter sentence, to which much importance is attached, is
somewhat ambiguous, because constitutional amendment, as well as
statutory revision, is for legislative, not judicial,
consideration. But the opinion as a whole leaves no doubt that the
Court did not then regard the District as a state for diversity
purposes.
To now overrule this early decision of the Court on this point,
and hold that the District of Columbia is a state, would, as that
opinion pointed out, give to the word "state" a meaning in the
Article which sets up the judicial establishment quite different
from that which it carries in those Articles which set up the
political departments and in other Articles of the instrument.
While the word is one which can contain many meanings, such
inconsistency in a single instrument is to be implied only where
the context clearly requires it. There is no evidence that the
Founders, pressed by more general and immediate anxieties, thought
of the special problems of the District of Columbia in connection
with the judiciary. This is not strange, for the District was then
only a contemplated entity. But, had they thought of it, there is
nothing to indicate that it would have been referred to as a state,
and
Page 337 U. S. 588
much to indicate that it would have required special provisions
to fit its anomalous relationship into the new judicial system,
just as it did to fit it into the new political system.
In referring to the "States" in the fateful instrument which
amalgamated them into the "United States," the Founders obviously
were not speaking of states in the abstract. They referred to those
concrete organized societies which were thereby contributing to the
federation by delegating some part of their sovereign powers, and
to those that should later be organized and admitted to the
partnership in the method prescribed. They obviously did not
contemplate unorganized and dependent spaces as states. The
District of Columbia being nonexistent in any form, much less as a
state at the time of the compact, certainly was not taken into the
Union of states by it, nor has it since been admitted as a new
state is required to be admitted.
We therefore decline to overrule the opinion of Chief Justice
Marshall, and we hold that the District of Columbia is not a state
within Article III of the Constitution. In other words, cases
between citizens of the District and those of the states were not
included in the catalogue of controversies over which the Congress
could give jurisdiction to the federal courts by virtue of Art.
III.
This conclusion does not, however, determine that Congress lacks
power under other provisions of the Constitution to enact this
legislation. Congress, by the Act in question, sought not to
challenge or disagree with the decision of Chief Justice Marshall
that the District of Columbia is not a state for such purposes. It
was careful to avoid conflict with that decision by basing the new
legislation on powers that had not been relied upon by the First
Congress in passing the Act of 1789.
The Judiciary Committee of the House of Representatives
recommended the Act of April 20, 1940, as
"a reasonable
Page 337 U. S. 589
exercise of the constitutional power of Congress to legislate
for the District of Columbia and for the Territories. [
Footnote 17]"
This power the Constitution confers in broad terms. By Art. I,
Congress is empowered "to exercise exclusive Legislation in all
Cases whatsoever, over such District." [
Footnote 18] And, of course, it was also authorized
"to make all Laws which shall be necessary and proper for carrying
into Execution" such powers. [
Footnote 19] These provisions were not relevant in Chief
Justice Marshall's interpretation of the Act of 1789, because it
did not refer in terms to the District, but only to states. It is
therefore significant that, having decided that District citizens'
cases were not brought within federal jurisdiction by Art. III and
the statute enacted pursuant to it, the Chief Justice added, as we
have seen, that it was extraordinary that the federal courts should
be closed to the citizens of "that particular district which is
subject to the jurisdiction of Congress." Such language clearly
refers to Congress' Art. I power of "exclusive Legislation in all
Cases whatsoever over such District." And mention of that power
seems particularly significant in the context of Marshall's further
statement that the matter is a subject for "legislative, not for
judicial, consideration." Even if it be considered speculation to
say that this was an expression by the Chief Justice that Congress
had the requisite power under Art. I, it would be in the teeth of
his language to say that it is a denial of such power. The Congress
had acted on the belief that it possesses that power. We believe
their conclusion is well founded.
Page 337 U. S. 590
It is elementary that the exclusive responsibility of Congress
for the welfare of the District includes both power and duty to
provide its inhabitants and citizens with courts adequate to
adjudge not only controversies among themselves, but also their
claims against, as well as suits brought by, citizens of the
various states. It long has been held that Congress may clothe
District of Columbia courts not only with the jurisdiction and
powers of federal courts in the several states, but with such
authority as a state may confer on her courts.
Kendall v.
United States, 12 Pet. 524,
37 U. S. 619;
Capital Traction Co. v. Hof, 174 U. S.
1;
O'Donoghue v. United States, 289 U.
S. 516. The defendant here does not challenge the power
of Congress to assure justice to the citizens of the District by
means of federal instrumentalities, or to empower a federal court
within the District or run its process to summon defendants here
from any part of the country. And no reason has been advanced why a
special statutory court for cases of District citizens could not be
authorized to proceed elsewhere in the United States to sit, where
necessary or proper, to discharge the duties of Congress toward
District citizens.
However, it is contended that Congress may not combine this
function, under Art. I, with those under Art. III, in district
courts of the United States. Two objections are urged to this. One
is that no jurisdiction other than specified in Art. III can be
imposed on courts that exercise the judicial power of the United
States thereunder. The other is that Art. I powers over the
District of Columbia must be exercised solely within that
geographic area.
Of course, there are limits to the nature of duties which
Congress may impose on the constitutional courts vested with the
federal judicial power. The doctrine of separation of powers is
fundamental in our system. It arises,
Page 337 U. S. 591
however, not from Art. III, nor any other single provision of
the Constitution, but because "behind the words of the
constitutional provisions are postulates which limit and control."
Chief Justice Hughes in
Principality of Monaco v.
Mississippi, 292 U. S. 313,
292 U. S. 323.
The permeative nature of this doctrine was early recognized during
the Constitutional Convention. Objection that the present provision
giving federal courts jurisdiction of cases arising "under this
Constitution" would permit usurpation of nonjudicial functions by
the federal courts was overruled as unwarranted, since it was
"generally supposed that the jurisdiction given was constructively
limited to cases of a Judiciary nature." 2 Farrand, Records of the
Federal Convention 430. And this statute reflects that doctrine. It
does not authorize or require either the district courts or this
Court to participate in any legislative, administrative, political,
or other nonjudicial function or to render any advisory opinion.
The jurisdiction conferred is limited to controversies of a
justiciable nature, the sole feature distinguishing them from
countless other controversies handled by the same courts being the
fact that one party is a District citizen. Nor has the Congress, by
this statute, attempted to usurp any judicial power. It has
deliberately chosen the district courts as the appropriate
instrumentality through which to exercise part of the judicial
functions incidental to exertion of sovereignty over the District
and its citizens.
Unless we are to deny to Congress the same choice of means
through which to govern the District of Columbia that we have held
it to have in exercising other legislative powers enumerated in the
same Article, we cannot hold that Congress lacked the power it
sought to exercise in the Act before us.
It is too late to hold that judicial functions incidental to
Art. I powers of Congress cannot be conferred on
Page 337 U. S. 592
courts existing under Art. III, for it has been done with this
Court's approval.
O'Donoghue v. United States,
289 U. S. 516. In
that case, it was held that, although District of Columbia courts
are Art. III courts, they can also exercise judicial power
conferred by Congress pursuant to Art. I. The fact that District of
Columbia courts, as local courts, can also be given administrative
or legislative functions which other Art. III courts cannot
exercise does but emphasize the fact that, although the latter are
limited to the exercise of judicial power, it may constitutionally
be received from either Art. III, or Art. I, and that congressional
power over the District, flowing from Art. I, is plenary in every
respect.
It is likewise too late to say that we should reach this result
by overruling Chief Justice Marshall's view, unless we are prepared
also to overrule much more, including some of our own very recent
utterances. Many powers of Congress other than its power to govern
Columbia require for their intelligent and discriminating exercise
determination of controversies of a justiciable character. In no
instance has this Court yet held that jurisdiction of such cases
could not be placed in the regular federal courts that Congress has
been authorized to ordain and establish. We turn to some analogous
situations in which we have approved the very course that Congress
has taken here.
Congress is given power by Art. I to pay debts of the United
States. That involves as an incident the determination of disputed
claims. We have held unanimously that congressional authority under
Art. I, not the Art. III jurisdiction over suits to which the
United States is a party, is the sole source of power to establish
the Court of Claims and of the judicial power which that court
exercises.
Williams v. United States, 289 U.
S. 553. In that decision, we also noted that it is this
same Art. I power that is conferred on district courts by the
Page 337 U. S. 593
Tucker Act, [
Footnote 20]
which authorizes them to hear and determine such claims in limited
amounts. Since a legislative court such as the Court of Claims is
"incapable of receiving" Art. III judicial power,
American
Insurance Co. v. Canter, 1 Pet. 511,
26 U. S. 546,
it is clear that the power thus exercised by that court and
concurrently by the district courts flows from Art. I, not Art.
III. Indeed, more recently, and again unanimously, this Court has
said that, by the Tucker Act, the Congress authorized the district
courts to sit as a court of claims, [
Footnote 21] exercising the same, but no more, judicial
power.
United States v. Sherwood, 312 U.
S. 584,
312 U. S. 591.
And, but a few terms ago, in considering an Act by which Congress
directed rehearing of a rejected claim and its redetermination in
conformity with directions given in the Act, Chief Justice Stone,
with the concurrence of all sitting colleagues, reasoned that
"The problem presented here is no different than if Congress had
given a like direction to any district court to be followed as in
other Tucker Act . . . cases."
Pope v. United States, 323 U. S.
1,
323 U. S. 14.
Congress has taken us at our word, and recently conferred on the
district courts exclusive jurisdiction of tort claims cognizable
under the Federal Tort Claims Act, 60 Stat. 842, 843, also
enacted
Page 337 U. S. 594
pursuant to Art. I powers. [
Footnote 22]
See Brooks v. United States, ante,
p.
337 U. S. 49.
Congress also is given power in Art. I to make uniform laws on
the subject of bankruptcies. That this, and not the judicial power
under Art. III, is the source of our system of reorganizations and
bankruptcy is obvious,
Continental Illinois Nat. Bank &
Trust Co. v. Chicago Rock Island & Pacific R. Co.,
294 U. S. 648. But
not only may the district courts be required to handle these
proceedings, but Congress may add to their jurisdiction cases
between the trustee and others that, but for the bankruptcy powers,
would be beyond their jurisdiction because of lack of diversity
required under Art. III.
Schumacher v. Beeler,
293 U. S. 367. In
that case, Chief Justice Hughes, for a unanimous Court, wrote that,
by virtue of its Art. I authority over bankruptcies, the Congress
could confer on the regular district courts jurisdiction of
"all controversies at law and in equity, as distinguished from
proceedings in bankruptcy, between trustees as such and adverse
claimants"
to the extent specified in § 23(b) of the Bankruptcy Act as
amended. Such jurisdiction was there upheld in a plenary suit, in a
district court, by which the trustee sought equitable relief
relying
Page 337 U. S. 595
on allegations raising only questions of Ohio law concerning the
validity under that law of a sheriff's levy and execution.
Possession by the trustee not being shown, and there being no
diversity, jurisdiction in the district court could flow only from
the statute. Chief Justice Hughes noted that the distinction
between proceedings in bankruptcy and suits at law and in equity
was recognized by the terms of the statute itself, but held
that
"Congress, by virtue of its constitutional authority over
bankruptcies, could confer or withhold jurisdiction to entertain
such suits, and could prescribe the conditions upon which the
federal courts should have jurisdiction. . . . Exercising that
power, the Congress prescribed in section 23b the condition of
consent on the part of the defendant sued by the trustee. Section
23b was thus, in effect, a grant of jurisdiction subject to that
condition."
293 U. S. 293 U.S.
367,
293 U. S. 374.
He concluded that the statute granted jurisdiction to the district
court "although the bankrupt could not have brought suit there if
proceedings in bankruptcy had not been instituted. . . ."
293 U. S. 293 U.S.
367,
293 U. S. 377. And
he stated the correct view to be that § 23 conferred substantive
jurisdiction,
293 U. S. 293 U.S.
367,
293 U. S. 371,
disapproving statements in an earlier case that Congress lacked
power to confer such jurisdiction.
Id. at
293 U. S. 377.
Thus, the Court held that Congress had power to authorize an Art.
III court to entertain a non-Art. III suit because such judicial
power was conferred under Art. I. Indeed, the present Court has
assumed, without even discussion, that Congress has such power. In
Williams v. Austrian, 331 U. S. 642,
331 U. S. 657,
the Chief Justice, speaking for the Court, said that
". . . Congress intended by the elimination of § 23 [from
Chapter X of the Bankruptcy Act] to establish the jurisdiction of
federal courts to hear plenary suits brought by a reorganization
trustee,
even though diversity or other usual ground for
federal jurisdiction is lacking."
(Emphasis
Page 337 U. S. 596
supplied.) There was vigorous dissent as to the meaning of the
statute, but the dissenting Justices referred to the Court's
holding that
"a Chapter X trustee may bring this plenary suit
in
personam in a federal district court not the reorganization
court, although neither diversity of citizenship nor other ground
of federal jurisdiction exists."
331 U. S. 331 U.S.
642,
331 U. S. 664,
665. And the dissent continued: "No doubt Congress could authorize
such a suit.
See Schumacher v. Beeler, 293 U. S. 293 U.S.
367,
293 U. S.
374."
This assumption by the Court in the
Beeler and
Austrian cases that the Congress had power to confer on
the district courts jurisdiction of nondiversity suits involving
only state law questions made unnecessary any discussion of the
source of the assumed power. In view of Congress' plenary control
over bankruptcies, the Court may have grounded such assumption on
Art. I. Or it might have considered that the jurisdiction was based
on Art. III, and statutes enacted pursuant to it, giving the
district courts jurisdiction over suits arising under the
Constitution and laws of the United States. Had the Court held such
a view, this latter might have commended itself as the most obvious
answer. Consequently, silence in this respect, in the decision of
each case, seems significant, particularly in contrast with
repeated reference to Art. I power in the
Beeler case, and
sweeping language in the
Austrian case that such
jurisdiction existed despite lack of diversity "or other usual
ground for federal jurisdiction." Nevertheless, it is now asserted,
in retrospect, that those cases did arise under the laws of the
United States. No justification is offered for that conclusion, and
there is no effort to say just why or how the cases did so arise.
This would indeed be difficult if we still adhere to the doctrine
of Mr. Justice Holmes that "[a] suit arises under the law that
creates the cause
Page 337 U. S. 597
of action."
American Well Works Co. v. Layne & Bowler
Co., 241 U. S. 257,
241 U. S. 260,
for the cause of action in each case rested solely on state
law.
But the matter does not rest on inference alone. Other decisions
of this Court demonstrate conclusively that jurisdiction over the
Beeler and
Austrian suits was not, and could not
have been, conferred under Art. III and statutes concerning suits
arising under the laws of the United States. A most thoroughly
considered utterance of this Court on that subject was given by Mr.
Justice Cardozo in
Gully v. First National Bank,
299 U. S. 109,
where he said, without dissent,
"How and when a case arises 'under the Constitution or laws of
the United States' has been much considered in the books. Some
tests are well established. To bring a case within the statute, a
right or immunity created by the Constitution or laws of the United
States must be an element, and an essential one, of the plaintiff's
cause of action. . . . [Emphasis added.] The right or
immunity must be such that it will be supported if the Constitution
or laws of the United States are given one construction or effect,
and defeated if they receive another. . . . A genuine and present
controversy, not merely a possible or conjectural one, must exist
with reference thereto . . . , and the controversy must be
disclosed upon the face of the complaint. . . ."
