This case calls up for review a holding that it is unconstitutional for Congress to open federal courts in the several states to action by a citizen of the District of Columbia against a citizen of one of the states. The petitioner, as plaintiff, commenced in the United States District Court for Maryland an action for a money judgment on a claim arising out of an insurance contract. No cause of action under the laws or Constitution of the United States was pleaded, jurisdiction being predicated only upon an allegation of diverse citizenship. The diversity set forth was that plaintiff is a corporation created by District of Columbia law, while the defendant is a corporation chartered by Virginia, amenable to suit in Maryland by virtue of a license to do business there. The learned District Judge concluded that, while this diversity met jurisdictional requirements under the Act of Congress,
The history of the controversy begins with that of the Republic. In defining the cases and controversies to which the judicial power of the United States could extend, the Constitution included those "between Citizens of different States."
Before concentrating on detail, it may be well to place the general issue in a larger perspective. This constitutional issue affects only the mechanics of administering justice in our federation. It does not involve an extension or a denial of any fundamental right or immunity which goes to make up our freedoms. Those rights and freedoms do not include immunity from suit by a citizen of Columbia or exemption from process of the federal courts. Defendant concedes that it can presently be sued in some court of law, if not this one, and it grants that Congress may make it suable at plaintiff's complaint in some, if not this, federal court. Defendant's contention only amounts to this: that it cannot be made to answer this plaintiff in the particular court which Congress has decided is the just and convenient forum.
The considerations which bid us strictly to apply the Constitution to congressional enactments which invade fundamental freedoms or which reach for powers that would substantially disturb the balance between the Union and its component states, are not present here. In mere mechanics of government and administration we
Our first inquiry is whether, under the third, or Judiciary, Article of the Constitution,
The latter sentence, to which much importance is attached, is somewhat ambiguous, because constitutional amendment as well as statutory revision is for legislative, not judicial, consideration. But the opinion as a whole leaves no doubt that the Court did not then regard the District as a state for diversity purposes.
To now overrule this early decision of the Court on this point and hold that the District of Columbia is a state would, as that opinion pointed out, give to the word "state" a meaning in the Article which sets up the judicial establishment quite different from that which it carries in those Articles which set up the political departments and in other Articles of the instrument. While the word is one which can contain many meanings, such inconsistency in a single instrument is to be implied only where the context clearly requires it. There is no evidence that the Founders, pressed by more general and immediate anxieties, thought of the special problems of the District of Columbia in connection with the judiciary. This is not strange, for the District was then only a contemplated entity. But, had they thought of it, there is nothing to indicate that it would have been referred to as a state and
In referring to the "States" in the fateful instrument which amalgamated them into the "United States," the Founders obviously were not speaking of states in the abstract. They referred to those concrete organized societies which were thereby contributing to the federation by delegating some part of their sovereign powers and to those that should later be organized and admitted to the partnership in the method prescribed. They obviously did not contemplate unorganized and dependent spaces as states. The District of Columbia being nonexistent in any form, much less as a state, at the time of the compact, certainly was not taken into the Union of states by it, nor has it since been admitted as a new state is required to be admitted.
We therefore decline to overrule the opinion of Chief Justice Marshall, and we hold that the District of Columbia is not a state within Article III of the Constitution. In other words, cases between citizens of the District and those of the states were not included in the catalogue of controversies over which the Congress could give jurisdiction to the federal courts by virtue of Art. III.
This conclusion does not, however, determine that Congress lacks power under other provisions of the Constitution to enact this legislation. Congress, by the Act in question, sought not to challenge or disagree with the decision of Chief Justice Marshall that the District of Columbia is not a state for such purposes. It was careful to avoid conflict with that decision by basing the new legislation on powers that had not been relied upon by the First Congress in passing the Act of 1789.
The Judiciary Committee of the House of Representatives recommended the Act of April 20, 1940, as "a reasonable
However, it is contended that Congress may not combine this function, under Art. I, with those under Art. III, in district courts of the United States. Two objections are urged to this. One is that no jurisdiction other than specified in Art. III can be imposed on courts that exercise the judicial power of the United States thereunder. The other is that Art. I powers over the District of Columbia must be exercised solely within that geographic area.
Of course there are limits to the nature of duties which Congress may impose on the constitutional courts vested with the federal judicial power. The doctrine of separation of powers is fundamental in our system. It arises,
Unless we are to deny to Congress the same choice of means through which to govern the District of Columbia that we have held it to have in exercising other legislative powers enumerated in the same Article, we cannot hold that Congress lacked the power it sought to exercise in the Act before us.
It is too late to hold that judicial functions incidental to Art. I powers of Congress cannot be conferred on
It is likewise too late to say that we should reach this result by overruling Chief Justice Marshall's view, unless we are prepared also to overruled much more, including some of our own very recent utterances. Many powers of Congress other than its power to govern Columbia require for their intelligent and discriminating exercise determination of controversies of a justiciable character. In no instance has this Court yet held that jurisdiction of such cases could not be placed in the regular federal courts that Congress has been authorized to ordain and establish. We turn to some analogous situations in which we have approved the very course that Congress has taken here.
