Original Jurisdiction

Describes the original constitutional plan for the lower courts and Supreme Court. Notes how important the original jurisdiction clause is to promote both international and domestic peace. Looks to the Judiciary Act of 1789 to compare and contrast jurisdictional grants in search of original meaning. Notes that the original jurisdiction clause was intended to broadly cover foreign affairs.

Argues that the best way to approach Article III and its exceptions is to ask whether legislative, judicial, or executive power is being exercised. Cites founding-era legal decisions affirming that Congress cannot move any case from the Court’s appellate jurisdiction to its original jurisdiction.

Argues that original jurisdiction of the court has gone unremarked, but that its purpose was to resolve disputes between states in a new union. Explores the history of the Court’s exercise of original jurisdiction and the clause’s background using original intent originalism.

Analyzes the original meaning of the word “all” in Article III. Discusses that Justice Story relied on the word “all” to explain the obligatory jurisdiction of the federal courts in Martin v. Hunter’s Lessee. Responds to Professor Akhil Amar’s argument that the word “all” means that only a federal court (rather than any particular level of court) must be able to exercise jurisdiction. Contends that “all” means the same thing when used in the admiralty, federal question, ambassador, and state-as-a-party clauses in Article III.

Looks to the original jurisdiction clause to argue that “case” elsewhere in Article III means “suit” not pre-litigation dispute, and thus that dispute also cannot be a possible meaning of the narrower term controversy.

Argues that the Supreme Court has exclusive original jurisdiction over suits brought by foreign states against states alleging violations of ratified national treaties.

Argues that Marbury should be reconsidered because Chief Justice Marshall may have deliberately obscured the supervisory role of the Supreme Court and come to contrived conclusions about mandamus.

Argues that the framers adopted the original jurisdiction clause because of state sovereign immunity and the inadequacy of appellate jurisdiction for enforcing federal laws against the states. Develops that original jurisdiction over state party cases was at the center of the framers’ plan to secure the enforcement of federal law against the states. Posits that original jurisdiction should be extended to both suits involving two state parties and those involving alleged violations of federal law.

Explains the debate over the cases and controversies distinction of Article III, as well as the debate over the meaning of “all” verses “shall.” Critiques Professor Akhil Amar’s claim that the Court’s original jurisdiction doesn’t extend to state-party lawsuits.

Argues that the original jurisdiction clause specifies cases that Congress cannot take away from the Court (other than the clause “in which a State shall be a Party,” which can be limited via the necessary and proper clause). Notes that the original jurisdiction clause also restricts Congress’s power to provide for geographically inconvenient trials. Challenges Marbury’s holding that Congress cannot add to the Supreme Court’s original jurisdiction without violating Article III.