Constitutional Review in the United States of America: Does “Diffused” Mean Complete Decentralization?

Narváez Medécigo, Alfredo

doi:10.1007/978-3-319-24562-1_3

Constitutional Review in the United States of America: Does “Diffused” Mean Complete Decentralization?

Alfredo Narváez Medécigo²

Chapter
First Online: 08 November 2015

700 Accesses

Abstract

The international influence of American (or U.S. American) constitutionalism is indisputable. The innovative framework set by the Founding Fathers back in 1787 and the resilient organizations developed thereupon had such a positive impact overseas that they were still the leading global reference 200 years after the Philadelphia Convention. Institutions such as judicial review, federalism, or even presidentialism disseminated alongside American military sway across the most varied settings and soon became unavoidable elements to consider in state-building efforts worldwide. Be it in post-colonial Latin America throughout the nineteenth century, Asia and Western Europe in the aftermath of World War II, or the emerging African nations during the second half of the twentieth century; the United States of America was for a much extended period of time the dominant prototype of a successful constitutional arrangement. Though this once hegemonic influence has somewhat lost momentum within the past couple of decades, American legal institutions enjoy to this day remarkable prestige and continue to impact significantly other systems around the globe. American courts, for instance, are still often referred to as “the most powerful and admired judiciary in the world.” Not only do they still reach more international headlines than any of their colleagues overseas, but also, as cases brought before them continue to drive many aspects of the contemporary legal debate, American judicial decisions are followed closely by foreign legal academia. So, while the new “world favorite” of democratic constitutionalism—the Federal Republic of Germany—is still relatively young and in significant ways a result of its American counterpart, the legal system of the United States is of such tradition and status that even today it takes a great share of the attention from scholars and practitioners around the globe.

This is a preview of subscription content, log in via an institution.

Chapter: USD 29.95; Price excludes VAT (USA)

eBook: USD 84.99; Price excludes VAT (USA)

Softcover Book: USD 109.99; Price excludes VAT (USA)

Hardcover Book: USD 109.99; Price excludes VAT (USA)

