3L Clay Rossi sent me this interesting comment re recent posts:
When I was a first year [law school] we did cover some of the ramifications of withdrawing selected areas of jurisdiction from the federal courts and/or Supreme Court. If everyone still abided by the rule of law, there would be no questiont about Congress' ability to do it.However, the statists will not go down without a fight.
The former dean of my law school ( a neocon con law professor of some
repute) told me that the counter offensive against limiting federal jurisdiction has already been planned -- i.e. the Supreme Court will strike down the any act of Congress which seeks to limit jurisdiction as unconstitutional on the grounds that the limitation on the jurisdiction is a violation of the due process rights of the people who would have be able to seek redress in the federal court system before the restriction. So in other words, the Supremes will hold that their own concept of what the words "due process" mean as higher and greater than the plain meaning the enumerated powers of Congress found in the Constitution.That sound like par for the course.
Regarding recent posts, Rossi also has these comments on the substantive issue at hand:
The way I understand the agument is a follows. The sovereign right of immunity from suit is a basic principle which predates the Constitution. The language of Art. III sec 2 is said to have been drafted with the presumption that jurisdiction where the state was a party against the claim of a person was only found where the state had consented to the suit. The 11th Amendment clarified this position, however, the sovereign right of immunity of the state against one of its own citizens is still implicit, not explicit in the 11th amendment.The 14th Amend., through the ratification process by the states, is said to act as an explicit waiver of a state's sovereign immunity against suit by its own citizens. However, this waiver is only triggered by 14th Amend. sec 5's appropriate legislation clause. It may then be deduced that if the waiver may only be triggered in legislation where Congress manifests its intention to trigger the waiver "clearly and unambigiously" in the legislation, then the waiver is limited to those things which Congress may rightfully legislate upon. Congress may rightfully legislate the parameters of federal appellate jurisdiction, but Congress is not given the power to legislate the areas of original jurisdiciton. Since the Congress has no ability to legislate on original jurisdiction, the 14 sec 5 waiver trigger is only applied to appellate jurisdiction matters.
This is interesting and kind of persuasive. Original jursidiction by definition is that which the Supreme Court has automatically; not only if Congress doesn't limit it. Appellate jurisdiction, by contrast, is that which Congress can limit. Since the 14th Amendment specically allows Congress to provide, or not provide, jurisdiction to hear certain cases under the 14th, it's appellate by definition. In any event it can clearly be restricted, under the 14th Amendment even if not under Art. III.
Further--see this definition. Let's take the case where, say, Lawrence sues Texas. He sues in state courts. Then it's appealed to the Supreme Court. This alone seems show that it's not original jurisdiction. It's appealed from state court. So it has to be appellate jursidction.
