Further Re: Query on Eleventh Amendment

[Louise Weinberg]

Dear Matt,
        I should have added two points to my below message.  First, Marshall came to see that Congress had power to make some of the Court's original jurisdiction concurrent, and explained the position in The Cohens v. Virginia.  Second, all of the understandings I have mentioned go to the power to make original jurisdiction concurrent, rather than any power of Congress to prohibit the Court from exercising an item of its original jurisdiction.  As to that, given the explicit language of the Constitution, I should think your suggestion is correct, that you would need a constitutional amendment.
Best,
Louise

Aug. 18, 2003
Dear Matt,
        The Exceptions Clause, though not so read by Marshall during the ratification debates, was so read by others at the time, including Pendleton.  The First Judiciary Act sec. 13, made parts of the original jurisdiction, in effect, discretionary by making it concurrent with the jurisdiction of courts below.  Cf. Illinois v. Milwaukee, S.Ct. 1972 (excplaining that where only one state is a party the jurisdiction is discretionary).  The classic reference, I believe, is Ames v Kansas, S.Ct. 1884.
Best,
Louise

At 03:18 PM 8/18/03, you wrote:

I seek the advice of the list members on the following problem.  Assume that Chisholm v. Georgia was correctly decided (even if only for the sake of argument).  Could Congress have reversed its effect by a mere statutory expedient, rewriting the Judiciary Act to confine the Court's original jurisdiction where states were parties to those cases in which the state was plaintiff but not defendant?  Or would that encounter a Marbury problem?  In Marbury it was concluded that Congress may not enlarge the Court's original jurisdiction.  May the Congress diminish that jurisdiction?  Or was the Eleventh Amendment, strictly speaking, absolutely necessary to reverse Chisholm?  I beg pardon if this is too obvious for me to figure out (my brain is tired), and I'd appreciate any references to works that address this.  I find nothing right away in the books by Jacobs and Orth on this subject.

Matt

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Matthew J. Franck
Professor and Chairman
Department of Political Science
Radford University
P.O. Box 6945
Radford, VA  24142-6945
phone 540-831-5854
fax 540-831-6075
e-mail [EMAIL PROTECTED]
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