Tax calculation will be finalised at checkout

Purchases are for personal use only

Learn about institutional subscriptions

Notes

1.
Compare Billias (1990), pp. 4–6. As some have pointed out, American ‘constitutionalism’ and ‘influence’ are both terms that have been defined too narrowly. Whereas the former should include the ideas contained in other documents besides de US Constitution (e.g., the Declaration of Independence, the constitutions of the first states, the Articles of Confederation, and The Federalist Papers), the latter should comprise the effect that goes beyond the obvious incorporation of American institutions abroad (e.g., the conscious decision to deviate from them). See Billias (2009), pp. xi–xii. Regarding this wider notion of ‘influence’, compare also Kau (2007), pp. 2–4.
2.
See Billias (2009), p. 6. See also Henkin and Rosenthal (1990), p. 15 (“Perhaps the strongest impact has been the result of U.S. success with judicial review. The role of the courts in maintaining constitutional limitations was seen as the hallmark of U.S. constitutionalism and was credited with the stability of U.S. institutions and the security of individual rights. Old countries and new sought to emulate the judicial institution and its constitutional function. Even countries committed to parliamentary supremacy were impelled to imitate or approximate the U.S. pattern.”).
3.
The American influence in the Mexican system of constitutional review is analyzed in infra Chap. 5.
4.
See, for instance, Beer (1990), pp. 225–249; and Ukai (1988), pp. 115–120. See also Billias (2009), p. 283 (“Japan remains the most striking example of American constitutional influence on any nation on earth.”) Regarding postwar influence in Europe, see, among many, Safran (1990), pp. 91–112; and Steinberger (1990), p. 205. Regarding the discussions surrounding the incorporation of judicial review, compare Kau (2007), p. 19; and Stone Sweet (2003), pp. 2744–2780.
5.
See, for instance, Billias (2009), pp. 348–352.
6.
See Law and Versteeg (2012), p. 768. More categorical regarding the decline of American judicial review is Stone Sweet (2008), p. 234 (“The American ‘case or controversy’ model is moribund, with little chance of being revived.”).
7.
Nowak and Rotunda (2010), p. 10.
8.
One fairly good example of this is the worldwide coverage given recently to the US Supreme Court’s decision regarding the unconstitutionality of the Defense of Marriage Act (DOMA) in United States v. Windsor, 570 U.S. ____ (2013).
9.
The Federal Republic of Germany was only founded in 1949 with the enactment of the German Basic Law. This country’s influential system of constitutional review is discussed in detail in infra Chap. 4. Regarding the rise of German constitutionalism as the world’s leading model, see Kommers (1998), p. 88.
10.
Compare Kau (2007), pp. 485–487; and Pieroth (1989), pp. 1333–1337.
11.
Regarding the transfer of legal rules to another setting in general, compare the critical approach by Teubner (2001), pp. 417–441. He argues that there is no such thing as a legal ‘transplant’, but rather a legal ‘irritant’ which, from the moment it is adopted, unleashes a series of new and unexpected events in the receiving legal context. See Teubner (2001), pp. 418–419.
12.
Compare de Tocqueville (1966), p. 92 (“If the [American] judges had been able to attack laws in a general and theoretical way, if they could have taken the initiative and censored legislation, they would have played a prominent part on the political scene; a judge who had become the champion or the adversary of a party would have stirred all the passions dividing the country to take part in the struggle. But when a judge attacks a law in the course of an obscure argument in a particular case, he partly hides the importance of his attack from the public observation. His decision is just intended to affect some private interest; only by chance does the law find itself harmed. Moreover, the law thus censured is not abolished; its moral force is diminished, but its physical effect is not suspended. It is only gradually, under repeated judicial blows, that it finally succumbs.”). Such simplification leaves outside of the analysis the crucial mechanisms of consistency that have allowed the American judicial system to be quite decentralized yet still provide the required amount of predictability. This misunderstanding has been clearly identified, among others, by Jackson and Tushnet (1999), p. 458 (“US decisions are frequently described as binding only upon the parties to the litigation. This is far too simplistic and may not be accurate at all with constitutional adjudication in the US Supreme Court.”), and Cappelletti (1970), p. 1042 (“To be sure, an American law that has not been applied because found unconstitutional by the Supreme Court remains on the books. Yet it becomes dead law, because stare decisis prevents its future application by lower courts.”).
13.
The consequences of these misconstructions for the Mexican legal system specifically are discussed in detail on infra Chap. 5.
14.
See, for instance, Stone Sweet (2003), p. 2770; Favoreu (1990), p. 55; Tomuschat (2001), p. 251; and Cossío Díaz (2011), p. 132.
15.
Compare, for instance, Kau (2007), pp. 8 and 368 (“While it is in general acknowledged that the US Supreme Court and the other federal courts are vested with judicial review powers, it is in particular highly debated which are the constitutional provisions that have to be used for that purpose […] Due to the decentralized review and invalidation powers, [constitutional questions] can be raised already before the lower federal instances.”) (Author’s translation, emphasis added), and Billias (2009), p. 38 (“In the American context, [judicial review] meant specifically the power of the federal courts to declare unconstitutional those acts of Congress as well as acts of state legislatures that the courts regarded as contraventions to the U.S. Constitution.”) (Emphasis added). This confusion was also the case in Mexico in 1847 when the constitutional framers adopted—allegedly following the system of the United States—a judicial review system that was decentralized exclusively amongst the different courts of the federal judiciary. See infra Chap. 5. These characterizations are incomplete insofar as they underestimate the important role of state courts as warrantors of the federal constitution. Accurate in describing the American decentralization are, in contrast, García Sarubbi (2011), p. 51 (“Constitutional jurisdiction is shared by federal courts and state courts, both having the power not only to interpret the Constitution, but also to strike down statutes going against the Constitution.”) and Cappelletti (1970), p. 1041 (“In the American system, every court, high and low, has both the power and the duty to determine the constitutionality of the statutes that come before it.”) (Emphasis added). See also Stone Sweet (2003), p. 2770 (“In the U.S. any judge of any court, in any case, at any time, at the behest of any litigating party, has the power to declare a law unconstitutional.”) (Emphasis added).
16.
See, for instance, Cossío Díaz (2011), p. 132, who after emphasizing the highly decentralized character of the American model, limits himself to mention—laconically and in a footnote—just one of the essential mechanisms fostering centralization within that model. (“Regarding the North-American or diffused model, [it can be inferred] that the exercise of constitutionality corresponds to all the ordinary judges in any process and the determination of unconstitutionality leads to the disapplication of the norm and not to its annulment… [Footnote 297] This, evidently, independently from what happens through stare decisis.”) (Author’s translation, emphasis in original). More accurate, in contrast, are the descriptions by García Sarubbi (2011), p. 52 (“State judges and federal judges are co-interpreters of the Constitution; the Supreme Court […] is the ultimate interpreter of the Constitution, which is to say that its constructions of the text in question are binding for any kind of judge. This power to impose its authoritative interpretation of the Constitution includes the power to review state court decisions, namely, in the form of appellate jurisdiction in the writ of certiorari […], a power that has been extended to lower federal judges in other procedures (such as the habeas corpus or original jurisdiction).”) (Emphasis added), and Cappelletti (1970), p. 1042 (“[Footnote 97] It would, therefore, seem to me to be difficult to agree with certain attempts, both old and recent, to deny or modify excessively the importance of stare decisis as one of the elements differentiating the so-called Anglo-Saxon systems from the continental ones.”) (Emphasis added).
17.
For instance, one of the arguments supporting the establishment of a federal writ against state court judgments in Mexico was based on the belief that in the United States in the nineteenth century the federal courts had habeas corpus jurisdiction over state prisoners’ claims. See the intervention of Mexican congressman Emilio Velasco of December 28, 1868, referred verbatim by Barragán Barragán (1987), pp. 189–190 (“In the United States, quoted so frequently among us as model, there is the writ of habeas corpus against any state or military court. […] [The writ] has a double character: it is ordinary pursuant the legislation of the states; but it is also a constitutional writ, and it can be filed before a federal court against any state judge.”) (Author’s translation, emphasis added). Even if congressman Velasco had been aware of his American colleagues actually conferring such jurisdiction to the federal courts only the year before through the Habeas Corpus Act of 1867, which is highly unlikely given the technology available at that time, the truth is that up until the 1940s the American federal courts exercised habeas corpus authority over state judges exclusively for jurisdictional challenges (e.g., criminal offences whose prosecution should have been brought before a federal court) and, therefore, would not review state convictions for almost another century. See Vladeck (2012), p. 964; and Friendly (1970), p. 151.
18.
This vision can be seen, for instance, in Mexican congressman Velasco’s eloquent yet flawed explanation of American federal habeas corpus as a warrant against state court bias. He intended to convince the Mexican Congress to approve federal judicial oversight relying on the American experience. See his intervention in Barragán Barragán (1987), p. 190 (“…in some cases the state judges might be subject to local influences and affect someone’s liberty moved by such influences; […] the [American] writ of habeas corpus before the federal courts against state judges derives from here. And that great nation has proceeded this way despite the fact that the circumstances concurring in the appointment and tenure of their [state] judges provide all sorts of warranties.”) (Author’s translation, emphasis added). Whereas in Mexico, as explained in infra Chap. 5, state court bias would become a recurrent argument to expand federal oversight, the American system’s overall trend on this regard would be instead to restrict it. Even when considering the “Warren Court” era (1953–1969)—where federal reversals of state judgments reached their historical high—the overall leeway enjoyed historically by American state judges on federal issues is hardly an indicator of mistrust. See, for example, the overturn rates on non-capital habeas corpus cases filed by state prisoners obtained not long ago by King et al. (2007), p. 52 (“This is an overall grant rate of 0.29 %, or one out of every 341 cases filed. [Footnote 88] Given the size of the sample, this suggests that the grant rate nationwide for all non-capital cases filed is no higher than 0.51 % (one in every 196 cases) and no lower than 0.07 % (one in every 1429 cases).”).
19.
See Constitution of the United States of America (U.S. Const.) (1789), as enacted, in Farrand (1919), pp. 651–666 (Vol. 2).
20.
U.S. Const. (1789), art. I, § 9, cl. 2 (“The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”) The individual or structural character of this famous provision, however, is not free of controversy. See Vladeck (2008), p. 276.
21.
U.S. Const. (1789), art. I, § 10, cl. 1.
22.
U.S. Const. (1789), art. I, § 9, cl. 3 and § 10, cl. 1 (for the federal Congress and the states, respectively).
23.
U.S. Const. (1789), art. III, § 2, cl. 3.
24.
Obviously the concept of “people” in the United States during the eighteenth and nineteenth centuries did not include the many slaves brought from Africa mostly to the southern states or the Native Americans present in the region. Compare, respectively, Scott v. Sanford, 60 U.S. 393 (1856), pp. 406–407 (denying legal standing to an American slave), and Cherokee Nation v. Georgia, 30 U.S. 1 (1831), pp. 16–27 (denying the Cherokee Nation legal status as a state, whether domestic or international).
25.
See Farrand (1913), pp. 185–186.
26.
The majority’s position has been best summarized by Hamilton (2001f), pp. 445–446 (“I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.”) (Emphasis added).
27.
See U.S. Const. (1789), art. V. Both Houses of Congress approved the initial proposal of a federal bill of rights on September 25, 1789. It comprised 12 articles of amendments to the Constitution. See the original draft in Veit et al. (1991), pp. 3–4. By December 15, 1791, however, 11 states amounting to ¾ of the total—New Jersey, Maryland, North Carolina, South Carolina, New Hampshire, Delaware, New York, Pennsylvania, Rhode Island, Vermont, and Virginia—ratified only ten articles (3^rd to 12^th) of the original proposal. These became the first ten amendments to the US Constitution. See Conley and Kaminski (1992), p. xxii. Whereas the first proposed article was never ratified by the states, the second one was only ratified two centuries later as the 27^th Amendment.
28.
Contemporary American constitutional jurisprudence considers the Bill of Rights a bulwark of liberty against government action in general regardless of whether the respective authority is federal or local. As it is later explained, this wider interpretation is direct product of the Reconstruction Era (i.e., the period of time immediately after the American Civil War). See Amar (1998), p. 7.
29.
See Barron v. Mayor and City Council of Baltimore, 32 U.S. 243 (1833), pp. 247–248. See also Wilmarth (1989), p. 1262.
30.
Compare Schwartz (1992), p. 26. The 13 colonies that on July 4^th, 1776, signed the Declaration of Independence were New Hampshire, Massachusetts Bay, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia. All of them but Rhode Island appointed delegates to the Federal Convention a decade later. Vermont was not part of the Convention but ratified the Constitution and was accepted as part of the Union already in 1791. See U.S. Vermont’s Admission to the Union (1791), available in Thorpe (1909), pp. 3761–3762.
31.
Howard (1992), p. 4.
32.
Though rudimentarily, the very first steps for English colonization in America already conferred such protection to the settlers. See, for instance, English Royal Charter to Sir Walter Raleigh (Eng. Grant to Sir Walter Raleigh) (1584), available in Thorpe (1909), pp. 53–57 (“And we do grant to the said Walter Raleigh, his heirs, and assignees […] that they have the privileges of free denizens and persons native of England […] in such like ample manner and form, as if they were born and personally resident within our said realm of England…”) (Author’s adaptation to modern English, emphasis added), and English First Royal Charter of Virginia (Eng. 1st Charter of Virginia) (1606), available in Thorpe (1909), pp. 3783–3789 (“… that all and every [of] the persons being our subjects, which shall dwell and inhabit within every or any of the said several colonies and plantations, and every of their children, which shall happen to be born within any of the limits and precincts[…], shall have and enjoy all liberties, franchises, and immunities, within any of our other dominions, to all intents and purposes, as if they had been abiding and born, within this our realm of England or any other of our said dominions.”) (Emphasis added).
