WHATEVER CARE OR WISDOM may distinguish the erection of a new government, it cannot fail to originate questions of intricacy and nicety, particularly where its constitution is founded upon the total or partial incorporation of a number of distinct sovereignties.
Time alone can mature and perfect so compound a system, solidify the meaning of all the parts, and adjust them to each other in a harmonious and consistent whole.
State Courts Retain Concurrent Jurisdiction
Such questions have arisen concerning the judicial department.
The principal of these are position of State courts regarding those causes subject to Federal jurisdiction.
Is there to be an exclusive Federal jurisdiction, or do the State courts possess a concurrent jurisdiction, and if so, in what relation will they stand to the national tribunals?
The principles established in Federalist 31 teach us the States retain all preexisting authorities not exclusively delegated to the Federal government, and this exclusive delegation can exist only in one of three cases:
1. Where an exclusive authority is granted to the Federal government in express terms;
2. Where a particular authority is granted to the Federal government and the exercise of a like authority is prohibited to the States; and
3. Where an authority is granted to the Federal government, and the exercise of a similar authority by the States would be utterly incompatible.
Although these principles may not apply to the Federal judicial power with the same force as they do to the Federal legislative power, in general they justly apply to both.
And from this it follows the State courts retain the jurisdiction they now have, unless it appears to be taken away in one of the enumerated modes.
Nonetheless, State courts will be divested of no part of their preexisting jurisdiction, other than may relate to the appeal of Federal issues.
The only thing in the Constitution appearing to confine the causes of Federal cognizance to the Federal courts is contained in this passage: “The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress shall from time to time ordain and establish.” Art. III, § 1, emphasis added.
This sentence could signify simply that the organs of the Federal judiciary are one Supreme Court and as many subordinate courts as Congress should think proper to appoint.
Or it could signify the supreme and subordinate courts of the United States alone have the power of deciding those causes to which their authority extends.
The first view admits concurrent State court jurisdiction; the second view excludes it.
Since an exclusion of concurrent State court jurisdiction would amount to an alienation of State power by implication, the first view – concurrent State court jurisdiction – appears the most natural and defensible construction.
This construction in favor of concurrent jurisdiction most clearly applies to those causes which were cognizable in State courts prior to ratification of the Constitution.
It is not so evident as to cases which grow out of and are based on the Constitution.
It can hardly be considered an abridgment of a preexisting authority to deny the State courts a right of jurisdiction in such cases.
The Congress may commit the decision of causes arising upon a particular regulation to the Federal courts alone if such a measure should be deemed expedient.
Nonetheless, State courts will be divested of no part of their preexisting jurisdiction, other than may relate to the appeal of Federal issues.
Unless expressly excluded by the future acts of the national legislature, State courts will of course take cognizance of the causes to which those acts may give birth.
This follows from the nature of judicial power, as well as the general genius of the judicial system. The judicial power of every government looks beyond its own local or municipal laws.
In civil cases, it considers all the subjects of the litigation between the parties within its jurisdiction, even though the causes of the dispute may relate to the laws of the most distant part of the globe.
For instance, the laws of Japan – not less than of New York – may furnish the objects of legal discussion to our courts.
When we further consider that the State governments and the Federal government are truly kindred systems – parts of one whole – it seems conclusive that State courts would have a concurrent jurisdiction in all cases arising under the laws of the United States, unless expressly prohibited.
An Appeal Will Lie from State Courts to Federal Courts in Cases of Concurrent Jurisdiction
Turning to the relationship between the Federal and State courts in cases of concurrent jurisdiction, an appeal would certainly lie from the State courts to the Supreme Court of the United States.
The Constitution in direct terms gives the Supreme Court appellate jurisdiction in all the enumerated cases of Federal cognizance in which it is not to have original jurisdiction, without a single expression to confine its operation to the inferior Federal courts.
It states: “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.” Art. III, § 2, cl. 2.
When we further consider that the State governments and the Federal government are truly kindred systems – parts of one whole – it seems conclusive that State courts would have a concurrent jurisdiction in all cases arising under the laws of the United States, unless expressly prohibited.
The objects of an appeal – not the tribunals from which it is to be made – are alone contemplated.
Both reason and circumstance favor extending the appellate jurisdiction of the Supreme Court to causes arising in State tribunals.
Since the national and State systems should be regarded as one whole, the State courts will of course be natural auxiliaries to the execution of the laws of the United States, and an appeal from them will as naturally lie to that tribunal — the Supreme Court – which is destined to unite and assimilate the principles of national justice and the rules of national decisions.
Were there no right to appeal, the State courts would have to be excluded from concurrent jurisdiction in matters of national concern, for otherwise every plaintiff and prosecutor could elude the judiciary of the United States at their pleasure.
These consequences would defeat some of the most important and avowed purposes of the Federal government, and essentially embarrass its measures.
The evident aim of the constitutional provision is to ensure all the causes of Federal jurisdiction shall – for weighty public reasons – receive their original or final determination in the courts of the United States.
To confine the appellate jurisdiction of the Supreme Court only to appeals from subordinate Federal courts would abridge the terms and subvert the intent of the provision granting the Supreme Court appellate jurisdiction of Federal issues.
Whether their authority shall be original or appellate – or both – is not declared, with all this being left to the discretion of the Federal legislature. This being so, there exists no impediment to the establishment of an appeal from State courts to the subordinate national tribunals.
A more difficult question is whether an appeal could be made to lie from the State courts to the subordinate Federal courts.
The following considerations countenance the affirmative. In the first place, the Constitution authorizes the Congress “to constitute tribunals inferior to the Supreme Court.” Art. I, § 8, cl. 9.
It declares, in the next place, that “the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress shall ordain and establish.” Art. III, § 1, emphasis added.
It then proceeds to enumerate the cases to which this judicial power shall extend. Art. III, § 2.
It afterwards divides the jurisdiction of the Supreme Court into original and appellate, but gives no definition of the subordinate courts, other than they shall be “inferior to the Supreme Court,” and that they shall not exceed the specified limits of the Federal judiciary.
Whether their authority shall be original or appellate – or both – is not declared, with all this being left to the discretion of the Federal legislature.
This being so, there exists no impediment to the establishment of an appeal from State courts to the subordinate national tribunals.
This would diminish the need to multiply Federal courts, and to refine the causes the Supreme Court would consider pursuant to its appellate jurisdiction.
State tribunals would be left with a more entire charge of Federal causes.
In cases where an appeal is deemed proper, they would be made to lie to the subordinate Federal courts instead of the Supreme Court.
Hamilton