Congress is given power by Art. I to pay debts of the United States. That involves as an incident the determination of disputed claims. We have held unanimously that congressional authority under Art. I, not the Art. III jurisdiction over suits to which the United States is a party, is the sole source of power to establish the Court of Claims and of the judicial power which that court exercises. Williams v. United States, 289 U.S. 553. In that decision we also noted that it is this same Art. I power that is conferred on district courts by the
Congress also is given power in Art. I to make uniform laws on the subject of bankruptcies. That this, and not the judicial power under Art. III, is the source of our system of reorganizations and bankruptcy is obvious, Continental Bank v. Chicago, R.I. & P.R. Co., 294 U.S. 648. Not only may the district courts be required to handle these proceedings, but Congress may add to their jurisdiction cases between the trustee and others that, but for the bankruptcy powers, would be beyond their jurisdiction because of lack of diversity required under Art. III. Schumacher v. Beeler, 293 U.S. 367. In that case, Chief Justice Hughes for a unanimous court wrote that, by virtue of its Art. I authority over bankruptcies, the Congress could confer on the regular district courts jurisdiction of "all controversies at law and in equity, as distinguished from proceedings in bankruptcy, between trustees as such and adverse claimants" to the extent specified in § 23b of the Bankruptcy Act as amended. Such jurisdiction was there upheld in a plenary suit, in a district court, by which the trustee sought equitable relief relying
This assumption by the Court in the Beeler and Austrian. cases, that the Congress had power to confer on the district courts jurisdiction of nondiversity suits involving only state law questions, made unnecessary any discussion of the source of the assumed power. In view of Congress' plenary control over bankruptcies, the Court may have grounded such assumption on Art. I. Or it might have considered that the jurisdiction was based on Art. III, and statutes enacted pursuant to it, giving the district courts jurisdiction over suits arising under the Constitution and laws of the United States. Had the Court held such a view, this latter might have commended itself as the most obvious answer. Consequently, silence in this respect, in the decision of each case, seems significant, particularly in contrast with repeated reference to Art. I power in the Beeler case, and sweeping language in the Austrian case that such jurisdiction existed despite lack of diversity "or other usual ground for federal jurisdiction." Nevertheless, it is now asserted, in retrospect, that those cases did arise under the laws of the United States. No justification is offered for that conclusion and there is no effort to say just why or how the cases did so arise. This would indeed be difficult if we still adhere to the doctrine of Mr. Justice Holmes that "a suit arises under the law that creates the cause
But the matter does not rest on inference alone. Other decisions of this Court demonstrate conclusively that jurisdiction over the Beeler and Austrian suits was not and could not have been conferred under Art. III and statutes concerning suits arising under the laws of the United States. A most thoroughly-considered utterance of this Court on that subject was given by Mr. Justice Cardozo, in Gully v. First National Bank, 299 U.S. 109, where he said, without dissent, "How and when a case arises `under the Constitution or laws of the United States' has been much considered in the books. Some tests are well established. To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action . . . . [Emphasis added.] The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another. . .. A genuine and present controversy, not merely a possible or conjectural one, must exist with reference thereto . . . and the controversy must be disclosed upon the face of the complaint . .. ." 299 U.S. 109, 112-113. After reviewing previous cases, Mr. Justice Cardozo referred to a then recent opinion by Mr. Justice Stone in which he said, for a unanimous court, that federal jurisdiction "may not be invoked where the right asserted is non-federal, merely because the plaintiff's right to sue is derived from federal law, or because the property involved was obtained under federal statute. The federal nature of the right to be established is decisive — not the source of the authority to establish it." Puerto Rico v. Russell & Co., 288 U.S. 476,
Neither the Austrian nor the Beeler case meets these tests, required before a case can be said to arise under the laws of the United States, any more than does the case before us. Austrian, as trustee, sued in equity for an accounting based on a charge that affairs of a state-created corporation had been conducted by the officers in violation of state law. Beeler, as trustee, sued on a contention that a levy on property by an Ohio sheriff was void under state law. Both controversies, like the one before
Neither the Beeler nor the Austrian case was one arising under the laws of the United States within the clear language of recent holdings by this Court. Unless we are to deny the jurisdiction in such cases which has consistently been upheld, we must rely on the Art. I powers of the Congress. We have been cited to no holding that such jurisdiction cannot spring from that Article. Under Art. I the Congress has given the district courts not only jurisdiction over cases arising under the bankruptcy law but also judicial power over nondiversity cases which do not arise under that or any other federal law. And this Court has upheld the latter grant.
Consequently, we can deny validity to this present Act of Congress, only by saying that the power over the District given by Art. I is somehow less ample than that over bankruptcy given by the same Article. If Congress could require this district court to decide this very case if it were brought by a trustee, it is hard to see why it may not require its decision for a solvent claimant when done in pursuance of other Art. I powers.
We therefore hold that Congress may exert its power to govern the District of Columbia by imposing the judicial function of adjudication justiciable controversies on the regular federal courts
The argument that congressional powers over the District are not to be exercised outside of its territorial limits also is pressed upon us. But this same contention has long been held by this Court to be untenable. In Cohens
We could not of course countenance any exercise of this plenary power either within or without the District if it were such as to draw into congressional control subjects over which there has been no delegation of power to the Federal Government. But, as we have pointed out, the power to make this defendant suable by a District citizen is not claimed to be outside of federal competence. If Congress has power to bring the defendant from his home all the way to a forum within the District, there seems little basis for denying it power to require him to meet the plaintiff part way in another forum. The practical issue here is whether, if defendant is to be suable at all by District citizens, he must be compelled to come to the courts of the District of Columbia or perhaps to a special statutory court sitting outside of it, or whether Congress may authorize the regular federal courts to entertain the suit. We see no justification for holding that Congress in accomplishing an end admittedly within its power is restricted to those means which are most cumbersome and burdensome to a defendant. Since it may provide the District citizen with a federal forum in which to sue the citizens of one of the states, it is hard to imagine a fairer or less prejudiced one than the regular federal courts sitting in the defendant's own state. To vest the jurisdiction in them rather than in courts sitting in the District of Columbia would seem less harsh to defendants and more consistent with the principles of venue that prevail in our system
The Act before us, as we see it, is not a resort by Congress to these means to reach forbidden ends. Rather, Congress is reaching permissible ends by a choice of means which certainly are not expressly forbidden by the Constitution. No good reason is advanced for the Court to deny them by implication. In no matter should we pay more deference to the opinions of Congress than in its choice of instrumentalities to perform a function that is within its power.