33.
English Second Royal Charter of Virginia (Eng. 2nd Charter of Virginia) (1609), available in Thorpe (1909), pp. 3790–3802. The colonial charters were legal documents through which the British Crown granted a group of private investors (i.e., “chartered companies”) the prerogative to settle in a specific territory, exploit its land, and monopolize commerce between England and that part of the world. The Crown received in turn a significant percentage of the profits obtained. Compare Howard (2007), pp. 9–12. For later royal charters with similar format see, among many, English Second Royal Charter of Massachusetts Bay (Eng. 2nd Charter of Massachusetts Bay) (1691), available in Thorpe (1909), pp. 1870–1885 (the first charter issued after the Glorious Revolution), and English Royal Charter of Georgia (Eng. Charter of Georgia) (1732), available in Thorpe (1909), pp. 765–776 (the last colonial charter in America).
34.
See Schwartz (1992), p. 24. (“The true English antecedents of the Federal Bill of Rights are not documentary, but customary. By the time of the American Revolution, many of the rights guaranteed by the Federal Bill of Rights were recognized or coming to be recognized in English law.”) For a concise yet insightful essay on the relevance of these so-called ‘great charters of English liberty’ for American Law, see Howard (1992), pp. 3–15.
35.
See Maryland Toleration Act (Md. Toleration Act) (1649), available in Lutz (1998), pp. 309–313 (“…no person or persons whatsoever within this Province […] shall from henceforth be any ways troubled, Molested or discountenanced for or in respect of his or her religion not in the free exercise thereof […] nor any way compelled to the belief or exercise of any other Religion against his or her consent…”). See also English Royal Charter of Rhode Island and Providence Plantations (Eng. Charter of Rhode Island) (1663), available in Thorpe (1909), pp. 3211–3223 (where religious freedom is granted directly in the royal charter), and Pennsylvania Charter of Privileges (Pa. Charter of Privileges) (1701), art. 1st, available in Lutz (1998), pp. 290–296 (which has the peculiarity of being a document enacted by a persecuted Quaker).
36.
See, for instance, Massachusetts Body of Liberties (Mass. Body of Liberties) (1641), art. 12, available in Lutz (1998), pp. 70–87.
37.
See, among many, Maryland Act for the Liberties of the People (Md. Act for the Liberties of the People) (1638), available in Lutz (1998), p. 308 (“…And shall not be imprisoned nor disseized or dispossessed of their freehold goods or chattels or be out lawed exiled or otherwise destroyed fore judged or punished than according to the laws of this province…”).
38.
See New York Charter of Liberties and Privileges (N.Y. Charter of Liberties and Privileges) (1683), available in Lutz (1998), pp. 256–262 (“That in all cases capital or criminal there shall be a grand inquest who shall first present the offence…”).
39.
See, for instance, The Charters or Fundamental Laws of West New Jersey (N.J. Fundamental Laws) (1677), chap. XVII, available in Thorpe (1909), pp. 2548–2551.
40.
See Charter of Liberties and Frame of Government of the Province of Pennsylvania in America (Pa. Frame of Government) (1682), art. XI, available in Lutz (1998), pp. 271–286.
41.
See Mass. Body of Liberties (1641), art. 45.
42.
See Mass. Body of Liberties (1641), art. 42.
43.
See Mass. Body of Liberties (1641), art. 46.
44.
See Howard (2007), p. 22; and Schwartz (1992), p. 30.
45.
See Otis (1896), pp. 9–10; and Adams (1897), pp. 6–7 (a first-hand summary of Otis’s argument before the court). The writs of assistance were general search warrants used mainly to seize smuggled goods. Even though Otis, a very prestigious lawyer and former Advocate General of the Court of Admiralty, used quite powerful arguments—mostly taken from the ideas of Sir Edward Coke—to explain the illegality of such writs both in England and in the colonies, the court in Boston finally considered them legal. See Paxton’s Case of the Writ of Assistance, Sup. Ct. Jud. Mass., Mass. Sup. Ct. Quincy Reports:51–57 (1865), pp. 51–57. See also Farrell (2003).
46.
The so-called Stamp Act was enacted to pay for British military presence in America. It compelled the colonies to issue printed materials only on stamped paper that was produced in England and that could only be obtained after paying the respective duty. See English Duties in American Colonies Act (Eng. Stamp Act) (1765), available in Commager (1973), pp. 8–69. The Act was disregarded by the courts in Massachusetts and was even explicitly declared unconstitutional by some judges of Virginia. See, respectively, the explanation given by Massachusetts Governor Thomas Hutchinson quoted by Quincy (1865), p. 527 ([Footnote 28] “…The prevailing reason at this time is, that the Act of Parliament is against Magna Charta, and the natural Rights of Englishmen, and therefore, according to Lord Coke, null and void.”), and the position on these matters held by the famous Virginian judge Edmund Pendleton in Virginia State Department of Education (2009), pp. 24–26. See also the statement on Stamp Act’s Unconstitutionality, Virginia Northampton County Court, The Virginia Gazette (774):3 (1766), p. 3 (declaring the Stamp Act unanimously as unconstitutional).
47.
See Schwartz (1992), p. 54.
48.
U.S. Continental Congress (1904), p. 342. By the time the Second Continental Congress issued this resolve only New Hampshire had established a provisional government to fill in the Governor’s sudden departure. See Constitution of New Hampshire (N.H. Const.) (1776), available in Thorpe (1909), pp. 2451–2453. Though it lacked a basic rights catalogue, strictly speaking this was “the first constitution framed by an American Commonwealth.” Thorpe (1909), p. 2451.
49.
See Constitution of Virginia (Va. Const.) (1776), available in Thorpe (1909), pp. 3812–3819 (the most influential state constitution of them all and enacted even before the United States Declaration of Independence). Its declaration of rights—adopted already on June 12, 1776—was mostly written by George Mason. See Randolph (1936), p. 44 (“A very large committee was nominated to prepare the proper instruments, and many projects of a bill of rights and constitution, discovered the ardor for political notice, rather than a ripeness in political wisdom. That proposed by George Mason swallowed up all the rest, by fixing the grounds and plan, which after great discussion and correction, were finally ratified.”) (Emphasis added). Mason would participate a decade later as a Delegate for Virginia to the Federal Convention and, after leaving without signing due to the initial rejection of a federal bill of rights, he would become one of the main opponents to the Federal Constitution during the process of ratification. See infra Sect. 3.1.1.2.
50.
Massachusetts approved a constitution only in late 1780. See Constitution or Form of Government for the Commonwealth of Massachusetts (Mass. Const.) (1780), available in Thorpe (1909), pp. 1888–1923. Connecticut and Rhode Island maintained their colonial charters with a few modifications for decades after independence. See, respectively, English Royal Charter of Connecticut (Eng. Charter of Connecticut) (1662), available in Thorpe (1909), pp. 529–536 (valid until 1818), and Eng. Charter of Rhode Island (1663) (valid until 1842).
51.
Va. Const. (1776), Preamble. The only states that did not enact a separate declaration of rights as a preamble to their constitution—though they protected individual rights within the constitutional text—were New Jersey, New York, Georgia, and South Carolina. See Schwartz (1992), pp. 78–81.
52.
Compare Howard (1992), pp. 12–14. See, for instance, Va. Const. (1776), §§ 1–16, and Constitution of Pennsylvania (Pa. Const.) (1776), art. I, available in Thorpe (1909), pp. 3081–3092.
53.
See Conley and Kaminski (1992), p. xii (“New Yorkers championed freedom of expression; Rhode Islanders passionately defended religious liberty and church-state separation; Delawareans showed an unusual preoccupation with the right to keep and bear arms; Massachusetts men stoutly objected to unreasonable searches and seizures; Vermonters led the way in abolishing slavery; Rhode Islanders and North Carolinians exalted states’ rights as an antidote to centralized power; and Pennsylvanians and Virginians pioneered in asserting a broad range of individual freedoms.”).
54.
U.S. Articles of Confederation (1777), available in Lutz (1998), pp. 376–386. Regarding the ineffectiveness of the Articles of Confederation see Farrand (1913), pp. 42–53.
55.
See Holmes v. Walton, N.J. Sup. Ct., Am. Hist. Rev. 4(3):456–469 (1899), pp. 458–459 (invalidating a statute that allowed for trial by jury of 6 men instead of 12).
56.
See Trevett v. Weeden, R.I. Sup. Ct., Newport Mercury (1304):2–3 (1786), pp. 2–3 (where a statute denying trial by jury on criminal cases regarding the currency law was declared unconstitutional for violating the state charter). See also Varnum (2011), pp. 1–36 (for the arguments of the defendant).
57.
See Bayard v. Singleton, Sup. Ct. N.C., N.C. 1:5–10 (1787), pp. 5–10 (declaring unconstitutional and void the statute that denied trial by jury on cases regarding confiscated property). Though the final judgment is from November, 1787, the case was admitted—and thus the statute had been invalidated—already on May of that year. See id., pp. 5–6.
58.
U.S. Const. (1789), art. VI, cl. 2.
59.
Compare Farrand (1919), p. 588 (Vol. 2) (“The Laws of the U.S. are to be paramount to State Bills of Rights”).
60.
See the account of Mason’s intervention made by Madison in Farrand (1919), pp. 587–588 (Vol. 2) (“It would give great quiet to the people; and with the aid of the state declarations, a bill [of rights] might be prepared in a few hours”).
61.
See Farrand (1919), p. 582 (Vol. 2) (“It was moved and seconded to appoint a committee to prepare a Bill of Rights, which passed in the negative [ayes—0; noes—10].”) (Brackets in original). But see Schwartz (1992), p. 104 (who explains this rash rejection with the hot weather and the delay of the proposal).
62.
See the short intervention by Roger Sherman from Connecticut in Farrand (1919), p. 588 (Vol. 2) (“The State Declarations of Rights are not repealed by this Constitution; and being in force are sufficient.”).
63.
See James Madison’s letter of October 24, 1787, explaining Mason’s reaction at the Federal Convention to Thomas Jefferson in Madison (1999), p. 153 (“Col. Mason left Philadelphia in an exceeding ill humor indeed. […] He returned to Virginia with a fixed disposition to prevent the adoption of the plan if possible. He considers the want of a Bill of Rights as a fatal objection.”), as well as the message sent by Gerry on October 17, 1787, to the congressional leaders of Massachusetts in Farrand (1919), p. 128 (Vol. 3) (“My principal objections to the plan are that there is no adequate representation of the people […] and that the system is without the security of a bill of rights. These are objections which are not local, but apply equally to all the states.”). While there was an attempt by Richard Henry Lee—President of the Continental Congress—to get a federal bill of rights approved before forwarding the document to the states for ratification, this was rejected as well. See McDonald (1979), p. 334; and Madison (1999), pp. 138–139 (narrating the event in a letter to George Washington).
64.
See Story (2001), pp. 197–205 (Vol. 1).
65.
Compare, in general, Hamilton et al. (2001) (the most famous collection of essays in support of the Constitution published in several New York newspapers under the pseudonym Publius) with Storing and Dry (2007) (a group of essays published for the opposite purpose either as articles in the newspapers of several states or as pamphlets in books for sale. They were written under equivalent pseudonyms such as Cato, Brutus, and the Federal Farmer).
66.
Compare, on the one side, James Wilson’s speech before the Pennsylvania Ratifying Convention in Cogan (1997), p. 102 (“… for it would have been superfluous and absurd, to have stipulated with a federal body of our own creation, that we should enjoy those privileges, of which we are not divested either by the intention or the act that has brought that body into existence.”), and the reasoning in Hamilton (2001f), pp. 445–446 (quoted in supra note 26) (though this arguments were first published when the New York convention had already adjourned), with, on the other side, Mason (1976), p. 349 (“There is no Declaration of Rights, and the laws of the general government being paramount to the laws and constitution of the several States, the Declarations of Rights in the separate States are no security.”), and the famous “Letters of a Federal Farmer” in Lee (1888), p. 290 (Letter No. 2, of October 9, 1787.) (“There are certain unalienable and fundamental rights, which in forming the social compact, ought to be explicitly ascertained and fixed.[…] These rights should be made the basis of every constitution…”).
67.
Compare McDonald (1979), pp. 342–346 (who refers how the Federalists of Massachusetts cleverly assured ratification in that state by convincing Antifederalist Governor John Hancock to propose in the form of recommendatory amendments a bill of rights—written in reality by Federalist Theophilus Parsons—as if it had been the Governor’s own idea).
68.
See James Madison’s speech to the Virginia Ratifying Convention on June 24, 1788, in Madison (1999), p. 407 (“As far as [Patrick Henry’s] amendments are not objectionable, or unsafe, so far they may be subsequently recommended. Not because they are necessary but because they can produce no possible danger, and may gratify some gentlemen’s wishes.”). Apparently Thomas Jefferson—in France at the moment—was decisive to convince Madison to modify his initial reluctance. See Jefferson’s letter to Madison of December 20, 1787, in Jefferson (1999), p. 360 (“Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular, & what no just government should refuse, or rest on inferences.”). See also Alexander Hamilton’s letter to Madison on June 8, 1788, concerning the upcoming ratification in New York in Hamilton (2001g), pp. 485–486 (“…the elections had turned out, beyond expectation, favorable to the Antifederal party. They have a majority of two thirds in the convention and according to the best estimate I can form of about four sevenths in the community. […] God grant that Virginia may accede. Her example may have a vast influence on our politics.”).
69.
See McDonald (1979), p. 346. The idea of recommendatory amendments originally came from a minority in Pennsylvania Ratifying Convention. See Schwartz (1992), p. 123. After Jefferson got from Madison a pamphlet with Massachusetts’s recommendatory amendments, he realized this formula was much more effective to secure both the Constitution and a bill of rights. See Jefferson’s letter to Edward Carrington on May 27, 1788, in Jefferson (1999), pp. 363–364 (“But the plan of Massachusetts is far preferable, and will I hope be followed by those who are yet to decide.”).
70.
See, for instance, the intervention of Patrick Henry on June 7^th, 1788 at the Virginia Ratifying Convention in Moore (1897), p. 23 (“At present, we have our liberties and our privileges in our hands. Let us not relinquish them. Let us not adopt this system till we see them secured.”).
