Common Interpretation

Article III, Section 2 By Judith Resnik and Kevin C. Walsh


Article III of the U.S. Constitution is devoted to the federal judicial branch. Thus, a first reminder is that this discussion is about the structure of the federal courts; states can independently create their own rules about their courts’ jurisdiction, judicial selection, and the scope of judicial power.

Article III’s first focus (Section 1) is on the existence of federal courts, and the Constitution specifies that the U.S. judicial system shall have one Supreme Court, and then leaves to Congress the decision about when to “ordain and establish” the lower (“inferior”) courts. Congress did so right away by creating 13 district courts and a smaller number of circuit courts in the First Judiciary Act of 1789. Congress has increased the number of lower courts many times since. For example, in 1901, Congress had created lines for about 100 federal judges; by 2001, that number was up to 850.

These federal judges obtain their office through provisions set forth in Article II, devoted to the Executive Branch, which gives the President the power to “nominate” judges of the Supreme Court and lower courts, and the Senate the authority to “advise and consent.” (Whether the Senate has an obligation to act on nominations in any particular way has been the subject of contemporary debate.) Thus, the individuals who become judges gain their office by virtue of the decisions of elected officials. But, once the judges are appointed, the Constitution insulates their independence. Article III, Section 1 protects all federal judges from losing their jobs and from having their compensation be “diminished.” Thus, we speak of such judges as “life-tenured,” and some of them have sued (and sometimes won) when Congress has failed to provide them with cost-of-living increases or other salary benefits.

Do note what Article III does not provide: a guaranteed budget for the federal courts. Yet, as noted, Congress not only has increased the number of federal judges over time but also, in the 1960s, added more personnel to the federal courts by creating the office of “magistrate” (now called magistrate judge) and in the 1980s, the office of “bankruptcy judge.” These officials have dedicated courtrooms and do a great deal of judicial work; their numbers double the size of the lower federal court judicial personnel. Moreover, starting after the Civil War, Congress sought to create a “federal presence” by building impressive federal courthouses (often combined with post offices). More than 500 federal courthouses now dot the landscape. In 1939, Congress chartered an Administrative Office of the United States that provides infrastructure support and, in 1968, the Federal Judicial Center, dedicated to research and education. Thus, without constitutional guarantees of budget and with the potentially malleable constitutional text, Congress has more often been a supporter of the federal courts than an antagonist.

Turn then to some language that has occasioned debate. Article III, Section 2 creates a series of categories of “cases” or “controversies” to which the judicial power “shall extend.” Examples include “all Cases, in Law and Equity,” arising under the Constitution, cases “of admiralty and maritime jurisdiction,” and controversies in which the parties come from different states (“diversity jurisdiction”).

Since the early days of the Supreme Court, Justices have developed a body of law interpreting Article III and structural ideas of separation of powers to define what the Constitution does not, which are the words “case” and “controversy.” The Court’s jurisprudence limits the federal courts so they do not provide general advice to the other branches. Lawyers talk about this body of law as focused on whether a claim is “justiciable.” Cases debate what kinds of injuries constitute harms (in today’s language “injury in fact”) sufficiently linked to proposed defendants’ actions to be appropriately redressed by courts.

The Constitution also allocates authority between the Supreme Court and other courts, as Article III describes the Supreme Court as having “original” jurisdiction over certain kinds of cases—which means that cases can start (originate) at the Supreme Court—and appellate jurisdiction over others. A huge puzzle is how to read the part of Section 2 providing that the Supreme Court “shall have appellate Jurisdiction, both as to law and Fact, with such Exceptions, and under Such Regulations as the Congress shall make.” This “Exceptions and Regulations Clause” has given rise to disputes over the extent of congressional control over the Supreme Court’s appellate jurisdiction. Does it authorize Congress to eliminate the possibility of appellate review in the Supreme Court for entire categories of cases—such as about school busing? Abortion? Same-sex marriage? Religion? And what authority might Congress have to craft analogous limitations on the jurisdiction of federal trial courts?

One account thinks of Article III as guaranteeing federal judicial authority, while another interpretation understands Article III to permit a great deal of congressional control over jurisdiction. Many scholars believe that the Constitution provides the most protection for the Supreme Court’s original jurisdiction, which seems odd from our current perspective, given how small this aspect of the Court’s work has turned out to be. Other limits on congressional incursions, on some views, come from “external” sources—that is, other parts of the Constitution, such as the Fifth Amendment’s protection of “due process” before deprivations of life, liberty, or property can occur, and the Fourteenth Amendment’s guarantee of equal protection of the laws.

In addition, Article III also protects jury decision-making by requiring a jury trial in federal criminal prosecutions, with the trial to take place in the state where the crimes were committed. Moreover, in a less-read part of Article III, Section 3, the Constitution defines Treason and insists that all convictions for treason not occur absent testimony from two witnesses or a confession “in open Court.” Unlike several state constitutions of the same era, the federal constitution does not include express commitments (echoing the Magna Carta) that all persons have rights to remedies and that all courts be open. Yet case law and interpretation read Article III as protecting values of openness and judicial independence. And some read the “petitioning clause” of the First Amendment along with the Due Process Clauses as protecting access to the federal courts.

