JURISDICTION BASED ON A FEDERAL QUESTION
IT is only natural to expect that national power should extend, to areas of federal concern. The national legislature and executive formulate and administer policy in those fields entrusted to the federal government by the Constitution, and it is not surprising that the federal judiciary should do likewise within the sphere of judicial affairs. What is a cause of some curiosity is the fact that until 1875, cases arising under penal statutes excepted, the lower federal courts had no jurisdiction of federal questions, and litigants wishing to assert rights conferred upon them by the Constitution or laws of the United States were usually forced to rely upon state courts with appeal to the Supreme Court by writ of error as their only recourse to federal authority. Why Congress failed for so long to give lower federal courts power to interpret federal law while authorizing them to decide diversity of citizenship cases is a perplexing question. There has been some speculation on the matter, but the plain fact is that the records of the first Congress, and indeed of all subsequent Congresses up to and including that of 1875, contain virtually no discussion of the reasons for conferring jurisdiction on the federal courts in one instance and refusing it in the other.1 However, it is clear that in 1875 Congress did empower inferior federal tribunals to take jurisdiction of cases arising under the Constitution and laws of the United States2 and that this jurisdiction has been freely exercised ever since.
In the majority of cases, the interpretation and enforcement of federal law by national courts occasion no collision with____________________