The Heritage Guide to the Constitution by David F. Forte

Author:David F. Forte [Forte, David F.; Spalding, Matthew; Edwin Meese]
Language: eng
Format: epub
ISBN: 9781621573524
Publisher: Regnery Publishing

Judicial Power

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States. . . .

(ARTICLE III, SECTION 2, CLAUSE 1)

Article III, Section 2 delineates the scope of the federal judicial power by listing nine kinds of “cases” and “controversies” to which the “judicial power” of the United States may extend. By far the most important is the category encompassing “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” This is often referred to as the “federal question” jurisdiction, and, although that is something of a misnomer, it is a convenient label.

From the beginning, the Framers intended the scope of the jurisdiction to be broad. The federal question jurisdiction made its first appearance at the Constitutional Convention in the Virginia Plan, which would have authorized federal courts to hear “questions which may involve the national peace and harmony.” By the time the Committee of Detail began its work, the convention had added to this language a grant of jurisdiction over “Cases arising under the Laws passed by the general Legislature.” When the Committee of Detail reported to the convention, the reference to “national peace and harmony” had disappeared, but the “arising under” language remained.

There was little discussion of this provision at the convention. In the course of a single day, the convention made three important changes. It replaced the reference to “laws passed by the Legislature” with “laws of the United States.” And, on separate motions, it extended the judicial power first to cases arising under the Constitution and then to cases arising under treaties, in addition to the cases arising under federal laws. When the Committee of Style reported to the convention in September, the provision read substantially as it does today: the federal judicial power extends “to all cases, both in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.”

The potential breadth of this language prompted criticism by opponents of the proposed Constitution during the debates over ratification in the key state of Virginia. George Mason, for example, could find no “limitation whatsoever, with respect to the nature or jurisdiction of [the federal] courts.” James Madison, a supporter of ratification, did not dispute this assertion; rather, he asserted that “the judicial power [of the national government] should correspond with the legislative.”

When does a case “arise under” federal law, so that it falls within the judicial power of the United States? The authoritative answer to this question is found largely in two decisions by Chief Justice John Marshall in the early years of the republic.

The better-known of the two decisions is Osborn v. Bank of the United States (1824). Marshall’s delineation of the constitutional scope of the jurisdictional grant proceeds in two steps. First, he declares that a “question” is “federal” if “the title or right

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