Development of Federal Question Jurisdiction.

Almost from the beginning, the Convention demonstrated an intent to create “federal question” jurisdiction in the federal courts with regard to federal laws;801 such cases involving the Constitution and treaties were added fairly late in the Convention as floor amendments.802 But when Congress enacted the Judiciary Act of 1789, it did not confer general federal question jurisdiction on the inferior federal courts, but left litigants to remedies in state courts with appeals to the United States Supreme Court if judgment went against federal constitutional claims.803 Although there were a few jurisdictional provisions enacted in the early years,804 it was not until the period following the Civil War that Congress, in order to protect newly created federal civil rights and in the flush of nationalist sentiment, first created federal jurisdiction in civil rights cases,805 and then in 1875 conferred general federal question jurisdiction on the lower federal courts.806 Since that time, the trend generally has been toward conferral of ever-increasing grants of jurisdiction to enforce the guarantees recognized and enacted by Congress.807

Footnotes

801
M. Farrand, supra at 22, 211–212, 220, 244; 2 id. at 146–47, 186–87. [Back to text]
802
Id. at 423–24, 430, 431. [Back to text]
803
1 Stat. 73. The district courts were given cognizance of “suits for penalties and forfeitures incurred, under the laws of the United States” and “of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States . . . .” Id. at 77. Plenary federal question jurisdiction was conferred by the Act of February 13, 1801,§ 11, 2 Stat. 92, but this law was repealed by the Act of March 8, 1802, 2 Stat. 132. On § 25 of the 1789 Act, providing for appeals to the Supreme Court from state court constitutional decisions, see supra. [Back to text]
804
Act of April 10, 1790, § 5, 1 Stat. 111, as amended, Act of February 21, 1793, § 6, 1 Stat. 322 (suits relating to patents). Limited removal provisions were also enacted. [Back to text]
805
Act of April 9, 1866, § 3, 14 Stat, 27; Act of May 31, 1870, § 8, 16 Stat. 142; Act of February 28, 1871,§ 15, 16 Stat. 438; Act of April 20, 1871, §§ 2, 6, 17 Stat. 14, 15. [Back to text]
806
Act of March 3, 1875, § 1, 18 Stat. 470, now 28 U.S.C. § 1331(a). The classic treatment of the subject and its history is F. Frankfurter & J. Landis, supra. [Back to text]
807
For a brief summary, see Hart & Wechsler (6th ed.), supra at 743–748. [Back to text]