THE WORDS THAT MADE ORIGINAL JURISDICTION.

• Author: Pfander, James E.

INTRODUCTION

For years now, the arrival of a new book or article by Akhil Amar has been a matter for academic celebration. Akhil's work, fresh and challenging, has introduced us to new and fruitful ways of thinking and arguing about the law. As a novice in the law of the federal courts, I cut my teeth on Akhil's early papers, Sovereignty and Federalism, Two Tiers, and Section 13. (3) These works suggested that, with patience, one might try to enter the world of the people who drafted and ratified our eighteenth-century charter, and say something both arresting and true about what they had in mind. Akhil has encouraged students and scholars alike to learn constitutional history, to understand the way our past has shaped the present, and to see with clearer eyes both the genius and the human fallibility of the founding generation.

Lately, folks in the federal courts field have had to share Akhil with a broader audience. His books advance the scholarly debate over constitutional interpretation and speak to issues of constitutional meaning urgently relevant to all the many groups that make up our fractured polity. In The Words That Made Us, a kind of popular constitutional history that nicely complements his vision of popular sovereignty, Akhil chronicles the American conversation about how to balance effective governance with individual liberty, how to blend nationalism with localism. In offering a sweeping vision of the constitutional project of the eighteenth century, Akhil shows once more just how much one scholar can accomplish. The words of the Constitution, in Akhil's telling, both drew their inspiration from and gave life to the new nation and continue to inspire our ongoing conversation about what sort of polity we hope to become. Akhil also lets us see that the practice of constitutional discourse--or conversation--was one in which Americans were steeped before they came to think of themselves as American (pp. 114-19). Conversation as a model for constitutional development nicely coheres with a conception of law as a rhetorical or discursive enterprise.

With my customary tendency, following John Adams, to go straight for the capillary (p. 407), this contribution to a discussion of The Words will focus on the Supreme Court's original jurisdiction, as set forth in Article III of the Constitution, and implemented in section 13 of the Judiciary Act of 1789. (4) Original jurisdiction has attracted Akhil's attention, (5) helping to frame his analysis of Marbury v. Madison and the interpretive choices available to Chief Justice John Marshall as he maneuvered to create an independent federal judiciary. (6) Akhil captured the geographic logic of the Court's limited original jurisdiction, a logic informed by a recognition that litigation at the nation's center, before distant and unknown jurors, was an unwelcome prospect to those in the hinterlands. (7)

In this brief encounter with Akhil's work, I return to the debate over original jurisdiction, using Akhil's conversational model of constitutional discourse. This Essay will focus on the way law was understood to unfold within the framework of prior decisions. On this view, the way the Judiciary Act of 1789 imagined original jurisdiction imposed important limits on the potential scope of Article III. Further limits were imposed by the conception of original and appellate jurisdiction as mutually exclusive that emerged in the Marbury decision. Later, when confronting the implications of mutual exclusivity, Marshall seemed to shilly-shally--rejecting the idea in 1821, but returning to it a few years later. After sketching these landmarks in what one might describe as the path-dependent development of original jurisdiction law, the Essay reflects on the role of originalist discourse in a conversational model of constitutionalism.

1. WHAT THE WORDS SAY

   Article III extends the judicial power to "cases" defined by their subject matter as those arising under the Constitution, laws, and treaties of the United States, to cases of admiralty and maritime jurisdiction, and to cases affecting ambassadors. Next Article III extends judicial power to certain "controversies" between identified parties). (8) Then it confers jurisdiction, providing that

   In all cases affecting ambassadors, other public ministers and consuls and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction [subject to exceptions and regulations]. (9) Today, we see the words through the lens furnished by Marbury, with its emphasis on the mutually exclusive character of the two forms of original and appellate jurisdiction assigned to the Court. After setting out an alternative account of the words, we can better see how Marshall Court decisions indelibly shape our understanding of the Court's modern docket, with its narrow original power over state-state disputes and its broad appellate jurisdiction.

   1. ORIGINAL JURISDICTION ABSENT LOWER FEDERAL COURTS

      In the early 1790s, original matters dominated the Court's docket (including upwards of a dozen suits against states that the Eleventh Amendment later curtailed). (10) We can scarcely imagine such a docket today and even less what that docket would have come to resemble had Congress chosen (under the Madisonian compromise) to rely on state courts as courts of first instance, instead of creating lower federal courts, as it did in 1789. (11) In such a state-court world, the Article III grant of original jurisdiction would have secured an original supreme federal docket for a narrow range of matters and left everything else to state courts in the first instance. One can understand the original and appellate jurisdiction grants in Article III as default rules, designed for a world without lower federal courts. (12)

      Two factors help to explain the contours of original jurisdiction in such a (counterfactual) world. First, original jurisdiction would address perceived concerns with the fairness and competence of the state courts. While some states (New York, Pennsylvania, Virginia) had opened their courts to suits against the state, (13.) Article III proceeds on the (entirely understandable) assumption that state courts would not provide a reliable docket for the enforcement of claims against the states and their treasuries. Similarly, the Framers distrusted state court handling of matters affecting foreign ministers, worrying with some cause that states might not well attend to customary norms of ambassadorial immunity. By placing such matters in the only required federal court, Article III warded off potential state-court reluctance to recognize the ministerial immunities of...