3 Period I. The Federal System Enforcing Federal Constitutional Rights, 1787–1930 3 Period I. The Federal System Enforcing Federal Constitutional Rights, 1787–1930
3.1 Justices of the Supreme Court of the United States 3.1 Justices of the Supreme Court of the United States
3.2 Part A. Direct Review 3.2 Part A. Direct Review
3.2.1 Chapter 1. The Central Role of Direct Review in the Federal System 3.2.1 Chapter 1. The Central Role of Direct Review in the Federal System
3.2.1.1 Introductory Note 3.2.1.1 Introductory Note
The idea of a federal system of federal courts and state courts was embraced by the Framers of the Constitution and embedded in the great foundational statute, the Judiciary Act of 1789. Section 25 of the Act provided for the centerpiece of the system: Jurisdiction authorizing review by the United States Supreme Court of state court judgments involving assertions of federal rights, or “direct review” for short.
The jurisdiction was challenged by Virginia as unauthorized by Article III. The Court upheld the jurisdiction in the landmark case of Martin v. Hunter’s Lessee (1816), employing federalism reasoning.
Thereafter, attacks on the jurisdiction were introduced in Congress, but none was successful. Instead, Congress has continually granted the Court more discretion over the exercise of the jurisdiction.
3.2.1.2 A. The Judiciary Act of 1789 3.2.1.2 A. The Judiciary Act of 1789
3.2.1.3 B. The Supreme Court Interprets Article III and Upholds Direct Review under Section 25 3.2.1.3 B. The Supreme Court Interprets Article III and Upholds Direct Review under Section 25
Fairfax’s Devisee v. Hunter’s Lessee (1813)
Martin v. Hunter’s Lessee (1816)
3.2.1.4 C. The Act of February 5, 1867, Section 2, and Review of State Law Questions 3.2.1.4 C. The Act of February 5, 1867, Section 2, and Review of State Law Questions
State Substantive Law
Murdock v. City of Memphis (1875)
State Procedural Law
Rogers v. Alabama (1904)
3.2.1.5 D. Congress Replaces Direct Review as of Right (Writ of Error) with Discretionary Review (Writ of Certiorari) (1916, 1925) 3.2.1.5 D. Congress Replaces Direct Review as of Right (Writ of Error) with Discretionary Review (Writ of Certiorari) (1916, 1925)
Congress Replaces Direct Review as of Right (Writ of Error) with Discretionary Review (Writ of Certiorari) (1916, 1925)
3.2.1.6 E. Later Unsuccessful Attacks in Congress on Direct Review 3.2.1.6 E. Later Unsuccessful Attacks in Congress on Direct Review
3.2.2 Chapter 2. The Supreme Court’s Systemic Preference for Direct Review Influences its Interpretation of Statutes Providing for Federal Defense Removal and Habeas Corpus 3.2.2 Chapter 2. The Supreme Court’s Systemic Preference for Direct Review Influences its Interpretation of Statutes Providing for Federal Defense Removal and Habeas Corpus
3.2.2.1 Introductory Note 3.2.2.1 Introductory Note
In the last chapter, we were introduced to the role of direct review. Its place in the federal system is so central that it has influenced how the Supreme Court interprets statutes governing other parts of the system. This chapter considers two other parts: federal defense removal jurisdiction and the habeas corpus remedy.
In this historical period, the Court interpreted statutes providing for federal defense removal from state to federal court so narrowly as to render the jurisdiction ineffective throughout history. This was done to prevent weakening of the role of direct review. The statute providing for federal habeas corpus for state prisoners was also narrowly interpreted during this historical period, for the same reason. But in each successive historical period, the Court reinterpreted the statute so as to achieve, for that period, an acceptable federalism balance.
3.2.2.2 A. Congress Establishes and Organizes the Lower Federal Courts 3.2.2.2 A. Congress Establishes and Organizes the Lower Federal Courts
3.2.2.3 B. The Supreme Court Interprets Federal Defense Removal Jurisdiction under the Civil Rights Act of 1866 in Accordance with its Systemic Preference for Direct Review 3.2.2.3 B. The Supreme Court Interprets Federal Defense Removal Jurisdiction under the Civil Rights Act of 1866 in Accordance with its Systemic Preference for Direct Review
The Removal Provisions of the 1866 Act
Strauder v. West Virginia (1880)
Virginia v. Rives (1880)
Once Direct Review Became Discretionary, Should Rives Have Been Reconsidered?
3.2.2.4 C. The Supreme Court Interprets Federal Defense Removal Jurisdiction under the 1875 Act and its 1887 Amendment in Accordance with its Systemic Preference for Direct Review 3.2.2.4 C. The Supreme Court Interprets Federal Defense Removal Jurisdiction under the 1875 Act and its 1887 Amendment in Accordance with its Systemic Preference for Direct Review
Under the 1875 Act
Railroad Company v. Mississippi (1880)
Under the 1887 Amendment
Tennessee v. Union and Planters’ Bank (1894)
Once Direct Review Became Discretionary, Should Planter’s Bank Have Been Reconsidered?
3.2.2.5 D. Pretrial Habeas Corpus as a Functional Substitute for Removal? 3.2.2.5 D. Pretrial Habeas Corpus as a Functional Substitute for Removal?
Habeas Corpus for State Prisoners Prior to the 1867 Act
Ex Parte Royall (1886)
In re Loney (1890)
3.2.2.6 E. Habeas Corpus as a Functional Substitute for Direct Review? 3.2.2.6 E. Habeas Corpus as a Functional Substitute for Direct Review?