299 U. S. 299 U.S.
109,
299 U. S.
112-113. After reviewing previous cases, Mr. Justice
Cardozo referred to a then recent opinion by Mr. Justice Stone in
which he said, for a unanimous court, that federal jurisdiction
"may not be invoked where the right asserted is nonfederal,
merely because the plaintiff's right to sue is derived from federal
law, or because the property involved was obtained under federal
statute.
The federal nature of the right to be established is
decisive -- not the source of the authority to establish
it."
Puerto Rico v. Russell &
Co., 288 U.S.
Page 337 U. S. 598
476,
288 U. S. 483.
(Emphasis added.) [
Footnote
23]
See also Switchmen's Union of North America v. National
Mediation Board, 320 U. S. 297;
General Committee v. M.K.T R. Co., 320 U.
S. 323.
Neither the
Austrian nor the
Beeler case meets
these tests, required before a case can be said to arise under the
laws of the United States, any more than does the case before us.
Austrian, as trustee, sued in equity for an accounting based on a
charge that affairs of a state-created corporation had been
conducted by the officers in violation of state law. Beeler, as
trustee, sued on a contention that a levy on property by an Ohio
sheriff was void under state law. Both controversies, like the one
before
Page 337 U. S. 599
us, called for a determination of no law question except those
arising under state laws. The only way in which any law of the
United States contributed to the case was in opening the district
courts to the trustee, under Art. I powers of Congress, just as the
present statute, under the same Article, opens those courts to
residents of the District of Columbia. I n each case, in the words
of Chief Justice Stone, the federal law provided not the right
sought to be established, but only the authority of the trustee to
establish it. The fact that the congressional power over bankruptcy
granted by Art. I could open the court to the trustee does not mean
that such suits arise under the laws of the United States; but it
does mean that Art. I can supply a source of judicial power for
their adjudication. The distinction is important, and it is
decisive on this issue.
Neither the
Beeler nor the
Austrian case was
one arising under the laws of the United States within the clear
language of recent holdings by this Court. Unless we are to deny
the jurisdiction in such cases which has consistently been upheld,
we must rely on the Art. I powers of the Congress. We have been
cited to no holding that such jurisdiction cannot spring from that
Article. Under Art. I, the Congress has given the district courts
not only jurisdiction over cases arising under the bankruptcy law,
but also judicial power over nondiversity cases which do not arise
under that or any other federal law. And this Court has upheld the
latter grant.
Consequently, we can deny validity to this present Act of
Congress only by saying that the power over the District given by
Art. I is somehow less ample than that over bankruptcy given by the
same Article. If Congress could require this district court to
decide this very case if it were brought by a trustee, it is hard
to see why it may not require its decision for a solvent claimant
when done in pursuance of other Art. I powers.
Page 337 U. S. 600
We conclude that, where Congress, in the exercise of its powers
under Art. I, finds it necessary to provide those on whom its power
is exerted with access to some king of court or tribunal for
determination of controversies that are within the traditional
concept of the justiciable, it may open the regular federal courts
to them regardless of lack of diversity of citizenship. The basis
of the holdings we have discussed is that, when Congress deems
that, for such purposes, it owes a forum to claimants and trustees,
it may execute its power in this manner. The Congress, with equal
justification apparently considers that it also owes such a forum
to the residents of the District of Columbia in execution of its
power and duty under the same Article. We do not see how the one
could be sustained and the other denied.
We therefore hold that Congress may exert its power to govern
the District of Columbia by imposing the judicial function of
adjudicating justiciable controversies on the regular federal
courts [
Footnote 24] which,
under the Constitution, it has the power to ordain and establish,
and which it may invest with jurisdiction, and from which it may
withhold jurisdiction "in the exact degrees and character which to
Congress may seem proper for the public good."
Lockerty v.
Phillips, 319 U. S. 182,
319 U. S.
187.
The argument that congressional powers over the District are not
to be exercised outside of its territorial limits also is pressed
upon us. But this same contention has long been held by this Court
to be untenable. In
Cohens
Page 337 U. S. 601
v. Virginia, 6 Wheat. 264,
19 U. S. 429,
Chief Justice Marshall, answering the argument that Congress, when
legislating for the District, "was reduced to a mere local
legislature, whose laws could possess no obligation out of the ten
miles square," said
"Congress is not a local legislature, but exercises this
particular power, like all its other powers, in its high character,
as the legislature of the Union. The American people thought it a
necessary power, and they conferred it for their own benefit. Being
so conferred, it carries with it all those incidental powers which
are necessary to its complete and effectual execution."
In
O'Donoghue v. United States, 289 U.
S. 516,
289 U. S. 539,
this Court approved a statement made by Circuit Judge Taft, later
Chief Justice of this Court, speaking for himself and Judge (later
Mr. Justice) Lurton, that
"The object of the grant of exclusive legislation over the
district was therefore national in the highest sense, and the city
organized under the grant became the city not of a state, not of a
district, but of a nation. In the same article which granted the
powers of exclusive legislation over its seat of government are
conferred all the other great powers which make the nation,
including the power to borrow money on the credit of the United
States. He would be a strict constructionist indeed who should deny
to congress the exercise of this latter power in furtherance of
that of organizing and maintaining a proper local government at the
seat of government. Each is for a national purpose, and the one may
be used in aid of the other. . . ."
And, just prior to enactment of the statute now challenged on
this ground, the Court of Appeals for the District itself, sitting
en banc and relying on the foregoing authorities, had said that
Congress "possesses full and unlimited jurisdiction to provide for
the general welfare" of District citizens
"by any and every act of legislation which it may deem conducive
to that end . . . ,
Page 337 U. S. 602
when it legislates for the District, Congress acts as a
legislature of national character, exercising complete legislative
control, as contrasted with the limited power of a state
legislature, on the one hand, and as contrasted with the limited
sovereignty which Congress exercises within the boundaries of the
states, on the other."
Neild v. District of Columbia, 71 App.D.C. 306, 110
F.2d 246, 250.
We could not, of course, countenance any exercise of this
plenary power either within or without the District if it were such
as to draw into congressional control subjects over which there has
been no delegation of power to the Federal Government. But, as we
have pointed out, the power to make this defendant suable by a
District citizen is not claimed to be outside of federal
competence. If Congress has power to bring the defendant from his
home all the way to a forum within the District, there seems little
basis for denying it power to require him to meet the plaintiff
part way in another forum. The practical issue here is whether, if
defendant is to be suable at all by District citizens, he must be
compelled to come to the courts of the District of Columbia or
perhaps to a special statutory court sitting outside of it, or
whether Congress may authorize the regular federal courts to
entertain the suit. We see no justification for holding that
Congress, in accomplishing an end admittedly within its power, is
restricted to those means which are most cumbersome and burdensome
to a defendant. Since it may provide the District citizen with a
federal forum in which to sue the citizens of one of the states, it
is hard to imagine a fairer or less prejudiced one than the regular
federal courts sitting in the defendant's own state. To vest the
jurisdiction in them, rather than in courts sitting in the District
of Columbia, would seem less harsh to defendants and more
consistent with the principles of venue that prevail in our
system
Page 337 U. S. 603
under which defendants are generally suable in their home
forums.
The Act before us, as we see it, is not a resort by Congress to
these means to reach forbidden ends. Rather, Congress is reaching
permissible ends by a choice of means which certainly are not
expressly forbidden by the Constitution. No good reason is advanced
for the Court to deny them by implication. In no matter should we
pay more deference to the opinions of Congress than in its choice
of instrumentalities to perform a function that is within its
power. [
Footnote 25] To put
federally administered justice within the reach of District
citizens, in claims against citizens of another state, is an object
which Congress has a right to accomplish. Its own carefully
considered view that it has the power, and that it is necessary and
proper to utilize United States District Courts as means to this
end, is entitled to great respect. Our own ideas as to the wisdom
or desirability of such a statute or the constitutional provision
authorizing it are totally irrelevant. Such a law of Congress
should be stricken down
Page 337 U. S. 604
only on a clear showing that it transgresses constitutional
limitations. We think no such showing has been made. [
Footnote 26] The Act is valid.
The judgment is
Reversed.
[
Footnote 1]
Act of April 20, 1940, c. 117, 54 Stat. 143. For terms of the
statute,
see note
10
[
Footnote 2]
No opinion was filed by the District Court, which, in dismissing
the complaint for lack of jurisdiction, relied upon its former
decision and opinion in
Feely v. Sidney S. Schupper Interstate
Hauling System, Inc., 72 F. Supp.
663.
[
Footnote 3]
165 F.2d 531.
[
Footnote 4]
The Act had been upheld in
Winkler v.
Daniels, 43 F. Supp.
265;
Glaeser v. Acacia Mutual Life
Association, 55 F. Supp.
925, and in
Duze v. Woolley, 72 F. Supp.
422 (with respect to Hawaii). It had been held unconstitutional
in the District Court in the instant case; in
Central States
Cooperatives v. Watson Bros. Transportation Co., aff'd, 165
F.2d 392, and in
McGarry v. City of
Bethlehem, 45 F. Supp.
385;
Behlert v. James Foundation of New
York, 60 F. Supp.
706;
Ostrow v. Samuel Brilliant Co., 66 F. Supp.
593;
Wilson v. Guggenheim, 70 F. Supp.
417;
Feely v. Sidney S. Schupper Interstate Hauling
System, 72 F. Supp.
663;
Willis v. Dennis, 72 F.
Supp. 853, and in
Mutual Ben. Health & Acc. Assn. v.
Dailey, 75 F. Supp. 832.
[
Footnote 5]
The Act had been held invalid by the Court of Appeals for the
Fourth Circuit in the instant case, 165 F.2d 531, with Judge Parker
dissenting, and by the Court of Appeals for the Seventh Circuit in
Central States Cooperatives v. Watson Bros. Transportation
Co., 165 F.2d 392, with Judge Evans dissenting.
[
Footnote 6]
333 U.S. 860.
[
Footnote 7]
U.S.Const. Art. III, § 2, cl. 1.
[
Footnote 8]
§ 11 of the Act of Sept. 24, 1789, c. 20, 1 Stat. 73, 78.
[
Footnote 9]
Hepburn and Dundas v.
Ellzey, 2 Cranch 445.
[
Footnote 10]
The effect of the Act was to amend 28 U.S.C. § 41(1) so that it
read in pertinent part:
"The district courts shall have original jurisdiction as
follows: of all suits of a civil nature at common law or in equity
. . . where the matter in controversy exceeds, exclusive of
interest and costs, the sum or value of $3,000 and . . . (b) Is
between citizens of different States, or citizens of the District
of Columbia, the Territory of Hawaii, or Alaska, and any State or
Territory. . . ."
[
Footnote 11]
Act of June 25, 1948, c. 646, 62 Stat. 869, Pub.L. 773. 80th
Cong., 2d Sess.
[
Footnote 12]
28 U.S.C. § 1332.
[
Footnote 13]
McCulloch v.
Maryland, 4 Wheat. 316,
17 U. S.
407.
[
Footnote 14]
U.S.Const. Art. III, § 2, cl. 1.
[
Footnote 15]
See note 8
[
Footnote 16]
Hepburn and Dundas v.
Ellzey, 2 Cranch 445,
6 U. S. 453.
[
Footnote 17]
H.R.Rep. No.1756, 76th Cong., 3d Sess., p. 3. The Senate
Judiciary Committee's report consists only of a recommendation that
the bill (H.R.8822) be passed. Senate Report No.1399, 76th Cong.,
3d Sess. Passage in each House was without discussion. 86 Cong.Rec.
Pt. 3, p. 3015; 86 Cong.Rec. Pt. 4, p. 4286.
[
Footnote 18]
U.S.Const. Art. I, § 8, cl. 17.
[
Footnote 19]
U.S.Const. Art. I, § 8, cl. 18.
[
Footnote 20]
Act of March 3, 1887, c. 359, 24 Stat. 505.
[
Footnote 21]
This concurrent jurisdiction of the district courts has
frequently been referred to in opinions of this Court with no
indication that it presented any constitutional problem with
respect to the jurisdiction of either the district courts or this
Court.
See, for example, Pope v. United States,
323 U. S. 1;
United States v. Sherwood, 312 U.
S. 584;
United States v. Shaw, 309 U.
S. 495;
Williams v. United States, 289 U.
S. 553;
Nassau Smelting & Refining Works v.
United States, 266 U. S. 101;
United States v. Pfitsch, 256 U.
S. 547;
Tempel v. United States, 248 U.
S. 121;
United States v. Greathouse,
166 U. S. 601;
United States v. Jones, 131 U. S. 1. The
legislative basis for the grant of jurisdiction to the district
courts is delineated in
Bates Mfg. Co. v. United States,
303 U. S. 567.
[
Footnote 22]
The suggestion here that claims against the United States,
adjudicated by the Court of Claims and by the district courts
solely by virtue of the waiver of sovereign immunity and the
jurisdiction granted under the Tucker Act, may be cases arising
"under the laws of the United States" is both erroneous and
self-defeating. The unanimous decision in the
Williams
case,
289 U. S. 553,
holds clearly to the contrary, stating, at 289 U.S.
289 U. S. 577,
that controversies to which the United States may by statute be
made a party defendant "lie wholly outside the scope of the
judicial power vested by article 3. . . ."
And see Principality
of Monaco v. Mississippi, 292 U. S. 313,
292 U. S. 321.
Moreover, the Tucker Act simply opens those courts to plaintiffs
already possessed of a cause of action. If that is sufficient to
make the case one arising under the laws of the United States, the
same is true of this suit and all others like it. No one urges that
view of the present statute, nor could they.
See note 23 and text.
[
Footnote 23]
The books are replete with authority on this point. For example,
in
Shoshone Mining Co. v. Rutter, 177 U.
S. 505, it was said, at p.
177 U. S.
507:
"The suit must, in part at least, arise out of a controversy
between the parties in regard to the operation and effect of the
Constitution or laws upon the facts involved. . . ."
And at p.
177 U. S.
513:
". . . the mere fact that a suit is an adverse suit authorized
by the statutes of Congress is not, in and of itself, sufficient to
vest jurisdiction in the Federal courts."
And again, at p.
177 U. S. 507,
it is considered
"well settled that a suit to enforce a right which takes its
origin in the laws of the United States is not necessarily one
arising under the Constitution or laws of the United States. . .
."
In
Bankers' Mut. Casualty Co. v. Minneapolis, St. P. &
S.S.M. R. Co., 192 U. S. 371 at
p.
192 U. S.
384:
". . . suits, though involving the Constitution or laws of the
United States, are not suits arising under the Constitution or laws
where they do not turn on a controversy between the parties in
regard to the operation of the Constitution or laws on the facts. .
. ."
And at p.
192 U. S.
385:
"We repeat that the rule is settled that a case does not arise
under the Constitution or laws of the United States unless it
appears from plaintiff's own statement, in the outset, that some
title, right, privilege, or immunity on which recovery depends will
be defeated by one construction of the Constitution or laws of the
United States, or sustained by the opposite construction."
In
Louisville & Nashville R. Co. v. Mottley,
211 U. S. 149,
211 U. S. 152,
allegations designed to establish that the case arises under the
Constitution are said to be insufficient if they do not show that
"the suit, that is, the plaintiff's original cause of action," does
so arise.
[
Footnote 24]
No question has been raised here as to the source of this
Court's appellate jurisdiction over such cases. Nor do we see how
that issue could be raised without challenging our past and present
exercise of jurisdiction over cases adjudicated in the district
courts and in the Court of Claims, solely under the Tucker Act,
see Pope v. United States, 323 U. S.
1,
323 U. S. 13-14,
and see notes
21
22 and under the Federal
Tort Claims Act,
see Brooks v. United States, ante, p.