Within the structure marked out by Article III, large swaths of extensive congressional regulation of federal court jurisdiction have existed without great controversy since the enactment of the Judiciary Act of 1789. Take diversity jurisdiction, which the Constitution provides without mentioning anything about how much is at stake. Since 1789, Congress has imposed a minimum “amount-in-controversy,” making some cases that fit the description (parties from different states) ineligible for federal jurisdiction. In fact, most of the law of federal court jurisdiction is statutory rather than constitutional in nature, and to determine the boundaries of federal court jurisdiction, one should begin by looking at statutes enacted by Congress.

Those statutes have to be placed into the context of Article III, and specifically the nine categories of cases to which the judicial power “shall extend.” Five ideas are relevant. A first is whether the jurisdiction is “exclusive,” meaning that cases can be filed only in federal court, or whether jurisdiction is “concurrent” with state courts. A second is what kinds of cases fall within the descriptions. A third is about whether Congress has to give jurisdiction or whether the Constitution automatically provides it, and/or what kinds of limits Congress can impose. The fourth is whether, once the federal courts have jurisdiction, that authority also provides them with the power to decide the underlying obligations of the parties. The fifth question focuses on remedies: what are the powers of Congress to limit or expand the remedial authority of courts?

Answers—whether right or wrong—are often blurry and shift over time. For example, while it seems straightforward to say that federal courts have jurisdiction over cases “arising under” federal law, it turns out that deciding when a claim stems from a federal right and when it depends on or turns on state law is complex. Moreover, even though a fundamental premise may be that any government’s courts should be open to cases arising under that government’s laws, in recent years the Supreme Court has held that even when arguing violations of federal antitrust or securities statutes, plaintiffs can be precluded from coming to federal court by virtue of another federal law, the Federal Arbitration Act, and forms given to employees and consumers to mandate the use of arbitration.

Article III also specifies that federal courts have jurisdiction over cases “affecting Ambassadors, other public ministers, and Consuls.” Again, the idea seems easy, in terms of providing access by persons from other governments to a federal court. But does that mean that if an ambassador seeks to divorce a spouse, a federal court has jurisdiction? The Supreme Court has said not, and thus reads the language as not mandating that such cases can come only into a federal court.

Other illustrations of the challenges of line-drawing come from the category of “admiralty and maritime jurisdiction.” These cases involve a distinct body of admiralty law and typically involve international or interstate relations in some way, making a federal forum more fitting than a state court. But what waterways count? And if a boat is docked and treated like a house, do the federal courts have jurisdiction? Recent decisions have not been unanimous on these very issues.

In addition to the subject matter creating federal jurisdiction, the Constitution describes several categories of “controversies” identified by reference to the parties. For example, controversies “to which the United States shall be a party” can come to federal court. But if a lawsuit is brought against an employee of the Postal Service, is the United States a party? Likewise, while the Constitution specifies that the federal judicial power extends to controversies between two states, a body of decisions debate the question of when a state is a party, and whether, for example, a regional body co-run by a few states can have access to federal courts by virtue of this provision.

Article III’s extension of federal judicial power to controversies “between a State and Citizens of another State” gave rise to one of the Supreme Court’s important early cases. In 1793, the Supreme Court held in Chisholm v. Georgia that a state could be sued in a federal court (the Supreme Court, in that case) without its consent. But in 1795, the Eleventh Amendment was ratified, and its odd phrasing has produced yet more law debating federal court jurisdiction. That provision states that the “Judicial power of the United States shall not be construed to extend to any suit in law or equity,” brought against the United States “by Citizens of another State, or by Citizens or Subjects of any Foreign State.” A simple reading might suggest that citizens of one state could sue their own state, but in 1890, the Supreme Court rejected a lawsuit with just that configuration and invoked the Eleventh Amendment in support of its holding.

As noted, another jurisdictional grant gives federal courts authority over private-party “diversity” jurisdiction—controversies “between Citizens of different States.” A standard account is that the concern was to insulate litigants from home-state bias. The related concern for impartiality is also used to account for federal judicial power reaching controversies “between Citizens of the same State claiming Lands under Grants of different States.” One might assume that once in federal court, the parties’ rights would be decided based on federally formulated rules of decision. But in 1938, the Supreme Court famously held in Erie Railroad Co. v. Tompkins, that federal judges must generally apply state law instead.

In sum, Article III has been enormously generative. The federal courts have, as Daniel Meltzer put it, been an important source of a “common intellectual tradition.” And since their inception, the federal courts have been the subject of intense interest and debate, with constitutional text as but one of many sources used to explain their metes and bounds.

Suggested Reading:

John Harrison, The Power of Congress to Limit the Jurisdiction of Federal Courts and the Text of Article III, 64 Univ. of Chi. L. Rev. 203 (1997).

James E. Pfander, Federal Supremacy, State Court Inferiority, and the Constitutionality of Jurisdiction-Stripping Legislation, 101 Nw. Univ. L. Rev. 1 (2007).

Judith Resnik, Interdependent Federal Judiciaries: Puzzling About Why & How to Value the Independence of Which Judges, 137 Daedalus 1 (2008).

Judith Resnik, “Uncle Sam Modernizes His Justice”: Inventing the Federal District Courts of the Twentieth Century for the District of Columbia and the Nation, 90 Geo. L.J. 607 (2002).

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