71.
Compare McDonald (1979), pp. 359–363 (who argues that both James Madison in Virginia and Alexander Hamilton in New York doubted of the legally binding character of such recommendatory amendments but—in order to secure unconditional ratification from their respective conventions—cleverly acted as if they had full confidence that these would be adopted).
72.
Compare Schwartz (1992), pp. 111–112.
73.
See Madison’s speech of June 8^th, 1789, referred in Gales (1834), p. 444 (“But if we continue to postpone from time to time, and refuse to let the subject come into view, it may occasion suspicions […] They may think we are not sincere in our desire to incorporate such amendments in the constitution as will secure those rights, which they consider as not sufficiently guarded.”)
74.
See Schwartz (1992), p. 165 (“Of the Madison provisions ultimately adopted as the first ten amendments, all but the right to just compensation were derived from the state proposed amendments.”).
75.
Curiously enough, the provision that Madison himself considered the most important and that guaranteed freedom of conscience, freedom of the press, and jury criminal trial in the states—that is, the only amendment not directed to the federal government—did not pass in the Senate. See, respectively, the discussion on June 8^th, 1789, at the House of Representatives in Gales (1834), pp. 454–458 (Madison’s fifth proposal and explanation); his remarks of August 17, 1789, in Congress on the “Most Valuable Amendment” in Madison (1999), p. 470, and the Senate’s resolution of September 7^th of that same year in Gales (1834), p. 78 (rejecting the fourteenth article of the amendments passed by the House of Representatives, which was Madison’s fifth). Another relevant change not devised by Madison and introduced by the Congress was the format of the amendments as additions at the end of the original text. See Roger Sherman’s motion at the House of Representatives on August 19, 1789, in Gales (1834), p. 795.
76.
See Story (2001), pp. 203–205 (Vol. 1). See also U.S. Const. (1789), art. V (“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the application of the Legislatures of two thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States…”) (Emphasis added). As mentioned already in supra note 27, of Congress’s 12 proposed amendments, the states ratified initially only the last ten. The first amendment of the proposal was never ratified. The second one was only ratified in 1992 and came into force as the 27^th amendment to the US Constitution.
77.
Compare Wilmarth (1989), p. 162.
78.
Schwartz (1992), p. 177 (Emphasis added). See also Barron v. Mayor and City Council of Baltimore, 32 U.S. 243 (1833), pp. 247–248 (denying a violation of the Fifth Amendment since only the United States—but not the City of Baltimore—was bound to pay a just compensation after taking private property for public use).
79.
Gales (1834), p. 457 (Emphasis added). Madison—during the Federal Convention rather indifferent towards a bill of rights and only later its main supporter—took this argument most likely from Thomas Jefferson. See the latter’s letter to Madison on March 15, 1789, in Jefferson (1999), p. 367 (“In the arguments in favor of a declaration of rights, you omit one which has great weight with me, the legal check which it puts into the hands of the judiciary.”).
80.
See, for instance, Hamilton (2001b), p. 403 (“Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”), as well as Antifederalist Patrick Henry’s address to the Virginia Ratifying Convention in Elliot (1836), p. 325 (Vol. 3) (“I take it as the highest encomium on this country, that the acts of the legislature, if unconstitutional, are liable to be opposed by the judiciary.”).
81.
See Hamilton (2001a), p. 110. See also Farrand (1913), p. 50.
82.
See Story (2001), pp. 434–438; and Farrand (1913), pp. 79 and 119.
83.
See the motion made on June 5^th, 1787, by delegate John Rutledge from South Carolina to expunge inferior federal courts from the plan; and the subsequent arguments to oppose the motion by Madison and Dickinson in Farrand (1919), pp. 124–125. See also Hamilton (2001d), pp. 420–422 (supporting the adoption of inferior federal courts).
84.
See U.S. Const. (1789), art. III, § 1 (“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”) (Emphasis added). This article’s wording is the final outcome of the so-called “Madisonian Compromise.” See Redish and Woods (1975), p. 56 (“The [compromise] was based, therefore, on the assumption that lower federal courts need not to exist because state courts could always stand in their stead to provide adequate remedies and dispense justice as needed.”).
85.
U.S. Judiciary Act (1789), published in Stat. 1(21):73–93. Though the debates of this Act and of the Bill of Rights were carried out separately on each House of Congress, the progress of the Senate’s discussions was followed closely by the House of Representatives and vice versa. Compare Marcus and Wexler (1992), p. 27. For a detailed analysis of the history of this first Judiciary Act see Warren (1923), pp. 49–132.
86.
Warren (1923), p. 53.
87.
The territory of the United States was originally divided into 13 districts and three circuits. One district corresponded to each of the states—Rhode Island and North Carolina were not part of the Union yet—except for Massachusetts and Virginia which had, additionally, the districts of Maine and Kentucky, respectively. The eastern circuit was formed by the districts of New Hampshire, Massachusetts, Connecticut and New York; the middle circuit by the districts of New Jersey, Pennsylvania, Delaware, Maryland and Virginia; and the southern circuit by the districts of South Carolina and Georgia, See U.S. Judiciary Act (1789), §§ 2 and 4.
88.
See Redish and Woods (1975), p. 56. See also U.S. Const. (1789), art. VI, § 2.
89.
See U.S. Judiciary Act (1789), §§ 9, 10, and 11. Though there was original federal jurisdiction on cases involving foreign diplomats, this was shared by the district courts and the Supreme Court. See U.S. Judiciary Act (1789), § 13.
90.
Gibbons (1984), p. 400.
91.
The value was 500 dollars. See U.S. Judiciary Act (1789), § 11. If the “diversity” complaint exceeded this amount but was filed at a state court, the non-local defendant could “remove” the case to the federal court. U.S. Judiciary Act (1789), § 12. Though strictly speaking common law suits filed by or against the United States did not represent controversies between citizens of different states, the federal courts had also concurrent original jurisdiction and, accordingly, a minimum value rule applied as well. See U.S. Judiciary Act (1789), §§ 9 and 11.
92.
See U.S. Const. (1789), amend. XI, as amended on February 7^th, 1795. (“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 or subjects of any foreign state.”). This provision, which made explicit the doctrine of “sovereign immunity”, was direct retaliation to a Supreme Court’s decision allowing a state as such to be sued by a citizen of another state in federal court. See Chisholm v. Georgia, 2 U.S. 419 (1793), p. 479.
93.
This appellate power was given only to the Supreme Court. See U.S. Judiciary Act (1789), § 25, and infra Sect. 3.1.2.2. Compare with Hamilton (2001e), p. 429 (“I perceive at present no impediment to the establishment of an appeal from the state courts to the subordinate national tribunals; and many advantages attending the power of doing it may be imagined.”). While U.S. Tax Jurisdiction Act (1815), pp. 244–245, published in Stat. 3(101):244–245—a posterior federal statute valid only from 1815 to 1820—did provide for an appeal to federal circuit courts on suits for collection of federal property and excise taxes filed in some authorized county courts, no appeal was ever filed under this ephemeral law. See Gibbons (1984), pp. 407–408.
94.
See U.S. Judiciary Act (1789), § 14 (limiting federal habeas to prisoners under the authority of the United States) and U.S. Anti-Injunction Act (1793), § 5, published in Stat. 1(22):333–335 (banning injunctions to stay state court proceedings). A very limited form of federal habeas corpus for state prisoners was introduced as an exception in 1833. It applied exclusively for federal officers who had been imprisoned by state authorities for enforcing federal revenue laws. See U.S. Force Bill (1833), pp. 634–635, published in Stat. 4(57):632–635. While the general ban on federal habeas corpus for state prisoners was set aside during the Reconstruction Era, the limitation would still apply to state convicts up until the 1940s. See infra Sect. 3.2.2.2. Interestingly enough, as it is shown below, the misinformed belief that before the American Civil War the federal courts had general habeas corpus jurisdiction for state prisoners—and thus for state convicts—was crucial to extend the scope of federal writs in Mexico. See infra Chap. 5.
95.
See U.S. Judiciary Act (1789), § 34 (“And be it further enacted, that the laws of the several states, except where the constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the Courts of the United States in cases where they apply.”). But see Swift v. Tyson, 41 U.S. 1 (1842), p. 19.
96.
The number of Supreme Court Justices required in each circuit court was reduced from two to one already in 1793. See U.S. Anti-Injunction Act (1793), p. 333. For a detailed review of the Supreme Court Justices’ practice of riding circuit—from its origins to its complete elimination in 1911—see Glick (2003), pp. 1753–1831.
97.
Glick (2003), p. 1754.
98.
See U.S. Judiciary Act (1789), § 4.
99.
See U.S. Judiciary Act (1801), published in Stat. 2(4):89–100. This ephemeral statute increasing the number of federal judgeships has been known as the “Midnight Judges Act”. It was passed during the last weeks of John Adams term as President to serve as a Federalist counterweight against the upcoming administration. In 1802—soon after Thomas Jefferson assumed the Presidency—the act was repealed by a Republican majority in Congress. See U.S. Judiciary Act (1802), published in Stat. 2(7):132. See also Glickstein (2013), pp. 546–578 (who relates the repeal with the dispute leading to Marbury v. Madison), and Holt (1985), pp. 169–189 (who follows the only case solved under the repealed statute).
100.
Marbury v. Madison, 5 U.S. 137 (1803), pp. 173–180. The invalidated section conferred original jurisdiction to the Supreme Court beyond that provided by U.S. Const. (1789), art. III, § 2.
101.
Compare, for instance, the set of state court cases mentioned in Trenor (2005), pp. 497–517. Of this universe of early cases, only two county courts in Rhode Island and the Supreme Court of New Jersey carried out judicial review making reference—explicit or implicit—to provisions of the US Constitution.
102.
U.S. Const. (1789), art. VI, § 2.
103.
See, for instance, Barron v. Mayor and City Council of Baltimore, 32 U.S. 243 (1833), pp. 250–251 (regarding the Fifth Amendment), and Fox v. Ohio, 43 U.S. 410 (1847), p. 434 (regarding the Bill of Rights as a whole).
104.
See Gibbons (1984), p. 427. Compare also Nowak and Rotunda (2010), pp. 415–416.
105.
Vladeck (2012), p. 980. See also Ex parte Bollman, 8 U.S. 75 (1807), p. 94 (“…but the power to award the writ [of habeas corpus] by any of the Courts of the United States must be given by written law.”).
106.
Compare Oaks (1965), p. 255 (“In some jurisdictions, particularly those whose statutes were narrowly tailored to the English pattern, the statutory habeas corpus jurisdiction was generously supplemented by powers derived from the common law.”).
107.
See U.S. Judiciary Act (1789), § 14.
108.
Oaks (1965), p. 246. See also Pettys (2007), p. 271 (“In [cases of unlawful confinement] and other areas, citizens principally looked to the states, and not the fledgling federal government, when they needed a sovereign’s help.”). Ironically, as it is further analyzed below, the misconstrued understanding of the real scope of in nineteenth century federal habeas corpus in the United States was decisive in shaping the Mexican system of judicial review. Due to this misunderstanding, the jurisdiction on writs of Amparo—an injunction largely inspired on American habeas corpus—was only conferred to the Mexican federal courts but not to state courts. See infra Chap. 5.
109.
See, for instance, In re Stacy, Sup. Ct. Jud. N.Y., Johns. N.Y. Sup. Ct. 10:328–334 (1813), p. 334 (enjoining an army general on habeas corpus); Commonwealth v. Downes, Sup. Ct. Mass., Mass. 41:227–233 (1842), p. 232 (discharging a minor from serving in the navy), and Commonwealth ex rel. Webster v. Fox, Sup. Ct. Pa., Pa. 7:336–340 (1847), p. 340 (ordering the release of a minor from the army). See also State v. Dimick, Sup. Ct. Jud. N.H., N.H. 12:194–200 (1841), p. 197 (denying habeas corpus on the merits for an enlisted soldier yet acknowledging state court jurisdiction). For a leading legal treatise of that time acknowledging as a standard practice state habeas corpus against federal officers see Kent (1826), pp. 375–376. For a case not involving personal liberty see Bruen v. Ogden, Sup. Ct. Jud. N.J., Halst. N.J. Sup. Ct. 6:370–385 (1830), pp. 384–385 (issuing a writ of replevin against a marshal of the United States for unlawfully seizing the plaintiff’s ship). These practices have nevertheless been banned by the Supreme Court since 1859. See Ableman v. Booth, 62 U.S. 506 (1859), pp. 525–526, and Tarble’s Case, 80 U.S. 397 (1871), pp. 397–398.
110.
Compare, for instance, the similar positions on this matter of one determined defender of states’ rights like John Rutledge in Farrand (1919), p. 124 (“…the supreme national tribunal being sufficient to secure the national rights & uniformity of judgments.”), with that of one of the most prominent favorers of a strong national government in Hamilton (2001c), p. 412 (“Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed.”).
111.
Compare Warren (1923), p. 102. See also Gibbons (1984), p. 399 (“Even the Supreme Court’s appellate jurisdiction over state courts was limited to what was considered the bare minimum essential for the preservation of the supremacy of national law—review of state final judgments rejecting federal law claims.”).
112.
The writ of error was an appellate remedy inherited from English common law. Originally it was issued by an appellate court ordering the lower criminal court to convey the record so that it may be reviewed for alleged mistakes either in the judgment or in other parts of the record. See Blackstone (1893), pp. 391–392 (Vol. 2). See also Martin v. Hunter’s Lessee, 14 U.S. 304 (1816), p. 351 (reversing on writ of error a judgment of the Supreme Court of Virginia that had declared Section 25 unconstitutional), and Cohens v. Virginia, 19 U.S. 264 (1821), pp. 264–439 (asserting jurisdiction on error against a state criminal conviction).
113.
See U.S. Judiciary Act (1789), § 25.
114.
Compare, for instance, Hamilton (2001b), p. 407 (“To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them…”) (Emphasis added). For a more detailed explanation of the consistency rules of common law see infra Chap. 2.
115.
The writ of error before the Supreme Court was appropriate when state courts had: invalidated federal statutes or treaties; upheld the constitutional validity of state law; or decided against a title, right, privilege or exemption claimed under federal law. See Chemerinsky (2012), p. 11. But see Amar (1990), p. 1530 (arguing that there was no such limitation insofar as all petitions could be easily formulated as a rejected federal claim).
116.
U.S. Judiciary Act (1789), § 25 (“But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before mentioned questions of validity or construction of the said constitution, treaties, statutes, commissions, or authorities in dispute.”) (Emphasis added).
