Bridging the Enforcement Gap in Constitutional Law: A Critique of the Supreme Court's Theory That Self-Restraint Promotes Federalism

By Pushaw, Robert J., Jr. | William and Mary Law Review, February 2005 | Go to article overview

Bridging the Enforcement Gap in Constitutional Law: A Critique of the Supreme Court's Theory That Self-Restraint Promotes Federalism


Pushaw, Robert J., Jr., William and Mary Law Review


The Supreme Court has crafted numerous doctrines, such as justiciability and abstention, that enable federal judges to decline to exercise the jurisdiction Congress has granted them over all constitutional cases. The result is that constitutional law is often left to state judiciaries, which almost always have the last word because Supreme Court review has become so rare. State judges sometimes creatively expand or contract constitutional rights, thereby producing enforcement gaps.

Although the Justices have tried to close some of these holes, most remain unfilled. The Court has insisted, however, that its jurisdictional rules of self-restraint promote the original understanding of federalism, which purportedly viewed state tribunals as highly autonomous and as equal partners with federal courts in enforcing federal constitutional law.

I will argue that, on the contrary, the Founders established an independent federal judiciary to ensure the supremacy and uniformity of federal law, not to carve out exceptions to federal question jurisdiction that ultimately entrust such law to state courts. I will further contend that, if the vast modern increase in federal dockets has made it a practical necessity to create restrictive jurisdictional doctrines, federalism suggests that such limits should be imposed on controversies involving state law (most obviously diversity), not cases arising under the Federal Constitution.

I. JURISDICTIONAL DOCTRINES AND FEDERALISM

A. The Mandatory Nature of Federal Jurisdiction

Article III, Section 1 of the U.S. Constitution vests "[t]he judicial Power of the United States" in one Supreme Court and any inferior courts Congress establishes, with all federal judges guaranteed life tenure and non-reducible salaries. Section 2 provides that "the judicial Power shall extend" to two areas. The first is "all Cases" involving certain subjects of peculiar national importance: federal questions (those arising under the Constitution, Acts of Congress, and treaties); admiralty; and cases affecting foreign ministers, which raise delicate international law issues. (1) The second category consists of "Controversies" between enumerated parties, such as two states, a state and a citizen of another state, citizens of different states, and a state (or its citizens) and a foreign nation (or its citizens). (2) Finally, Article III gives the Supreme Court original jurisdiction over "all Cases" affecting foreign ministers or state parties, as well as appellate jurisdiction over "all the other Cases," subject to Congress's "Exceptions" and "Regulations." (3)

Since the mid-nineteenth century, the Court has interpreted Article III as granting Congress plenary control over federal jurisdiction. In the seminal case of Ex Parte McCardle, (4) the Court recognized absolute legislative discretion to make "Exceptions" to its appellate jurisdiction. (5) Similarly, the constitutional provisions authorizing Congress to create inferior courts have long been read as implying complete control over their jurisdiction. (6) By combining these two powers, Congress can remove the Court's appellate jurisdiction and not assign that jurisdiction to lower federal courts, effectively leaving the matter to state tribunals. (7)

Congress's plenary authority would be frustrated if federal judges could ignore its statutory commands. In the memorable words of Chief Justice Marshall: "We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the [C]onstitution." (8) The Court has continued to cite this language of absolute duty regarding jurisdiction. (9)

B. Doctrines of Jurisdictional Restraint

Notwithstanding the foregoing precedent, the Court has also held that Article III sometimes allows federal judges to decline their federal question jurisdiction, particularly when doing so would promote traditional principles of federalism. …

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