337 U. S. 49.
[
Footnote 25]
Chief Justice Marshall, in
McCulloch v.
Maryland, 4 Wheat. 316,
316 U. S.
420-421, said:
"The result of the most careful and attentive consideration
bestowed upon this [the 'necessary and proper'] clause is, that, if
it does not enlarge, it cannot be construed to restrain, the powers
of Congress, or to impair the right of the legislature to exercise
its best judgment in the selection of measures to carry into
execution the constitutional powers of the government. . . . We
admit, as all must admit, that the powers of the government are
limited, and that its limits are not to be transcended. But we
think the sound construction of the constitution must allow to the
national legislature that discretion, with respect to the means by
which the powers it confers are to be carried into execution, which
will enable that body to perform the high duties assigned to it, in
the manner most beneficial to the people. Let the end be
legitimate, let it be within the scope of the constitution, and all
means which are appropriate, which are plainly adapted to that end,
which are not prohibited, but consist with the letter and spirit of
the constitution, are constitutional."
[
Footnote 26]
It would not be profitable to review the numerous cases in
which, during the consideration of other problems, this Court has
made statements concerning the nature and extent of Congress' power
to legislate for the District of Columbia and its control over the
jurisdiction of both constitutional and legislative courts. The
issue now presented squarely for decision was not decided in any of
them. We adhere to Chief Justice Marshall's admonition in
Cohens v.
Virginia, 6 Wheat. 264,
19 U. S. 399,
that "Such expressions ought not to control the judgment in a
subsequent suit when the very point is presented for decision."
MR. JUSTICE RUTLEDGE, with whom MR. JUSTICE MURPHY agrees,
concurring.
I join in the Court's judgment. But I strongly dissent from the
reasons assigned to support it in the opinion of MR. JUSTICE
JACKSON.
While giving lip service to the venerable decision in
Hepburn and Dundas v.
Ellzey, 2 Cranch 445, and purporting to distinguish
it, that opinion ignores nearly a century and a half of subsequent
consistent construction. [
Footnote
2/1] In all practical consequence, it would overrule that
decision, with its later reaffirmations. Pertinently, it may be
asked how and where are those decisions to operate, if not just in
the situation presented by this case? And, if there is no other,
would they not be effectively overruled?
What is far worse, and more important -- the manner in which
this reversal would be made, if adhered to by a majority of the
Court, would entangle every district court of the United States,
for the first time, in all of the contradictions, complexities and
subtleties which have
Page 337 U. S. 605
surrounded the courts of the District of Columbia in the maze
woven by the "legislative court-constitutional court" controversy
running through this Court's decisions concerning them. [
Footnote 2/2]
In my opinion, it would be better to continue following what I
conceive to be the original error of the
Hepburn decision
and its progeny than thus to ensnarl the general system of federal
courts. Jurisdictional and doctrinal troubles enough we have
concerning them, without adding others by ruling now that they have
the origin and jurisdiction of "legislative" courts in addition to
that of "constitutional" courts created under Article III, with
which alone they heretofore have been held endowed.
Moreover, however this case may be decided, there is no real
escape from deciding what the word "State" as used in Article III,
§ 2 of the Constitution means. For, if it is a limitation on
Congress' power as to courts created under that Article, it is hard
to see how it becomes no limitation when Congress decides to cast
it off under some other Article, even one relating to its authority
over the District of Columbia. If this may be done in the name of
practical convenience and dual authority, or because Congress might
find some other constitutional way to make citizens of the District
suable elsewhere or to bring here for suit citizens from any part
of the country, then what is a limitation imposed on the federal
courts generally is none when Congress decides to disregard it by
purporting to act under some other authorization.
The Constitution is not so self-contradictory. Nor are its
limitations to be so easily evaded. The very essence of the problem
is whether the Constitution meant to cut out from the diversity
jurisdiction of courts created under Article III suits brought by
or against citizens of the
Page 337 U. S. 606
District of Columbia. That question is not answered by saying in
one breath that it did, and in the next that it did not.
I
Prior to enactment of the 1940 statute today considered, federal
courts of the District of Columbia were the only federal courts
which had jurisdiction to try nonfederal civil actions between
citizens of the District and citizens of the several states. The
doors of federal courts in every state, open to suits between
parties of diverse state citizenship by virtue of Article III, § 2
(as implemented by continuous congressional enactment), were closed
to citizens of the District of Columbia. The 1940 statute was
Congress' first express attempt to remedy the inequality which has
obtained over since Chief Justice Marshall, in
Hepburn and
Dundas v. Ellzey, supra, construed the first Judiciary Act to
exclude citizens of the District of Columbia. Marshall's
construction of the 1789 statute was founded on his conclusion that
the comparable language of the diversity clause in Article III, § 2
-- "Citizens of different States" -- did not embrace citizens of
the District.
Marshall's view of the 1789 Act, iterated in his later dictum,
New Orleans v.
Winter, 1 Wheat. 91,
14 U. S. 94;
cf. 10 U. S.
Pitot, 6 Cranch 332,
10 U. S. 336,
has been consistently adhered to in judicial interpretation of
later congressional grants of jurisdiction. [
Footnote 2/3] And, by accretion, the rule of the
Hepburn case has acquired the force of a considered
determination that, within the meaning of Article III, § 2, "the
District of Columbia is not a state," [
Footnote 2/4] and its citizens are therefore not
citizens of any state within that Article's meaning.
Page 337 U. S. 607
The opinion of MR. JUSTICE JACKSON in words "reaffirms" this
view of the diversity clause. Nevertheless, faced with an explicit
congressional command to extend jurisdiction in nonfederal cases to
the citizens of the District of Columbia, it finds that Congress
has power to add to the Article III jurisdiction of federal
district courts such further jurisdiction as Congress may think
"necessary and proper," Const., Art. I, § 8, cl. 18, to implement
its power of "exclusive Legislation," Const., Art. I, § 8, cl. 17,
over the District of Columbia, and thereby to escape from the
limitations of Article III.
From this reasoning, I dissent. For I think that the Article III
courts in the several states cannot be vested, by virtue of other
provisions of the Constitution, with powers specifically denied
them by the terms of Article III. If we accept the elementary
doctrine that the words of Article III are not self-exercising
grants of jurisdiction to the inferior federal courts, [
Footnote 2/5] then I think those words must
mark the limits of the power Congress may confer on the district
courts in the several states. And I do not think we or Congress can
override those limits through invocation of Article I without
making the Constitution a self-contradicting instrument. If
Marshall correctly read Article III as preventing Congress from
unlocking
Page 337 U. S. 608
the courthouse door to citizens of the District, it seems past
belief that Article I was designed to enable Congress to pick the
lock. For the diversity jurisdiction here thus sustained is
identical in all respects with the diversity jurisdiction thought
to be closed to District citizens by Article III: it is justice
administered in the same courtroom and under the supervision of the
same judge; it is, presumptively, justice fashioned by the Federal
Rules of Civil Procedure, and now under the aegis of
Erie R.
Co. v. Tompkins. [
Footnote
2/6] The jurisdiction today thus upheld is not simply an
expurgated version of a banned original; it is the real thing.
To circumvent the limits of Article III, it is said, after
finding a contrary and overriding intent in Article I, that Article
III district courts in the several states can also be vested with
jurisdiction springing from Article I. The only express holding
which conceivably could lend comfort to this doctrine of dual
jurisdiction in this Court's conclusion in
O'Donoghue v. United
States, 289 U. S. 516,
that certain courts of the District of Columbia theretofore deemed
legislative courts created under Article I [
Footnote 2/7] owe their jurisdiction to Article I
and
Page 337 U. S. 609
Article III. With the merits of the
O'Donoghue decision
in holding that Article III barred salary reductions for judges of
the courts in question we are not presently concerned. Suffice it
to point out that the express language of the
O'Donoghue
decision negatives the view that federal courts in the several
states share this hybrid heritage:
". . . Congress derives from the District clause distinct powers
in respect of the constitutional courts of the District which
Congress does not possess in respect of such courts outside the
District. [
Footnote 2/8]"
The limits of the
O'Donoghue decision are only
underscored by the dissenting view of Chief Justice Hughes and
Justices Van Devanter and Cardozo that all District of Columbia
courts are solely the creatures of Article I:
"As the courts of the District do not rest for their creation on
section 1 of Article 3, that creation is not subject to any of the
limitations of that provision. Nor would those limitations, if
considered to be applicable, be susceptible of division so that
some might be deemed obligatory and others might be ignored."
289 U.S. at
289 U. S.
552.
Comfort is sought to be drawn, however, from this Court's
rationale in
Williams v. United States, 289 U.
S. 553, which, in sanctioning salary reductions for
judges of the Court of Claims, held that that court did not derive
its jurisdiction from Article III. That conclusion stemmed in part
from the proposition that suits against the United States are not
"Controversies to which the United States shall be a Party" within
the meaning of Article III, § 2. Hence, it is said, the permissible
inference is that the long established concurrent jurisdiction of
district courts over claims against the United States
Page 337 U. S. 610
is likewise not derived from Article III. [
Footnote 2/9] We need not today determine the nature of
district court jurisdiction of suits against the United States.
Suffice it to say that, if such suits are not "Controversies to
which the United States shall be a Party," they are presumptively
within the purview of the federal question jurisdiction to which
MR. JUSTICE FRANKFURTER's opinion directs our attention -- the
Article III, § 2 grant of power over "Cases . . . arising under . .
. the Laws of the United States." This is at least the conventional
view of district court jurisdiction under the Tucker Act. 2 Moore,
Federal Practice (2d ed., 1948) 1633.
But, in any event, to rely on
Williams as dispositive
of the present case is to rely on a bending reed:
Williams
and
O'Donoghue were companion cases, argued together and
decided together, and the opinions were written by the same
Justice. Accordingly, what was said in one must be read in the
light of what was said in the other.
O'Donoghue, as has
been observed, expressly rejected the proposition today announced
-- that Congress can vest in constitutional courts outside the
District of Columbia jurisdiction derived from the District clause
of Article I.
But O'Donoghue went further, and, in so doing, undermined any
implication in
Williams that Article III courts outside
the District could be vested with any form of non-Article III
jurisdiction when it pointed out that no courts of the District of
Columbia could be granted "administrative and other jurisdiction"
if,
"in creating and defining the jurisdiction of the courts of the
District, Congress were limited to article 3, as it is in dealing
with the other federal courts. . . ."
289 U.S. at
289 U. S. 546.
Moreover, the Justices who dissented from the
O'Donoghue
rationale of dual jurisdiction expressed no disagreement with the
Williams opinion. In these circumstances, certainly
Page 337 U. S. 611
no more strength can be drawn from the language of a case
upholding salary reductions for one group of judges than from the
holding in a case striking down salary reductions for another group
of judges.
Nor is there merit in the view that the bankruptcy jurisdiction
of district courts does not stem from Article III. Of course, it is
true that Article I is the source of congressional power over
bankruptcy, as it is the source of congressional power over
interstate commerce, taxation, the coining of money, and other
powers confided by the states to the exclusive exercise of the
national legislature. But, as MR. JUSTICE FRANKFURTER's opinion
makes clear, federal court adjudication of disputes arising
pursuant to bankruptcy and other legislation is conventional
federal question jurisdiction. And no case cited in any of today's
opinions remotely suggests the contrary.
Furthermore, no case cited supports the view that jurisdiction
over a suit to collect estate assets under § 23(b) of the
Bankruptcy Act, brought by the trustee in a district court with the
"consent" of the defendant, is a departure from the general rule
and is derived from Article I alone. To be sure, although this
Court indicated a contrary view in the early case of
Lovell v.
Newman & Son, 227 U. S. 412,
227 U. S. 426,
Chief Justice Hughes' opinion in
Schumacher v. Beeler,
293 U. S. 367,
made it perfectly clear that district courts can, with the consent
of the proposed defendant, entertain trustee suits under § 23(b)
which the bankrupt, but for the Bankruptcy Act, could not have
prosecuted in a federal court absent diversity or some independent
federal question "arising under . . . the Laws of the United
States." The opinion stated:
"Conflicting views have been held of the meaning of the
provision for consent in § 23(b). In one view, the provision
relates merely to venue, that is, only to a consent to the 'local
jurisdiction.' . . .
Page 337 U. S. 612
The opposing view was set forth by the court below in
Toledo
Fence & Post Co. v. Lyons, 290 F. 637, 645, and that
decisions was followed in the instant case. . . . It proceeds upon
the ground that the Congress had power to permit suits by trustees
in bankruptcy in the federal courts against adverse claimants,
regardless of diversity of citizenship, and that, by section 23(b),
the Congress intended that the federal courts should have that
jurisdiction in cases where the defendant gave consent, and,
without that consent, in cases which fell within the stated
exceptions."
"We think that the latter view is the correct one."
293 U.S. at
293 U. S.
371.
Chief Justice Hughes' opinion does not intimate that this
"consent jurisdiction" arises solely from Article I. Quite the
contrary, the opinion by Judge Denison outlining the "view" which
the Chief Justice described as "the correct one" expressly stated
that such suits are a segment of the district court's
federal-question jurisdiction:
"The trustee must allege and prove that valid proceedings were
taken under the Bankruptcy Act, leading to a valid adjudication,
whereby title passed, and that, by valid proceedings under the act,
he was chosen as trustee. If the proof fails in any of these
particulars, the suit fails. The suit is one step in the collection
of assets in the execution of the Bankruptcy Act. That such a case
would be one "arising under the laws of the United States" we think
is the result of well settled principles. It will be observed that,
under the constitutional limitations of the federal judicial power
(article 3, sec. 2), and with exceptions not to this question
important, Congress has no power to confer jurisdiction on the
inferior federal courts excepting as to suits which do so arise,
and every decision which upholds the right to sue in the
Page 337 U. S. 613
federal court by one who merely acquires title through the
operation of a federal law is therefore, by necessary implication,
a holding that such a suit
arises under'" federal laws."
Toledo Fence & Post Co. v. Lyons, 290 F. 637, 641,
and cf. Beeler v. Schumacher, 71 F.2d 831, 833."
There seems no reason, therefore, to suppose that this Court, in
holding "correct" the view that district courts have jurisdiction
over a trustee suit which could not have been brought by the
bankrupt, rejected the explicit Article III basis of that
jurisdiction.
And neither reliance on
Gully v. First National Bank,
299 U. S. 109;
Puerto Rico v. Russell & Co., 288 U.
S. 476, and related cases, nor the suggestion that "a
suit arises under the law that creates the cause of action,"
American Well Works Co. v. Layne & Bowler Co.,
241 U. S. 257,
241 U. S. 260,
compels the conclusion that Congress could not and did not classify
§ 23(b) suits to collect estate assets as federal question cases
arising under the Bankruptcy Act. As this Court has had occasion to
observe, a "
cause of action' may mean one thing for one purpose
and something different for another." United States v. Memphis
Cotton Oil Co., 288 U. S. 62,
288 U. S. 67-68,
and see Gully v. First National Bank, supra, at 117.
Similarly, as students of federal jurisdiction have taken pains to
point out, the "substantial identity of the words" in the
constitutional and statutory grants of federal
question jurisdiction, "does not, of course, require, on that score
alone, an identical interpretation." Shulman and Jaegerman, Some
Jurisdictional Limitations on Federal Procedure, 45 Yale L.J. 393,
405, n. 47 (1936). Confusion of the two is a natural, but not an
insurmountable, hazard. The Gully and Puerto Rico
cases were concerned with the general statutory grant to district
courts of jurisdiction over federal questions; they were not
concerned with the constitutional grant of jurisdiction, nor with
the specific
Page 337 U. S. 614
statutory grant of jurisdiction found in the Bankruptcy Act and
approved in
Schumacher v. Beeler, supra.
