Section 2: Judicial power, jurisdiction, and trial by jury

Section 2 delineates federal judicial power, and brings that power into execution by conferring original jurisdiction and also appellate jurisdiction upon the Supreme Court. Additionally, this section requires trial by jury in all criminal cases, except impeachment cases.

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 Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Clause 1: Cases and controversiesedit

Clause 1 of Section 2 authorizes the federal courts to hear actual cases and controversies only. Their judicial power does not extend to cases which are hypothetical, or which are proscribed due to standing, mootness, or ripeness issues. Generally, a case or controversy requires the presence of adverse parties who have a genuine interest at stake in the case. In Muskrat v. United States, 219 U.S. 346 (1911), the Supreme Court denied jurisdiction to cases brought under a statute permitting certain Native Americans to bring suit against the United States to determine the constitutionality of a law allocating tribal lands. Counsel for both sides were to be paid from the federal Treasury. The Supreme Court held that, though the United States was a defendant, the case in question was not an actual controversy; rather, the statute was merely devised to test the constitutionality of a certain type of legislation. Thus the Court's ruling would be nothing more than an advisory opinion; therefore, the court dismissed the suit for failing to present a "case or controversy."

A significant omission is that although Clause 1 provides that federal judicial power shall extend to "the laws of the United States," it does not also provide that it shall extend to the laws of the several or individual states. In turn, the Judiciary Act of 1789 and subsequent acts never granted the U.S. Supreme Court the power to review decisions of state supreme courts on pure issues of state law. It is this silence which tacitly made state supreme courts the final expositors of the common law in their respective states. They were free to diverge from English precedents and from each other on the vast majority of legal issues which had never been made part of federal law by the Constitution, and the U.S. Supreme Court could do nothing, as it would ultimately concede in Erie Railroad Co. v. Tompkins (1938). By way of contrast, other English-speaking federations like Australia and Canada never adopted the Erie doctrine. That is, their highest courts have always possessed plenary power to impose a uniform nationwide common law upon all lower courts and never adopted the strong American distinction between federal and state common law.

Eleventh Amendment and state sovereign immunityedit

In Chisholm v. Georgia, 2 U.S. 419 (1793), the Supreme Court ruled that Article III, Section 2 abrogated the States' sovereign immunity and authorized federal courts to hear disputes between private citizens and States. This decision was overturned by the Eleventh Amendment, which was passed by the Congress on March 4, 1794 1 Stat. 402 and ratified by the states on February 7, 1795. It prohibits the federal courts from hearing "any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State".

Clause 2: Original and appellate jurisdictionedit

Clause 2 of Section 2 provides that the Supreme Court has original jurisdiction in cases affecting ambassadors, ministers and consuls, and also in those controversies which are subject to federal judicial power because at least one state is a party; the Court has held that the latter requirement is met if the United States has a controversy with a state. In other cases, the Supreme Court has only appellate jurisdiction, which may be regulated by the Congress. The Congress may not, however, amend the Court's original jurisdiction, as was found in Marbury v. Madison, 5 U.S. (Cranch 1) 137 (1803) (the same decision which established the principle of judicial review). Marbury held that Congress can neither expand nor restrict the original jurisdiction of the Supreme Court. However, the appellate jurisdiction of the Court is different. The Court's appellate jurisdiction is given "with such exceptions, and under such regulations as the Congress shall make."

Often a court will assert a modest degree of power over a case for the threshold purpose of determining whether it has jurisdiction, and so the word "power" is not necessarily synonymous with the word "jurisdiction".

Judicial reviewedit

The power of the federal judiciary to review the constitutionality of a statute or treaty, or to review an administrative regulation for consistency with either a statute, a treaty, or the Constitution itself, is an implied power derived in part from Clause 2 of Section 2.

Though the Constitution does not expressly provide that the federal judiciary has the power of judicial review, many of the Constitution's Framers viewed such a power as an appropriate power for the federal judiciary to possess. In Federalist No. 78, Alexander Hamilton wrote,

The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Others, however, disagreed, claiming that each branch could determine for itself the constitutionality of its actions.citation needed

Hamilton goes on to counterbalance the tone of "judicial supremacists," those demanding that both Congress and the Executive are compelled by the Constitution to enforce all court decisions, including those that, in their eyes, or those of the People, violate fundamental American principles:

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgement, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.

Marbury v. Madison involved a highly partisan set of circumstances. Though Congressional elections were held in November 1800, the newly elected officers did not take power until March. The Federalist Party had lost the elections. In the words of President Thomas Jefferson, the Federalists "retired into the judiciary as a stronghold". In the four months following the elections, the outgoing Congress created several new judgeships, which were filled by President John Adams. In the last-minute rush, however, Federalist Secretary of State John Marshall had neglected to deliver 17 of the commissions to their respective appointees. When James Madison took office as Secretary of State, several commissions remained undelivered. Bringing their claims under the Judiciary Act of 1789, the appointees, including William Marbury, petitioned the Supreme Court for the issue of a writ of mandamus, which in English law had been used to force public officials to fulfill their ministerial duties. Here, Madison would be required to deliver the commissions.

Marbury posed a difficult problem for the court, which was then led by Chief Justice John Marshall, the same person who had neglected to deliver the commissions when he was the Secretary of State. If Marshall's court commanded James Madison to deliver the commissions, Madison might ignore the order, thereby indicating the weakness of the court. Similarly, if the court denied William Marbury's request, the court would be seen as weak. Marshall held that appointee Marbury was indeed entitled to his commission. However, Justice Marshall contended that the Judiciary Act of 1789 was unconstitutional, since it purported to grant original jurisdiction to the Supreme Court in cases not involving the States or ambassadorscitation needed. The ruling thereby established that the federal courts could exercise judicial review over the actions of Congress or the executive branch.

However, Alexander Hamilton, in Federalist No. 78, expressed the view that the Courts hold only the power of words, and not the power of compulsion upon those other two branches of government, upon which the Supreme Court is itself dependent. Then in 1820, Thomas Jefferson expressed his deep reservations about the doctrine of judicial review:

You seem ... to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps ... Their power is the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.

Clause 3: Federal trialsedit

Clause 3 of Section 2 provides that Federal crimes, except impeachment cases, must be tried before a jury, unless the defendant waives his right. Also, the trial must be held in the state where the crime was committed. If the crime was not committed in any particular state, then the trial is held in such a place as set forth by the Congress. The United States Senate has the sole power to try impeachment cases.

Two of the Constitutional Amendments that comprise the Bill of Rights contain related provisions. The Sixth Amendment enumerates the rights of individuals when facing criminal prosecution and the Seventh Amendment establishes an individual's right to a jury trial in certain civil cases. It also inhibits courts from overturning a jury's findings of fact. The Supreme Court has extended the protections of these amendments to individuals facing trial in state courts through the Due Process Clause of the Fourteenth Amendment.