The judgment is
MR. JUSTICE RUTLEDGE, with whom MR. JUSTICE MURPHY agrees, concurring.
I join in the Court's judgment. But I strongly dissent from the reasons assigned to support it in the opinion of MR. JUSTICE JACKSON.
While giving lip service to the venerable decision in Hepburn & Dundas v. Ellzey, 2 Cranch 445, and purporting to distinguish it, that opinion ignores nearly a century and a half of subsequent consistent construction.
What is far worse and more important, the manner in which this reversal would be made, if adhered to by a majority of the Court, would entangle every district court of the United States for the first time in all of the contradictions, complexities and subtleties which have
In my opinion it would be better to continue following what I conceive to be the original error of the Hepburn decision and its progeny than thus to ensnarl the general system of federal courts. Jurisdictional and doctrinal troubles enough we have concerning them without adding others by ruling now that they have the origin and jurisdiction of "legislative" courts in addition to that of "constitutional" courts created under Article III, with which alone they heretofore have been held endowed.
Moreover, however this case may be decided, there is no real escape from deciding what the word "State" as used in Article III, § 2 of the Constitution means. For if it is a limitation on Congress' power as to courts created under that Article, it is hard to see how it becomes no limitation when Congress decides to cast it off under some other Article, even one relating to its authority over the District of Columbia. If this may be done in the name of practical convenience and dual authority, or because Congress might find some other constitutional way to make citizens of the District suable elsewhere or to bring here for suit citizens from any part of the country, then what is a limitation imposed on the federal courts generally is none when Congress decides to disregard it by purporting to act under some other authorization.
The Constitution is not so self-contradictory. Nor are its limitations to be so easily evaded. The very essence of the problem is whether the Constitution meant to cut out from the diversity jurisdiction of courts created under Article III suits brought by or against citizens of the
Prior to enactment of the 1940 statute today considered, federal courts of the District of Columbia were the only federal courts which had jurisdiction to try nonfederal civil actions between citizens of the District and citizens of the several states. The doors of federal courts in every state, open to suits between parties of diverse state citizenship by virtue of Article III, § 2 (as implemented by continuous congressional enactment), were closed to citizens of the District of Columbia. The 1940 statute was Congress' first express attempt to remedy the inequality which has obtained ever since Chief Justice Marshall, in Hepburn & Dundas v. Ellzey, supra, construed the first Judiciary Act to exclude citizens of the District of Columbia. Marshall's construction of the 1789 statute was founded on his conclusion that the comparable language of the diversity clause in Article III, § 2 — "Citizens of different States" — did not embrace citizens of the District.
Marshall's view of the 1789 Act, iterated in his later dictum, New Orleans v. Winter, 1 Wheat. 91, 94; cf. Sere v. Pitot, 6 Cranch 332, 336, has been consistently adhered to in judicial interpretation of later congressional grants of jurisdiction.
From this reasoning I dissent. For I think that the Article III courts in the several states cannot be vested, by virtue of other provisions of the Constitution, with powers specifically denied them by the terms of Article III. If we accept the elementary doctrine that the words of Article III are not self-exercising grants of jurisdiction to the inferior federal courts,
To circumvent the limits of Article III, it is said, after finding a contrary and overriding intent in Article I, that Article III district courts in the several states can also be vested with jurisdiction springing from Article I. The only express holding which conceivably could lend comfort to this doctrine of dual jurisdiction is this Court's conclusion in O'Donoghue v. United States, 289 U.S. 516, that certain courts of the District of Columbia, theretofore deemed legislative courts created under Article I,
The limits of the O'Donoghue decision are only under scored by the dissenting view of Chief Justice Hughes and Justices Van Devanter and Cardozo that all District of Columbia courts are solely the creatures of Article I:
Comfort is sought to be drawn, however, from this Court's rationale in Williams v. United States, 289 U.S. 553, which, in sanctioning salary reductions for judges of the Court of Claims, held that the court did not derive its jurisdiction from Article III. That conclusion stemmed in part from the proposition that suits against the United States are not "Controversies to which the United States shall be a Party," within the meaning of Article III, § 2. Hence, it is said, the permissible inference is that the long-established concurrent jurisdiction of district courts over claims against the United States
But, in any event, to rely on Williams as dispositive of the present case is to rely on a bending reed: Williams and O'Donoghue were companion cases, argued together and decided together; and the opinions were written by the same Justice. Accordingly, what was said in one must be read in the light of what was said in the other. O'Donoghue, as has been observed, expressly rejected the proposition today announced — that Congress can vest in constitutional courts outside the District of Columbia jurisdiction derived from the District clause of Article I.
But O'Donoghue went further, and in so doing undermined any implication in Williams that Article III courts outside the District could be vested with any form of non-Article III jurisdiction, when it pointed out that no courts of the District of Columbia could be granted "administrative and other jurisdiction," if, "in creating and defining the jurisdiction of the courts of the District, Congress were limited to Art. III, as it is in dealing with the other federal courts. . . ." 289 U.S. at 546. Moreover, the Justices who dissented from the O'Donoghue rationale of dual jurisdiction expressed no disagreement with the Williams opinion. In these circumstances, certainly
Nor is there merit in the view that the bankruptcy jurisdiction of district courts does not stem from Article III. Of course it is true that Article I is the source of congressional power over bankruptcy, as it is the source of congressional power over interstate commerce, taxation, the coining of money, and other powers confided by the states to the exclusive exercise of the national legislature. But, as MR. JUSTICE FRANKFURTER'S opinion makes clear, federal court adjudication of disputes arising pursuant to bankruptcy and other legislation is conventional federal-question jurisdiction. And no case cited in any of today's opinions remotely suggests the contrary.
