Academic journal article Duke Law Journal

Congressional Power over the Jurisdiction of Federal Courts: The Meaning of the Word "All" in Article III: Brainerd Currie Lecture Duke Law School November 11, 2008

Academic journal article Duke Law Journal

Congressional Power over the Jurisdiction of Federal Courts: The Meaning of the Word "All" in Article III: Brainerd Currie Lecture Duke Law School November 11, 2008

Article excerpt


Thank you, Dean Levi, for the invitation to deliver this year's Brainerd Currie lecture. Professor Currie, a professor at Duke Law School near the beginning and then again at the end of his career, was an intellectual giant. He transformed the field of conflict of laws and made closely related contributions to other areas of the law, including subject matter jurisdiction, forum choice, and admiralty. I am honored to give a lecture that bears his name. Because my lecture touches on some of the themes of his work, I like to think that he would have found it of some interest.

Samuel Adams, the Massachusetts patriot, was not enthusiastic about the newly proposed Constitution. He particularly did not like its introductory phrase, "We the People of the United States." The phrase signaled a departure from the Articles of Confederation that the Constitution was to replace. The constituting authorities for the Articles of Confederation were the states, which had signed the Articles as states in the same way that sovereign countries would sign a treaty. By contrast, the constituting authority for the Constitution was the people. Adams wrote to his friend Richard Henry Lee of Virginia on December 3, 1787, "[A]s I enter the Building I stumble at the Threshold. I meet with a National Government, instead of a Federal Union of Sovereign States." (1)

I stumble at a smaller but nonetheless important threshold, this one in Article III of the Constitution. The threshold is the word "all," which appears five times in the first two paragraphs of Section 2. The word, and its meaning, raise the same question the phrase "we the people" raised for Adams. The question was then, and it remains today, the division of authority between--to use Adams's words--the national government and the sovereign states.

Article III is the judicial article of the Constitution, corresponding to Articles I and II, the legislative and executive articles. Article I, Section 8 is closely analogous to Article III, Section 2. Unlike state legislatures, Congress is not a legislative body with general legislative authority. (2) Before the post-Civil War amendments, Congress was limited to the heads of legislative power that appear in Article I, Section 8--such as the commerce power, the spending power, and the bankruptcy power. If Congress cannot tie federal legislation to a specified head of power, that legislation is unconstitutional.

Similarly, unlike state courts, federal courts are not courts of general jurisdiction. Rather, federal courts are limited to the heads of subject matter jurisdiction specified in Article III, Section 2, just as Congress was originally limited to the heads of legislative power specified in Article I, Section 8. If a case does not fall under one of the specified heads of jurisdiction in Article III, Section 2, a federal court cannot hear it.

The first paragraph of Article III, Section 2 sets forth the heads of jurisdiction for the federal courts generally, including but not limited to the Supreme Court. The first paragraph of Section 2 begins with three heads of jurisdiction, each of which is preceded by the word "all":

   The judicial Power shall extend to 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;--to
   all Cases affecting Ambassadors, other public Ministers and
   Consuls;--to all Cases of admiralty and maritime Jurisdiction....

I will call these federal question, ambassador, and admiralty jurisdiction. The first paragraph then continues with the remaining heads of jurisdiction, none of which is preceded by "all":

   The judicial Power shall extend ...--to Controversies to which the
   United States shall be a Party;--to controversies between two or
   more States;--between a State and Citizens of another
   State;--between Citizens of different States,--between Citizens of
   the same State claiming Lands under Grants of different States, and
   between a State, or the Citizens thereof, and foreign States,
   Citizens or Subjects. … 
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