It has never heretofore been doubted that the constitutional
grant of power is broader than the general federal question
jurisdiction which Congress has from time to time thought to confer
on district courts by statute. In one of the federal land grant
cases relied on in MR. JUSTICE JACKSON's opinion, this Court had
occasion to make this distinction clear:
"By the Constitution (art. 3, § 2), the judicial power of the
United States extends to 'all cases, in law and equity, arising
under this Constitution, the laws of the United States' and to
controversies 'between citizens of different states.' By article 4,
§ 3, cl. 2, Congress is given 'power to dispose of and make all
needful rules and regulations respecting the territory or other
property belonging to the United States.' Under these clauses,
Congress might doubtless provide that any controversy of a judicial
nature arising in or growing out of the disposal of the public
lands should be litigated only in the courts of the United States.
The question therefore is not one of the power of Congress, but of
its intent. It has so constructed the judicial system of the United
States that the great bulk of litigation respecting rights of
property, although those rights may in their inception go back to
some law of the United States, is in fact carried on in the courts
of the several states."
Shoshone Mining Company v. Rutter, 177 U.
S. 505,
177 U. S.
506.
Indeed, were we to adopt the view that the
Gully rule
is a test applicable to the constitutional phrase, we would
effectively repudiate Chief Justice Marshall's conclusion in
Osborn v. Bank of the United
States, 9 Wheat. 738, that Congress can allow a
federally chartered corporation to bring all its litigation into
federal courts
Page 337 U. S. 615
for the reason that, solely by virtue of the corporation's
federal origin, all suits to which the corporation is a party are
suits "arising under . . . the Laws of the United States" within
the meaning of Article III. The rule of the
Bank of the United
States case, reiterated in
The Pacific Railroad Removal
Cases, 115 U. S. 1;
Matter of Dunn, 212 U. S. 374;
American Bank & Trust Co. v. Federal Reserve Bank of
Atlanta, 256 U. S. 350;
Sowell v. Federal Reserve Bank, 268 U.
S. 449, and
Federal Bank v. Mitchell,
277 U. S. 213, has
been limited by statute, but never by subsequent constitutional
construction. The survival of the rule was acknowledged by Mr.
Justice Stone in
Puerto Rico v. Russell & Co., supra,
at
288 U. S. 485, and
by Mr. Justice Cardozo in
Gully v. First National Bank,
supra, 299 U.S. at
299 U. S.
114.
In short, Congress has at no time conferred on federal district
courts original jurisdiction over all federal questions, preferring
to leave trial of many and perhaps most such questions to state
adjudication, subject to the ultimate review of this Court. But
exceptions to the congressional policy of limitation there have
been, and one of these is the trustee suit under § 23(b). 2 Moore,
Federal Practice (2d ed., 1948) 1633.
Thus, I see no warrant for gymnastic expansion of the
jurisdiction of federal courts outside the District. At least as to
these latter courts sitting in the states, I have thought it plain
that Article III described and defined their "judicial Power," and
that, where
"power proposed to be conferred . . . was not judicial power
within the meaning of the Constitution . . . , [it] was therefore
unconstitutional, and could not lawfully be exercised by the
courts. [
Footnote 2/10] "
Page 337 U. S. 616
If Article III were no longer to serve as the criterion of
district court jurisdiction, I should be at a loss to understand
what tasks, within the constitutional competence of Congress, might
not be assigned to district courts. At all events, intimations that
district courts could only undertake the determination of
"justiciable" controversies seem inappropriate, since the very
clause of Article I today relied on has long been regarded as the
source of the "legislative,"
Keller v. Potomac Electric Power
Co., 261 U. S. 428, and
"administrative,"
Postum Cereal Co. v. California Fig Nut
Co., 272 U. S. 693,
powers of the courts of the District of Columbia. Moreover, the
suggestion that the Constitutional Convention recognized a
constructive limitation of federal jurisdiction to "cases of a
Judiciary nature," II Farrand, Records of the Federal Convention
430, merely lays bare the ultimate fallacy underlying rejection of
the boundaries of Article III. For the constructive limitation
referred to in the Convention debates is a limitation imposed by
Article III, and the opinion of MR. JUSTICE JACKSON, by hypothesis,
denies that Article III expresses the full measure of power which
can be delegated to federal district courts. If district courts are
-- as I agree they are -- confined to "cases of a Judiciary
nature," then too they are confined to cases "between citizens of
different States," except insofar as other Article III provisions
expand the potential grant of jurisdiction. For -- to borrow the
words of the
O'Donoghue dissent -- the limitations of
Article III,
"if considered to be applicable, [would not] be susceptible of
division so that some might be deemed obligatory and others might
be ignored."
289 U.S. at
289 U. S.
552.
In view of the rationale adopted by MR. JUSTICE JACKSON's
opinion, I do not understand the necessity for its examination of
the limits of the diversity clause of Article III. That opinion
has, however, made clear the view that the diversity clause
excludes citizens of the
Page 337 U. S. 617
District of Columbia, although where that view may now be
applied, it does not point out. If I concurred in that conception
of the diversity clause, I would vote to affirm the judgment of the
Court of Appeals.
II
However, nothing but naked precedent, the great age of the
Hepburn ruling, and the prestige of Marshall's name,
supports such a result. It is doubtful whether anyone could be
found who now would write into the Constitution such an unjust and
discriminatory exclusion of District citizens from the federal
courts. All of the reasons of justice, convenience, and
practicality which have been set forth for allowing District
citizens a furtive access to federal courts point to the conclusion
that they should enter freely and fully as other citizens and even
aliens do.
Precedent, of course, is not lightly to be disregarded, even in
the greater fluidity of decision which the process of
constitutional adjudication concededly affords. [
Footnote 2/11] And
Page 337 U. S. 618
Marshall's sponsorship in such matters always is weighty. But
when long experience has disclosed the fallacy of a ruling, time
has shown its injustice, and nothing remains but a technicality the
only effect of which is to perpetuate inequity, hardship and wrong,
those are the circumstances which this Court repeatedly has said
call for reexamination of prior decisions. If those conditions are
fulfilled in any case, they are in this one.
The
Hepburn decision was made before time, through
later decisions here, had destroyed its basic premise, and at the
beginning of Marshall's judicial career, when he had hardly started
upon his great work of expounding the Constitution. The very
brevity of the opinion and its groundings, especially in their
ambiguity, show that the master hand which later made his work
immortal faltered. [
Footnote
2/12]
Page 337 U. S. 619
The sole reason Marshall assigned for the decision was "a
conviction that the members of the American confederacy only are
the states contemplated in the constitution," a conviction
resulting, as he said, from an examination of the use of that word
in the charter to determine "whether Columbia is a state in the
sense of that instrument." 2 Cranch at
6 U. S. 452.
"When the same term which has been used plainly in this limited
sense [as designating a member of the union] in the articles
respecting the legislative and executive departments, is also
employed in that which respects the judicial department, it must be
understood as retaining the sense originally given to it."
Ibid.
This narrow and literal reading was grounded exclusively on
three constitutional provisions: the requirements that members of
the House of Representatives be chosen by the people of the several
states; that the Senate shall be composed of two Senators from each
state, and that each state "shall appoint, for the election of the
executive," the specified number of electors; all, be it noted,
provisions relating to the organization and structure of the
political departments of the government, not to the civil rights of
citizens as such. Put to one side were other provisions advanced in
argument as showing "that the term state is sometimes used in its
more enlarged sense" on the ground that "they do not prove what was
to be shown by them."
Ibid.
Whether or not this answer was adequate at the time, [
Footnote 2/13]
Page 337 U. S. 620
our Constitution today would be very different from what it is
if such a narrow and literal construction of each of its terms had
been transmuted into an inflexible rule of constitutional
interpretation. It is to be remembered, as bearing on the very
issue before us, that the Sixth Amendment's guarantee of "an
impartial jury of the State . . . wherein the crime shall have been
committed" extends to criminal prosecutions in the Nation's
capital. [
Footnote 2/14]
Similarly, the word "citizens" has a broader
Page 337 U. S. 621
meaning in Article III, § 2, where it now includes corporations,
[
Footnote 2/15] than it has in
the privileges and immunities clause of Article IV, § 2, [
Footnote 2/16] or in the like clause of
the Fourteenth Amendment. [
Footnote
2/17] Instances might, but need not, be multiplied.
In construing the diversity clause, we are faced with the
apparent fact that the Framers gave no deliberate consideration one
way or another to the diversity litigation of citizens of the
District of Columbia. And indeed, since the District was not in
existence when the
Page 337 U. S. 622
Constitution was drafted, it seems in no way surprising that the
Framers, after conferring on Congress' plenary power over the
future federal capital, made no express provision for litigating
outside the boundaries of a hypothetical city conjectured
controversies between unborn citizens and their unknown neighbors.
Under these circumstances, I cannot accept the proposition that
absence of affirmative inclusion is, here, tantamount to deliberate
exclusion.
If exclusion of District citizens is not compelled by the
language of the diversity clause, it likewise cannot be spelled out
by inference from the historic purposes of that clause. We have,
needless to say, no concern with the merits of diversity
jurisdiction; [
Footnote 2/18] nor
need we resolve scholarly dispute over the substantiality of those
local prejudices which, when the Constitution was drafted, the
grant of diversity jurisdiction was designed to nullify. [
Footnote 2/19] Our only duty is to
determine the scope of the jurisdictional grant, and we must bow to
congressional determination of whether federal adjudication of
local issues does more good than harm. But, in resolving the
immediate
Page 337 U. S. 623
issue, we should not blink the fact that, whatever the need for
federal jurisdiction over suits between litigant citizens of the
several states, the same need equally compels the safeguards of
federal trial for suits brought by citizens of the District of
Columbia against citizens of the several states. Conversely, if we
assume that today's ruling tacitly validates suits brought by state
citizens against citizens of the District of Columbia, it would
seem the plaintiff citizen of a state is as deserving of a federal
forum when suing a District defendant as when suing a defendant in
a neighbor state.
Marshall's sole premise of decision in the
Hepburn case
has failed, under the stress of time and later decision, as a test
of constitutional construction. Key words like "state," "citizen,"
and "person" do not always and invariably mean the same thing.
[
Footnote 2/20] His literal
application disregarded any possible distinction between the purely
political clauses and those affecting civil rights of citizens, a
distinction later to receive recognition.
Moreover, Marshall himself recognized the incongruity of the
decision:
"It is true that, as citizens of the United States, and of that
particular district which is subject to the jurisdiction of
Congress, it is extraordinary that the courts of the United States,
which are open to aliens, and to the citizens of every state in the
union, should be closed upon
them."
But, he added, "this is a subject for legislative, not for
judicial, consideration." 2 Cranch at
6 U. S. 453.
With all this we may well agree, with one reservation. In spite
of subsequent contrary interpretation and Marshall's own
identification of the statutory word "state" with the same word in
the Constitution, we cannot be unreservedly sure that the
last-quoted sentence referred to the process of constitutional
amendment, rather than
Page 337 U. S. 624
congressional reconsideration. If the former had been the
intent, it seems likely it would have been stated in words not so
characteristic of the latter process. The Court was construing the
statute, [
Footnote 2/21] which
made no explicit inclusion of citizens of the District. Whether, if
it had done so, the Court's ruling would have been the same, or, if
a later act had sought to include District citizens, it would have
been held unconstitutional, we can only speculate.
But I do not rest on this ambiguity, more especially in view of
the later decisions clearly accepting the
Hepburn decision
as one of constitutional import. On the other hand, the later and
general repudiation of the decision's narrow and literal rule for
construing the Constitution, in which Marshall's own part was not
small, has cut from beneath the
Hepburn case its only
grounding, and, with it, in my judgment, the anomaly in result
which the ruling always has been. It is perhaps unnecessary to go
so far in criticizing the decision as was done by a judge who long
afterwards bowed to it. [
Footnote
2/22] But the time has come
Page 337 U. S. 625
when the hope he expressed for removing this highly unjust
discrimination from a group of our citizens larger than the
population of several states of the Union should be realized.
III
Pragmatically stated, perhaps, the problem is not of
earth-shaking proportions. For, by present hypothesis, federal
court disposition of diversity suits must be in accord with local
law in all matters of substance. But, symbolically, the matter is
of very considerable importance. Reasonable men may differ perhaps
over whether or, more appropriately, to what extent, citizens of
the District should have political status and equality with their
fellow citizens. But, with reference to their civil rights,
especially in such a matter as equal access to the federal courts,
none now can be found to defend discrimination against them save
strictly on the ground of precedent.
I cannot believe that the Framers intended to impose so
purposeless and indefensible a discrimination, although they may
have been guilty of understandable oversight in not providing
explicitly against it. Despite its great age and subsequent
acceptance, I think the
Hepburn decision was ill
considered and wrongly decided. Nothing hangs on it now except the
continuance or removal of a gross and wholly anomalous inequality
applied against a substantial group of American citizens not in
relation to their substantive rights, but in respect to the forums
available for their determination. This Court has not
Page 337 U. S. 626
hesitated to override even longstanding decisions when much more
by way of substantial change was involved and the action taken was
much less clearly justified than in this case, a most pertinent
instance being
Erie R. Co. v. Tompkins, supra.
That course should be followed here. It should be followed
directly, not deviously. Although I agree with the Court's
judgment, I think it overrules the
Hepburn decision in all
practical effect. With that I am in accord. But I am not in accord
with the proposed extension of "legislative" jurisdiction under
Article I for the first time to the federal district courts outside
the District of Columbia organized pursuant to Article III, and the
consequent impairment of the latter Article's limitations upon
judicial power, and I would dissent from such a holding even more
strongly than I would from a decision today reaffirming the
Hepburn ruling. That extension, in my opinion, would be
the most important part of today's decision, were it accepted by a
majority of the Court. It is a dangerous doctrine which would
return to plague both the district courts and ourselves in the
future, to what extent it is impossible to say. The
O'Donoghue and
Williams decisions would then take
on an importance they have never before had, and were never
considered likely to attain.
[
Footnote 2/1]
See notes
337
U.S. 582fn2/3|>3 and
337
U.S. 582fn2/4|>4 and text
infra.
[
Footnote 2/2]
See text
infra and authorities cited at notes
337
U.S. 582fn2/7|>7-9.
[
Footnote 2/3]
Barney v.
Baltimore, 6 Wall. 280;
Hooe v. Jamieson,
166 U. S. 395;
Hooe v. Werner, 166 U. S. 399.
[
Footnote 2/4]
Hooe v. Jamieson, 166 U. S. 395,
166 U. S. 397;
cf. Downes v. Bidwell, 182 U. S. 244,
182 U. S.
270.
[
Footnote 2/5]
"Of all the Courts which the United States may, under their
general powers, constitute, one only, the Supreme Court, possesses
jurisdiction derived immediately from the constitution, and of
which the legislative power cannot deprive it."
United States v.
Hudson, 7 Cranch 32.
And see Justice
Chase's remarks in
Turner v. Bank of North
America, 4 Dall. 8,
4
U. S. 9, n. 1.
But cf. 14 U.
S. Hunter's Lessee, 1 Wheat. 304,
14 U. S.
328-331. For recent reaffirmation of the prevailing
view,
see Kline v. Burke Construction Co., 260 U.
S. 226,
260 U. S.
233-234. And see the comprehensive survey of
congressional power over the jurisdiction of federal courts
prepared for the Judiciary Committee of the House of
Representatives by MR. JUSTICE FRANKFURTER before his accession to
this bench. H.R.Rep. No.669, 72d Cong., 1st Sess. 12-14.
