Following up on my previous post endorsing the idea of Congress using Article III, Section 2 of the Constitution to limit the Supreme Court’s jurisdiction over certain issues. A curious retort has been posted elsewhere.The writer accused me of “puffy analysis” and being a “dainty liar” and of making an “exhaustive attempt[] to divert from the usually damned clear language of the US constitution.” And I commited the apparently unacceptable action of finding and quoting pertinent Supreme Court cases on point.

I think the author is confused when he assume my, and Supreme Court jurisprudence, assumes “that the 11th amendment refers to citizens suing their own states.” We are not assuming that at all.

Let me try again. First, the Constitution, Art. III, Sec. 1, specifies that the “judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

Accordingly, Congress did establish the inferior (federal appellate and trial) courts. But the Constitution itself creates the Supreme Court.

Art. III, Sec. 2 lists what its judicial Powers are–i.e., what types of cases it has jurisdiction over. This is the first paragraph.

The second paragraph says that the Supreme Court has “original jurisdiction” in some of these cases. In the other cases, the Supreme Court has appellate jurisdiction only; Congress can restrict this jurisdiction.

So in theory, Congress could abolish (or never have formed) any of the federal appellate or district (inferior) courts, and could remove from the Supreme Court all appellate jurisdiction and leave it only with original jurisdiction.

Now the question here is, what if Congress tries to remove the ability of the federal courts to hear cases concerning, say, the pledge or abortion laws or the Ten Commandments etc. Now in many of these cases, a citizen will sue his State based on infringement of his Constitutional rights. For example, a woman might sue a state if it outlaws or regulates abortion, on the grounds that it violates her Constitutional rights. Or a gay Texan might sue Texas in federal court to have its anti-sodomy law overturned as unconstitutional.

If these cases are heard under appellate jurisdiction, then Congress could simply remove the Court’s jurisdiction. That would prevent the Court from overturning, say, Texas’ anti-sodomy law.

So do such cases fall under original or appellate jurisdiction?

Well, para. 2 says: “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…”

At first glance, the types of cases I noted above, where a citizen sues his own state, would seem to fall under original jurisdiction, since a State is a Party.

But this analysis is mistaken. Para. 2 is simply dividing the cases where there is jurisdiction–as listed in paragraph 1–into either original, or appellate. It is not creating or granting more jurisdiction. And in paragraph 1, no jurisdiction is granted for suits of a citizen against his own state. It does grant jurisdiction for cases “between a State and Citizens of another State”–but that was later overturned by the 11th Amendment.

In other words, the Supreme Court is simply not granted power to hear cases where a citizen sues his own state (or even another state, after the 11th Amendment).

Therefore, since there is no jurisdiction at all over these cases, it cannot be original jurisdiction. When the second para says there is original jurisdiction in cases “in which a State shall be Party”, that would have to refer to the Cases listed in paragraph 1, where a State would be a party, such as one state suing another State (or, before the 11th Amendment, to a case of a citizen suing another State).

But note that para. 1 also says that “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States…” This is how a citizen can sue his own state for violation of his Constitutional rights, since the claim arises under the Constitution. But this is not one of the types of Cases for which there is original jurisdiction; therefore, it is a case of appellate jurisdiction.

Now, this was my own reasoning, drawing on my hazy recollection of this topic from law school.

And, it turned out, after I had come to this conclusion on my own, that the Supreme Court has said the same thing, in several cases. In Texas v. White, the Court reasoned:

The words in the constitution, ‘in all cases … in which a state shall be party, the supreme court shall have original jurisdiction,’ necessarily refer to all cases mentioned in the preceding clause in which a state may be made of right a party defendant, or in which a state may of right be a party plaintiff. It is admitted that these words do not refer to suits brought against a state by its own citizens or by citizens of other srtates, 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.

Now I know we don’t always agree with the Court, but they do sometimes have a decent analysis of the Constitution. This is one of those cases.

Further, since this is a case where this interpretation would promote liberty, by restraining the Court’s ability to invent new, unlibertarian, positive rights and/or to further erode federalism, I fail to see why libertarians would be aghast by it.

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