ArtIII.S2.C2.3 Original Cases Affecting Ambassadors, Public Ministers, and Consuls

Article III, Section 2, Clause 2:

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.

The Supreme Court’s original jurisdiction extends in part to cases affecting ambassadors and consuls. In addition to the general legal considerations relation to original jurisdiction discussed in the preceding essay, the Court has considered several legal questions specific to this grant of jurisdiction.1 One question is whether the Court possesses original jurisdiction over cases where an ambassador or consul merely possesses an indirect interest in the outcome of the proceeding or whether such a person must be a party in interest. In United States v. Ortega, the Court ruled that a prosecution for violating international law and the laws of the United States by “offering violence” to a foreign minister was not a suit “affecting” the minister but rather a public prosecution for vindication of the law of nations and the laws of the United States.2

Another question is whether the Supreme Court can determine the official status of a person claiming to be an ambassador or consul. The Court has refused to review the decision of the Executive Branch with respect to the public character of a person claiming to be a public minister and has laid down the rule that it has the right to accept a certificate from the Department of State on such a question.3

A third question is whether the grant of original jurisdiction extends to cases affecting ambassadors and consuls accredited by the United States to foreign governments. The Court has answered that question in the negative, holding that the clause applies only to persons accredited to the United States by foreign governments.4

In matters of particular delicacy, such as suits under the law of nations against ambassadors and public ministers or their servants, Congress until recently made the original jurisdiction of the Supreme Court exclusive of that of other courts.5 By accepting Congress’s distribution of exclusive and concurrent original jurisdiction,6 the Court has tacitly sanctioned the legislature’s power to make such jurisdiction exclusive or concurrent as it may choose.

For discussion of other issues related to original jurisdiction, including the question whether Congress can vest concurrent jurisdiction in the Supreme Court and lower federal courts, see ArtIII.S2.C2.2 Supreme Court Original Jurisdiction. back
24 U.S. (11 Wheat.) 467 (1826). back
In re Baiz, 135 U.S. 403, 432 (1890). back
Ex parte Gruber, 269 U.S. 302 (1925). back
1 Stat. 80–81 (1789). Since 1978, the Court’s jurisdiction has been original but not exclusive. Pub. L. No. 95-393, § 8(b), 92 Stat. 810 (codified at 28 U.S.C. § 1251(b)(1)). back
See ArtIII.S2.C2.2 Supreme Court Original Jurisdiction. back