[
Footnote 2/6]
304 U. S. 304 U.S.
64. If it were assumed that the Constitution requires the
application of local law in traditional diversity suits (
cf.
id. at
304 U. S. 77-80;
Black & White Taxicab & Transfer Co. v. Brown &
Yellow Taxicab & Transfer Co., 276 U.
S. 518, dissenting opinion at
276 U. S. 533;
but cf. Cohen v. Beneficial Industrial Loan Corp., post,
at
337 U. S. 541,
dissenting opinion at
337 U. S.
557), it may be wondered whether that requirement would
also govern the rationale of jurisdiction today advanced: under
this rationale, Congress might well find in Article I power to
authorize articulation of a body of federal substantive law for the
decision of diversity cases involving citizens of the District of
Columbia.
[
Footnote 2/7]
Federal Radio Commission v. General Electric Co.,
281 U. S. 464;
Postum Cereal Co. v. California Fig Nut Co., 272 U.
S. 693;
Keller v. Potomac Electric Power Co.,
261 U. S. 428.
Cf. Ex parte Bakelite Corp., 279 U.
S. 438,
279 U. S. 450;
Federal Radio Commission v. Nelson Bros. Bond & Mortgage
Co., 289 U. S. 266,
289 U. S.
274-276;
United States v. Jones, 336 U.
S. 641,
336 U. S. 652,
n. 12.
[
Footnote 2/8]
O'Donoghue v. United States, 289 U.
S. 516,
289 U. S. 551.
Cf. Pitts v. Peak, 60 App.D.C.195, 197, 50 F.2d 485.
[
Footnote 2/9]
See Comment, 43 Yale L.J. 316, 319 (1933).
[
Footnote 2/10]
Note by Chief Justice Taney inserted by order of the Court after
the opinion in
United States v.
Ferreira, 13 How. 40,
54 U. S. 53,
summarizing the Court's conclusions in
Hayburn's
Case, 2 Dall. 409, and
United States v. Yale
Todd, decided without opinion by this Court on February 17,
1794, and apparently unreported.
[
Footnote 2/11]
Cf. Screws v. United States, 325 U. S.
91,
325 U. S.
112-113.
See the trenchant discussion by Mr.
Justice Brandeis of the lesser impact of
stare decisis in
the realm of constitutional construction,
Burnet v. Coronado
Oil & Gas Co., 285 U. S. 393,
285 U. S.
405-410 (dissenting opinion), and the views of MR.
JUSTICE FRANKFURTER dissenting in
Commissioner v. Estate of
Church, 335 U. S. 632,
335 U. S.
676-677. Instances in which this Court has overruled
prior constitutional determinations are catalogued in
Burnet v.
Coronado Oil & Gas Co., supra, at
285 U. S. 407,
n. 2,
285 U.S. 409, n. 4,
and in
Helvering v. Griffiths, 318 U.
S. 371,
318 U. S. 401,
n. 52;
compare Mr. Justice Brandeis' compilations in
Burnet v. Coronado Oil & Gas Co., supra, at
285 U. S. 406,
n. 1, and in his dissenting opinion in
Washington v. W. C.
Dawson & Co., 264 U. S. 219,
264 U. S. 238,
n. 21. Chief Justice Stone, speaking for the Court on the death of
Mr. Justice Brandeis, took occasion to note the prime role played
by the latter in liberating the Court from mechanical adherence to
precedent where constitutional issues are at stake:
"He never lost sight of the fact that the Constitution is
primarily a great charter of government, and often repeated
Marshall's words: 'it is
a constitution we are expounding'
'intended to endure for ages to come, and, consequently, to be
adapted to the various crises of human affairs.' Hence, its
provisions were to be read not with the narrow literalism of a
municipal code or a penal statute, but so that its high purposes
should illumine every sentence and phrase of the document, and be
given effect as part of a harmonious framework of government.
Notwithstanding the doctrine of
stare decisis, judicial
interpretations of the Constitution, since they were beyond
legislative correction, could not be taken as the final word. They
were open to reconsideration in the light of new experience and
greater knowledge and wisdom."
317 U.S. XLII, XLVII.
[
Footnote 2/12]
The
Hepburn case was not the only one in those earlier
years where the master touch was lacking.
Cf. 9 U.
S. Deveaux, 5 Cranch 61;
Hope
Insurance Co. v. Boardman, 5 Cranch 57;
Maryland Insurance Co. v.
Woods, 6 Cranch 29;
Maryland
Ins. Co. v. Wood, 7 Cranch 402; McGovney, A Supreme
Court Fiction, 56 Harv.L.Rev. 853, 863-885 (1943).
See
particularly the discussion at 876-883. By positing the
capacity of a corporation to sue or be sued under the diversity
clause on the citizenship of its shareholders, the
Deveaux
decision opened the way for corporations ultimately to be brought
within the diversity jurisdiction, but only by the long and
tortuous evolution of the law through the stages first of
rebuttable and finally of conclusive presumption (now most often
contrary to the fact) that all the shareholders are citizens of the
state of incorporation.
See Louisville, C. & C. R. Co.
v. Letson, 2 How. 497.
[
Footnote 2/13]
Counsel for the plaintiffs had made, among others, two
different, though closely related, arguments. One was that "state,"
as used in the diversity clause, should be given what Marshall
characterized as "the signification attached to it by writers on
the law of nations," a political entity in a broad and general
sense. To this argument, his answer was obviously appropriate. But,
in view of other constitutional provisions relied upon in the
argument, 2 Cranch 446-448, 450 [argument of counsel -- omitted],
it seems at least questionable that the answer met the other
contention -- namely, that
"those territories which are under the exclusive government of
the United States are to be considered, in some respects, as
included in the term 'states,' as used in the Constitution."
Id. at 446 [argument of counsel -- omitted].
[
Footnote 2/14]
The Court's initial determination that District residents were
entitled to a jury trial in criminal cases,
Callan v.
Wilson, 127 U. S. 540,
rested in large measure on the more inclusive language of Article
III, § 2:
"The Trial of all Crimes, except in Cases of Impeachment, shall
be by Jury, and such Trial shall be held in the State where the
said Crimes shall have been committed; but when not committed
within any State, the Trial shall be at such Place or Places as the
Congress may be Law have directed."
The Court in the
Callan case rejected the Government's
argument that Article III, § 2, permits Congress to dispense with a
jury when the crime takes place in the District, rather than in a
state. But Article III does not seem to have been the sole basis of
decision, for the Court said, 127 U.S. at
127 U. S.
550:
"In
Reynolds v. United States, 98 U. S.
145,
98 U. S. 154, it was taken
for granted that the Sixth Amendment of the Constitution secured to
the people of the territories the right of trial by jury in
criminal prosecutions. . . . We cannot think that the people of
this District have, in that regard, less rights than those accorded
to the people of the territories of the United States."
See District of Columbia v. Clawans, 300 U.
S. 617,
300 U. S. 624;
Capital Traction Co. v. Hof, 174 U. S.
1,
174 U. S. 5;
cf. Thompson v. Utah, 170 U. S. 343,
170 U. S.
348-349.
But, though it be true that "The Sixth Amendment was not needed
to require trial by jury in cases of crimes,"
United States v.
Wood, 299 U. S. 123,
299 U. S. 142,
nevertheless the recognized right of District residents to an
"impartial jury" is conferred by the force of the Sixth Amendment.
See Frazier v. United States, 335 U.
S. 497,
335 U. S. 498,
335 U. S. 514.
Nor is this distinction a mere form of words: in
United States
v. Wood, supra, at
299 U. S.
142-143, Chief Justice Hughes, in weighing the
impartiality of a District of Columbia jury, noted the Article III
guarantee of a jury trial and then observed:
"The Sixth Amendment provided further assurances. It added that,
in all criminal prosecutions, the accused shall enjoy the
right"
"to a speedy and public trial, by an impartial jury of the State
and district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence."
Thus, it has been uniformly assumed that, in criminal
prosecutions, a resident of the District of Columbia is possessed
of Sixth Amendment rights "to a speedy . . . trial,"
United
States v. McWilliams, 69 F. Supp.
812,
aff'd, 163 F.2d 695; "to be informed of the
nature and cause of the accusation,"
cf. Johnson v. United
States, 225 U. S. 405,
225 U. S. 409,
225 U. S. 411;
"to be confronted with the witnesses against him,"
Curtis v.
Rives, 123 F.2d 936, 937;
Jordon v. Bondy, 114 F.2d
599, 602, "to have compulsory process for obtaining Witnesses in
his favor,"
ibid.; "and to have the Assistance of Counsel
for his defence,"
Noble v. Eicher, 79 U.S.App.D.C. 217;
143 F.2d 1001;
see Williams v. Huff, 142 F.2d 91, 146 F.2d
867.
[
Footnote 2/15]
See 337
U.S. 582fn2/12|>note 12,
supra. Compare
43 U. S. C. &
C. R. Co. v. Letson, 2 How. 497,
with 9 U.
S. Deveaux, 5 Cranch 61.
[
Footnote 2/16]
Paul v.
Virginia, 8 Wall. 168,
75 U. S. 177.
It is to be noted, however, that Hamilton's 83th Federalist
expressly justified the grant of diversity jurisdiction as
effectively implementing the guaranties of the privileges and
immunities clause of Article IV.
[
Footnote 2/17]
Hague v. CIO, 307 U. S. 496,
307 U. S. 514;
cf. id. at
307 U. S. 527;
Grosjean v. American Press Co., 297 U.
S. 233,
297 U. S. 244;
Orient Insurance Company v. Daggs, 172 U.
S. 557,
172 U. S.
561.
[
Footnote 2/18]
For contrasting views prior to
Erie R. Co. v. Tompkins,
304 U. S. 64,
compare Yntema, The Jurisdiction of the Federal Courts in
Controversies between Citizens of Different States, 19 A.B.A.J. 71
(1933),
and Yntema and Jaffin, Preliminary Analysis of
Concurrent Jurisdiction, 79 U.Pa.L.Rev. 869 (1931),
with
Frankfurter, A Note on Diversity Jurisdiction -- In Reply to
Professor Yntema, 79 U.Pa.L.Rev. 1097 (1931),
and
Frankfurter, Distribution of Judicial Power between United States
and State Courts, 13 Corn.L.Q. 499, 520-530 (1928). For
post-
Erie analyses,
see Shulman, The Demise of
Swift v. Tyson, 47 Yale L.J. 1336 (1938); Clark, State Law
in the Federal Courts: The Brooding Omnipresence of
Erie R. Co.
v. Tompkins, 55 Yale L.J. 267 (1946).
[
Footnote 2/19]
See 337
U.S. 582fn2/18|>note 18,
and see also Friendly, the
Historic Basis of Diversity Jurisdiction, 41 Harv.L.Rev. 483
(1928); Warren, New Light on the History of the Federal Judiciary
Act of 1789, 37 Harv.L.Rev. 49, 81-90 (1923); Frank, Historical
Bases of the Federal Judicial System, 13 L. & Contemp. Prob. 3,
22-28 (1948).
[
Footnote 2/20]
Cf. 337
U.S. 582fn2/14|>notes 14-17,
supra, and text.
[
Footnote 2/21]
The arguments for the defendant were two -- one statutory, the
other constitutional. They were stated as follows:
"Even if the constitution of the United States authorizes a more
enlarged jurisdiction than the judiciary act of 1789 has given, yet
the court can take no jurisdiction which is not given by the act. .
. ."
"This is not a case between citizens of different states, within
the meaning of the constitution."
2 Cranch at 449-450 [argument of counsel -- omitted].
[
Footnote 2/22]
After noting that the
Hepburn decision had been
extended by
New Orleans v.
Winter, 1 Wheat. 91, to territories and their
citizens, the opinion in
Watson v. Brooks, 13 F. 540,
stated, at 543-544:
"But it is very doubtful if this ruling would now be made if the
question was one of first impression, and it is to be hoped it may
yet be reviewed and overthrown."
"By it, and upon a narrow and technical construction of the word
'state,' unsupported by any argument worthy of the able and
distinguished judge who announced the opinion of the court, the
large and growing population of American citizens resident in the
District of Columbia and the eight territories of the United States
are deprived of the privilege accorded to all other American
citizens, as well as aliens, of going into the national courts when
obliged to assert or defend their legal rights away from home.
Indeed, in the language of the court in
Hepburn and
Dundas v. Ellzey, supra, they may well say:"
"It is extraordinary that the courts of the United States, which
are open to aliens, and to the citizens of every state in the
Union, should be closed upon them."
"But so long as this ruling remains in force, the judgment of
this court must be governed by it."
MR. CHIEF JUSTICE VINSON, with whom MR. JUSTICE DOUGLAS joins,
dissenting.
While I agree with the views expressed by MR. JUSTICE
FRANKFURTER and MR. JUSTICE RUTLEDGE which relate to the power of
Congress under Art. I of the Constitution to vest federal district
courts with jurisdiction over suits between citizens of States and
the District of Columbia, and with the views of MR. JUSTICE
FRANKFURTER and MR. JUSTICE JACKSON as to the proper interpretation
of the word "States" in the diversity clause of Art. III, I
Page 337 U. S. 627
am constrained to state my views individually because of the
importance of these questions to the administration of the federal
court system.
I
The question whether Congress has the power to extend the
diversity jurisdiction of the federal district courts to citizens
of the District of Columbia by virtue of its authority over the
District under Art. I of the Constitution depends, in turn, upon
whether the enumeration in Art. III of the cases to which the
judicial power of the United States shall extend defines the outer
limits of that power, or is merely a listing of the types of
jurisdiction with which Congress may invest federal courts without
invoking any of the specific powers granted that body by other
Articles of the Constitution. It has long been settled that
inferior federal courts receive no powers directly from the
Constitution, but only such authority as is vested in them by the
Congress.
Turner v. Bank of North
America, 4 Dall. 8;
McIntire
v. Wood, 7 Cranch 504;
Kendall v.
United States, 12 Pet. 524;
Cary v.
Curtis, 3 How. 236. [
Footnote 3/1] Since, therefore, there is no minimum of
power prescribed for the inferior federal courts, and Congress need
not have established any such courts,
Lockerty v.
Phillips, 319 U. S. 182,
319 U. S. 187,
the question is whether the enumeration of cases in Art. III, § 2
prescribes a maximum of power, or performs only the very limited
office mentioned above. [
Footnote
3/2]
The theory that § 2 of Art. III is merely a supplement to the
powers specifically granted Congress by the Constitution
Page 337 U. S. 628
is not, however, accepted at face value even by those who urge
it. For they still would require that a case or controversy be
presented. We are told that,
"Of course, there are limits to the nature of duties which
Congress may impose on the constitutional courts vested with the
federal judicial power . . . , [but] this statute . . . does not
authorize or require either the district courts or this Court to
participate in any legislative, administrative, political, or other
nonjudicial function or to render any advisory opinion."
337 U.S. 590.
But as my brothers FRANKFURTER and RUTLEDGE have pointed out, if
Art. III contains merely a grant of power to Congress, there is no
more reason to find any limitation in the fact that the judicial
power extends only to cases and controversies than in the specific
enumeration of the kinds of cases or controversies to which it
shall extend. The fundamental error in this position, as I see it,
is the failure to distinguish between two entirely different
principles embodied in Art. III, as elsewhere in the Constitution,
both of which were repeatedly adverted to in the Constitutional
Convention and have since been followed by this Court without
substantial deviation.