Furthermore, no case cited supports, the view that jurisdiction over a suit to collect estate assets under § 23 (b) of the Bankruptcy Act, brought by the trustee in a district court with the "consent" of the defendant, is a departure from the general rule and is derived from Article I alone. To be sure, although this Court indicated a contrary view in the early case of Lovell v. Newman & Son, 227 U.S. 412, 426, Chief Justice Hughes' opinion in Schumacher v. Beeler, 293 U.S. 367, made it perfectly clear that district courts can, with the consent of the proposed defendant, entertain trustee suits under § 23 (b) which the bankrupt, but for the Bankruptcy Act, could not have prosecuted in a federal court absent diversity or some independent federal question "arising under . . . the Laws of the United States." The opinion stated:
Chief Justice Hughes' opinion does not intimate that this "consent jurisdiction" arises solely from Article I. Quite the contrary, the opinion by Judge Denison outlining the "view" which the Chief Justice described as "the correct one" expressly stated that such suits are a segment of the district court's federal-question jurisdiction:
There seems no reason therefore to suppose that this Court, in holding "correct" the view that district courts have jurisdiction over a trustee suit which could not have been brought by the bankrupt, rejected the explicit Article III basis of that jurisdiction.
And neither reliance on Gully v. First National Bank, 299 U.S. 109; Puerto Rico v. Russell & Co., 288 U.S. 476, and related cases, nor the suggestion that "a suit arises under the law that creates the cause of action." American Well Works v. Layne, 241 U.S. 257, 260, compels the conclusion that Congress could not and did not classify § 23 (b) suits to collect estate assets as federal-question cases arising under the Bankruptcy Act. As this Court has had occasion to observe, a "`cause of action' may mean one thing for one purpose and something different for another." United States v. Memphis Cotton Oil Co., 288 U.S. 62, 67-68: and see Gully v. First National Bank, supra, at 117. Similarly, as students of federal jurisdiction have taken pains to point out, the "substantial identity of the words" in the constitutional and statutory grants of federal-question jurisdiction, "does not, of course, require, on that score alone, an identical interpretation." Shulman and Jaegerman, Some Jurisdictional Limitations on Federal Procedure, 45 Yale L.J. 393, 405, n. 47 (1936). Confusion of the two is a natural, but not an insurmountable, hazard. The Gully and Puerto Rico cases were concerned with the general statutory grant to district courts of jurisdiction over federal questions; they were not concerned with the constitutional grant of jurisdiction, nor with the specific
It has never heretofore been doubted that the constitutional grant of power is broader than the general federal-question jurisdiction which Congress has from time to time thought to confer on district courts by statute. In one of the federal land-grant cases relied on in MR. JUSTICE JACKSON'S opinion, this Court had occasion to make this distinction clear:
Indeed, were we to adopt the view that the Gully rule is a test applicable to the constitutional phrase, we would effectively repudiate Chief Justice Marshall's conclusion in Osborn v. Bank of the United States, 9 Wheat. 738, that Congress can allow a federally chartered corporation to bring all its litigation into federal courts
In short, Congress has at no time conferred on federal district courts original jurisdiction over all federal questions, preferring to leave trial of many and perhaps most such questions to state adjudication, subject to the ultimate review of this Court. But exceptions to the congressional policy of limitation there have been, and one of these is the trustee suit under § 23 (b). 2 Moore, Federal Practice (2d ed., 1948) 1633.
Thus I see no warrant for gymnastic expansion of the jurisdiction of federal courts outside the District. At least as to these latter courts sitting in the states, I have thought it plain that Article III described and defined their "judicial Power," and that where "power proposed to be conferred . . . was not judicial power within the meaning of the Constitution . . . [it] was, therefore, unconstitutional, and could not lawfully be exercised by the courts."
In view of the rationale adopted by MR. JUSTICE JACKSON'S opinion. I do not understand the necessity for its examination of the limits of the diversity clause of Article III. That opinion has, however, made clear the view that the diversity clause excludes citizens of the
However, nothing but naked precedent, the great age of the Hepburn ruling, and the prestige of Marshall's name, supports such a result. It is doubtful whether anyone could be found who now would write into the Constitution such an unjust and discriminatory exclusion of District citizens from the federal courts. All of the reasons of justice, convenience, and practicality which have been set forth for allowing District citizens a furtive, access to federal courts, point to the conclusion that they should enter freely and fully as other citizens and even aliens do.
Precedent of course is not lightly to be disregarded, even in the greater fluidity of decision which the process of constitutional adjudication concededly affords.
The Hepburn decision was made before time, through later decisions here, had destroyed its basic premise and at the beginning of Marshall's judicial career, when he had hardly started upon his great work of expounding the Constitution. The very brevity of the opinion and its groundings, especially in their ambiguity, show that the master hand which later made his work immortal faltered.
This narrow and literal reading was grounded exclusively on three constitutional provisions: the requirements that members of the House of Representatives be chosen by the people of the several states; that the Senate shall be composed of two Senators from each state; and that each state "shall appoint, for the election of the executive," the specified number of electors; all, be it noted, provisions relating to the organization and structure of the political departments of the government, not to the civil rights of citizens as such. Put to one side were other provisions advanced in argument as showing "that the term state is sometimes used in its more enlarged sense" on the ground that "they do not prove what was to be shown by them." Ibid. But cf. 446-448, 450.
Whether or not this answer was adequate at the time,
In construing the diversity clause we are faced with the apparent fact that the Framers gave no deliberate consideration one way or another to the diversity litigation of citizens of the District of Columbia. And indeed, since the District was not in existence when the
If exclusion of District citizens is not compelled by the language of the diversity clause, it likewise cannot be spelled out by inference from the historic purposes of that clause. We have, needless to say, no concern with the merits of diversity jurisdiction;
Marshall's sole premise of decision in the Hepburn case has failed, under the stress of time and later decision, as a test of constitutional construction. Key words like "state," "citizen," and "person" do not always and invariably mean the same thing.
