At about this time in 1788, Alexander Hamilton (a.k.a. Publius) writes Federalist Paper No. 82. His essay would later appear in a bound volume with other Federalist essays (see below). The ever-verbose Hamilton is STILL talking about the judiciary.
What will happen to the state courts under the new Constitution?
Hamilton begins by noting a general principle: “States will retain all PRE-EXISTING authorities which may not be exclusively delegated to the federal head.” If the federal government (or the federal judiciary) is to have exclusive authority, it exists in one of three categories: (1) “an exclusive authority is, in express terms, granted to the Union”; (2) “a particular authority is granted to the Union, and the exercise of a like authority is prohibited to the States”; or (3) “an authority is granted to the Union, with which a similar authority in the States would be utterly incompatible.”
Thus, the state courts will generally retain their authority, unless it is explicitly taken away by the Constitution in one of these three ways.
Hamilton turns to the constitutional provision, which reads: “The JUDICIAL POWER of the United States SHALL BE VESTED in one Supreme Court, and in SUCH inferior courts as the Congress shall from time to time ordain and establish.” The clause can either be “construed to signify, that the supreme and subordinate courts of the Union should alone have the power of deciding those causes to which their authority is to extend” or it can “denote, that the organs of the national judiciary should be one Supreme Court, and as many subordinate courts as Congress should think proper to appoint.” The first interpretation “excludes, [but] the last admits, the concurrent jurisdiction of the State tribunals.” Hamilton thinks that the “most defensible construction” is the latter because it does not “amount to an alienation of State power by implication.”
He adds two thoughts: First, not allowing state courts to have jurisdiction in causes of action that “grow out of, and [may] be PECULIAR to, the Constitution” can hardly be said to constitute an “abridgment of a pre-existing authority.” But, second, the nature of the judicial system and the likelihood that multiple causes of action may arise in one case leads to an inference that state courts should have a “concurrent jurisdiction in all cases arising under the laws of the Union, where it was not expressly prohibited.”
In reliance upon the principles that he’s already explained, Hamilton proceeds to analyze, at length, more specifics about how these ideas might play out, practically speaking. His thoughts are the precursor to what today has become our system of concurrent jurisdiction. Today, both the state and the federal court systems have jurisdiction over some types of cases. In these cases, a plaintiff can choose his venue. Also, some cases might begin in the state court system, but appeals can be made to the United States Supreme Court.
Importantly, Hamilton’s analysis remembers a point that is too often forgotten today: We live in a federalist system in which states retain any sovereignty that has not been expressly delegated to the national government.
Logistical note for those who care:
As I noted in the last essay, Federalists 78 through 85 all appeared for the first time in a bound volume published on May 28. I can’t post 8 summaries of the last 8 Federalist Papers all on May 28, so I am going to do one a week from now until then. More information on these publication logistics is available on my Federalist No. 77 summary (posted April 2).