The first of these principles is that the three branches of
government established by the Constitution are of coordinate rank,
and that none may encroach upon the powers and functions entrusted
to the others by that instrument. This principle found expression
in the requirement of Art. III that the judicial power shall extend
only to cases and controversies. Of equal importance, however, was
the second principle, that the Constitution contains a grant of
power by the states to the federal government, and that all powers
not specifically granted were reserved to the states or to the
people. [
Footnote 3/3] The
powers
Page 337 U. S. 629
granted the federal judiciary were spelled out with care and
precision in Art. III by a delineation of the kinds of cases to
which the judicial power could be extended.
The first principle is not now under attack, but proper
perspective in viewing the second requires some examination of its
origin and history. The framers of the Constitution were presented
with, and rejected, proposals which would have vested nonjudicial
powers in the national judiciary. Charles Pinckney of South
Carolina proposed, for example, that
"Each branch of the Legislature, as well as the Supreme
Executive, shall have authority to require the opinions of the
supreme Judicial Court upon important questions of law, and upon
solemn occasions. [
Footnote
3/4]"
Early in the Convention, however, the principle that the courts
to be established should have jurisdiction only over cases became
fixed. Thus it was that, when the proposal was made on the floor of
the Convention that the words, "arising under this Constitution" be
inserted before "the laws of the United States" in what is now Art.
III, § 2, Madison's objection that it was
"going too far to extend the jurisdiction of the Court generally
to cases arising Under the Constitution, & whether it ought not
to be limited to cases of a Judiciary Nature"
was met by the answer that it was, in his own words, "generally
supposed that the jurisdiction given was constructively limited to
cases of a Judiciary nature." [
Footnote
3/5]
Clear as this principle is, however, it was attacked in this
Court on precisely the same grounds now asserted to sustain the
diversity jurisdiction here in question. In
Keller v. Potomac
Electric Power Co., 261 U. S. 428,
where this Court had before it an Act under which the courts of the
District of Columbia were given revisory power over rates set by
the Public Utilities Commission
Page 337 U. S. 630
of the District, the appellee sought to sustain the appellate
jurisdiction given this Court by the Act on the basis that,
"Although Art. III of the Constitution limits the jurisdiction
of the federal courts, this limitation is subject to the power of
Congress to enlarge the jurisdiction where such enlargement may
reasonably be required to enable Congress to exercise the express
powers conferred upon it by the Constitution."
261 U.S. at 435 [argument of counsel -- omitted]. There, as
here, the power relied upon was that given Congress to exercise
exclusive jurisdiction over the District of Columbia, and to make
all laws necessary and proper to carry such powers into effect. But
this Court clearly and unequivocally rejected the contention that
Congress could thus extend the jurisdiction of constitutional
courts, citing the note to
Hayburn's Case,
2 Dall. 409,
2 U. S. 410;
United States v.
Ferreira, 13 How. 40, and
Gordon v. United
States, 117 U.S. 697. These and other decisions of this Court
clearly condition the power of a constitutional court to take
cognizance of any cause upon the existence of a suit instituted
according to the regular course of judicial procedure,
Marbury v.
Madison, 1 Cranch 137, the power to pronounce a
judgment and carry it into effect between persons and parties who
bring a case before it for decision,
Muskrat v. United
States, 219 U. S. 346;
Gordon v. United States, supra, the absence of revisory or
appellate power in any other branch of Government,
Hayburn's
Case, supra; United States v. Ferreira, supra, and the absence
of administrative or legislative issues or controversies,
Keller v. Potomac Electric Power Co., supra; Postum Cereal Co.
v. California Fig Nut Co., 272 U. S. 693.
While "judicial power," "cases," and "controversies" have sometimes
been given separate definitions, [
Footnote 3/6] these concepts are inextricably
intertwined. The term "Judicial power" was itself substituted
Page 337 U. S. 631
for the phrase, "The jurisdiction of the Supreme Court" to
conform Art. III to the use of the terms "legislative powers" and
"executive power" in Arts. I and II. [
Footnote 3/7] It thus draws life from that to which it
extends: to cases and controversies. That much, at any rate, is
clear. Whether it draws life from any cases or controversies other
than those specifically enumerated in Art. III must now be
considered.
The second principle, that any powers not specifically granted
to the national judiciary by Art. III were reserved to the states
or the people, is here challenged. The reason such an attack is
possible at this late date is, ironically enough, because of the
implicit acceptance of that principle by the framers, by Congress,
and by litigants ever since. Unlike the question of the relations
between the branches of government, which first arose during
Washington's presidency and subsequently gave rise, in the cases
previously adverted to, to frequent definition of the nature of
cases and controversies, acceptance of the principle that Art. III
contains a limitation on the power of the federal judiciary was so
complete that the question did not often arise directly.
Nevertheless, it is possible to demonstrate in a number of contexts
the true intent of the framers.
First, the examination and rejection of various alternative
proposals concerning the jurisdiction of the national judiciary by
the Convention throws considerable light upon the compromise
reached. [
Footnote 3/8] On the one
hand
Page 337 U. S. 632
were those who thought that no inferior federal tribunals should
be authorized; that state courts should be entrusted with the
decision of all federal questions, subject to appeal to one Supreme
Court. Madison's notes reveal that
"Mr. Rutledge havg. obtained a rule for reconsideration of the
clause for establishing inferior tribunals under the national
authority, now moved that that part of the clause . . . should be
expunged, arguing that the State Tribunals might and ought to be
left in all cases to decide in the first instance the right of
appeal to the supreme national tribunal being sufficient to secure
the national rights & uniformity of Judgmts; that it was making
an unnecessary encroachment on the jurisdiction of the States, and
creating unnecessary obstacles to their adoption of the new system.
[
Footnote 3/9]"
The motion was carried, and the clause establishing inferior
federal tribunals excised from the draft Constitution. Madison,
however, immediately moved "that the National Legislature be
empowered to institute inferior federal tribunals," urging that
some provision for such courts was a necessity in a federal system.
Madison's notes then record the reaction of Pierce Butler of South
Carolina to this proposal:
Page 337 U. S. 633
"The people will not bear such innovations. The States will
revolt at such encroachments. Supposing such an establishment to be
useful, we must not venture on it. We must follow the example of
Solon, who gave the Athenians not the best Govt. he could devise,
but the best they wd. receive. [
Footnote 3/10]"
On the other hand, some members of the Convention favored a
wider federal jurisdiction than was ultimately authorized. The
Connecticut delegation, led by Roger Sherman, proposed
"That the legislature of the United States be authorized to
institute one supreme tribunal, and such other tribunals as they
may judge necessary for the purpose aforesaid, and ascertain their
respective powers and jurisdictions. [
Footnote 3/11]"
This proposal, which is not substantially different in its
effect from the interpretation now urged upon us, was not adopted
by the Convention. When it became established that inferior federal
courts were to be authorized by the Constitution, the limits of
their jurisdiction immediately became an issue of paramount
importance. The outline of federal jurisdiction was established
only after much give and take, proposal and counterproposal, and --
in the end -- compromise. It was early proposed, for example, that
federal jurisdiction be made to extend to
"all piracies & felonies on the high seas, captures from the
enemy; cases in which foreigners or citizens of other States
applying to such jurisdiction may be interested, or which respect
the collection of the National revenue; impeachments of any
National officers, and questions which involve the national peace
and harmony. [
Footnote 3/12]"
But this was only one of many proposals concerning the
extent
Page 337 U. S. 634
of federal jurisdiction, [
Footnote
3/13] and not before many concessions and compromises had been
made was the enumeration of cases now found in Art. III, § 2 agreed
upon.
The judicial power was thus jealously guarded by the states and
unwillingly granted to the national judiciary. Only when it could
be demonstrated that a particular head of jurisdiction was acutely
needed for the purposes of uniformity and national harmony was it
granted. In every state convention for ratification of the
Constitution, advocates and opponents of ratification considered in
detail the kinds of cases and controversies to which the national
judicial power was to extend. Each had to be justified. [
Footnote 3/14] Far from assuming that the
judicial power could be, by any means short of constitutional
amendment, extended beyond those cases expressly provided for in
Art. III, that Article was subjected to severe attacks on the
ground that those powers specifically given
Page 337 U. S. 635
would destroy the state courts. A delegate to the Virginia
Convention, for example, stated that
"My next objection
to the federal judiciary is that it
is not expressed in a definite manner. The jurisdiction of all
cases arising under the Constitution and the laws of the Union is
of stupendous magnitude. [
Footnote
3/15]"
If, in addition to justifying every particle of power given to
federal courts by the Constitution, its defenders had been obliged
to justify the competence of Congress -- itself suspect by those
who opposed ratification -- to extend that jurisdiction whenever it
was thought necessary to effectuate one of the powers expressly
given that body, their task would have been insuperable. The
debates make that fact plain.
That the federal judicial power was restricted to those classes
of cases set forth in Art. III was clearly the opinion of those who
had most to do with its drafting and acceptance. In the 80th Number
of the Federalist, Hamilton listed the types of cases to which it
was thought necessary that the judiciary authority of the nation
should extend. All are found represented in Art. III. [
Footnote 3/16] In the 81st Number, he
wrote:
Page 337 U. S. 636
"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. . . ."
p. 511 (emphasis added.), while in No. 82, the following
appears:
"The only outlines described [for inferior courts] are that they
shall be 'inferior to the Supreme Court,' and that
they shall
not exceed the specified limits of the federal judiciary."
P. 516. (Emphasis added.) And Madison, in a letter to a
correspondent who had contended that the common law had been
incorporated by the Constitution as federal law, wrote:
"A characteristic peculiarity of the Govt. of the U. States is
that its powers consist of special grants taken from the general
mass of power, whereas other Govts. possess the general mass with
special exceptions only. Such being the plan of the Constitution,
it cannot well be supposed that the Body which framed it with so
much deliberation, and with so manifest a purpose of specifying its
objects and defining its boundaries, would, if intending that the
Common Law shd. be a part of the national code, have omitted to
express or distinctly indicate the intention when so many far
inferior provisions are so carefully inserted, and such appears to
have been the public view taken of the Instrument, whether we recur
to the period of its ratification by the States or to the federal
practice under it. [
Footnote
3/17] "
Page 337 U. S. 637
Cases in this Court which support the view that Art. III, § 2
limits the power of constitutional courts are not lacking. In
The Mayor v.
Cooper, 6 Wall. 247,
73 U. S. 252,
the Court defined the jurisdiction of inferior federal courts as
follows:
"As regards all courts of the United States inferior to this
tribunal, two things are necessary to create jurisdiction, whether
original or appellate.
The Constitution must have given to the
court the capacity to take it, and an act of Congress must
have supplied it. Their concurrence is necessary to vest it. It is
the duty of Congress to act for that purpose up to the limits of
the granted power.
They may fall short of it, but cannot exceed
it."
(Emphasis added.) And, in a series of three cases decided
between 1800 and 1809, the Court refused to give literal effect to
§ 11 of the Judiciary Act of 1789, which had extended the
jurisdiction of Circuit Courts to suits "where an alien is a
party," because of the limitations imposed by Art. III. In
Mossman v.
Higginson, 4 Dall. 12,
4
U. S. 14, it was decided that,
"as the legislative power of conferring jurisdiction on the
federal Courts is, in this respect, confined to suits
between
citizens and foreigners, we must so expound the terms of the
law as to meet the case, 'where, indeed, an alien is one party,'
but a citizen is the other."
This construction of the statute was adhered to in
Montalet v.
Murray, 4 Cranch 46, and in
Hodgson v.
Bowerbank, 5 Cranch 303 [omitted], where Chief Justice
Marshall dismissed the contention that "The judiciary act gives
jurisdiction to the circuit courts in all suits in which
an
alien is a party" with this admonition:
"Turn to the article of the constitution of the United States,
for the statute cannot extend the jurisdiction beyond the limits of
the constitution. "
Page 337 U. S. 638
Other examples of the Court's consistent adherence to the
principle that the judicial power of the United States is a
constituent part of the concessions made by the states to the
federal government, and may not be extended, may be cited.
See
Turner v. Bank of North America, supra; 11 U.
S. Hudson and Goodwin, 7 Cranch 32-33;
Murray's Lessee v. Hoboken
Land and Improvement Co., 18 How. 272,
59 U. S.
280-281;
Kline v. Burke Construction Co.,
260 U. S. 226,
260 U. S.
233-234;
Ex parte Bakelite Corp., 279 U.
S. 438,
279 U. S. 449;
Federal Radio Commission v. General Electric Co.,
281 U. S. 464,
281 U. S. 469.
Over a century and a half of consistent interpretation of Art. III
is well summed up in one sentence from this Court's opinion in
Sheldon v.
Sill, 8 How. 441,
49 U. S.
449:
"The Constitution has defined the limits of the judicial power
of the United States, but has not prescribed how much of its shall
be exercised by the Circuit Court; consequently, the statute, which
does prescribe the limits of their jurisdiction, cannot be in
conflict with the Constitution
unless it confers powers not
enumerated therein."
(Emphasis added.)
The cases chiefly relied upon by those who contend that Art. III
does not define the limits of the judicial power are
O'Donoghue
v. United States, 289 U. S. 516, and
Williams v. United States, 289 U.
S. 553, which concerned reductions in salary of judges
of the District Court for the District of Columbia and the Court of
Claims, respectively. In these cases, this Court held that Art.
III, § 1 of the Constitution forbade reduction of the salary of the
former, who was found to be a judge of a "constitutional"
(
i.e., an inferior court as used in Arts. I and III)
court, but not of the latter, a judge of a "legislative" court.
Two separate but related points concerning the
O'Donoghue case should be emphasized. The first is that,
since
Page 337 U. S. 639
District of Columbia courts may be given nonjudicial duties,
Butterworth v. Hoe,112 U.S.
50;
Baldwin Co. v. Howard Co., 256 U. S.
35;
Keller v. Potomac Electric Power Co.,
supra, reliance upon that case to support the Act now under
consideration is incompatible with the position that constitutional
courts may only decide "cases" and "controversies" of a judicial
nature. The second is that the rationale of the
O'Donoghue
case is, by its terms, limited to courts of the District. For the
Court said, 289 U.S. at
289 U. S.
546:
"If, in creating and defining the jurisdiction of the courts of
the District, Congress were limited to article 3, as it is in
dealing with other federal courts, the administrative and other
jurisdiction spoken of could not be conferred upon the former."
In view of this express limitation, the
O'Donoghue case
lends no support to the Act now in question. To extend its
applicability beyond the courts of the District is warranted
neither by the language nor the reasoning of that case. The Court
in no way diminished the authority of
American
Insurance Co. v. Canter, 1 Pet. 511, which had held
that the courts of Florida Territory were legislative courts not
created pursuant to Art. III, and incapable of receiving the
judicial power set out therein. Since territorial courts cannot be
invested with Art. III power, the strict dichotomy between
legislative and constitutional courts still exists -- except in the
District of Columbia. It is not enough to refer to the breadth of
congressional power over the District; that such power is national
in character, rather than merely local. The power of Congress over
the territories is equally broad, yet territorial courts cannot be
invested with Art. III power under the
O'Donoghue case.
And some of the very statements now relied upon as indicating the
scope of Congress' power over the District [
Footnote 3/18] were quoted in the
Page 337 U. S. 640
O'Donoghue case, but the rationale of that case was
expressly limited to courts of the District, as noted above. The
District of Columbia courts were there regarded as unique --
different in powers and makeup from either territorial courts or
other constitutional courts. Extension of the
O'Donoghue
case to all constitutional courts is clearly unwarranted under
these circumstances, especially in the face of the uncontradicted
constitutional history previously outlined.