117.
See Martin v. Hunter’s Lessee, 14 U.S. 304 (1816), pp. 353–355, in connection with Fairfax’s Devisee v. Hunter’s Lessee, 11 U.S. 603 (1813), p. 628. But see Warren (1913), pp. 3–6 (referring multiple cases of noncompliance).
118.
See Gibbons (1984), p. 402 (“…relegating the litigation of federal issues to state courts in the first instance, with review only in the Supreme Court, resulted in a consistent failure of implementation of federal government policy.”).
119.
See, for instance, An act to prevent the exercise of assumed and arbitrary power, by all persons under pretext of authority from the Cherokee Indians, and their laws, and to prevent white persons from residing within that part of the chartered limits of Georgia, occupied by the Cherokee Indians, and to provide a guard for the protection of the gold mines, and to enforce the laws of the State within the aforesaid territories (Ga. Cherokee Laws) (1830), § 8, available in Prince (1837), pp. 279–280 (a statute punishing with jail any white person—including federal agents for Indian affairs—residing on Cherokee territory).
120.
See, among many, Jackson v. Rose, Virginia General Court, Va. Cas. 2:34–41 (1815), p. 38 (declaring invalid the Congressional authorization to file federal revenue claims in the courts of that state), and United States v. Lathrop, Sup. Ct. Jud. N.Y., Johns. N.Y. Sup. Ct. 17:4–23 (1819), pp. 10–11 (denying New York state courts jurisdiction for recovering debts for penalties as provided by Congress under federal revenue laws).
121.
See, for instance, Respublica v. Cobbett, Sup. Ct. Pa., Dall. 3:467–476 (1798), p. 473 (where the Pennsylvania Supreme Court denied removal to a circuit court), and Gordon v. Longest, 41 U.S. 97 (1842), p. 105 (reversing a decision of the Court of Appeals of Kentucky that had denied removal to a federal district court).
122.
See U.S. Anti-Injunction Act (1793), § 5 (banning the Supreme Court from issuing injunctions to stay any state court proceedings). See also, in general, Warren (1913), pp. 1–34.
123.
Compare Oaks (1965), p. 267 (“The availability of the writ of habeas corpus in cases involving the institution of slavery seems to have been dictated more by geography than by doctrine”).
124.
U.S. Sedition Act (1798), published in Stat. 1(74):596–597. See, for instance, United States v. Callender, U.S. Circuit Court for the District of Virginia, F. Cas. 25:239–260 (1800), pp. 253–254 (where Justice Samuel Chase acting as a circuit judge banned the defence from arguing to the jury the Sedition Act’s unconstitutionality thus leading to the conviction of the defendant).
125.
See, among many, Schwartz (1992), pp. 204–207.
126.
See, for instance, Scott v. Sanford, 60 U.S. 393 (1856), p. 452 (declaring void the federal statute that prohibited slavery on the territories north of the Missouri State line), and Prigg v. Pennsylvania, 41 U.S. 539 (1842), p. 543 (declaring void a state statute that punished the act of seizing a fugitive slave). See also Ableman v. Booth, 62 U.S. 506 (1859), pp. 525–526 (overruling a decision of the Supreme Court of Wisconsin that had declared the Fugitive Slave Act unconstitutional).
127.
See, among many, Arabas v. Ivers, Sup. Ct. Conn., Root 1:92–93 (1784), pp. 92–93 (entitling a slave with his freedom for having served in the Continental Army); In re Tom, Sup. Ct. Jud. N.Y., Johns. N.Y. Sup. Ct. 5:365–366 (1810), p. 366 (discharging a former slave whose freedom had been promised by his master); Commonwealth v. Holloway, Sup. Ct. Pa., Serg. & Rawle 2:305–309 (1816), pp. 308–309 (granting freedom to the baby daughter of a slave); State v. Raborg, Sup. Ct. Jud. N.J., South. N.J. Sup. Ct. 2:545 (1820), p. 545 (charging with contempt to the court a person who refused to return a writ filed on behalf of several black men); Jackson v. Bullock, Sup. Ct. Err. Conn., Conn. 12:38–69 (1837), pp. 52–54 (freeing a slave brought by her master to live in that state), and In re Booth and Rycraft, Sup. Ct. Wisc., Wis. 3:157–218 (1854), pp. 212–213 (declaring the Fugitive Slave Act unconstitutional).
128.
See, for instance, the speech given on October 25, 1858, by William H. Seward, chief of the Republican Party, transcribed in Seward (1889), pp. 289–292. (“Our country is a theatre, which exhibits, in full operation, two radically different political systems; the one resting on the basis of servile or slave labor, the other on the basis of voluntary labor of freemen […] It is an irrepressible conflict between opposing and enduring forces, and it means that the United States must and will, sooner or later, become either entirely a slaveholding nation, or entirely a free-labor nation.”).
129.
The states that had declared their secession from the Union and formed the “Confederate States of America” were South Carolina, Mississippi, Florida, Alabama, Georgia, Louisiana, Texas, Virginia, Arkansas, Tennessee, and North Carolina. They were known as the “Confederacy” or the “South”. See, in general, Foner (2011), pp. 460–498.
130.
See Foner (1997a, b), pp. 101–102; and Wiecek (1969), p. 358.
131.
See U.S. Const. (1789), amend. XIII, §1, as amended on December 18, 1865. This provision was implemented through U.S. Civil Rights Act (1866), published in Stat. 14(31):27–30.
132.
See U.S. Const. (1789), amend. XIV, §1, as amended on July 9^th, 1868.
133.
See, in general, James (1956) and Curtis (1986). Several scholars have rejected this claim. See Adamson v. California, 332 U.S. 46 (1947), pp. 63–68 (Justice Frankfurter, dissenting). For an insightful and well documented account of the “incorporation” debate, see Amar (1998), pp. 135–307.
134.
See U.S. Rebel States Act (1867), § 5, published in Stat. 14(153):428–430.
135.
See U.S. Const. (1789), amend. XV, §1, as amended on February 3^rd, 1870. Regarding the distinction between the civil and political character of fundamental rights during the Reconstruction Era see Amar (1998), pp. 271–274.
136.
Compare Barron v. Mayor and City Council of Baltimore, 32 U.S. 243 (1833), p. 250 (“Had the framers of these [Bill of Rights] amendments intended them to be limitations on the powers of the State governments, they would have imitated the framers of the original Constitution, and have expressed that intention.”), with Bingham’s speech to the House of Representatives on March 31, 1871, in Bingham (1871), pp. 81–84 (“…imitating [the original framers’] example and imitating it to the letter, I prepared the provision of the first section of the fourteenth amendment as it stands in the Constitution, as follows:…”).
137.
See Schwartz (1992), p. 209. The most famous argument for total incorporation was made after World War II in Justice Hugo Black’s famous dissent on Adamson v. California, 332 U.S. 46 (1947), pp. 68–124 (Justice Black, dissenting).
138.
U.S. Const. (1789), amend. XIV, §1, cl. 2 (“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”).
139.
Slaughterhouse Cases, 83 U.S. 36 (1873), p. 77. For a critical approach to the majority’s decision, see Kaczorowski (2005), pp. 121–133; and Curtis (1997), pp. 77–86. See also Twining v. New Jersey, 211 U.S. 78 (1908), p. 99 (denying to the privilege against self-incrimination the character of a national right within the meaning of the Privileges-or-Immunities Clause).
140.
Compare Slaughterhouse Cases, 83 U.S. 36 (1873), pp. 80–83. See U.S. Const. (1789), amend. XIV, §1, cls. 3 and 4 (“[3] nor shall any State deprive any person of life, liberty, or property, without due process of law; [4] nor deny to any person within its jurisdiction the equal protection of the laws.”) (Enumeration added). See also Amar (1998), p. 213.
141.
See Chicago, Burlington & Quincy Railroad Co. v. Chicago, 116 U.S. 226 (1897), pp. 236–237. Compare with the antebellum decision in Barron v. Mayor and City Council of Baltimore, 32 U.S. 243 (1833), p. 250.
142.
See, for instance, Hurtado v. California, 110 U.S. 516 (1884), pp. 534–535, and Maxwell v. Dow, 176 U.S. 581 (1900), p. 585.
143.
See Twining v. New Jersey, 211 U.S. 78 (1908), pp. 113–114.
144.
See U.S. Const. (1789), amend. V. See also Schwartz (1992), p. 210.
145.
See Nowak and Rotunda (2010), p. 457. Compare, for instance, Algeyer v. Louisiana, 165 U.S. 578 (1897), p. 593 (quashing Louisiana’s law regulating insurance companies), and Lochner v. New York, 198 U.S. 45 (1906), p. 57 (quashing New York’s labor law), with Adair v. United States, 208 U.S. 161 (1908), pp. 173–176 (quashing federal regulation of interstate carriers which made a punishable offence to fire an employee for being member of a union). In fact, even though the Fifth Amendment contains no Equal Protection Clause as such, ever since the Fourteenth Amendment was ratified, the Supreme Court has applied on a regular basis equal protection as a standard of scrutiny to the federal government as well. See, for instance, last year’s decision in United States v. Windsor, 570 U.S. ____ (2013), p. 20 (“DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government.”) (Emphasis added). This practice has been labeled by some scholars as “reverse incorporation.” See Amar (1998), pp. 281–283.
146.
See, for instance, U.S. Const. (1789), amend. XIV, §5 (“Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”).
147.
See, in general, U.S. Senate (1871).
148.
See, for instance, the speech of Congressman Job Stevenson from Ohio, on April 4^th, 1871, in Stevenson (1871), pp. 283–300 (“Yet we do not propose punishment for the past; we only ask peace in the future. And to secure peace we must extend the jurisdiction of the national courts and the powers of the national Executive.”).
149.
See U.S. Voting Rights’ Enforcement Act (1870), §§ 6 and 17, published in Stat. 16(114):140–146. As mentioned before, federal crimes have been from the beginning part of the exclusive jurisdiction of the Courts of the United States. See U.S. Judiciary Act (1789), §§ 9–11. Still, the Supreme Court quashed on federalism grounds some of the indictments made under the federal criminal statutes of the Reconstruction. See, for instance, United States v. Cruikshank, 92 U.S. 542 (1875), pp. 543–544.
150.
See U.S. Voting Rights’ Enforcement Act (1870), § 18, re-enacting U.S. Civil Rights Act (1866), § 3. In addition to those individuals whose federally protected rights were allegedly violated, federal officers could remove their cases to federal court if they were sued or indicted for executing federal civil rights laws. State officers who were sued or prosecuted in state court for refusing to comply with state laws that violated federal laws were also entitled to removal. Apart from a modification that permitted removal only before the state judgment was entered, these provisions remained unaffected by the enactment of U.S. Plenary Federal Jurisdiction and Removal Act (1875), § 10, published in Stat. 18(137):470–473. This was the statute that gave plenary removal jurisdiction to the federal courts.
151.
See U.S. Civil Rights Act (1866), § 3. See also Kaczorowski (2005), pp. 28–32 (describing this approach in the state of Kentucky during the first years of President Ulysses Grant’s term).
152.
U.S. Enforcement Act (1871), § 1, published in Stat. 17(22):13–15. This act—also known as the Ku Klux Klan Act—is the precursor of current U.S. Code Title 42 (42 U.S.C.) (2006), § 1983.
153.
See Wiecek (1969), p. 334. He recognizes, nevertheless, that civil rights were not the only or even the main national interest at the time. See Wiecek (1969), p. 341.
154.
See, for instance, Haywood v. Drown, 556 U.S. 729 (2009), p. 11 (forcing New York courts to entertain federal suits for damages against that state’s corrections officers).
155.
As mentioned above, this jurisdiction was concurrent most of the antebellum period and was made exclusively federal by the Supreme Court’s case law shortly before the start of the war. See Ableman v. Booth, 62 U.S. 506 (1859), pp. 522–526 (banning state habeas corpus to convicts under the authority of the United States), and Tarble’s Case, 80 U.S. 397 (1871), pp. 411–412 (prohibiting state habeas corpus for prisoners held under the authority of the United States). See also McCluny v. Silliman, 19 U.S. 598 (1821), p. 605 (the antebellum case which banned state courts from issuing writs of mandamus to officers of the United States).
156.
See Nichol (1987), p. 983.
157.
See, for instance, Chemerinsky (2012), pp. 504–505 (“Section [1 of the Enforcement Act] was meant to substantially alter the relationship of the federal government to the states.”). Another sign of this intent is that the complainant was not required to exhaust any of the state remedies.
158.
See, basically, Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149 (1908), p. 152. This is the famous “well-pleaded complaint rule” that determines the access to the federal courts on federal questions. See infra Sect. 3.3.1.2.
159.
See Amsterdam (1965), pp. 843–849.
160.
See Strauder v. West Virginia, 100 U.S. 303 (1879), pp. 308–309 (ordering removal of a case because West Virginia laws banned blacks from serving on juries).
161.
See, for instance, Virginia v. Rives, 100 U.S. 313 (1880), pp. 319–321 (denying removal because Virginia law did not ban blacks from being juries), and Kentucky v. Powers, 201 U.S. 1 (1906), p. 31 (denying removal on the grounds that the court official had discriminated illegally under state law).
162.
See, for instance, Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), p. 416 (“To do so would be an exercise of appellate jurisdiction. The jurisdiction possessed by the district courts is strictly original.”).
163.
Compare U.S. Plenary Federal Jurisdiction and Removal Act (1875), § 3 (“…may make and file a petition […] before the trial thereof for the removal of such suit…”) (Emphasis added).
164.
See Chemerinsky (2012), pp. 505–506 (“Between its enactment in 1871 and 1920, only twenty-one cases were decided under §1983. Many factors combined to render [this provision] meaningless during this time period. […] …as recently as 1960, in the entire country, there were only 287 suits against state and local governments and their officers filed in, or removed to, federal court.”)
165.
Compare Redish and Woods (1975), pp. 76–81.
166.
See, for instance, Second Employers’ Liability Cases, 223 U.S. 1 (1912), p. 3 (“A state court cannot refuse to enforce the remedy given by an act of Congress in regard to a subject within the domain of Congress on the ground of inconvenience or confusion.”). Compare with Jackson v. Rose, Virginia General Court, Va. Cas. 2:34–41 (1815), p. 41.
167.
See, respectively, U.S. Judicial Circuits Act (1866), § 2, published in Stat. 14(210):209 (restructuring the federal circuits to include northern and southern states within a same circuit and thus avoid circuits dominated by the old “South”) and U.S. Judiciary Act (1869), §§ 1–2, published in Stat. 16(22):44–45 (increasing the size of the Supreme Court to nine Justices and creating separate circuit judgeships).
168.
U.S. Habeas Corpus Act (1867), published in Stat. 14(27):385–387. Insofar it allowed criminal appeals from the federal circuit courts to the Supreme Court, part of this act was repealed by U.S. McCardle Repealer Act (1868), § 2, published in Stat. 15(34):44. This was made to avoid an unfavorable decision in Ex parte McCardle, 74 U.S. 506 (1869), p. 514. The respective part was completely reestablished 17 years later by U.S. Criminal Appeals Act (1885), § 1, published in Stat. 23(353):437.
169.
Compare, for instance, Hamilton (2001e), p. 429 (“The state tribunals may then be left with a more entire charge of federal causes; and appeals, in most cases in which they may be deemed proper, instead of being carried to the Supreme Court, may be made to lie from the state courts to district courts of the union.”) (Emphasis added).
170.