Moreover, Marshall himself recognized the incongruity of the decision: "It is true that as citizens of the United States, and of that particular district which is subject to the jurisdiction of congress, it is extraordinary that the courts of the United States, which are open to aliens, and to the citizens of every state in the union, should be closed upon them." But, he added "this is a subject for legislative not for judicial consideration." 2 Cranch at 453.
With all this we may well agree, with one reservation. In spite of subsequent contrary interpretation and Marshall's own identification of the statutory word "state" with the same word in the Constitution, we cannot be unreservedly sure that the last-quoted sentence referred to the process of constitutional amendment rather than
But I do not rest on this ambiguity, more especially in view of the later decisions clearly accepting the Hepburn decision as one of constitutional import. On the other hand, the later and general repudiation of the decision's narrow and literal rule for construing the Constitution, in which Marshall's own part was not small, has cut from beneath the Hepburn case its only grounding and with it, in my judgment, the anomaly in result which the ruling always has been. It is perhaps unnecessary to go so far in criticizing the decision as was done by a judge who long afterwards bowed to it.
Pragmatically stated, perhaps, the problem is not of earth-shaking proportions. For, by present hypothesis, federal court disposition of diversity suits must be in accord with local law in all matters of substance. But symbolically the matter is of very considerable importance. Reasonable men may differ perhaps over whether or, more appropriately, to what extent citizens of the District should have political status and equality with their fellow citizens. But with reference to their civil rights, especially in such a matter as equal access to the federal courts, none now can be found to defend discrimination against them save strictly on the ground of precedent.
I cannot believe that the Framers intended to impose so purposeless and indefensible a discrimination, although they may have been guilty of understandable oversight in not providing explicitly against it. Despite its great age and subsequent acceptance, I think the Hepburn decision was ill-considered and wrongly decided. Nothing hangs on it now except the continuance or removal of a gross and wholly anomalous inequality applied against a substantial group of American citizens, not in relation to their substantive rights, but in respect to the forums available for their determination. This Court, has not
That course should be followed here. It should be followed directly, not deviously. Although I agree with the Court's judgment, I think it overrules the Hepburn decision in all practical effect. With that I am in accord. But I am not in accord with the proposed extension of "legislative" jurisdiction under Article I for the first time to the federal district courts outside the District of Columbia organized pursuant to Article III, and the consequent impairment of the latter Article's limitations upon judicial power; and I would dissent from such a holding even more strongly than I would from a decision today reaffirming the Hepburn ruling. That extension, in my opinion, would be the most important part of today's decision, were it accepted by a majority of the Court. It is a dangerous doctrine which would return to plague both the district courts and ourselves in the future, to what extent it is impossible to say. The O'Donoghue and Williams decisions would then take on an importance they have never before had and were never considered likely to attain.
MR. CHIEF JUSTICE VINSON, with whom MR. JUSTICE DOUGLAS joins, dissenting.
While I agree with the views expressed by MR. JUSTICE FRANKFURTER and MR. JUSTICE RUTLEDGE which relate to the power of Congress under Art. I of the Constitution to vest federal district courts with jurisdiction over suits between citizens of States and the District of Columbia, and with the views of MR. JUSTICE FRANKFURTER and MR. JUSTICE JACKSON as to the proper interpretation of the word "States" in the diversity clause of Art. III, I
The question whether Congress has the power to extend the diversity jurisdiction of the federal district courts to citizens of the District of Columbia by virtue of its authority over the District under Art. I of the Constitution depends, in turn, upon whether the enumeration in Art. III of the cases to which the judicial power of the United States shall extend defines the outer limits of that power or is merely a listing of the types of jurisdiction with which Congress may invest federal courts without invoking any of the specific powers granted that body by other Articles of the Constitution. It has long been settled that inferior federal courts receive no powers directly from the Constitution but only such authority as is vested in them by the Congress. Turner v. Bank of North-America, 4 Dall. 8 (1799); McIntire v. Wood, 7 Cranch 504 (1813); Kendall v. United States, 12 Pet. 524 (1838); Cary v. Curtis, 3 How. 236 (1845).
The theory that § 2 of Art. III is merely a supplement to the powers specifically granted Congress by the Constitution
But as my Brothers FRANKFURTER and RUTLEDGE have pointed out, if Art. III contains merely a grant of power to Congress, there is no more reason to find any limitation in the fact that the judicial power extends only to cases and controversies than in the specific enumeration of the kinds of cases or controversies to which it shall extend. The fundamental error in this position, as I see it, is the failure to distinguish between two entirely different principles embodied in Art. III, as elsewhere in the Constitution, both of which were repeatedly adverted to in the Constitutional Convention and have since been followed by this Court without substantial deviation.
The first of these principles is that the three branches of government established by the Constitution are of co-ordinate rank, and that none may encroach upon the powers and functions entrusted to the others by that instrument. This principle found expression in the requirement of Art. III that the judicial power shall extend only to cases and controversies. Of equal importance, however, was the second principle, that the Constitution contains a grant of power by the states to the federal government, and that all powers not specifically granted were reserved to the states or to the people.
The first principle is not now under attack, but proper perspective in viewing the second requires some examination of its origin and history. The framers of the Constitution were presented with, and rejected, proposals which would have vested nonjudicial powers in the national judiciary. Charles Pinckney of South Carolina proposed, for example, that "Each branch of the Legislature, as well as the Supreme Executive shall have authority to require the opinions of the supreme Judicial Court upon important questions of law, and upon solemn occasions."