Except in the District of Columbia, therefore,
American
Insurance Co. v. Canter, supra, and a long line of cases in
the same vein [
Footnote 3/19]
prohibit the intermixture or combination of the personnel, powers,
or duties of constitutional and legislative courts. Whether a court
is of one category or the other depends upon what power of Congress
was utilized in its creation. If it was the power to create
inferior constitutional courts, the court may exercise only the
judicial power outlined in Art. III. If Congress creates a judicial
body to implement another of its constitutional powers, that body
is a legislative court, and may exercise none of the judicial power
of Art. III. [
Footnote 3/20] We
have
Page 337 U. S. 641
held that the answer to the question whether a court is of one
kind or another "lies in the power under which the court was
created and in the jurisdiction conferred."
Ex parte Bakelite
Corp., supra, at
279 U. S. 459.
I would adhere to that test.
What has been said does not mean, of course, that legislative
courts cannot exercise jurisdiction over questions of the same
nature as those enumerated in Art. III, § 2. It was clearly
contemplated by the framers that state courts should have federal
question jurisdiction concurrent with that exercised by inferior
federal courts, yet they are not constitutional courts, nor do they
exercise the judicial power of Art. III. The legislative courts
created by Congress also can and do decide questions arising under
the Constitution and laws of the United States (and, in the case of
territorial courts, other types of jurisdiction enumerated in Art.
III, § 2 as well), but that jurisdiction is not, and cannot be, "a
part of that judicial power which is defined in the 3d article of
the Constitution." These courts are "incapable of receiving it."
American Insurance Co. v. Canter, supra, at
26 U. S. 546;
Reynolds v. United States, supra, at
98 U. S. 154.
[
Footnote 3/21]
Page 337 U. S. 642
The appellate jurisdiction of this Court is, in fact, dependent
upon the fact that the case reviewed is of a kind within the Art.
III enumeration. That article, after setting out the cases of which
inferior courts may take
Page 337 U. S. 643
cognizance and the original jurisdiction of this Court, extends
the appellate jurisdiction of the Supreme Court only as far as "all
other Cases
before mentioned." (Emphasis added.) We can no
more review a legislative court's decision of a case which is not
among those enumerated in Art. III than we can hear a case from a
state court involving purely state law questions. But a question
under the Constitution and laws of the United States, whether
arising in a constitutional court, a state court, or a legislative
court may, under the Constitution, be a subject of this Court's
appellate jurisdiction. It was long ago held that
"The appellate power is not limited by the terms of the third
article to any particular courts. The words are 'the judicial power
(which includes the appellate power) shall extend to
all
cases,' &c., and 'in all other cases before mentioned, the
supreme court shall have appellate jurisdiction.' It is the case,
then, and not the court, that gives the jurisdiction. If the
judicial power extends to the case, it will be in vain to search in
the letter of the constitution for any qualification as to the
tribunal where it depends."
Martin v. Hunter's
Lessee, 1 Wheat. 304,
14 U. S.
338.
There is no anomaly, therefore, in the fact that legislative
courts, as well as constitutional courts, exercise federal question
jurisdiction, and that they sometimes exercise concurrent
jurisdiction over the same matters. That does not make the former
constitutional courts,
American Insurance Co. v. Canter, supra;
Ex parte Bakelite Corp., supra. Still less does it make the
latter legislative courts, which is the effect of the statute now
being considered. It is one thing to say that legislative courts
may exercise jurisdiction over some of the same matters that are
within Art. III judicial power. It is quite another thing to hold
that constitutional courts may take cognizance of causes which are
not within the scope of that power.
Page 337 U. S. 644
It may be argued that the distinction between constitutional and
legislative courts is meaningless if the latter may be invested
with jurisdiction over the subjects of Art. III judicial power. But
there are limitations which insure the preservation of the system
of federal constitutional courts distinct from legislative courts.
In the first place, a legislative court must be established under
some one of the specific powers given to Congress, and it is
unlikely that all of the subjects of the judicial power could be
justified as an exercise of those powers. [
Footnote 3/22] Furthermore, we cannot impute to
Congress an intent now or in the future to transfer jurisdiction
from constitutional to legislative courts for the purpose of
emasculating the former. Chief Justice Marshall suggested another
limitation in the
Canter case, when he said that, within
the States, admiralty jurisdiction can be exercised solely by
constitutional courts, although that limitation does not apply to
the Territories. It is at least open to question, therefore,
whether all of the subjects of Art. III judicial power, or only
federal question jurisdiction, may be transferred to legislative
courts within the States. Finally,
Ex parte Bakelite Corp.,
supra, has been read as suggesting that the jurisdiction of
legislative courts is limited to matters which, while proper
subjects of judicial determination, need not be so determined under
the Constitution. [
Footnote 3/23]
The least that may be said is that no decisions of this Court have
suggested that legislative courts may take over the entire field of
federal judicial authority.
There is a certain surface appeal to the argument that, if
Congress may create statutory courts to hear these cases, they
should be able to adopt the less expensive and more practical
expedient of vesting that jurisdiction
Page 337 U. S. 645
in the existing and functioning federal courts throughout the
country. No doubt a similar argument was pressed upon the judges in
Hayburn's Case. Unless expediency is to be the test of
jurisdiction of the federal courts, however, the argument falls of
its own weight. The framers unquestionably intended that the
jurisdiction of inferior federal courts be limited to those cases
and controversies enumerated in Art. III. I would not sacrifice
that principle on the altar of expediency.
II
There are numerous sections of the Constitution which are
concerned solely with the mechanics of government, and, of
necessity, set rather arbitrary limits upon the exercise of power
by the three branches of government. No doubt requirements of this
kind have proven in the past, and may, in the future, prove unduly
restrictive and undesirable. Yet, if a question concerning any one
of them were before us, I do not suppose that any member of the
Court would read into the Constitution the changes thought
desirable in our day.
The only difference in respect of the most explicit of these
limitations of power and the limitation imposed by the word "State"
in Art. III is that the meaning urged upon the Court is not
expressly controverted by the language of the Constitution. That it
was not the specific intent of the framers to extend diversity
jurisdiction to suits between citizens of the District of Columbia
and the States seems to be conceded. One well versed in that
subject, writing for the Court within a few years of adoption of
the Constitution, so held.
The question is, then, whether this is one of those sections of
the Constitution to which time and experience were intended to give
content, or a provision concerned solely with the mechanics of
government. I think there can be little doubt but that it was the
latter. That we
Page 337 U. S. 646
would now write the section differently seems hardly a
sufficient justification for an interpretation admittedly
inconsonant with the intent of the framers. Ours is not an
amendatory function.
I hardly need add that I consider a finding of
unconstitutionality of a statute a matter of grave concern.
Nevertheless, Congress cannot be that which the Constitution
specifically forbids. I think that it has attempted to do so
here.
[
Footnote 3/1]
See also Sheldon v.
Sill, 8 How. 441;
Kline v. Burke Construction
Co., 260 U. S. 226;
Lauf v. E. G. Shinner & Co., 303 U.
S. 323;
Lockerty v. Phillips, 319 U.
S. 182.
[
Footnote 3/2]
I.e., is an enumeration of cases to which Congress may
extend the jurisdiction of the federal courts without invoking
other of its powers under the Constitution.
[
Footnote 3/3]
This principle, implicit in the arguments at the Constitutional
Convention, was made explicit in the 10th Amendment.
[
Footnote 3/4]
2 Farrand, Records of the Federal Convention 341, hereinafter
cited as Farrand.
[
Footnote 3/5]
Id. at 430.
[
Footnote 3/6]
See Muskrat v. United States, 219 U.
S. 346,
219 U. S.
356.
[
Footnote 3/7]
2 Farrand 425.
[
Footnote 3/8]
The propriety of considering the proposals and debates of the
Constitutional Convention was long ago considered by those most
intimately concerned with its formulation. Washington, in his
message to the House of Representatives refusing the demands of
that body for the papers relating to Jay's treaty, stated:
"If other proofs than these, and the plain letter of the
Constitution itself, be necessary to ascertain the point under
consideration, they may be found in the Journals of the Great
Convention, which I have deposited in the office of the Department
of State. In those Journals, it will appear that a proposition was
made 'that no Treaty shall be binding on the United States which
was not ratified by a law,' and that the proposition was explicitly
rejected."
Annals of Congress, Fourth Congress, 1st Sess., p. 761.
See
also the comment of Madison at a later date. 3 Writings of
James Madison, 515.
[
Footnote 3/9]
1 Farrand 124.
See the argument of Luther Martin before
the Maryland House of Representatives opposing ratification of the
Constitution in 3 Farrand, 156.
See also 2 Elliot Debates
408; 3
id. at 562
et seq.
[
Footnote 3/10]
This account, taken from Madison's notes, is found in 1 Farrand
124-125.
[
Footnote 3/11]
1 Farrand 616.
[
Footnote 3/12]
1 Farrand at 22.
[
Footnote 3/13]
Id. at 231. The sense of the Convention at this point
was expressed in Yates' Notes as follows:
"Gov. Randolph observed the difficulty in establishing the
powers of the judiciary -- the object, however, at present, is to
establish this principle, to-wit, the security of foreigners where
treaties are in their favor, and to preserve the harmony of states
and that of the citizens thereof. This being once established, it
will be the business of a subcommittee to detail it, and therefore
moved to obliterate such parts of the resolve so as only to
establish the principle, to-wit,
that the jurisdiction of the
national judiciary shall extend to all cases of national revenue,
impeachment of national officers, and questions which involve the
national peace and harmony. Agreed to unanimously."
1 Farrand 238.
[
Footnote 3/14]
See, e.g., Madison's defense of the Judiciary Article
before the Virginia Convention, 5 Writings of James Madison
216-225; 2 Elliott, Debates 109;
id. at 409, where, among
the resolutions affecting Art. III, was one which
"
Resolved, as the opinion of this committee, that the
jurisdiction of the Supreme Court of the United States, or of any
other court to be instituted by the Congress ought not in any case
to be increased, enlarged, or extended by any fiction, collusion,
or mere suggestion;"
id. at 489-494; 3 Elliott, Debates 517-584.
[
Footnote 3/15]
3 Elliott, Debates 565.
And see Patrick Henry's
remarks,
id. at 539-546.
[
Footnote 3/16]
The cases enumerated were the following:
"1st. To all those which arise out of the laws of the United
States, passed in pursuance of their just and constitutional powers
of legislation; 2d. To all those which concern the execution of the
provisions expressly contained in the articles of union; 3d. To all
those in which the United States are a party; 4th. To all those
which involve the peace of the confederacy, whether they relate to
the intercourse between the United States and foreign nations, or
to that between the States themselves; 5th. To all those which
originate on the high seas, and are of admiralty or maritime
jurisdiction, and lastly, to all those in which the state tribunals
cannot be supposed to be impartial and unbiased."
[
Footnote 3/17]
9 Writings of James Madison 199-200.
And see 11 U.
S. Hudson and Goodwin, 7 Cranch 32;
Erie R. Co.
v. Tompkins, 304 U. S. 64.
[
Footnote 3/18]
From
Grether v. Wright, 75 F. 742.
[
Footnote 3/19]
See e.g., 50 U. S.
Porter, 9 How. 235;
Clinton v.
Englebrecht, 13 Wall. 434;
Reynolds v. United
States, 98 U. S. 145;
McAllister v. United States, 141 U.
S. 174;
United States v. Burroughs,
289 U. S. 159;
Ex parte Bakelite Corp., 279 U. S. 438.
[
Footnote 3/20]
In
Williams v. United States, 289 U.
S. 553, the Court found that the Court of Claims had
been created pursuant to the power of Congress under Art. I to pay
the debts of the United States, and had been given powers and
duties inconsistent with those of an Art. III court. The Court's
consideration of the question whether "Controversies to which the
United States shall be a Party" in Art. III includes suits against
the United States was therefore unnecessary to the decision, since
an affirmative answer would not have converted the Court of Claims
into a constitutional court. It is "incapable of receiving" the
Art. III power.
American Insurance Co. v. Canter, supra.
Furthermore, the Court recognized inferentially that the Court of
Claims does exercise jurisdiction over some questions of the kind
enumerated in Art. III when, with reference to claims founded upon
the Constitution, it held that
"the requirement is one imposed by the Constitution and equally
applicable whether jurisdiction be exercised by a legislative court
or a constitutional court."
289 U.S. at
289 U. S. 581.
Since Court of Claims jurisdiction also includes claims founded
upon any Act of Congress, it is clear that that court exercises
parallel jurisdiction with that of constitutional courts over cases
arising under the Constitution and laws of the United States,
although limited to suits involving claims against the United
States. This points up the fact that the Court's discussion of the
phrase "Controversies to which the United States shall be a Party"
was unnecessary to the decision.
[
Footnote 3/21]
It is argued that, because federal district courts exercise
jurisdiction over claims against the United States concurrent with
that of the Court of Claims, the former are exercising jurisdiction
of non-Art. III nature. Whether or not the dictum in
Williams
v. United States, 289 U. S. 553,
that suits against the United States are not within the Art. III
phrase "Controversies to which the United States shall be a Party"
proves correct,
see 337
U.S. 582fn3/20|>note 20,
supra, such actions seem
to be clearly within the Art. III federal question jurisdiction.
See 2 Moore, Federal Practice (1948 ed.), 1633. Of course,
the fact that Congress extends the jurisdiction of federal courts
to suits involving certain subject matter does not itself make them
the subject of federal question jurisdiction. But the sovereign's
immunity from suit has never been regarded simply as a question of
unavailability of a forum. As Hamilton said in The Federalist, No.
81:
"The contracts between a Nation and an individual are only
binding on the conscience of the sovereign, and have no pretensions
to compulsive force. They confer no right of action independent of
the sovereign will."
When the sovereign consents to be sued, therefore, considerably
more is involved than opening the courts to plaintiffs already
possessed of causes of action. For, as Mr. Justice Brandeis said in
Lynch v. United States, 292 U. S. 571,
292 U. S.
582:
"The sovereign's immunity from suit exists whatever the
character of the proceeding or the source of the right sought to be
enforced. It applies alike to causes of action arising under acts
of Congress, . . . and to those arising from some violation of
rights conferred upon the citizen by the Constitution. . . . The
character of the cause of action -- the fact that it is in
contract, as distinguished from tort -- may be important in
determining (as under the Tucker Act) whether consent to sue was
given. Otherwise, it is of no significance. For immunity from suit
is an attribute of sovereignty which may not be bartered away."
Since any right of action against the United States is
completely and wholly dependent upon whether an Act of Congress has
authorized the suit,
see United States v. Minnesota Mutual
Investment Co., 271 U. S. 212,
271 U. S. 217,
a question arising under the laws of the United States, as that
phrase is used in Art. III, is clearly presented by any claim
against the federal government. Since Congress has decreed that all
such actions shall be brought in federal courts, the question
presented in
Gully v. First National Bank, 299 U.
S. 109;
Puerto Rico v. Russell & Co.,
288 U. S. 476, and
related cases is not involved.
[
Footnote 3/22]
Except, perhaps, when Congress legislates for the Territories or
the District of Columbia.
[
Footnote 3/23]
Katz, Federal Legislative Courts, 43 Harv.L.Rev. 984,
916-917.
MR. JUSTICE FRANKFURTER, with whom MR. JUSTICE REED concurs,
dissenting.