See Senator Edgar Cowan’s intervention discussing the bill on July 27, 1866, Cowan (1866), p. 4229 (“I am afraid that it is rather too broad…The language of the old act is right because that has had a construction, and I think it opens the door wide enough.”) See also Wiecek (1992), p. 229 (“Thus began the murky legislative story of the act of February 5, 1867, which contained an unnoticed revolution in judicial federalism.”) (Inner citations omitted).
171.
See Chemerinsky (2012), pp. 930–931.
172.
Compare, for instance, Ex parte Virginia, 100 U.S. 339 (1879), pp. 346–347 (“Such enforcement is not invasion of state sovereignty […] the constitutional Amendment was ordained for a purpose”).
173.
See U.S. Judiciary Act (1789), § 14. As mentioned above, during the antebellum there was one exception made for federal revenue officers to avoid harassment by state courts. See U.S. Force Bill (1833), § 7.
174.
U.S. Habeas Corpus Act (1867), § 1 (Emphasis added).
175.
See Ex parte Watkins, 28 U.S. 193 (1830), pp. 202–208 (denying federal habeas power over federal convicts), and Ex parte Dorr, 44 U.S. 103 (1845), pp. 105–106 (denying federal habeas power over state convicts). But see Vladeck (2012), p. 981 (arguing these were not decisions consistent with the scope the writ had enjoyed historically in common law).
176.
See Wiecek (1969), p. 344.
177.
See Ex parte Royall, 117 U.S. 241 (1886), pp. 251–254 (affirming a denial of federal habeas that had forced the plaintiff to exhaust the remedies provided by the courts of West Virginia). This requirement was included in a federal law only after the revision of federal habeas corpus statutes that took place after World War II. See U.S. Code Title 28 (28 U.S.C.) (2006), § 2254 as amended on June 25, 1948.
178.
See, for instance, Ex parte Lange, 85 U.S. 163 (1873), p. 178 (granting habeas corpus because the state court violated double jeopardy and thus had no authority to issue a second conviction), and Ex parte Siebold, 100 U.S. 371 (1880), p. 375 (granting habeas because the statute in which the conviction was based was unconstitutional). The notion of lack of jurisdiction was also gradually expanded during the late nineteenth century. See Hart (1959), pp. 103–104. See also Chemerinsky (2012), pp. 931–932; and Vladeck (2012), p. 964.
179.
See, for instance, In re Wood, 140 U.S. 278 (1891), pp. 288–289 (affirming a denial of federal habeas for not having raised the federal constitutional issue in the state courts of New York).
180.
See U.S. Circuit Courts of Appeals Act (1891), § 2, published in Stat. 26(517):826–830 (creating the United States Courts of Appeals to serve as intermediate federal courts between the district courts and the Supreme Court).
181.
Compare U.S. Habeas Corpus Act (1867), § 2, with U.S. Judiciary Act (1789), § 25.
182.
See Wiecek (1992), p. 224.
183.
Murdock v. City of Memphis, 87 U.S. 590 (1875). The case involved a dispute of a piece of land that the plaintiff’s ancestors had sold to the City of Memphis, Tennessee, so that a naval depot might be established in the location. The transaction was carried out under the condition that, if the property every ceased to be a naval depot, it should be sold back to the giver or his lawful heirs. Murdock filed a suit in state court and lost both the trial and the appellate stages. Though he then obtained a writ of error from the Supreme Court, the Court affirmed the state judgments for not being a federal question involved.
184.
See id., pp. 632–633 (“It cannot, therefore, be maintained that it is in any case necessary for the security of the rights claimed under the Constitution, laws, or treaties of the United States that the Supreme Court should examine and decide other questions not of a federal character.”).
185.
See id., pp. 634–635.
186.
For a short but very clear explanation of the doctrine of independent and adequate state grounds see Chemerinsky (2012), pp. 735–762. See also Nowak and Rotunda (2010), p. 111, and infra Sect. 3.4.2.2.
187.
Compare Kaczorowski (2005), p. 178 (“The Supreme Court’s handling of the Fourteenth, and, apparently, the Fifteenth Amendments suggests that its decisions were a calculated effort to reverse the constitutionally centralizing thrust of the Civil War and Reconstruction.”).
188.
The name comes from the Supreme Court’s judgment on Lochner v. New York, 198 U.S. 45 (1906). This notorious decision quashed a New York statute that imposed employees a working maximum of 10 h. For other characteristic decisions of this period see, for instance, Algeyer v. Louisiana, 165 U.S. 578 (1897), p. 593 (quashing state law regulating insurance companies); Smyth v. Ames, 169 U.S. 466 (1898), pp. 544–545 (holding that state’s maximum rates on railroad transportation unconstitutional); Adair v. United States, 208 U.S. 161 (1908), pp. 173–176 (quashing federal laws making it a criminal offence to fire someone for being member of a union), and Adkins v. Children’s Hospital, 261 U.S. 525 (1923), pp. 561–562 (holding the minimum wage legislation of the District of Columbia unconstitutional). Lochnerism is said to have ended with the Supreme Court upholding Washington’s women minimum wage law on West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), pp. 397–399.
189.
See, in general, Gillman (1993) (describing this period as the struggle of the Supreme Court to maintain the constitutional prohibition on “class legislation” at a time of unprecedented class conflict).
190.
See Nowak and Rotunda (2010), pp. 472–477. Insofar it allowed the Court to review whether the state violates substantive rights, the concept is commonly known as ‘substantive due process of law’. For the difference between substantive and procedural due process, see Nowak and Rotunda (2010), pp. 425–432.
191.
Compare Curtis (1997), pp. 87–91. The main sources of criticism of the Lochner Court have been, on the one hand, its reading of an inexistent laissez-faire economic doctrine within the Constitution and, on the other, its judicial activism in detriment of decisions taken by democratically elected bodies. See Gillman (1993), p. 3. See also Nowak and Rotunda (2010), p. 473, and Lochner v. New York, 198 U.S. 45 (1906), p. 75 (Justice Holmes, dissenting) (“The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics […] a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.”) (Emphasis in original).
192.
See, for instance, Civil Rights Cases, 109 U.S. 3 (1883), pp. 11–13 (holding federal civil rights legislation unconstitutional for regulating private individuals), and Plessy v. Ferguson, 163 U.S. 537 (1896), p. 543 (upholding Louisiana’s racial segregation on public transport).
193.
See, for instance, A.L.A. Schechter Poultry Corporation v. United States, 295 U.S. 495 (1935), p. 550 (quashing the National Industrial Recovery Act). Starting his second term in 1937, President Roosevelt presented Congress a plan to appoint additional federal judges including six new Supreme Court Justices. He claimed the bill was necessary to prevent the Court from relentlessly blocking the reforms that were required to end the Great Depression. See Nowak and Rotunda (2010), pp. 181–182; and Ackerman (1998), pp. 314–320.
194.
See Gillman (1993), pp. 175–177 (describing the collapse of traditional police powers jurisprudence in view of the demise of the idea of government neutrality), and Schwartz (1992), pp. 216–217 (explaining this change as a reorganization in the hierarchy of fundamental values, specifically, between property and liberty).
195.
See, for instance, Moore v. Dempsey, 261 U.S. 86 (1923), pp. 91–92 (reversing an habeas corpus dismissal against a conviction in Arkansas for if the whole state criminal proceeding was a “mask” it violated due process and would be void), and Gitlow v. New York, 268 U.S. 652 (1925), p. 666 (while affirming a state conviction, holding that the Due Process Clause of the Fourteenth Amendment had incorporated the freedom of speech and of the press contained in the First Amendment and thus made them applicable against the states).
196.
Schwartz (1992), p. 207.
197.
See, for instance, Palko v. Connecticut, 302 U.S. 319 (1937), p. 326 (“We reach a different plane of social and moral values when we pass to the privileges and immunities that have been taken over from the earlier articles of the federal bill of rights and brought within the Fourteenth Amendment by a process of absorption. These, in their origin, were effective against the federal government alone. If the Fourteenth Amendment has absorbed them, the process of absorption has had its source in the belief that neither liberty nor Justice would exist if they were sacrificed.”), and United States v. Carolene Products Co., 304 U.S. 144 (1938), p. 152 (“[Footnote 4] There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.”) (Emphasis added).
198.
See Stromberg v. California, 283 U.S. 351 (1931), p. 368.
199.
See Near v. Minnesota, 283 U.S. 697 (1931), pp. 707–708.
200.
See Powell v. Alabama, 287 U.S. 45 (1932), p. 72.
201.
See Norris v. Alabama, 294 U.S. 587 (1935), p. 589. This case, however, used the Equal Protection Clause.
202.
See Brown v. Mississippi, 297 U.S. 278 (1936), pp. 285–286.
203.
See Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947), p. 463 (though affirming a state execution that would be carried out for the second time because it failed the first time, the Court acknowledged that a violation of double jeopardy or a cruel or unusual punishment were forbidden by the Fourteenth Amendment).
204.
See In re Oliver, 333 U.S. 257 (1948), pp. 271–272.
205.
See Wolf v. Colorado, 338 U.S. 25 (1949), pp. 27–28 (though acknowledging that the Fourteenth Amendment prohibited unreasonable searches and seizures, the Court refused to apply the exclusionary rule for evidence obtained under such circumstances).
206.
Brown v. Board of Education, 348 U.S. 483 (1954), p. 486. With this landmark decision a unanimous Court ended racial segregation on public schools for violating the Equal Protection Clause of the Fourteenth Amendment.
207.
See Mapp v. Ohio, 367 U.S. 643 (1961), p. 655 (overturning Wolf insofar the precedent refused to apply the exclusionary rule to evidence obtained after an illegal search).
208.
See Gideon v. Wainwright, 372 U.S. 335 (1963), pp. 342–343 (overturning Betts v. Brady).
209.
See Pilkinton v. Circuit Court of Howell County, Missouri, U.S. Court of Appeals for the 8th Circuit, F. Cas. 324(8th Circ.):45–46 (1963), p. 46.
210.
See Malloy v. Hogan, 378 U.S. 1 (1964), pp. 8–9 (overruling Twining and Adamson).
211.
See Pointer v. Texas, 380 U.S. 400 (1965), pp. 403–404.
212.
See Griswold v. Connecticut, 381 U.S. 479 (1965), pp. 481–486. This right, nevertheless, was found within the “penumbra” of specific guarantees of the Bill of Rights and not on a specific amendment.
213.
See Miranda v. Arizona, 384 U.S. 436 (1966), pp. 444–491.
214.
See Klopfer v. North Carolina, 386 U.S. 213 (1967), pp. 219–224.
215.
See Duncan v. Louisiana, 391 U.S. 145 (1968), pp. 148–150.
216.
See Slaughterhouse Cases, 83 U.S. 36 (1873), p. 77.
217.
Compare Amar (1998), p. 307.
218.
See U.S. Civil Rights Act (1957), pts. 1–4, published in Stat. 71(85–301):634–638 (establishing the U.S. Commission on Civil Rights and a civil rights division in the Department of Justice); U.S. Civil Rights Act (1960), tit. 3, published in Stat. 74(86–449):86–92 (preserving voting records); U.S. Civil Rights Act (1964), tits. 2–5, published in Stat. 78(88–352):241–268 (prohibiting discrimination in public accommodations, state government facilities, and employment), and U.S. Voting Rights Act (1965), § 203, published in Stat. 79(89–110):437–446 (suspending the use of literacy tests to prospective voters).
219.
See, for instance, the 24-hours “filibuster” carried out by Senator Strom Thurmond of South Carolina in Strom (1957), pp. 16263–16456.
220.
This is the so-called state action syllogism used by the Court in the nineteenth century to determine the constitutionality of federal legislation implementing the Reconstruction Amendments. See United States v. Cruikshank, 92 U.S. 542 (1875), pp. 553–554, and Civil Rights Cases, 109 U.S. 3 (1883), p. 17. The reasoning behind this idea is that under the American federal system the power over private entities is vested on the states unless it is granted to Congress by the Constitution. See also Curtis (1997), pp. 86–89 (“The Fourteenth Amendment limits the power of the states; individuals are not states; therefore the federal government lacks power under the Fourteenth Amendment to reach private action.”).
221.
See Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241 (1964), pp. 245–253 (upholding the application of anti-discrimination laws to a privately owned hotel for the statutes were based on the Commerce Clause). See also U.S. Const. (1789), art. I, § 8, cl. 3.
222.
Compare Chemerinsky (2012), p. 507 (“The 1960s were a time of great attention to protecting civil rights and constitutional litigation has been growing ever since… There has been a general increase in the amount of federal court litigation.”).
223.
Compare Nichol (1987), p. 986 (“The flowering of the incorporation doctrine has resulted in the constitutionalization (sic) of a substantial segment of the work of state courts.”). There was of course always a substantive variation insofar as a federal court’s interpretation of the scope of a federally protected fundamental right also recognized in state law might have differed from the meaning previously given to that right by a state court under state law.
224.
See 42 U.S.C. (2006), § 1983. At that time the original provision—U.S. Enforcement Act (1871), § 1—had been codified with minimal variations as U.S. Rev. Stat. §1979.
225.
See Monroe v. Pape, 365 U.S. 167 (1961), p. 183 (“The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.”).
226.
See id., pp. 173–180. See also Chemerinsky (2012), p. 510.
227.
See Monroe v. Pape, 365 U.S. 167 (1961), p. 172.
228.
See U.S. Civil Rights Attorney’s Fees Awards Act (1976), §§ 1–2, published in Stat. 90(94–559):2641. This statute was the precursor of 42 U.S.C. (2006), § 1988. In American law, attorney fees are usually not included in the judgment unless there is a statute providing for it. See Alyeska Pipeline Svc. Co. v. Wilderness Soc’y, 421 U.S. 240 (1975), pp. 267–269.
229.
Chemerinsky (2012), p. 506. As mentioned above, between 1871—when it was introduced—and 1920 there were only 21 of these cases in the Courts of the United States. See Indiana University (1951), p. 363. See also Posner (1996), pp. 60–62.
230.
Chemerinsky (2012), p. 507.
231.
See, for instance, 42 U.S.C. (2006), § 2000e-5 (civil actions against employment discrimination), in connection with Yellow Freight Syst. v. Donnelly, 494 U.S. 820 (1990), pp. 825–826 (confirming concurrent jurisdiction on actions filed to obtain redress under federal employment antidiscrimination provisions).
232.
As shown below, at that time these lower federal courts included the district courts, the circuit courts, and the new three-judge panel circuit courts of appeals that had been created in 1891. See U.S. Circuit Courts of Appeals Act (1891), § 2. The original circuit courts were finally abolished in 1911 and its jurisdiction was given to the district courts. See U.S. Judicial Code (1911), §§ 289–291, published in Stat. 36(231):1087–1169.
233.
See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), pp. 415–416. But see Wiecek (1969), p. 339 (pointing out the inferior status of state courts insofar the lower federal courts could issue writs of certiorari to obtain the record of a case removed by the defendant).
234.
See 28 U.S.C. (2006), § 2283 as amended on June 25, 1948. (“A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”).
235.
