Federal courts scholars see the Reconstruction-era enactment of general federal question jurisdiction(1) as a decisive moment in judicial federalism. The conventional wisdom is that with the 1875 Act, Congress gave the federal courts powers that had lain dormant in the Constitution since the Judiciary Act of 1789.(2) Federal courts ceased to be restricted tribunals of fair dealing between citizens of different states and became the primary and powerful reliances for vindicating every right given by the Constitution, the laws, and treaties of the United States."(3) The standard view is that the 1875 Act, taken together with the 1871 Civil Rights Act,(4) which provided a private right of action to restless constitutional violations by those acting under color of state law, fundamentally readjusted state and federal judicial power. The modern descendants of these two Reconstruction-era statutes -- 28 U.S.C. [sections] 1331 and 42 U.S.C. [sections] 1983 -- play a critical role in the way litigants currently raise constitutional issues. Expansive judicial interpretation of the role of federal courts to reach constitutional deprivations under these statutes was provided early in this century by the Lochner(5) Court in decisions such as Ex parte Young,(6) and later by the Warren Court in decisions such as Monroe v. Pape.(7) These decisions are themselves associated with "activist" courts, just as the 1871 Civil Rights Act and the 1875 general federal question statute are associated with "activist" Reconstruction Congresses.
Implicit in the emphasis in federal courts scholarship on federal question jurisdiction and the 1871 Civil Rights Act, as well as in their association with the more transformative eras in state-federal relations, is a belief that at other times -- when federal question jurisdiction was either nonexistent or less expansively interpreted -- a more state-respecting form of judicial federalism was in place for addressing federal constitutional claims. Indeed, the implication might seem irresistible, given that in the absence of federal causes of action and federal question jurisdiction, constitutional issues would generally come to the federal courts only by way of direct review of state court cases, or when the parties happened to be of diverse citizenship.
This Article challenges this general impression and seeks to show that much of the Supreme Court's development of independent federal rights and remedies took place without reliance on either federal question jurisdiction or statutes such as [sections] 1983, but rather under the rubric of diversity jurisdiction. Throughout the nineteenth century, both before and after Reconstruction, the Court saw diversity jurisdiction as an appropriate vehicle to raise federal questions, sometimes providing an expansive scope to diversity explicitly to accommodate this use of it. The modern emphasis on the development of federal question jurisdiction and [sections] 1983 can therefore be seen as a version of winners' history(8) that attributes exaggerated historical significance to legislation that is now the dominant means for raising constitutional issues. If, however, continuity exists between the earlier use of diversity and the later use of federal question jurisdiction to redress unconstitutional state action, then a more complete history should also include an account of the use of diversity, in both law and equity, as a form of federal question jurisdiction.
Although the use of diversity to develop a general commercial law under the regime of Swift v. Tyson(9) has received substantial scholarly attention,(10) its use as a vehicle for raising constitutional issues or other federal questions has received little comment.(11) The attention to private law in diversity is understandable, because federal court activism in this area might fairly be criticized as improperly encroaching on the lawmaking role of state courts and legislatures, especially in light of modern-era decisions such as Erie Railroad Co. …