Rules of Justiciability and the Case or Controversy Requirement: Historical Background

ArtIII.S2.C1.2.2 Rules of Justiciability and the Case or Controversy Requirement: Historical Background

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

The potential for abuse of judicial power was of concern to the Founding Fathers, leading them to establish limits on the circumstances in which the courts could consider cases. When, late in the Convention, a delegate proposed to extend the judicial power beyond the consideration of laws and treaties to include cases arising under the Constitution, Madison's notes captured these concerns. “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.” Consequently, “[t]he 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—.” 1

This passage, and the language of Article III, § 2, makes clear 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. This interpretation is reinforced by the refusal of the Convention to assign the judges the extra-judicial functions that some members of the Convention—Madison and Wilson notably—conceived for them. Thus, for instance, the Convention four times voted down proposals for judges, along with executive branch officials, to sit on a council of revision with the power to veto laws passed by Congress.2 A similar fate befell suggestions that the Chief Justice be a member of a privy council to assist the President3 and that the President or either House of Congress be able to request advisory opinions of the Supreme Court.4 The intent of the Framers in rejecting the latter proposal 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 1793.5 Moreover, the refusal of the Justices to participate in a congressional plan for awarding veterans' pensions6 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 met 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.7

2 Farrand, supra at 430. back
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. back
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. back
Id. at 340–41. The proposal was referred to the Committee on Detail and never heard of again. back
1 C. Warren, supra at 108-111; 3 Correspondence and Public Papers of John Jay 633–635 (H. Johnston ed., 1893); Hart & Wechsler (6th ed.), supra at 50-52. back
Hayburn's Case, 2 U.S. (2 Dall.) 409 (1792), discussed supra ArtIII.S1. Inherent Powers of Federal Courts: Issuing Judgments. back
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). back

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