Article 3, Section 2, Clause 2
A [Maryland] Farmer, no. 61 Apr. 1788Storing 5.1.89
Aristides asserts, "that the inferior federal courts, and the State courts will have concurrent original jurisdiction in all the enumerated cases, wherein an appeal lies to the supreme federal court, except only the cases created by, or under the proposed constitution."--By the second section of the third article, "The judicial power is to extend to all cases, in law and equity, arising under the constitution, or the LAWS of the United States; and to all controversies between citizens of different States, and the citizens of any of the United States, and the citizens, or subjects, of foreign States"; and by the eighth section of the first article, "The Congress are invested with power to levy and collect taxes, duties, imposts, and excises; and to make such laws as shall be necessary and proper for carrying into execution these powers." Aristides contends that a federal officer, say an excise officer, may be sued by a citizen in a State court (I suppose any county court as well as the supreme court) for an abuse of his authority; and with confidence he asserts, "That no sound lawyer, of a good moral reputation will maintain the contrary opinion"; and he treats with supercilious contempt the objection of want of remedy in a State court, and a trial by jury for the citizen against a federal officer, for an abuse of office, "as a ridiculous bugbear, fit only to alarm minds on which no science has ever dawned." Is it not evident that the jurisdiction in the cases above-mentioned, is expressly given to the inferior federal courts, with an appeal, both as to law and fact, to the supreme federal court?--Is it not clear that it was intended to keep the federal and State jurisdictions entirely separate? Were not the subordinate federal courts established to protect the continental revenue officers from the State jurisdictions?--If an action would lie against a federal officer in the State courts would it not blend and confound the two jurisdictions, and that too without any appeal from the State courts?--Is not the supreme federal court superior to the State courts? Is it not superior to the bill of rights, and the constitutions, of the several States?--If the State courts have concurrent jurisdiction with the inferior federal courts, that is, if any suit of which the latter has cognizance by the new government, may notwithstanding be instituted in the former, is it not self-evident that there may be different adjudications on the SAME question; and if decided in the inferior federal court with an appeal, if decided in a State court without any appeal, to the supreme federal court? What would be the effect of opposite decisions by two courts having concurrent jurisdiction?--If an action is commenced in a State court, Aristides thinks, and justly too, that thence there is no appeal to the supreme federal court, but only to their own high court of appeals, as heretofore. With confidence he maintains that as the jurisdiction of the State courts is not taken away by an express clause, or necessary implication, that they will still have cognizance of those cases of which jurisdiction is given to the inferior federal courts. The Farmer believes there is not another lawyer, or Judge, of sound judgment in the law, in all America, that entertains a similar opinion.--The Farmer is so bold as to hazard his opinion, contrary to that of Aristides, that if a citizen of Georgia, or subject of Great-Britain, has any claim against a citizen of Maryland, or if he has any claim against them, that suits in such cases, after the establishment of the national government, can only be commenced and prosecuted in the inferior federal courts, because the State courts are ousted of their jurisdiction of those cases, by necessary implication, from the obvious motives for the establishment of the federal judiciary, and the evident absurdities that must flow from a concurrent jurisdiction in the SAME cases. Is it not absurd to suppose that the national government intended that the State courts should have jurisdiction to decide on the LAWS of the United States, whether consonant or repugnant to the national constitution; or whether the federal officers abuse their authority?--And yet the grave, the solemn, the didactic Aristides asserts, "That every State Judge will have a right to reject any act handed to him as a law of the United States, which HE may conceive repugnant to the constitution." How perverted or confused must be the head of that man who can seriously entertain so ridiculous an opinion! He can never claim from his knowledge of the national, or any other government to be one of the Judges of the most inferior of the inferior federal courts--Risum teneatis. A puisne Judge of a petty State (of Delaware, or Rhode-Island) to have a right to declare a LAW of the United States VOID? Will any sound lawyer, his moral reputation out of the question, risk his legal character so far as to maintain his assertion?--If Aristides has not too much pride to be convinced, if he has the candour he professes, or the legal or political knowledge he wishes the world to believe, he would not obstinately continue in error, but confess, how greatly he has misunderstood the judiciary system of the national government.
Storing, Herbert J., ed. The Complete Anti-Federalist. 7 vols. Chicago: University of Chicago Press, 1981.
© 1987 by The University of Chicago