Great Idear

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Courts may be stripped on pledge — discusses the attempt by some House Republicans to try to prevent the Supremes from overturning legislation related to the pledge. The idea is to simply strip the Court of jurisdiction over certain matters, using a neglected provision in the Constitution: Article III, Section II, which provides:

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;–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.

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, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

This is, IMO, a very good idea. Strip away. (No offense, libertarian centralists [2, last 4 Gene Healy articles here].)Note: As explained here:

Article III, Section 2, clause 2’s reference to cases in which `a State shall be Party’ does not include suits by citizens against states. See United States v. Texas, 143 U.S. 621, 643-44 (1892) (`The words in the constitution, `in all cases . . . in which a state shall be party, the supreme court shall have original jurisdiction’ . . . do not refer to suits brought against a state by its own citizens or by citizens of other states, or by citizens or subjects of foreign states, even where such suits arise under the constitution, laws, and treaties of the United States, because the judicial power of the United States does not extend to suits of individuals against states.’) (emphasis added). The Eleventh Amendment provides that `The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign state.’ U.S. Const. Amend. XI.

This is why a suit by a citizen against his own State based on a claim of violation of federal constitutional rights would not be a case where a “State is Party” and original jurisdiction. So, e.g., a lawsuit challenging the pledge, or an abortion law, or a state’s hetero-only marriage laws, even if the state is being sued, is a case of appellate, and not original, jurisdiction. It’s not a case where a “State [is] a Party” because that language refers to paragraph 1 situations, which do not include a citizen suing his own State. Therefore jurisdiction for a citizen suing his own State can only be based on a claim “arising under” federal law or the Constitution, and thus a case of appellate jurisdiction.

For further discussion see these annotations.

See also this discussion, which notes that original jurisdiction is very narrow, and . So anything else is appellate and can be regulated.

According to the Findlaw summary/annotations, after the Eleventh Amendment, “those cases to which States were parties were now limited to States as party plaintiffs, to two or more States disputing, or to United States suits against States”.

Thus, if a citizen sues his State on some kind of Constitutional grounds, where the Supreme Court might have a chance to innovate and strike down the state law based on invented rights, the suit can’t be one of original jurisdiction since the State is not a plaintiff, nor a 2-State dispute, or a US vs. State suit; therefore, the Court has jurisdiction based on the suit arising under federal law or the Constitution, which is appellate.

11:24 am on September 16, 2004