Andrews v. Swartz (1895)
Markuson v. Boucher (1899)
Once Direct Review Became Discretionary, Should These Cases Have Been Reconsidered?
3.3 Part B. Original Federal Trial Jurisdiction and Remedies 3.3 Part B. Original Federal Trial Jurisdiction and Remedies
3.3.1 Chapter 3. Federal Suits against State Officers Prior to and under the 1875 Act 3.3.1 Chapter 3. Federal Suits against State Officers Prior to and under the 1875 Act
3.3.1.1 Introductory Note 3.3.1.1 Introductory Note
If a state engages in, or is about to engage in, action that violates a person’s federal rights, may the person sue the state in federal court? A simple question, but one without a simple answer.
There is a legal tradition, dating back to old English law, of suing governmental officers instead of governments. So the plaintiff might be able to sue state officers instead of the state by name. But two preconditions would have to be met.
First, there would have to be original subject matter jurisdiction.
Second, the plaintiff would have to seek a permitted remedy, that is, one that results in an acceptable federalism balance. This can be tricky, but two generalizations are possible. Preventive injunctions restraining state officers from violating federal rights have been deemed acceptable. Remedies seeking to reach money in the state treasury too directly have been disfavored.
3.3.1.2 A. Federal Suit against State Officers Prior to the 1875 Act 3.3.1.2 A. Federal Suit against State Officers Prior to the 1875 Act
The Legal Tradition of Suing Officers Instead of Governments in Order to Challenge Government Action
Remedies against State Officers under the Judiciary Act of 1789, Section 14
No General Federal Question Trial Jurisdiction Prior to the 1875 Act
3.3.1.3 B. Chief Justice Marshall’s Theory of the Relationship Between Federal Question Cases and the Eleventh Amendment 3.3.1.3 B. Chief Justice Marshall’s Theory of the Relationship Between Federal Question Cases and the Eleventh Amendment
Cohens v. Virginia (1821)
3.3.1.4 C. The Foundational Officer Suit: Osborn v. Bank of the United States (1824) 3.3.1.4 C. The Foundational Officer Suit: Osborn v. Bank of the United States (1824)
Facts as Stated by Chief Justice Marshall
The Special Federal Question Jurisdiction of the Circuit Court
3.3.1.5 D. General Federal Question Jurisdiction and Remedies under the Act of March 3, 1875 3.3.1.5 D. General Federal Question Jurisdiction and Remedies under the Act of March 3, 1875
General Federal Question Jurisdiction and Remedies under the Act of March 3, 1875
3.3.1.6 E. The Court Disallows Remedies Against State Officers that it Deems Impact the State Treasury Too Directly 3.3.1.6 E. The Court Disallows Remedies Against State Officers that it Deems Impact the State Treasury Too Directly
Louisiana v. Jumel (1883)
3.3.1.7 F. Ex Parte Young (1908) 3.3.1.7 F. Ex Parte Young (1908)
Attorney General Young’s Jurisdictional Defense
Should Attorney General Young Have Pursued a Remedial Defense? If so, What? How?
Attorney General Young’s Response to the Injunction What Should He Have Done Instead?
Attorney General Young’s Petition to the Supreme Court for Habeas Relief
Justice Peckham’s Treatment of the Jurisdictional Issues that Were Presented by the Habeas Petition
If Young Had Not Violated the Injunction and the Court Had Reached the Issue of Remedy, Would the Court Have Approved the Injunction?
Fenner v. Boykin (1926)
3.3.2 Chapter 4. Federal Suits against State Officers under the Civil Rights Act of 1871 to Enforce Fourteenth Amendment Civil Rights 3.3.2 Chapter 4. Federal Suits against State Officers under the Civil Rights Act of 1871 to Enforce Fourteenth Amendment Civil Rights
3.3.2.1 Introductory Note 3.3.2.1 Introductory Note
In the last chapter, we saw that claimants of substantive due process rights under the Fourteenth Amendment, like railroads could enforce their claims under the 1875 Act. The Act’s high jurisdictional amount requirement was usually no bar to these claimants.
The Civil Rights Act of 1871 was explicitly enacted to enforce Fourteenth Amendment civil rights. But since civil rights during this historical period were so meager, the 1871 Act had little or no enforcement work to do. Moreover, the Act would have been tough to enforce in the face of violent Southern resistance, given that the defeated Confederates were bent on retaining a system as close to slavery as possible.
3.3.2.2 A. The Origins of the Fourteenth Amendment 3.3.2.2 A. The Origins of the Fourteenth Amendment
The Need for the Civil Rights Act of 1866
President Johnson’s Veto Message of March 27, 1866 Invoking His Vision of Federalism
Congress Acts to Preserve the 1866 Act
3.3.2.3 B. Officer Suits under the Civil Rights Act of 1871 3.3.2.3 B. Officer Suits under the Civil Rights Act of 1871
The Background of the 1871 Act
The Supreme Court Interprets the Fourteenth Amendment so as to Facilitate Enforcement by Officer Suits
Strauder v. West Virginia (1880)
Ex Parte Virginia (1880)
3.3.2.4 C. Jurisdiction under the 1871 Act 3.3.2.4 C. Jurisdiction under the 1871 Act
3.3.2.5 D. The South’s “Progressive” Alternative to Violence, 1890-1915 3.3.2.5 D. The South’s “Progressive” Alternative to Violence, 1890-1915
Plessy v. Ferguson (1896)
3.3.2.6 E. Remedies under the 1871 Act 3.3.2.6 E. Remedies under the 1871 Act
Equitable Remedies
Giles v. Harris (1903)
Damages
Nixon v. Herndon (1927)