Clear as this principle is, however, it was attacked in this Court on precisely the same grounds now asserted to sustain the diversity jurisdiction here in question. In Keller v. Potomac Electric Co., 261 U.S. 428 (1923), where this Court had before it an Act under which the courts of the District of Columbia were given revisory power over rates set by the Public Utilities Commission
The second principle, that any powers not specifically granted to the national judiciary by Art. III were reserved to the states or the people, is here challenged. The reason such an attack is possible at this late date is, ironically enough, because of the implicit acceptance of that principle by the framers, by Congress, and by litigants ever since. Unlike the question of the relations between the branches of government, which first arose during Washington's presidency and subsequently gave rise, in the cases previously adverted to, to frequent definition of the nature of cases and controversies, acceptance of the principle that Art. III contains a limitation on the power of the federal judiciary was so complete that the question did not often arise directly. Nevertheless, it is possible to demonstrate in a number of contexts the true intent of the framers.
First, the examination and rejection of various alternative proposals concerning the jurisdiction of the national judiciary by the Convention throws considerable light upon the compromise reached.
The motion was carried and the clause establishing inferior federal tribunals excised from the draft Constitution. Madison, however, immediately moved "that the National Legislature be empowered to institute inferior tribunals," urging that some provision for such courts was a necessity in a federal system. Madison's notes then record the reaction of Pierce Butler of South Carolina to this proposal:
On the other hand, some members of the Convention favored a wider federal jurisdiction, than was ultimately authorized. The Connecticut delegation, led by Roger Sherman, proposed. "That the legislature of the United States be authorised to institute one supreme tribunal, and such other tribunals as they may judge necessary for the purpose aforesaid, and ascertain their respective powers and jurisdictions."
The judicial power was thus jealously guarded by the states and unwillingly granted to the national judiciary. Only when it could be demonstrated that a particular head of jurisdiction was acutely needed for the purposes of uniformity and national harmony was it granted. In every state convention for ratification of the Constitution, advocates and opponents of ratification considered in detail the kinds of cases and controversies to which the national judicial power was to extend. Each had to be justified.
That the federal judicial power was restricted to those classes of cases set forth in Art. III was clearly the opinion of those who had most to do with its drafting and acceptance. In the 80th Number of The Federalist, Hamilton listed the types of cases to which it was thought necessary that the judiciary authority of the nation should extend. All are found represented in Art. III.
while in No. 82, the following appears:
And Madison, in a letter to a correspondent who had contended that the common law had been incorporated by the Constitution as federal law, wrote:
And in a series of three cases decided between 1800 and 1809, the Court refused to give literal effect to § 11 of the Judiciary Act of 1789, which had extended the jurisdiction of Circuit Courts to suits where "an alien is a party," because of the limitations imposed by Art. III. In Mossman v. Higginson, 4 Dall. 12, 14 (1800), it was decided that "as the legislative power of conferring jurisdiction on the federal Courts, is, in this respect, confined to suits between citizens and foreigners, we must so expound the terms of the law, as to meet the case, `where, indeed, an alien is one party,' but a citizen is the other." This construction of the statute was adhered to in Montalet v. Murray, 4 Cranch 46 (1807); and in Hodgson v. Bowerbank, 5 Cranch 303 (1809), where Chief Justice Marshall dismissed the contention that "The judiciary act gives jurisdiction to the circuit courts in all suits in which an alien is a party" with this admonition: "Turn to the article of the constitution of the United States, for the statute cannot extend the jurisdiction beyond the limits of the constitution."
The cases chiefly relied upon by those who contend that Art. III does not define the limits of the judicial power are O'Donoghue v. United States, 289 U.S. 516 (1933), and Williams v. United States, 289 U.S. 553 (1933), which concerned reductions in salary of judges of the District Court for the District of Columbia and the Court of Claims respectively. In these cases, this Court held that Art. III, § 1 of the Constitution forbade reduction of the salary of the former, who was found to be a judge of a "constitutional" (i.e., an inferior court as used in Arts. I and III) court, but not of the latter, a judge of a "legislative" court.
Two separate but related points concerning the O'Donoghue case should be emphasized. The first is that since
In view of this express limitation, the O'Donoghue case lends no support to the Act now in question. To extend its applicability beyond the courts of the District is warranted neither by the language nor the reasoning of that case. The Court in no way diminished the authority of American Insurance Co. v. Canter, 1 Pet. 511 (1828), which had held that the courts of Florida Territory were legislative courts not created pursuant to Art. III and incapable of receiving the judicial power set out therein. Since territorial courts cannot be invested with Art. III power, the strict dichotomy between legislative and constitutional courts still exists — except in the District of Columbia. It is not enough to refer to the breadth of congressional power over the District; that such power is national in character rather than merely local. The power of Congress over the territories is equally broad, yet territorial courts cannot be invested with Art. III power under the O'Donoghue case. And some of the very statements now relied upon as indicating the scope of Congress' power over the District
Except in the District of Columbia, therefore, American Insurance Co. v. Canter, supra, and a long line of cases in the same vein
What has been said does not mean, of course, that legislative courts cannot exercise jurisdiction over questions of the same nature as those enumerated in Art. III, § 2. It was clearly contemplated by the framers that state courts should have federal question jurisdiction concurrent with that exercised by inferior federal courts, yet they are not constitutional courts nor do they exercise the judicial power of Art. III. The legislative courts created by Congress also can and do decide questions arising under the Constitution and laws of the United States (and, in the case of territorial courts, other types of jurisdiction enumerated in Art. III, § 2 as well), but that jurisdiction is not, and cannot be, "a part of that judicial power which is defined in the 3d article of the Constitution." These courts are "incapable of receiving it." American Insurance Co. v. Canter, supra at 546; Reynolds v. United States, supra at 154.
