Nov. 17, 2008 — Delivering Duke’s annual Brainerd Currie Memorial Lecture on Nov. 11, Judge William Fletcher of the United States Court of Appeal for the Ninth Circuit closely examined the meaning of the word “all,” which appears four times in the “judicial article” of the Constitution, Article III. A scholar of civil procedure and federal courts and jurisdiction who is the Richard W. Jennings Jr., Professor of Law Emeritus at the University of California, Berkeley, Fletcher argued that it is critical to answering a recurring question among scholars: What constitutional obligation does Congress have to confer jurisdiction on federal courts?
Article III, Section 2 of the Constitution gives federal courts jurisdiction over “all” cases involving questions of federal law, those pertaining to ambassadors, other public ministers, and consuls, those involving admiralty and marine jurisdiction, and those to which the state as a party, in which case the Supreme Court is given “original” or trial, jurisdiction, Fletcher pointed out.
Fletcher argued that the word “all” means that Congress has the power under those heads of jurisdiction it precedes to make federal jurisdiction exclusive. “That is to say, you can have all of the cases arising under federal law or any sub-part of federal law, exclusive in the federal courts, so that they can never go to the state courts,” he said, offering the example of modern statutory patent law. “If you want to prosecute a patent — if you want to charge patent infringement — the only place you can go is federal court.”
His reading accepts the meaning of “all” in the most literal and obvious sense of the word, he added. “If Congress has exercised its power under any of those heads of jurisdiction — ‘federal question,’ ‘ambassador,’ ‘admiralty,’ or ‘state as a party’ — all of those cases come into federal courts and only into the federal courts. None of those cases can go into the state courts.” Where the word does not precede a grant of jurisdiction, state courts can have concurrent jurisdiction, he said.
Fletcher offered historical evidence for his position from the Constitutional Convention and Alexander Hamilton’s “Federalist No. 82,” both of which tangentially discussed exclusive jurisdiction, as well as the Judiciary Act of 1789. The Judiciary Act created district courts with exclusive jurisdiction over some crimes arising under federal law, all admiralty cases, and a “subcategory” of ambassadors, and created circuit courts — trial courts with some appellate jurisdiction over district court decisions, he said. The Act also gave the Supreme Court exclusive original jurisdiction over ambassador suits and concurrent jurisdiction over suits between states.
“The congruence between the use of the word ‘all’ in Article III allowing Congress to give exclusive jurisdiction to these four heads of jurisdiction — federal question, ambassador, admiralty, and state as a party — and the Judiciary Act of 1789 doing exactly that … seems to me to be a fairly strong argument in favor of the word ‘all’ meaning potentially exclusive jurisdiction in the federal courts,” Fletcher argued.
He found further evidence for his argument in Justice Joseph Story’s 1816 opinion in Martin v. Hunter’s Lessee, which concerned the constitutionality of Section 25 of the Judiciary Act in giving the Supreme Court appellate jurisdiction over decisions of the state courts. In his lengthy discourse on the nature of federal jurisdiction, Story argued that federal courts constitutionally are required to be given jurisdiction over every case and controversy listed in Article III, Section 2. In doing so, said Fletcher, Story went further than the “three ‘alls'” at the beginning of Article III that referred to federal question, ambassador, and admiralty, including “diversity cases” — or commercial cases — as well.
“[Story] then discusses the word, ‘all’ but his use of the word is to say that with respect to cases in which the exclusive jurisdiction is authorized, as to those cases, you are going to have to create lower federal courts if that jurisdiction is going to be exercised properly,” said Fletcher.
Today’s modern statutory structure closely matches that in the Judiciary Act of 1789, with a considerable expansion of the scope of exclusive federal question jurisdiction beyond federal crimes, Fletcher observed. “We conceptually have almost exactly the jurisdiction given under the Judiciary Act of 1789…and we have never, never had an attempt to confer exclusive jurisdiction over any of the heads of jurisdiction notpreceded by the word ‘all.'”
While at the time of the framing of the Constitution states’ rights advocates were concerned about losing state court jurisdiction to federal courts, today the issue’s importance lies in concerns about stripping federal courts of their extensive jurisdiction, Fletcher explained. That threat has been made, in recent years, whenever the Supreme Court has delivered unpopular opinions on such hot-button issues as school prayer, abortion, or bussing.
“If I’m right … we no longer have as a constitutional argument that Congress must confer on some federal court the full extent of the federal question jurisdiction. Congress may be restricted in other ways from limiting that jurisdiction, but the most general power of taking it away now exists,” he said.
Judge Fletcher’s lecture can be viewed as a webcast.