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Cases and Controversies

SECTION 2. Clause 1. The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States,—between Citizens of the same State claiming Land under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

JUDICIAL POWER AND JURISDICTION—CASES AND CONTROVERSIES

Late in the Convention, a delegate proposed to extend the judicial power to cases arising under the Constitution of the United States as well as under its laws and treaties. Madison’s notes continue: “Mr. Madison doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising under the Constitution, and whether it ought not to be limited to cases of a Judiciary Nature. The right of expounding the Constitution in cases not of this nature ought not to be given to that Department.”

“The motion of Docr. Johnson was agreed to nem : con : it being generally supposed that the jurisdiction given was constructively limited to cases of a Judiciary nature—”.308

That the Framers did not intend for federal judges to roam at large in construing the Constitution and laws of the United States but rather preferred and provided for resolution of disputes arising in a “judicial” manner is revealed not only in the language of § 2 and the passage quoted above but also in the refusal to associate the judges in the extra-judicial functions which some members of the Convention—Madison and Wilson notably—conceived for them. Thus, proposals for associating the judges in a council of revision to pass on laws generally were voted down four times,309 and similar fates befell suggestions that the Chief Justice be a member of a privy council to assist the President,310 and that the President or either House of Congress be able to request advisory opinions of the Supreme Court.311 This intent of the Framers was early effectuated when the Justices declined a request of President Washington to tender him advice respecting legal issues growing out of United States neutrality between England and France in 1793.312 Moreover, the refusal of the Justices to participate in the congressional plan for awarding veterans’ pensions313 bespoke a similar adherence to the restricted role of courts. These restrictions have been encapsulated in a series of principles or doctrines, the application of which determines whether an issue is meet for judicial resolution and whether the parties raising it are entitled to have it judicially resolved. Constitutional restrictions are intertwined with prudential considerations in the expression of these principles and doctrines, and it is seldom easy to separate out the two strands.314

308 2 M. Farrand, supra at 430.

309 The proposal was contained in the Virginia Plan. 1 id. at 21. For the four rejections, see id. at 97-104, 108-10, 138-40, 2 id. at 73-80, 298.

310 Id. at 328-29, 342-44. Although a truncated version of the proposal was reported by the Committee on Detail, id. at 367, the Convention never took it up.

311 Id. at 340-41. The proposal was referred to the Committee on Detail and never heard of again.

312 1 C. Warren, supra at 108-111; 3 CORRESPONDENCE AND PUBLIC PAPERS OF JOHN JAY 633-635 (H. Johnston ed., 1893); Hart & Wechsler, supra at 65-67.

313 Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792), discussed “Finality of Judgment as an Attribute of Judicial Power”, supra.

314 See, e.g., Justice Brandeis dissenting in Ashwander v. TVA, 297 U.S. 288, 341, 345-348 (1936). Cf. Flast v. Cohen, 392 U.S. 83, 97 (1968); Rescue Army v. Municipal Court, 331 U.S. 549, 568-575 (1947).

The Two Classes of Cases and Controversies

By the terms of the foregoing section, the judicial power extends to nine classes of cases and controversies, which fall into two general groups. In the words of Chief Justice Marshall in Cohens v. Virginia:315 “In the first, jurisdiction depends on the character of the cause, whoever may be the parties. This class comprehends ‘all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.’ This cause extends the jurisdiction of the Court to all the cases described, without making in its terms any exception whatever, and without any regard to the condition of the party. If there be any exception, it is to be implied, against the express words of the article. In the second class, the jurisdiction depends entirely on the character of the parties. In this are comprehended controversies between two or more States, ‘between a State and citizens of another State,’ and ‘between a State and foreign States, citizens or subjects.’ If these be the parties, it is entirely unimportant, what may be the subject of controversy. Be it what it may, these parties have a constitutional right to come into the courts of the Union.”316

Judicial power is “the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.”317 The meaning attached to the terms “cases” and “controversies”318 determines therefore the extent of the judicial power as well as the capacity of the federal courts to receive jurisdiction. According to Chief Justice Marshall, judicial power is capable of acting only when the subject is submitted in a case and a case arises only when a party asserts his rights “in a form prescribed by law.”319 “By cases and controversies are intended the claims of litigants brought before the courts for determination by such regular proceedings as are established by law or custom for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs. Whenever the claim of a party under the Constitution, laws, or treaties of the United States takes such a form that the judicial power is capable of acting upon it, then it has become a case. The term implies the existence of present or possible adverse parties whose contentions are submitted to the Court for adjudication.”320

315 19 U.S. (6 Wheat.) 264 (1821).

316 19 U.S. at 378.

317 Muskrat v. United States, 219 U.S. 346, 356 (1911).

318 The two terms may be used interchangeably, inasmuch as a “controversy,” if distinguishable from a “case” at all, is so only because it is a less comprehensive word and includes only suits of a civil nature. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239 (1937).

319 Osborn v. United States Bank, 22 U.S. (9 Wheat.) 738, 819 (1824).

320 In re Pacific Ry. Comm’n, 32 F. 241, 255 (C.C. Calif. 1887) (Justice Field). See also Smith v. Adams, 130 U.S. 167, 173-174 (1889).

Chief Justice Hughes once essayed a definition, which, however, presents a substantial problem of labels. “A ‘controversy’ in this sense must be one that is appropriate for judicial determination. A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical character; from one that is academic or moot. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.”321 Of the “case” and “controversy” requirement, Chief Justice Warren admitted that “those two words have an iceberg quality, containing beneath their surface simplicity submerged complexities which go to the very heart of our constitutional form of government. Embodied in the words ‘cases’ and ‘controversies’ are two complementary but somewhat different limitations. In part those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government. Justiciability is the term of art employed to give expression to this dual limitation placed upon federal courts by the case and controversy doctrine.”322 Justice Frankfurter perhaps best captured the flavor of the “case” and “controversy” requirement by noting that it takes the “expert feel of lawyers” often to note it.323

From these quotations may be isolated several factors which, in one degree or another, go to make up a “case” and “controversy.”

321 Aetna Life Ins. Co. v. Haworth, 300 U.S. 229, 240-241 (1937). Cf. Public Service Comm’n v. Wycoff Co., 344 U.S. 237, 242 (1952).

322 Flast v. Cohen, 392 U.S. 83, 94-95 (1968).

323 “The jurisdiction of the federal courts can be invoked only under circumstances which to the expert feel of lawyers constitute a ‘case or controversy.”’ Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 149, 150 (1951).

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Last modified: June 9, 2014