There is no anomaly, therefore, in the fact that legislative courts, as well as constitutional courts, exercise federal question jurisdiction, and that they sometimes exercise concurrent jurisdiction over the same matters. That does not make the former constitutional courts, American Insurance Co. v. Canter, supra; Ex parte Bakelite Corp., supra. Still less does it make the latter legislative courts, which is the effect of the statute now being considered. It is one thing to say that legislative courts may exercise jurisdiction over some of the same matters that are within Art. III judicial power. It is quite another thing to hold that constitutional courts may take cognizance of causes which are not within the scope of that power.
There is a certain surface appeal to the argument that, if Congress may create statutory courts to hear these cases, it should be able to adopt the less expensive and more practical expedient of vesting that jurisdiction
There are numerous sections of the Constitution which are concerned solely with the mechanics of government and, of necessity, set rather arbitrary limits upon the exercise of power by the three branches of government. No doubt requirements of this kind have proven in the past, and may, in the future, prove unduly restrictive and undesirable. Yet if a question concerning any one of them were before us. I do not suppose that any member of the Court would read into the Constitution the changes thought desirable in our day.
The only difference in respect of the most explicit of these limitations of power and the limitation imposed by the word "State" in Art. III is that the meaning urged upon the Court is not expressly controverted by the language of the Constitution. That it was not the specific intent of the framers to extend diversity jurisdiction to suits between citizens of the District of Columbia and the States seems to be conceded. One well versed in that subject, writing for the Court within a few years of adoption of the Constitution, so held.
The question is, then, whether this is one of those sections of the Constitution to which time and experience were intended to given content, or a provision concerned solely with the mechanics of government. I think there can be little doubt but that it was the latter. That we
I hardly need add that I consider a finding of unconstitutionality of a statute a matter of grave concern. Nevertheless, Congress cannot do that which the Constitution specifically forbids. I think that it has attempted to do so here.
MR. JUSTICE FRANKFURTER, with whom MR. JUSTICE REED concurs, dissenting.
No provisions of the Constitution, barring only those that draw on arithmetic, as in prescribing the qualifying age for a President and members of a Congress or the length of their tenure of office, are more explicit and specific than those pertaining to courts established under Article III. "The judicial power" which is "vested" in these tribunals and the safeguards under which their judges function are enumerated with particularity. Their tenure and compensation, the controversies which may be brought before them, and the distribution of original and appellate jurisdiction among these tribunals are defined and circumscribed, not left at large by vague and elastic phrasing. The precision which characterizes these portions of Article III is in striking contrast to the imprecision of so many other provisions of the Constitution dealing with other very vital aspects of government. This was not due to chance or ineptitude on the part of the Framers. The differences in subject-matter account for the drastic differences in treatment. Great concepts like "Commerce . . . among the several States," "due process of law," "liberty," "property" were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged. But when
There was deep distrust of a federal judicial system, as against the State judiciaries, in the Constitutional Convention. This distrust was reflected in the evolution of Article III.
According to Article III, only "judicial power" can be "vested" in the courts established under it. At least this limitation, which has been the law of the land since 1792, Hayburn's Case, 2 Dall. 409, is not yet called into question. And so the President could not today elicit this Court's views on ticklish problems of international law any more than Washington was able to do in 1793. See the exchange between Secretary of State Jefferson and Chief Justice Jay in 3 Johnston, Correspondence and
But if courts established under Article III can exercise wider jurisdiction than that defined and confined by Article III, and if they are available to effectuate the various substantive powers of Congress, such as the power to legislate for the District of Columbia, what justification is there for interpreting Article III as imposing one restriction in the exercise of those other powers of the Congress — the restriction to the exercise of "judicial power" — yet not interpreting it as imposing the restrictions that are most explicit, namely, the particularization of the "cases" to which "the judicial Power shall extend"?
It is conceded that the claim for which access is sought in the District Court for Maryland, one of the courts established under Article III, is not included among the "cases" to which the judicial power can be made to extend. But if the precise enumeration of cases as to which Article III authorized Congress to grant jurisdiction to the United States District Courts does not preclude Congress from vesting these courts with authority which Article III disallows, by what rule of reason is Congress to be precluded from bringing to its aid the advisory opinions of this Court or of the Courts of Appeals? In the exercise of its constitutional power of regulate commerce, to establish uniform rules of naturalization, to raise and support armies, or to execute any of the other powers of Congress that are no less vital than its power to legislate for the District of Columbia, the Congress may be greatly in need of informed and disinterested legal advice. If Congress may grant to the United States District Courts authority to act in situations in which Article III denies it, why may not this Court respond to calls upon it by Congress if confronted with the conscientious belief of Congress that such a call is made under the Necessary-and-Proper Clause in order to deal wisely and effectively with some substantive constitutional
Courts set up under Article III to exercise the judicial power of the United States do so either because of the nature of the subject-matter or because of the special position of the parties. So far as the subject-matter is concerned, it extends to cases arising under the "Constitution, the Laws of the United States and Treaties," as well as "to all Cases of admiralty and maritime Jurisdiction." Article I, § 8, is an enumeration of the subjects in relation to which the Constitution authorizes Congress to make laws. Its eighteen divisions of legislative power are the sources of federal rights and sanctions. Laws enacted under them are "the Laws of the United States," to which the "judicial power," granted by Article III, extends. Laws affecting revenue, war commerce, immigration, naturalization, bankruptcy, and the rest, as well as the vast range of laws authorized by the "Necessary-and-Proper" Clause, are the generating sources of "all Cases, in Law and Equity, arising under . . . the Laws of the United States," and therefore cognizable by the courts established under Article III. Congress can authorize the making of contracts; it can therefore authorize suit thereon in any district court. Congress can establish post offices; it can therefore authorize suits against the United States for the negligent killing of a child by a post-office truck.