Compare Nichol (1987), p. 969. Compare also Younger v. Harris, 401 U.S. 37 (1971), p. 37 (barring intervention on a state proceeding), with Mitchum v. Foster, 407 U.S. 225 (1972), p. 225 (allowing it).
236.
See, for instance, Frank v. Mangum, 237 U.S. 309 (1915), p. 336 (acknowledging as a possibility that the federal courts could grant habeas corpus to state prisoners for reasons other than lack of jurisdiction); Moore v. Dempsey, 261 U.S. 86 (1923), p. 92 (ordering a district court to admit habeas corpus filed by a state prisoner because his conviction might have violated due process), and Waley v. Johnson, 316 U.S. 101 (1942), pp. 104–105 (“…the use of the writ in the federal courts to test the constitutional validity of a conviction for crime is not restricted to those cases where the judgment of conviction is void for want of jurisdiction of the trial court to render it. It extends also to those exceptional cases where the conviction has been in disregard of the constitutional rights of the accused and where the writ is the only effective means of preserving his rights.”) (Quotations omitted). See also Chemerinsky (2012), p. 932 (attributing the expansion, among other causes, to the incorporation doctrine favoured by the Warren Court).
237.
See supra Sect. 3.2.1.2. Some of the judicially created restrictions to the writ had been codified in the revisions of 1911 and 1948 and thus could not be avoided by the Court anymore. See, for instance, 28 U.S.C. (2006), § 2254(b)(1)(A) (regarding exhaustion requirement of state remedies).
238.
See, for instance, Brown v. Allen, 344 U.S. 443 (1953), pp. 465–477 (rehearing constitutional issues already tried by the state courts of North Carolina). This re-litigation included the original habeas corpus procedure before a district court as well as the appellate review of the habeas corpus decision before a federal circuit court of appeals. See 28 U.S.C. (2006), § 1291 as amended on June 25, 1948.
239.
See, for instance, Fay v. Noia, 372 U.S. 391 (1963), pp. 438–439 (stating that the district judge might deny habeas corpus relief on the grounds that state remedies were not exhausted only if the petitioner himself has understandingly and knowingly—whether for strategic, tactical or any other reasons—foregone the privilege of seeking to vindicate his federal claims in the state courts.). Compare with In re Wood, 140 U.S. 278 (1891), pp. 288–289.
240.
Compare Winkle (1974), pp. 72–73; and Friendly (1970), pp. 168–169.
241.
See U.S. Circuit Courts of Appeals Act (1891), §§ 5–6. The new federal circuit courts of appeals were panels of three judges each. See U.S. Circuit Courts of Appeals Act (1891), § 2.
242.
See U.S. Circuit Courts of Appeals Act (1891), § 6 (authorizing discretionary review of decisions issued by the federal circuit courts of appeals in diversity, patent, revenue, criminal, and admiralty cases).
243.
See U.S. Circuit Courts of Appeals Act (1891), § 3 (maintaining the Justices’ riding circuit activities nominally, but providing for the continued functioning of the circuit courts of appeals despite their absence). The Justices’ entitlement to sit in the circuit courts of appeals subsisted in the books and was sometimes exercised. See Glick (2003), pp. 1828–1829 (referring Chief Justice Melville Fuller’s efforts as circuit judge of appeals between 1892 and 1909). Nevertheless, the practice mostly had died with the complete abolition of the federal circuit courts in 1911. See U.S. Judicial Code (1911), § 289.
244.
See U.S. Judicial Code Amendment Act (1914), § 1, published in Stat. 38(2):790. The congressional purpose was to centralize constitutional decisions in a forum apparently more deferent to legislative power. See Warren (1913), p. 2 (“The reason for such a change in the power of the Supreme Court lies in the increasing tendency of certain State courts to hold State laws unconstitutional, and the broader trend of the National Supreme Court decisions towards upholding the constitutionality of statutes.”). As Lochnerism shows, however, that expected deference turned out to be an illusion. See Gillman (1993), p. 3.
245.
See, for instance, Zucht v. King, 260 U.S. 174 (1922), pp. 176–177 (dismissed the writ of error because the issue had been settled by precedents and thus was not a substantial constitutional question). See also Hartnett (2000), pp. 1708–1710 (criticizing the practice’s legality).
246.
See Frankfurter and Landis (1928), pp. 1–5 (Referring the context of Justice Willis Van Devanter’s hearing before the Judiciary Committee of the House of Representatives where he urged to substitute mandatory appellate review with discretionary review via writ of certiorari). See also Freund (1972), p. 6.
247.
See U.S. Judges’ Bill (1925), § 1, published in Stat. 43(229):936–942. See also Frankfurter and Landis (1928), pp. 1–3.
248.
The Supreme Court had mandatory jurisdiction: over appellate judgments from state highest courts that declared a federal statute unconstitutional or upheld a state statute; over appellate judgments from federal circuit courts of appeals that declared a state statute unconstitutional; over certain criminal trial judgments from the district courts adverse to the United States; over trial judgments deciding suits filed against agencies enforcing antitrust and interstate commerce laws, and over trial judgments issued by three-judge panel district courts on suits to enjoin the enforcement of state laws for being allegedly unconstitutional. See U.S. Judicial Code (1911), §§ 238–240, as amended by U.S. Judges’ Bill (1925), § 1.
249.
See Frankfurter and Fisher (1938), p. 591. In fact, the Court back then had already started to issue limited grants of certiorari and thus to exercise discretion not only in the cases admitted but also in the issues dealt with in a case. See, for instance, Olmstead v. United States, 277 U.S. 438 (1928), p. 455 (limiting the grant of certiorari to the question whether the use of evidence of private telephone conversations obtained by wiretapping represented a violation of the Fourth and the Fifth Amendments). Compare Hartnett (2000), pp. 1705–1707 (critical of the practice), with Bice (1975), p. 379 (defending it as a necessity to fulfil the policy making role of the Supreme Court).
250.
For instance, in 1937 the Court was additionally given mandatory jurisdiction over any federal court judgment—original or appellate—that declared a federal statute unconstitutional and over judgments issued by three-judge district courts on suits to enjoin the enforcement of unconstitutional federal laws. See U.S. Direct Appeals Act (1937), §§ 2–3, published in Stat. 50(754):751–753. For further examples see U.S. Civil Rights Act (1964), § 206 (providing for three-judge district courts upon request of the Attorney General and establishing direct appeal to the Supreme Court against their judgments); U.S. Voting Rights Act (1965), § 4 (same rules on suits to prevent impairment of voting rights on account of race), and U.S. Revenue Act (1971), § 801, published in Stat. 85(92–178):497–574 (authorizing three-judge district courts upon request of the Comptroller General of the United States on suits regarding presidential election campaign funds).
251.
Compare Freund (1972), p. 9 (“We are concerned that the Court is now at the saturation point, if not actually overwhelmed […] Remedial measures comparable in scope to those of 1891 and 1925 are called for once again.”).
252.
See, for instance, Edelman v. Jordan, 415 U.S. 651 (1974), pp. 670–671 (describing the nature of a summary affirmance). Regarding the practice of summary dismissal (i.e., rejection without hearing any argument) see Hicks v. Miranda, 422 U.S. 332 (1975), pp. 343–344 (vacating a district court decision for not relying on a summarily dismissed appeal), and Miller v. California, 418 U.S. 915 (1974), p. 915 (the dismissed appeal for want of substantive federal question the Hicks district court should have relied on).
253.
Compare, for instance, Edelman v. Jordan, 415 U.S. 651 (1974), p. 671 (stating that summary affirmances have precedential value), with Mandel v. Bradley, 432 U.S. 173 (1977), p. 176 (vacating a lower court decision for having wrongfully relied on the reasoning of a judgment that had been summarily affirmed). For the consistency rules of common law and the non-binding character of obiter dictum arguments see supra Chap. 2.
254.
See 28 U.S.C. (2006), § 1254(3).
255.
Compare Hartnett (2000), pp. 1710–1711 (“That [Court’s hostility to the certification process] continued, leading the courts of appeals to be quite reluctant to issue certificates. In the decade from 1927 to 1936, courts of appeals issued seventy-two certificates, while in the decade from 1937 to 1946, that number dropped to twenty.”) (Citations omitted).
256.
See Freund (1972), pp. 36–37 (suggesting—among other measures such as a National Court of Appeals—to unify into discretionary review all cases coming from state courts, but not eliminating the Supreme Court’s latent appellate jurisdiction over them.).
257.
See, respectively, Brown v. Board of Education, 348 U.S. 483 (1954) (declaring segregation on public schools violates de Equal Protection Clause of the Fourteenth Amendment); Mapp v. Ohio, 367 U.S. 643 (1961), p. 658 (introducing to state court procedures the famous exclusionary rule from illegal searches and seizures); Gideon v. Wainwright, 372 U.S. 335 (1963) (requiring counsel for state defendants who could not afford it), and Miranda v. Arizona, 384 U.S. 436 (1966) (requiring to inform detainees of their constitutional rights before interrogation). Despite these decisions and others that came in the first years of the Burger Court, the general dissatisfaction with court performance and the impression of limited access to justice in fact led Congress to pass a statute to enquire on possible remedies. See U.S. Judicial Improvements and Access to Justice Act (1988), § 102, published in Stat. 102(100–702):4642–4645.
258.
Compare, for instance, Solimine and Walker (1983), pp. 224–225 (“To the extent that the hostility [to federal rights] was revived in some state courts during the 1950’s and 1960’s, it was an unfortunate aberration not reflected on a nation-wide basis today.”) with Neuborne (1977), p. 1121 (“Merely because federal judges feel constrained by legitimate considerations of comity from explicitly recognizing that a competence gap exists between the state and federal courts, that gap does not become any less real. It stems in part from the relative capacities of the judges themselves and, in part, from institutional factors unrelated to personal ability”).
259.
See Culp et al. (1990), p. 5; and Posner (1996), pp. 59–62.
260.
Culp et al. (1990), pp. 5–6 (“Through the various expedients that we have mentioned, the federal courts had, until about a year ago, managed to keep abreast of their dockets, though with some cost in the quality of federal justice and with some slippage in the courts’ ability to keep abreast, a slippage evident in the increasing ratio of pending to terminated cases (from .75 in 1960 to .97 in 1989 in the district courts and from .60 to .80 in the courts of appeals).”).
261.
Compare, for instance, Georgia v. Rachel, 384 U.S. 780 (1966), p. 791 (allowing civil rights removal to federal court) with City of Greenwood v. Peacock, 384 U.S. 808 (1966), p. 826 (not allowing civil rights removal to federal court).
262.
Compare, for instance, Douglas v. City of Jeannette, 319 U.S. 157 (1943), pp. 163–164 (not allowing injunction of an ongoing state court proceeding) with Dombrowski v. Pfister, 380 U.S. 479 (1965), pp. 490–491 (allowing injunction of an ongoing state court proceeding).
263.
See Nichol (1987), p. 994 (“The gradual constitutionalization of a substantial portion of the state judicial process has led to a considerable overlap, and thus to considerable opportunity for friction, between the two court systems.”).
264.
Compare, for instance, Bator (1963), pp. 527–528; and Friendly (1970), p. 148. By the way both of these authors were federal judges. For opinions sustaining the overstatement of such problems, see Gibbons (1984), p. 453 (another federal judge), and Zeigler (1985), p. 66.
265.
See Culp et al. (1990), pp. 5–7. Such a measure might be even in violation of the Tenth Amendment. See U.S. Const. (1789), amend. X, §1 (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”).
266.
Compare Gibbons (1984), pp. 452–453 (“…the experience with dual sovereignty between 1790 and 1860 teaches us that it will not work as a legal system unless the national government undertakes to have its own courts in place throughout its territory […] Today federal government interests, both in the enforcement of national substantive policies and in the protection of individual civil rights, are hundreds of times more complex[…] The need for prompt and effective remedies in the courts of the nation is therefore far more apparent.”).
267.
Compare Culp et al. (1990), pp. 5–7.
268.
See, among many, Neuborne (1977), pp. 1105–1106 (criticizing the Court’s assumption of parity as a weakening of federal constitutional rights).
269.
See, for instance, Stone v. Powell, 428 U.S. 465 (1976), pp. 493–494 (“[Footnote 35] Despite differences in institutional environment and the unsympathetic attitude to federal constitutional claims of some state judges in years past, we are unwilling to assume that there now exists a general lack of appropriate sensitivity to constitutional rights in the trial and appellate courts of the several States.”). See also Chemerinsky (2012), pp. 33 and 284 (“Parity is the issue of whether, overall, state courts are equal to federal courts in their ability and willingness to protect federal rights”).
270.
See, respectively, U.S. Code Title 15 (15 U.S.C.) (2006), § 78aa (violations against securities exchange laws); U.S. Code Title 18 (18 U.S.C.) (2006), § 3231 (criminal offences against the laws of the United States); 28 U.S.C. (2006), § 1333 (admiralty, maritime, and prize cases); 28 U.S.C. (2006), § 1334 (bankruptcy cases and proceedings), and 28 U.S.C. (2006), §§ 1337–1338 (patent, trademark, and copyright cases).
271.
See, for instance, General Inv. Co. v. Lake Shore & M. Sou. Ry. Co., 260 U.S. 261 (1922), pp. 286–288. See also 28 U.S.C. (2006), § 1337.
272.
Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473 (1981), p. 478.
273.
See Ableman v. Booth, 62 U.S. 506 (1859), p. 516 (“And the sphere of action appropriated to the United States is as far beyond the reach of the judicial process issued by a State judge or a State court…”), and Tarble’s Case, 80 U.S. 397 (1871), p. 409 (“It is manifest that the powers of the national government could not be exercised with energy and efficiency at all times if its acts could be interfered with and controlled for any period by officers or tribunals of another sovereignty.”). See also McCluny v. Silliman, 19 U.S. 598 (1821), p. 605 (banning state courts from issuing writs of mandamus to federal officials). But see Pettys (2007), pp. 318–319 (arguing that an “illegal” deprivation of rights cannot be carried out under the authority of the United States and therefore state courts would not be interfering with the federal government.).
274.
Compare Crowell v. Benson, 285 U.S. 22 (1932), p. 60. See also Battaglia v. General Motors Corp., U.S. Court of Appeals for the 2th Circuit, F. 2d. 169:254–262 (1948), p. 257 (“…the exercise of Congress of its control over jurisdiction is subject to compliance with at least the requirements of the Fifth Amendment.”) (Emphasis added).
275.
Redish and Woods (1975), p. 63. The jurisdictional limitation applies only to suits seeking injunctive relief (i.e., prospective). Federal government officers can certainly be sued in state court for damages just as any other individual and will only be able to remove the case to federal court if they have a federal law defense. See 28 U.S.C. (2006), § 1442(a)(1).