No provisions of the Constitution, barring only those that draw
on arithmetic, as in prescribing the qualifying age for a President
and members of a Congress or the length of their tenure of office,
are more explicit and specific than those pertaining to courts
established under Article III. "The judicial Power" which is
"vested" in these tribunals and the safeguards under which their
judges function are enumerated with particularity. Their tenure and
compensation, the controversies which may be brought before them,
and the distribution of original and appellate jurisdiction among
these tribunals are defined and circumscribed, not left at large by
vague and elastic phrasing. The precision which characterizes these
portions of Article III is in striking contrast to the imprecision
of so many other provisions of the Constitution dealing with other
very vital aspects of government. This was not due to chance or
ineptitude on the part of the Framers. The differences in subject
matter account for the drastic differences in treatment. Great
concepts like "Commerce . . . among the several States," "due
process of law," "liberty," "property" were purposely left to
gather meaning from experience. For they relate to the whole domain
of social and economic fact, and the statesmen who founded this
Nation knew too well that only a stagnant society remains
unchanged. But when
Page 337 U. S. 647
the Constitution, in turn, gives strict definition of power or
specific limitations upon it, we cannot extend the definition or
remove the translation. Precisely because "it is
a
constitution we are expounding,"
McCulloch
v. Maryland, 4 Wheat. 316,
17 U. S. 407,
we ought not to take liberties with it.
There was deep distrust of a federal judicial system, as against
the State judiciaries, in the Constitutional Convention. This
distrust was reflected in the evolution of Article III. [
Footnote 4/1] Moreover, when they dealt
with the distribution of judicial power as between the courts of
the States and the courts of the United States, the Framers were
dealing with a technical subject in a professional way. More than
that, since the judges of the courts for which Article III made
provision not only had the last word (apart from amending the
Constitution), but also enjoyed life tenure, it was an essential
safeguard against control by the judiciary of its own jurisdiction
to define the jurisdiction of those courts with particularity. The
Framers guarded against the self-will of the courts, as well as
against the will of Congress, by marking with exactitude the outer
limits of federal judicial power.
According to Article III, only "judicial power" can be "vested"
in the courts established under it. At least this limitation, which
has been the law of the land since 1792,
Hayburn's
Case, 2 Dall. 409, is not yet called into question.
And so the President could not today elicit this Court's views on
ticklish problems of international law any more than Washington was
able to do in 1793.
See the exchange between Secretary of
State Jefferson and Chief Justice Jay in 3 Johnston, Correspondence
and
Page 337 U. S. 648
Public Papers of John Jay, 486-89 (1891), and 10 Sparks,
Writings of George Washington, 542-45 (1840).
But if courts established under Article III can exercise wider
jurisdiction than that defined and confined by Article III, and if
they are available to effectuate the various substantive powers of
Congress, such as the power to legislate for the District of
Columbia, what justification is there for interpreting Article III
as imposing one restriction in the exercise of those other powers
of the Congress -- the restriction to the exercise of "judicial
power" -- yet not interpreting it as imposing the restrictions that
are most explicit, namely, the particularization of the "cases" to
which "the judicial Power shall extend"?
It is conceded that the claim for which access is sought in the
District Court for Maryland, one of the courts established under
Article III, is not included among the "cases" to which the
judicial power can be made to extend. But if the precise
enumeration of cases as to which Article III authorized Congress to
grant jurisdiction to the United States District Courts does not
preclude Congress from vesting these courts with authority which
Article III disallows, by what rule of reason is Congress to be
precluded from bringing to its aid the advisory opinions of this
Court or of the Courts of Appeals? In the exercise of its
constitutional power to regulate commerce, to establish uniform
rules of naturalization, to raise and support armies, or to execute
any of the other powers of Congress that are no less vital than its
power to legislate for the District of Columbia, the Congress may
be greatly in need of informed and disinterested legal advice. If
Congress may grant to the United States District Courts authority
to act in situations in which Article III denies it, why may not
this Court respond to calls upon it by Congress if confronted with
the conscientious belief of Congress that such a call is made under
the Necessary and Proper Clause in order to deal wisely and
effectively with some substantive constitutional
Page 337 U. S. 649
power of Congress? Again, if the United States District Courts
are not limited to the jurisdiction rigidly defined by Article III,
why is the jurisdiction of this Court restricted to original
jurisdiction only in "Cases affecting Ambassadors, other public
Ministers and Consuls, and those in which a State shall be Party?"
Why is not Congress justified in conferring original jurisdiction
upon this Court in litigation involving the exercise of its power
to make all laws which shall be necessary and proper "for carrying
into Execution" its power "To declare War," or "To raise and
support Armies"?
Courts set up under Article III to exercise the judicial power
of the United States do so either because of the nature of the
subject matter or because of the special position of the parties.
So far as the subject matter is concerned, it extends to cases
arising under the "Constitution, the Laws of the United States, and
Treaties," as well as "to all Cases of admiralty and maritime
Jurisdiction." Article I, § 8, is an enumeration of the subjects in
relation to which the Constitution authorizes Congress to make
laws. Its eighteen divisions of legislative power are the sources
of federal rights and sanctions. Laws enacted under them are "the
Laws of the United States," to which the "judicial power," granted
by Article III, extends. Laws affecting revenue, war, commerce,
immigration, naturalization, bankruptcy, and the rest, as well as
the vast range of laws authorized by the "Necessary and Proper"
Clause, are the generating sources of "all Cases, in Law and
Equity, arising under . . . the Laws of the United States," and
therefore cognizable by the courts established under Article III.
Congress can authorize the making of contracts; it can therefore
authorize suit thereon in any district court. Congress can
establish post offices; it can therefore authorize suits against
the United States for the negligent killing of a child by a post
office truck.
Page 337 U. S. 650
Insofar as the courts established under Article III can
entertain a case not involving the Constitution, the laws of the
United States, or treaties, nor concerning admiralty, they do so
because of the status of the parties, enumerated with particularity
in Article III.
We are here concerned with the power of the federal courts to
adjudicate merely because of the citizenship of the parties. Power
to adjudicate between citizens of different states, merely because
they are citizens of different states, has no relation to any
substantive rights created by Congress. When the sole source of the
right to be enforced is the law of a State, the right to resort to
a federal court is restricted to "citizens of different States."
The right to enforce such State-created obligations derives its
sole strength from Article III. No other provision of the
Constitution lends support. But for Article III, the judicial
enforcement of rights which only a State, not the United States,
creates would be confined to State courts. It is Article III, and
nothing outside it, that authorizes Congress to treat federal
courts as "only another court of the State,"
Guaranty Trust Co.
v. York, 326 U. S. 99,
326 U. S. 108,
and Article III allows it to do so only when the parties are
citizens of different "States." If Congress, in its lawmaking power
over the District of Columbia, created some right for the
inhabitants of the District, it could choose to provide for the
enforcement of that right in any court of the United States,
because the case would be one arising under "the Laws of the United
States." But here, the controversy is one arising not under the
laws of the United States, but under the laws of Maryland. By the
command of the Constitution, this Maryland-created right can be
enforced in a federal court only if the controversy is between
"citizens of different States" in relation to the State in which
the federal court is sitting.
The diversity jurisdiction of the federal courts was probably
the most tenuously founded and most unwillingly
Page 337 U. S. 651
granted of all the heads of federal jurisdiction which Congress
was empowered by Article III to confer. It is a matter of common
knowledge that the jurisdiction of the federal courts based merely
on diversity of citizenship has been more continuously under fire
than any other. [
Footnote 4/2]
Inertia largely accounts for its retention. By withdrawing the
meretricious advantages which diversity jurisdiction afforded one
of the parties in some types of litigation,
Erie R. Co. v.
Tompkins, 304 U. S. 64, has
happily eliminated some practical but indefensible reasons for its
retention. An Act for the elimination of diversity jurisdiction
could fairly be called an Act for the relief of the federal courts.
Concededly, no great public interest or libertarian principle is at
stake in the desire of a corporation which happens to have been
chartered in the District of Columbia to pursue its claim against a
citizen of Maryland in the federal court in Maryland on the theory
that the right of this artificial citizen of the District of
Columbia cannot be vindicated in the State courts of Maryland.
But, in any event, the dislocation of the Constitutional scheme
for the establishment of the federal judiciary and the distribution
of jurisdiction among its tribunals so carefully formulated in
Article III is too heavy a price to pay for whatever advantage
there may be to a citizen of the District, natural or artificial,
to go to a federal court in a particular State instead of to the
State court in suing a citizen of that State. Nor is it merely a
dislocation for the purpose of accomplishing a result of trivial
importance in the practical affairs of life. The process
Page 337 U. S. 652
of reasoning by which this result is reached invites a use of
the federal courts which breaks with the whole history of the
federal judiciary and disregards the wise policy behind that
history. It was because Article III defines and confines the limits
of jurisdiction of the courts which are established under Article
III that the first Court of Claims Act fell,
Gordon v.
United States, 2 Wall. 561. And it was in
observance of these Constitutional limits that this Court had to
decline appellate powers sought to be conferred by the Congress in
an exercise of its legislative power over the District.
Keller
v. Potomac Electric Power Co., 261 U.
S. 428.
To find a source for "the judicial Power," therefore, which may
be exercised by courts established under Article III of the
Constitution outside that Article would be to disregard the
distribution of powers made by the Constitution. [
Footnote 4/3] The other alternative -- to expand
"the judicial
Page 337 U. S. 653
Power" of Article III to include a controversy between a citizen
of the District of Columbia and a citizen of one of the States by
virtue of the provision extending "the judicial Power" to
controversies "between citizens of different States" -- would
disregard an explicit limitation of Article III. For a hundred and
fifty years, "States," as there used, meant "States" -- the
political organizations that form the Union, and alone have power
to amend the Constitution. The word did not cover the district
which was to become "the Seat of the Government of the United
States," nor the "Territory" belonging to the United States, both
of which the Constitution dealt with in differentiation from the
States. A decent respect for unbroken history since the country's
foundation, for contemporaneous interpretation by those best
qualified to make it, for the capacity of the distinguished lawyers
among the Framers to express themselves with precision when dealing
with technical matters, unite to admonish against disregarding the
explicit language of Article III extending the diversity
jurisdiction of the federal courts "to Controversies . . . between
citizens of different States," not to controversies between
"Citizens of different States, including the District and the
Territory of the United States."
The Framers, in making provision in regard to "States," meant
the States which sent them as delegates to the Philadelphia
Convention and the States which were to be admitted later. It was
not contemplated that the district which was to become the seat of
government could ever become a State. Marshall had no mean share in
securing adoption of the Constitution, and took special interest in
the Judiciary Article. He merely gave expression to the common
understanding -- the best test of the meaning of words -- when he
rejected summarily the notion that the Citizens of the District are
included among Citizens of "States."
Page 337 U. S. 654
The very subject matter of §§ 1 and 2 of Article III is
technical in the esteemed sense of that term. These sections do not
deal with generalities expanding with experience. Provisions for
the organization of courts and their jurisdiction presuppose
definiteness and precision of phrasing. These requirements were
heeded and met by those who were concerned with framing the
Judiciary Article; Wilson and Madison and Morris and Rutledge and
Sherman were lawyers of learning and astuteness. The scope of the
judicial power with which the federal courts were to be entrusted
was, as I have said, one of the most sharply debated and thoroughly
canvassed subjects in Independence Hall. When the Framers finally
decided to extend the judicial Power to controversies "between
citizens of different States," they meant to be restrictive in the
use of that term. They were not unaware of the fact that, outside
the States, there was the Northwest Territory, and that there was
to be a Seat of Government. Considering their responsibility, their
professional habits, and their alertness regarding the details of
Article III, the precise enumeration of the heads of jurisdiction
made by the Framers ought to preclude the notion that they shared
the latitudinarian attitude of Alice in Wonderland toward
language.
It is suggested that other provisions of the Constitution
relating to "States" apply to the District. If the mere repetition
of an inaccuracy begets truth, then that statement is true; not
otherwise. Decisions concerned with the District involving trial by
jury in criminal and civil cases, full faith and credit for its
proceedings, and the power to tax residents, rest on provisions in
the Constitution not limited to "States." There may be a decision
in which the source of rights or obligations affecting the District
of Columbia derives from a legal right relating solely to "States"
or a duty to which only "States" must be obedient. I know of no
such case.
Page 337 U. S. 655
Of course, every indulgence must be entertained in favor of
constitutionality when legislation of Congress can fairly be deemed
an exercise of the discretion in the formulation of policy given to
Congress by the Constitution. But the cases to which jurisdiction
may be extended under Article III to the courts established under
it preclude any claim of discretionary authority to add to the
cases listed by Article III or to change the distribution as
between original and appellate jurisdiction made by that Article.
Congress need not establish inferior courts; Congress need not
grant the full scope of jurisdiction which it is empowered to vest
in them; Congress need not give this Court any appellate power; it
may withdraw appellate jurisdiction once conferred, and it may do
so even while a case is
sub judice. Ex parte
McCardle, 7 Wall. 506. But when the Constitution
defined the ultimate limits of judicial power exercisable by courts
which derive their sole authority from Article III, it is beyond
the power of Congress to extend those limits. If there is one
subject as to which this Court ought not to feel inhibited in
passing on the validity of legislation by doubts of its own
competence to judge what Congress has done, it is legislation
affecting the jurisdiction of the federal courts. When Congress, on
a rare occasion, through inadvertence or generosity, exceeds those
limitations, this Court should not good naturedly ignore such a
transgression of congressional powers.
A substantial majority of the Court agrees that each of the two
grounds urged in support of the attempt by Congress to extend
diversity jurisdiction to cases involving citizens of the District
of Columbia must be rejected -- but not the same majority. And so,
conflicting minorities in combination bring to pass a
result-paradoxical as it may appear -- which differing majorities
of the Court find insupportable.
[
Footnote 4/1]
The story of the scope of jurisdiction of the federal courts
devised by Article III is easily traceable through the admirable
index in Farrand, The Records of the Federal Convention (Rev. ed.,
1937); the data are assembled in Prescott, Drafting the Federal
Constitution, ch. 17 (1941);
see also Friendly, The
Historic Basis of Diversity Jurisdiction, 41 Harv.L.Rev. 483
(1928).
[
Footnote 4/2]
See, for example, Hearings and S.Rep. No.626, on S.
3151, 70th Cong., 1st Sess. (1928); S.Rep. No.691, on S. 4357, 71st
Cong., 2d Sess. (1930); S. 937, S. 939, H.R. 10594, H.R. 11508,
S.Rep. No.530, and S.Rep. No.701, 72d Cong., 1st Sess. (1932);
Hearings on S. 466, 79th Cong., 1st Sess. (1945). Earlier attacks
on diversity jurisdiction are summarized in Frankfurter and Landis,
The Business of the Supreme Court, 90
et seq., 136
et
seq. (1928).
[
Footnote 4/3]
Reliance on
Williams v. Austrian, 331 U.
S. 642,
331 U. S. 657,
seems singularly inapposite. When a petition for bankruptcy is
filed, there may be outstanding claims by the bankrupt against
debtors and by creditors against the bankrupt. Of course, Congress
has power to determine whether all such claims -- those for and
those against the bankrupt estate -- should be enforced through the
federal courts. That a particular claim dissociated from the fact
of bankruptcy would have to be brought in a State court for want of
any ground of federal jurisdiction is irrelevant. This is so
because, in the exercise of its power to pass "uniform laws on the
subject of Bankruptcies," Congress may deem it desirable that the
federal courts be utilized for all the claims that pertain to the
bankrupt estate, whether in the federal court in which the
bankruptcy proceeding is pending or in a more convenient federal
court. The congeries of controversies thus brought into being by
reason of bankruptcy may be lodged in the federal courts because
they arise under "the Laws of the United States," to-wit, laws
concerning the "subject of Bankruptcies." It is a matter of
congressional policy whether there must be a concourse of all
claims affecting the bankrupt's estate in the federal court in
which the bankruptcy proceeding is pending or whether auxiliary
suits be pursued in other federal courts.