Before we enter upon this investigation,it is proper to place the proposition to be discussed in terms somewhat more definite and precise than those which the author has employed.What,then,is meant by "final judge and interpreter?"In the ordinary acceptation of these terms,we should understand by them a tribunal having lawful cognizance of a subject,and from whose decisions there is no appeal.In this view of the question,there can be no difficulty in admitting that the decisions of the Supreme Court are final and conclusive.Whatever comes within the legitimate cognizance of that tribunal,it has a right to decide,whether it be a question of the law or of the Constitution,and no other tribunal can reverse its decision.
The Constitution,which creates the Supreme Court,creates no other court of superior or appellate jurisdiction to it,and,consequently,its decisions are strictly "final."There is no power in the same government to which that court belongs to reverse or control it,nor are there any means therein of resisting its authority.So far,therefore,as the Federal Constitution has provided for the subject at all,the Supreme Court is,beyond question,the final judge or arbiter;and this,too,whether the jurisdiction which it exercises be legitimate or usurped.
The terms "constitutional controversies"are still more indefinite.
Every controversy which is submitted to the decision of a judicial tribunal,whether State or federal,necessarily involves the constitutionality of the law under which it arises.If the law be not constitutional,the court cannot enforce it,and,of course,the question whether it be constitutional or not,necessarily arises in every case to which the court is asked to apply it.The very act of enforcing a law presupposes that its constitutionality has been determined.In this sense,every court,whether State or federal,is the "judge or arbiter of constitutional controversies,"arising in causes before it and if there be no appeal from its decision,it is the "final"
judge or arbiter,in the sense already expressed.
Let us now inquire what "constitutional controversies"the federal courts have authority to decide,and how far its decisions are final and conclusive against all the world.
The third article of the Constitution provides that "the judicial powers shall extend to all cases in law and equity,arising under this Constitution,the laws of the United States,and the 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 and the citizens thereof,and foreign States,citizens or subjects."
The eleventh amendment provides that "the judicial power of the United States shall not be construed to extend to any suit in law or equity,commenced or prosecuted against one of the United States by citizens of another State,or by citizens and subjects of any foreign State."
It will be conceded on all hands that the federal courts have no jurisdiction except what is here conferred.The judiciary,as a part of the Federal Government,derives its powers only from the Constitution which creates that government.The term "cases"implies that the subject matter shall be proper for judicial decision;and the parties between whom alone jurisdiction can be entertained,are specifically enumerated.Beyond these "cases"and these parties they have no jurisdiction.
There is no part of the Constitution in which the framers of it have displayed a more jealous care of the rights of the States,than in the limitations of the judicial power.It is remarkable that no power is conferred except what is absolutely necessary to carry into effect the general design,and accomplish the general object of the States,as independent,confederated States.The federal tribunals cannot take cognizance of any case whatever in which all the States have not an equal and common interest that a just and impartial decision shall be had.A brief analysis of the provisions of the Constitution will make this sufficiently clear.
Cases "arising under the Constitution"are those in which some right or privilege is denied,which the Constitution confers,or something is done which the Constitution prohibits,as expressed in the Constitution itself.Those which arise "under the laws of the United States"are such as involve rights or duties,which result from the legislation of Congress.
Cases of these kinds are simply the carrying out of the compact or agreement made between the States,by the Constitution itself,and,of course,all the States are alike interested in them.For this reason alone,if there were no other,they ought to be entrusted to the common tribunals of all the States.There is another reason,however,equally conclusive.The judicial should always be at least co-extensive with the legislative power;for it would be a strange anomaly,and could produce nothing but disorder and confusion,to confer on a government the power to make a law,without conferring at the same time the right to interpret and the power to enforce it.
