Few questions in the field of Federal Courts have captivated scholars like the question of whether Congress can simultaneously divest both lower federal courts and the U.S. Supreme Court of jurisdiction to hear federal constitutional claims and thereby leave those claims to be litigated in state courts alone. Such a divestiture is known today as “jurisdiction stripping,” and, despite literally decades of scholarship on the subject, scholars have largely been unable to reconcile two widely held views: jurisdiction stripping should be unconstitutional because it deprives constitutional rights of adjudication by independent judges and jurisdiction stripping is nonetheless perfectly consistent with the text and original understanding of the Constitution. In this article, I show how the scholarly impasse that has pitted constitutionalism and judicial independence on the one hand versus text and history on the other can be overcome. In particular, I show that something important has changed in the years since the Constitution was ratified: the gap between the independence of state and federal judges. At the time of the founding, much like their federal counterparts, no state judges were elected and the vast majority of them enjoyed life tenure. Precisely the opposite is true today. As such, the consequences of depriving federal courts of jurisdiction to hear constitutional claims were much different then than they are today. Because state courts were the background against which Article III of the Constitution was written and ratified, these changes enable the answer to the question of whether jurisdiction stripping is constitutional to change as well. In other words, just because jurisdiction stripping was constitutional in 1789 does not mean it must be constitutional today, and it does not mean we must ignore the original understanding of the Constitution to reach that conclusion. The history I have uncovered in this Article has the potential to reshape many other jurisdictional doctrines of the federal courts.
Volume 98
The Law of Nations as Constitutional Law
Courts and scholars continue to debate the status of customary international law in U.S. courts. The modern position argues that courts should treat customary international law as federal common law. The revisionist position contends that customary international law applies only to the extent that positive federal or state law has adopted it. Neither approach, however, adequately takes account of the Constitution’s allocation of powers to the federal political branches or the judiciary’s treatment of the law of nations throughout U.S. history. The Constitution’s allocation of specific powers to the federal political branches—such as the powers to recognize foreign nations, declare war, issue letters of marque and reprisal, and make rules governing captures—can only be understood by reference to certain background principles of the law of nations. Many of the Supreme Court’s decisions applying traditional principles derived from the law of nations may plausibly be understood as upholding the Constitution’s allocation of war and foreign relations powers to the political branches of the federal government. In numerous cases, the Court has upheld the rights of foreign sovereigns in ways that respect the political branches’ possession or exercise of these specific constitutional powers. This understanding has potential implications for the ongoing debate over the status of customary international law in U.S. courts. Specifically, it suggests that the modern position is over-inclusive and the revisionist position is under-inclusive of the role of customary international law. The allocation of powers approach—grounded in specific constitutional provisions and supported by numerous Supreme Court cases—suggests that courts should apply the law of nations when necessary to uphold the Constitution’s exclusive allocation of war and foreign relations powers to the federal political branches.
De Facto Supremacy: Supreme Court Control of State Commercial Law
In 1842, Swift v. Tyson gave federal courts permission to ignore state decisional law in cases that presented commercial questions. Modern writers criticize Swift for attempting to create an exclusive federal forum for commercial cases in order to unify the commercial law. These same writers also criticize Swift for creating less uniformity in the commercial law; Erie R. Co. v. Tompkins, which ended Swift’s ninety-six year reign, relied at least in part on the idea that Swift had promised a uniform commercial law and failed to deliver. Swift has few modern defenders.
This Note shows that Swift may have unified the general commercial law more than modern federal courts theorists suggest. State courts sought to promote uniformity in the commercial law. In deciding their state commercial law cases, they would look not just to their own law, but to the law of other states, the United States, or foreign countries, and choose the position they felt would most likely evolve into a uniform rule. State courts often followed Supreme Court precedent because they felt it would be most likely to become the uniform rule of the country. Through its power to influence the consensus view, the Supreme Court could change not just the commercial law to be applied in federal courts, but the commercial law to be applied in the state courts as well. Contrary to modern federal courts theory, the Supreme Court not only tried, but succeeded in regulating and unifying commercial law in the antebellum United States.