National "harmony": an Inter-branch Constitutional Principle and Its Application to Diversity Jurisdiction

• Publication year: 2021
• Citation: Vol. 93

93 Nebraska L. Rev. 139. National "Harmony": An Inter-Branch Constitutional Principle and Its Application to Diversity Jurisdiction

National "Harmony": An Inter-Branch Constitutional Principle and Its Application to Diversity Jurisdiction

Jesse M. Cross(fn*)

TABLE OF CONTENTS

I. Introduction..........................................139

II. Theories of Diversity Jurisdiction: A Historical Overview.............................................148

III.Diversity Jurisdiction and National Harmony..........155
A."Harmony" in the Age of the Enlightenment.......158
B."Interests" in a Harmonious System...............163
C."Harmony" as an Inter-Branch Principle...........169

IV.Harmony and the Body Politic ........................172

V. Constitutional Text: Between, With, and Among.......174

VI. Purpose: Geographically Commensurate Government .. 178 VII. National Harmony and State Court Bias .............. 182

VIII. Implications .......................................... 185
A.The Purpose of Diversity Jurisdiction ..............185
B.Federal Court Personal Jurisdiction ...............186
C.State Court Personal Jurisdiction..................190
D.The Class Action Fairness Act of 2005 .............193

I. INTRODUCTION

In Section 2 of Article III of the Constitution, the judicial power of federal courts is extended to legal controversies that arise between citizens of different states.(fn1) This grant of federal power is known to

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modern-day lawyers as creating federal court "diversity jurisdiction" with respect to such controversies, but the delegates to the Constitutional Convention never referred to this Article III power as a grant of "diversity jurisdiction."(fn2) Instead, the Founders would commonly present diversity jurisdiction in the language used by Edmund Randolph at the Constitutional Convention: there was a need for a federal judicial power to protect "the harmony of states and that of the citizens thereof," Randolph said.(fn3)

When making this statement, Randolph was not telling the Convention anything it had not heard many times before. In important drafts of Article III,(fn4) in supporting statements made by delegates at

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the Convention,(fn5) and in the subsequent explanations offered in The Federalist Papers,(fn6) the Founders repeatedly spoke of an Article III power-today known as diversity jurisdiction-over controversies that implicated the "harmony" between the states.(fn7)

At the same time that the Convention's delegates were outlining this federal judicial power, they also were assembling a list of basic principles that would guide the Committee of Detail in its drafting of the congressional powers today found in Article I, Section 8.(fn8) Included among these was a principle that echoed the Convention's thinking about diversity jurisdiction: the notion that the federal legislature should have power to legislate in instances "in which the harmony of the United States may be interrupted by the exercise of individual Legislation."(fn9) This need for congressional powers pertaining to national "harmony" was consistently asserted by the Founders in the same texts and debates that discussed the need for a similar Article III power.(fn10)

The concept of national "harmony" played a central role, it seems, in the drafting process of both Article I and Article III. Consequently, it would be reasonable to expect that constitutional scholars would have spent a great deal of time examining this concept. This has not been the case, however. Despite a significant body of originalist scholarship discussing the various clauses that pertain to national "har-

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mony," there is a dearth of academic studies examining whether the concept of national "harmony," as it was understood in eighteenth-century America, might provide insight into the intended scope and purpose of these clauses.(fn11)

The following pages offer such a study. They attempt to rediscover the original, Founding-era meaning of the concept of national "harmony"-and, while focusing in particular on the Article III application of this concept, they nonetheless aim to reveal the essential role that this concept played in shaping a host of constitutional clauses, both within Article lIl and beyond it. In so doing, they hope to begin a discussion about an inter-branch principle of national "harmony" that has not yet received adequate attention.

In order to rediscover the original meaning of this principle, it first will be necessary to understand the rhetorical context that gave the term "harmony" its paradigmatic meaning in eighteenth-century America. For the Founders, the following pages will explain, this context was provided by Enlightenment science. Eager to draw upon the legitimacy of the physical sciences, the Founders were quick to model their political analyses after the foundational scientific studies of their era. This was an important tendency on the part of the Founders, as the term "harmony" served a specific function in eighteenth-century scientific discourse: the term was used to describe the interactions occurring between the different planets that comprised the larger solar system.(fn12) The Founders self-consciously borrowed from this rhetorical tradition in their use of the term "harmony." In so doing, they made it clear that their many references to national "harmony" were designed to isolate and identify those matters that, much like the vectors of gravitational force that extended between independent planets, were observed to extend across several states.

When constitutional clauses are viewed as addressing activities that involve national "harmony," therefore, these clauses begin to appear animated by a principle very similar to that which some scholars have previously attributed to specific Article I powers. Akhil Amar, for example, has suggested that the Commerce Clause can be viewed as founded upon the principle that: "if a given problem genuinely

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spilled across state or national lines, Congress could act."(fn13) Scholars such as Amar are correct in linking this principle to specific Article I clauses, the following pages will argue, but they are incorrect in confining its operation to these individual clauses. The Founders held a vision of federal power that extended across Articles I and III, a vision of the federal government providing oversight of those matters that involved national "harmony" because they gave rise to interests that extended across state lines.

In the following pages, this inter-branch vision will be highlighted, and the question will be asked: what purpose was this vision designed to serve? The mere existence of this vision, it will be argued, suggests that the Founders were not simply interested in remedying isolated problems that they had observed under the Articles of Confederation. Instead, it suggests that they were acting upon a more fundamental objection to the prevailing theory of sovereignty-a theory that shaped and limited the operation of government in its several branches.

Just as today, the prevailing theory of sovereignty in the eighteenth century defined the state as a territorial entity, and this definition had the consequence of sharply curtailing a state government's ability to act beyond its borders.(fn14) This territorial constraint cut across the legislative and judicial branches in the limitations it placed on a government, imposing a host of impediments upon a state's effort to take appropriate action upon any problem that extended across multiple states. These impediments directly undermined any state government's ability to achieve the Founders' standard of good governance with respect to interstate matters-a standard embodied in Publius's repeated assertions that "every power ought to be commensurate with its object."(fn15) According to this standard, a government's powers should be as expansive as the "objects" those powers would govern. Only then, the Founders suggested, would a government be free to pursue the most fair, full, and efficient solutions to the problems assigned to it.(fn16)

When the Constitution is viewed through the lens of national "harmony," in other words, a vision emerges of a geographically "commensurate" federal government-a vision that would be implemented by a collection of clauses spread across Articles I and III. Clause by clause, the Constitution systematically identified areas of activity that gave

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rise to entangled interests across several states-whether the area of activity was defined as commerce, as postal mail, as defense, or as legal controversies, just to name a few.(fn17) The result was a collection of clauses that together constituted a coherent effort to target those areas of activity that would persistently bring states up against the territorial limits on their powers.

This is the argument that will be developed over the course of the following pages. It is an argument that focuses on the role that an organizing metaphor-the metaphor of national "harmony"-played in shaping a host of constitutional provisions found in Articles I and III. As such, it is a study that has methodological implications for the practice of constitutional interpretation-implications that are found in its refusal to employ a clause-bound method of interpretation.(fn18) Clause-bound methods of interpretation, which are defined by a belief that each constitutional clause...