5. 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 or the citizens thereof and foreign states,
citizens or subjects (_Const._, Art. III., S 2). Part of this
jurisdiction has, however, been withdrawn by the eleventh Amendment to
the Constitution, which declares that "the judicial power of the United
States shall not be construed to extend to any suit commenced or
prosecuted against one of the United States by citizens of another
state, or by citizens or subjects of any foreign state."
The jurisdiction of the Supreme Court is original in cases affecting
ambassadors, and wherever a state is a party; in other cases it is
appellate. In some matters the jurisdiction of the Federal courts is
exclusive; in others it is concurrent with that of the state courts.
As it frequently happens that cases come before state courts in which
questions of Federal law arise, a provision has been made whereby due
respect for the latter is secured by giving the party to a suit who
relies upon Federal law, and whose contention is overruled by a state
court, the right of having the suit removed to a Federal court. The
Judiciary Act of 1789 (as amended by subsequent legislation) provides
for the removal to the Supreme Court of the United States of "a final
judgment or decree in any suit rendered in the highest court of a state
in which a decision could be had, where is drawn in question the
validity of a treaty or statute of, or an authority exercised under the
United States, and the decision is against their validity; or where is
drawn in question the validity of a statute of, or an authority
exercised under, any state, on the ground of their being repugnant to
the Constitution, treaties or laws of the United States, and the
decision is in favour of their validity; or where any title, right,
privilege or immunity is claimed under the Constitution, or any treaty
or statute of, or commission held, or authority exercised under the
United States, and the decision is against the title, right, privilege
or immunity specially set up or claimed by either party under such
Constitution, treaty, statute, commission or authority." If the decision
of the state court is in favour of the right claimed under Federal law
or against the validity or applicability of the state law set up, there
is no ground for removal, because the applicability or authority of
Federal law in the particular case could receive no further protection
from a Federal court than has in fact been given by the state court.
The power exercised by the Supreme Court in declaring statutes of
Congress or of state legislatures (or acts of the Executive) to be
invalid because inconsistent with the Federal Constitution, has been
deemed by many Europeans a peculiar and striking feature of the American
system. There is, however, nothing novel or mysterious about it. As the
Federal Constitution, which emanates directly from the people, is the
supreme law of the land everywhere, any statute passed by any lower
authority (whether the Federal Congress or a state legislature), which
contravenes the Constitution, must necessarily be invalid in point of
law, just as in the United Kingdom a railway by-law which contravened an
act of parliament would be invalid. Now, the functions of judicial
tribunals--of all courts alike, whether Federal or state, whether
superior or inferior--is to interpret the law, and if any tribunal finds
a Congressional statute or state statute inconsistent with the
Constitution, the tribunal is obliged to hold such statute invalid. A
tribunal does this not because it has any right or power of its own in
the matter, but because the people have, in enacting the Constitution as
a supreme law, declared that all other laws inconsistent with it are
_ipso jure_ void. When a tribunal has ascertained that an inferior law
is thus inconsistent, that inferior law is therewith, so far as
inconsistent, to be deemed void. The tribunal does not enter any
conflict with the Legislature or Executive. All it does is to declare
that a conflict exists between two laws of different degrees of
authority, whence it necessarily follows that the weaker law is extinct.
This duty of interpretation belongs to all tribunals, but as
constitutional cases are, if originating in a lower court, usually
carried by appeal to the Supreme Court, men have grown accustomed to
talk of the Supreme Court as in a special sense the guardian of the
Constitution.
The Federal courts never deliver an opinion on any constitutional
question unless or until that question is brought before them in the
form of a lawsuit. A judgment of the Supreme Court is only a judgment on
the particular case before it, and does not prevent a similar question
being raised again in another lawsuit, though of course this seldom
happens, because it may be assumed that the court will adhere to its
former opinion. There have, however, been instances in which the court
has virtually changed its view on a constitutional question, and it is
understood to be entitled so to do.