Re: Further Yet Re: Query on Eleventh Amendment

[Louise Weinberg]

Dear Matt,
        I should respond to your further observation that the concurrent jurisdiction in The Cohens was "in the state courts."  I would be surprised if, on reflection, you would think that that somehow matters, but if you do, why do you think so?  Is it your position that Section 13 contemplated concurrent jurisdiction in cases in which one state was a party, but only in state courts?  Or that Ames v. Kansas and Illinois v. Milwaukee were wrongly decided in recognizing concurrent original jurisdiction also in federal trial courts?  Or is it your position, on the other hand, that state criminal prosecutions can only be tried in federal courts, since jurisdiction in those cases is concurrent with the Supreme Court's?  Or perhaps you mean something else entirely. (?)
Curious,
Louise  


August 18, 2003
Dear Matt,
        Thanks.  Of course you are right.  But so am I.  In your recollection of Marshall's attempt to distinguish Marbury, I am sure you nevertheless do see that what that part of The Cohens meant in the context of your question was that the Court's original jurisdiction was permitted to be concurrent in courts below, rather than exclusive to the Supreme Court.  The state is generally a party in a criminal prosecution in a state court.  Such concurrent state jurisdiction was within the contemplation of Section 13 of the First Judiciary Act.  (The reason that an 11th Amendment question arose was that, in a criminal defendant's "appeal" from a judgment of conviction, the petititon will be "against" the state.)
All best,
Louise 


At 07:40 PM 8/18/03, you wrote:

Thank you, Louise.  Both your messages are helpful.  In Cohens what Marshall had in mind (if I recall it aright) was that a case that might fit the Court's original jurisdiction (according to the character of the parties) may also be heard under its appellate jurisdiction (thanks to the presence of a federal question), else sec. 25 of the judiciary act would be void in a case like Cohens itself--hence he refined a dictum in Marbury about the mutual exclusivity of original and appellate jurisdiction.  When the original judiciary act in sec. 13 provided for original jurisdiction that was not exclusive, it did so on precisely this understanding--but it was state courts, not lower federal ones, that had concurrent jurisdiction under the act, was it not?  Anyway, thanks again for confirming my hunch that the original jurisdiction could not be curtailed without a constitutional amendment.  Any dissenters to that proposition among the list members?

Regards,

Matt
***************************
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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At 06:49 PM 8/18/2003 -0500, you wrote:

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

***************************
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]
***************************