We are here concerned with the power of the federal courts to adjudicate merely because of the citizenship of the parties. Power to adjudicate between citizens of different states, merely because they are citizens of different states, has no relation to any substantive rights created by Congress. When the sole source of the right to be enforced is the law of a State, the right to resort to a federal court is restricted to "Citizens of different States." The right to enforce such State-created obligations derives its sole strength from Article III. No other provision of the Constitution lends support. But for Article III, the judicial enforcement of rights which only a State, not the United States, creates would be confined to State courts. It is Article III and nothing outside it that authorizes Congress to treat federal courts as "only another court of the State," Guaranty Trust Co. v. York, 326 U.S. 99, 108, and Article III allows it to do so only when the parties are citizens of different "States." If Congress, in its law-making power over the District of Columbia, created some right for the inhabitants of the District, it could choose to provide for the enforcement of that right in any court of the United States, because the case would be one arising under "the Laws of the United States." But here the controversy is one arising not under the laws of the United States but under the laws of Maryland. By the command of the Constitution, this Maryland-created right can be enforced in a federal court only if the controversy is between "Citizens of different States" in relation to the State in which the federal court is sitting.
The diversity jurisdiction of the federal courts was probably the most tenuously founded and most unwillingly
But in any event, the dislocation of the Constitutional scheme for the establishment of the federal judiciary and the distribution of jurisdiction among its tribunals so carefully formulated in Article III is too heavy a price to pay for whatever advantage there may be to a citizen of the District, natural or artificial, to go to a federal court in a particular State instead of to the State court in suing a citizen of that State. Nor is it merely a dislocation for the purpose of accomplishing a result of trivial importance in the practical affairs of life. The process
To find a source for "the judicial Power." therefore, which may be exercised by courts established under Article III of the Constitution outside that Article would be to disregard the distribution of powers made by the Constitution.
The Framers, in making provision in regard to "States," meant the States which sent them as delegates to the Philadelphia Convention and the States which were to be admitted later. It was not contemplated that the district which was to become the seat of government could ever become a State. Marshall had no mean share in securing adoption of the Constitution and took special interest in the Judiciary Article. He merely gave expression to the common understanding — the best test of the meaning of words — when he rejected summarily the notion that the Citizens of the District are included among Citizens of "States."
It is suggested that other provisions of the Constitution relating to "States" apply to the District. If the mere repetition of an inaccuracy begets truth, then that statement is true, not otherwise. Decisions concerned with the District involving trial by jury in criminal and civil cases, full faith and credit for its proceedings, and the power to tax residents, rest on provisions in the Constitution not limited to "States." There may be a decision in which the source of rights or obligations affecting the District of Columbia derives from a legal right relating solely to "States" or a duty to which only "States" must be obedient. I know of no such case.
A substantial majority of the Court agrees that each of the two grounds urged in support of the attempt by Congress to extend diversity jurisdiction to cases involving citizens of the District of Columbia must be rejected — but not the same majority. And so, conflicting minorities in combination bring to pass a result — paradoxical as it may appear — which differing majorities of the Court find insupportable.
But, though it be true that "The Sixth Amendment was not needed to require trial by jury in cases of crimes," United States v. Wood, 299 U.S. 123, 142, nevertheless the recognized right of District residents to an "impartial jury" is conferred by the force of the Sixth Amendment. See Frazier v. United States, 335 U.S. 497, 498, 514. Nor is this distinction a mere form of words: In United States v. Wood, supra, at 142-143, Chief Justice Hughes, in weighing the impartiality of a District of Columbia jury, noted the Article III guarantee of a jury trial and then observed: "The Sixth Amendment provided further assurances. It added that in all criminal prosecutions the accused shall enjoy the right `to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.'"
Thus it has been uniformly assumed that in criminal prosecutions a resident of the District of Columbia is possessed of Sixth Amendment rights "to a speedy . . . trial," United States v. McWilliams, 69 F.Supp. 812, affirmed 163 F.2d 695; "to be informed of the nature and cause of the accusation," cf. Johnson v. United States, 225 U.S. 405, 409, 411; "to be confronted with the witnesses against him," Curtis v. Rives, 123 F.2d 936, 937; Jordon v. Bondy, 114 F.2d 599, 602, "to have compulsory process for obtaining witnesses in his favor," ibid.; "and to have the Assistance of Counsel for his defence," Noble v. Eicher, 143 F.2d 1001. see Williams v. Huff, 142 F.2d 91, 146 F.2d 867.
"This is not a case between citizens of different states, within the meaning of the constitution." 2 Cranch at 449-450.
"By it, and upon a narrow and technical construction of the word `state,' unsupported by any argument worthy of the able and distinguished judge who announced the opinion of the court, the large and growing population of American citizens resident in the District of Columbia and the eight territories of the United States are deprived of the privilege accorded to all other American citizens, as well as aliens, of going into the national courts when obliged to assert or defend their legal rights away from home. Indeed, in the language of the court in Hepburn v. Ellzey, supra, they may well say: `It is extraordinary that the courts of the United States, which are open to aliens, and to the citizens of every state in the Union, should be closed upon them.' But so long as this ruling remains in force, the judgment of this court must be governed by it."
Since any right of action against the United States is completely and wholly dependent upon whether an Act of Congress has authorized the suit, see United States v. Minnesota Mutual Investment Co., 271 U.S. 212, 217 (1926), a question arising under the laws of the United States, as that phrase is used in Art. III, is clearly presented by any claim against the federal government. Since Congress has decreed that all such actions shall be brought in federal courts, the question presented in Gully v. First National Bank, 299 U.S. 109 (1936), Puerto Rico v. Russell & Co., 288 U.S. 476 (1933) and related cases is not involved.