276.
See Redish and Woods (1975), p. 93. This issue is nevertheless not yet settled. For a good summary of the competing positions on this topic see Chemerinsky (2012), pp. 200–216.
277.
For one example of the few that partially succeeded, see U.S. Code Title 8 (8 U.S.C.) (2006), § 1252(a)(2)(C) (excluding judicial review on some immigration and alien removal procedures). But see INS v. St. Cyr, 530 U.S. 289 (2001), p. 300 (holding that petitions of habeas corpus could be filed instead) and Boumediene v. Bush, 553 U.S. 723 (2007), p. 733 (holding that habeas corpus suspension under the Military Commissions Act of 2006 for detainees who are held as enemy combatants is unconstitutional). See also Pettys (2007), pp. 321–322 (suggesting that any stripping of federal habeas for extrajudicial detainees should be then filled by the state courts).
278.
There are, however, several very well written treatises for that matter. See, among many, Hart and Wechsler (2009), p. 230.
279.
While the district courts carry out the bulk of federal trial court jurisdiction, this authority is exercised also through several specialized federal courts. These are the U.S. Claims Court, the Tax Court, the Court of International Trade, the Foreign Intelligence Surveillance Court, several military courts, and the bankruptcy courts. The District of Columbia Superior Court is only a federal trial court insofar local law in Washington, D.C., is enacted by the U.S. Congress. See Burnham (2006), p. 173. Additionally, there are many instances in which federal administrative agencies carry out jurisdictional functions. See, for instance, 15 U.S.C. (2006), §§ 45(a)–45(b) (conferring authority to the Federal Trade Commission to prevent unfair methods of competition and establishing the respective procedure before it).
280.
See 28 U.S.C. (2006), § 41.
281.
See 28 U.S.C. (2006), § 1291. Some decisions can still go directly from the district courts to the Supreme Court. See, for instance, 42 U.S.C. (2006), § 2000a-5(b) (on civil rights actions filed by the Attorney General of the United States).
282.
See, among many, Gibbons (1984), p. 452; Warren (1913), pp. 19–25; and Kaczorowski (2005), p. 43.
283.
See, for instance, Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473 (1981), pp. 483–484 (“The factors generally recommending exclusive federal court jurisdiction over an area of federal law include the desirability of uniform interpretation, the expertise of federal judges in federal law, and the assumed greater hospitality of federal courts to peculiarly federal claims.”) (Quotations omitted), and Wright (1969), p. 199.
284.
See Chemerinsky (2012), p. 284 (“…it is not clear that a greater number of courts will produce more variance in the law.”). The only judgments of U.S. Court of Appeals which could be further challenged on mandatory appeal in the Supreme Court were those holding a state statute unconstitutional. See 28 U.S.C. §§346–347 (1940). In 1988, obligatory appeals to the Supreme Court when the highest state courts had invalidated federal laws or upheld the constitutionality of state law were eliminated and transformed into discretional certiorari jurisdiction. See U.S. Discretion in the Supreme Court Act (1988), §§ 1–3, published in Stat. 102(100–352):662–664.
285.
Yellow Freight Syst. v. Donnelly, 494 U.S. 820 (1990), p. 826.
286.
See, for instance, Martínez v. California, 444 U.S. 277 (1980), pp. 283–284 (allowing state court jurisdiction on federal suits against state officials under 42 U.S.C. (2006), § 1983); Tafflin v. Levitt, 493 U.S. 455 (1990), pp. 464–467 (affirming state court concurrent jurisdiction on claims under the Racketeer Influenced and Corrupt Organizations Act [RICO]), and Yellow Freight Syst. v. Donnelly, 494 U.S. 820 (1990), p. 823 (validating state court jurisdiction on federal employment discrimination claims). On the other hand, concurrent jurisdiction with state courts is explicitly foreseen on other federal civil rights legislation. See, for instance, U.S. Code Title 29 (29 U.S.C.) (2006), § 216(b) (fair labor standards); 29 U.S.C. (2006), § 626(c)(1) (age discrimination in employment), and 42 U.S.C. (2006), § 3613(a)(1)(A) (housing discrimination).
287.
See Haywood v. Drown, 556 U.S. 729 (2009), p. 740 (holding that New York courts must entertain federal claims against corrections officers even if such claims are banned under state law).
288.
See 28 U.S.C. (2006), § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”) (Emphasis added). See also Franchise Tax Bd. v. Construction Laborers, 463 U.S. 1 (1983), pp. 7–11 (reaffirming the ‘well-pleaded complaint rule’ as a long settled practice). While the rule is usually associated with Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149 (1908), it actually goes back to the caseload following the establishment of plenary original federal question jurisdiction to the federal courts in 1875. For a brief history of these developments and a critique to the reaffirmation of the rule during the 1980s see, among many, Doernberg (1987), p. 650 (arguing that it undermines the purposes of having granted federal question jurisdiction to the lower federal courts).
289.
This would be the case, for instance, if a person is sued in state court for damages and she argues as a defense the right to freedom of speech granted in the First Amendment—incorporated against the states by the Fourteenth Amendment—of the U.S. Constitution. Only if the case could have been initially filed in federal court—by the complainant—is that it can be removed—by the defendant—from state to federal court. For a short explanation of the ‘well-pleaded complaint rule’ see Chemerinsky (2012), pp. 295–308.
290.
See, for instance, 28 U.S.C. (2006), § 1441(b) (removal based on diversity of citizenship); 28 U.S.C. (2006), § 1442 (removal by federal officers), and 28 U.S.C. (2006), § 1443(1) (removal for racial discrimination in state procedures). But see City of Greenwood v. Peacock, 384 U.S. 808 (1966), p. 828 (removal for racial discrimination is authorized only if it can be clearly predicted that the rights will be inevitably denied by bringing defendant to trial in state court).
291.
See Chemerinsky (2012), pp. 279–280. Regarding the burden of proof in showing federal court jurisdiction, see McNutt v. General Motors Acceptance Corp., 298 U.S. 178 (1936), p. 189 (denying federal court jurisdiction on a controversy in which the party seeking it in his favor did not provide evidence for such jurisdiction). Regarding the judiciary’s ability to challenge jurisdiction at any stage, see Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149 (1908), p. 152 (“Neither party has questioned that jurisdiction, but it is the duty of this Court to see to it that the jurisdiction of the circuit court, which is defined and limited by statute, is not exceeded. This duty we have frequently performed of our own motion.”) (Quotations omitted).
292.
Chemerinsky (2012), p. 598. Tort is the common law name given to civil liability suits.
293.
See Parratt v. Taylor, 451 U.S. 527 (1981), pp. 543–544 (random and unauthorized violations of property are not procedural due process violations if there is adequate remedy under state law), and Zinermon v. Burch, 494 U.S. 113 (1990), p. 132 (extending the Parrat rule to deprivations of liberty).
294.
In later cases, however, the Supreme Court defined that constitutional allegations should not be formulated as violations of substantive due process in general, but rather they should be directed to prove the violation of a specific fundamental right as guaranteed by the Constitution and incorporated by the Fourteenth Amendment. Compare Graham v. Connor, 490 U.S. 386 (1989), pp. 392–399 (analyzing the allegations of excessive force under the standards of the Fourth Amendment), and Albright v. Oliver, 510 U.S. 266 (1994), p. 266 (plurality opinion extending this requisite to claims of malicious prosecution). For the distinction between procedural and substantive due process of law see Nowak and Rotunda (2010), pp. 425–432.
295.
Compare Abernathy (1992), p. 247.
296.
Compare Culp et al. (1990), pp. 48–49.
297.
See 42 U.S.C. (2006), § 1997e as amended by U.S. Prison Litigation Reform Act (1996), § 803, published in Stat. 110(104–134):66–77. These suits are not effective to challenge the confinement itself, but only the conditions in which the prisoner is confined. See Preiser v. Rodriguez, 411 U.S. 475 (1973), p. 500 (constitutional challenges to confinement should be made through habeas corpus), and Heck v. Humphrey, 512 U.S. 477 (1994), pp. 486–487 (to sue for damages for wrongful imprisonment there must be a judgment—appellate or habeas corpus—vacating the confinement, or an executive pardon).
298.
See Chemerinsky (2012), pp. 501–502. Regarding the incorrectness of the perception of prisoner civil rights claims overloading the federal courts, see Eisenberg and Schwab (1986), p. 693.
299.
See, among many, Redish (1984), pp. 75–76 (characterizing them as judicial usurpations of legislative authority), and Zeigler (1985), p. 32 (critical of these developments in criminal justice). The arguments justifying abstention are usually considerations of comity, federalism, and the need to avoid friction between federal and state courts. Compare, for instance, Pennzoil v. Texaco, Inc., 481 U.S. 1 (1987), pp. 10–11.
300.
See, for instance, District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), p. 482 (“…a United States District Court has no authority to review final judgments of a state court in judicial proceedings. Review of such judgments may be had only in [the Supreme] Court.”).
301.
See 28 U.S.C. (2006), § 2283. See also, for instance, Mitchum v. Foster, 407 U.S. 225 (1972), p. 243 (“… [42 U.S.C.] § 1983 is an Act of Congress that falls within the “expressly authorized” exception of the [Anti-Injunction Act].”). Other statutes that are considered to expressly authorize federal injunctions of state procedures are 15 U.S.C. (2006), § 77z-1(a)(3)(B) (Private Securities Litigation Reform Act), and 42 U.S.C. (2006), § 4332 (National Environmental Policy Act).
302.
See, for instance, Dombrowski v. Pfister, 380 U.S. 479 (1965), p. 486 (allowing the injunction of a state court criminal proceeding based on a statute that openly chilled First Amendment Rights).
303.
See, for instance, Younger v. Harris, 401 U.S. 37 (1971), pp. 52–54 (abstention on actions seeking injunctions of state criminal procedures). After this case this kind of abstention has been commonly known as a Younger abstention. It is also called equitable abstention.
304.
See Huffman v. Pursue, Ltd., 420 U.S. 592 (1975), pp. 603–605 (extending the Younger abstention to ongoing state civil proceedings in which the state government is a party), and Pennzoil v. Texaco, Inc., 481 U.S. 1 (1987), pp. 13–14 (extending abstention to ongoing civil proceedings between private parties when there is an important state interest).
305.
See, for instance, Ohio Civ. Rgts. Comm’n v. Dayton Chr. Pub. Schs., 477 U.S. 619 (1986), pp. 626–629 (extending abstention to suits seeking to enjoin proceedings conducted by state administrative agencies).
306.
See Younger v. Harris, 401 U.S. 37 (1971), pp. 49–54, and Chemerinsky (2012), pp. 887–893 (stating the practical unlikelihood of these three exceptions to the Younger abstention).
307.
See, for instance, Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496 (1941), pp. 501–502 (abstention because clarification of state law issues might render unnecessary the determination of the federal ones), and Louisiana Power & Light Co. v. Thibodaux, 360 U.S. 25 (1959), pp. 29–30 (abstention because of unclear state law might be exceptionally exercised in diversity cases). In contrast with the so-called Younger or equitable abstention, on this kind of abstention the federal court retains jurisdiction and only stays the proceedings until the state law question is clarified. See England v. Medical Examiners, 375 U.S. 411 (1964), pp. 421–424 (explaining the procedure to later bring the suit back to federal court). But see Burford v. Sun Oil Co., 319 U.S. 315 (1959), pp. 324–328 (abstention because of unclear state law due to complex state administrative procedures requires dismissal of the federal case).
308.
See, for instance, Colorado River Water Conserv. Dist. v. United States, 424 U.S. 800 (1976), p. 818 (allowing abstention because of simultaneous litigation in state court under certain circumstances).
309.
Nichol (1987), p. 959.
310.
See, for instance, Steinglass (1993), p. 410.
311.
See 28 U.S.C. (2006), § 1738 (“The judicial proceedings [of any court of any State] shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State. . . .”).
312.
See, for instance, Allen v. McCurry, 449 U.S. 90 (1980), pp. 101–105 (barring re-litigation of a constitutional claim of unlawful search and seizure in a federal action for damages because the issue had already been decided by the state court in the respective criminal proceeding); Kremer v. Chemical Constr. Corp., 456 U.S. 461 (1982), pp. 466–467 (barring re-litigation of a claim under federal labor antidiscrimination laws because a state court had already confirmed the state agency’s determination that held the claim unfounded), and Migra v. Warren City Sch. Dist. Bd., 465 U.S. 75 (1984), pp. 80–85 (barring federal court litigation of constitutional claims that could have been brought to a previous state court proceeding dealing with the same facts.)
313.
See Allen v. McCurry, 449 U.S. 90 (1980), p. 94 (“Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from re-litigating issues that were or could have been raised in that action. Under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude re-litigation of the issue in a suit on a different cause of action involving a party to the first case.”) (Citations omitted, emphasis in original).
314.
See University of Tennessee v. Elliott, 478 U.S. 788 (1986), p. 799 (“when a state agency, acting in a judicial capacity […] resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, federal courts must give the agency’s fact finding the same preclusive effect to which it would be entitled in the State’s courts.”) (Citations omitted, emphasis added). This judgment, however, was not based in the Full Faith and Credit Clause. See id., pp. 796–797.
315.
See id., pp. 801–802 (Justice Stevens, dissenting).
316.
See Chemerinsky (2012), pp. 519 and 614 (“… by choosing to litigate in a state forum the plaintiff essentially relinquishes access to the lower federal courts. […]§1983 does not ensure a federal forum to all litigants presenting constitutional claims…”).
317.
See, for instance, Steinglass (1993), pp. 430–439 (discussing choice of forum considerations that might lead litigants to file the federal action in state courts of Ohio).
318.
See Stump v. Sparkman, 435 U.S. 349 (1978), pp. 355–356 (acknowledging immunity to an Indiana judge who had authorized the sterilization of a teenager only upon her mother’s request).
319.
id., pp. 356–357 (Citations omitted).
320.
See Pulliam v. Allen, 466 U.S. 522 (1984), pp. 536–543.
321.
See id., pp. 543–544.
322.
42 U.S.C. (2006), § 1988, as amended by U.S. Federal Courts Improvement Act (1996), §§ 309(b), published in Stat. 110(104–317):3847–3861. See also Chemerinsky (2008), p. 487 (“Judges lobbied from the time of the Pulliam decision to persuade Congress to adopt an amendment to Section 1983 to create absolute judicial immunity for suits for injunctions as well.”).
323.
42 U.S.C. (2006), § 1983, as amended by U.S. Federal Courts Improvement Act (1996), § 309(c). See also U.S. Senate (1996), § 311 (“In the 12 years since Pulliam, thousands of Federal cases have been filed against judges and magistrates. The overwhelming majority of these cases lack merit and are ultimately dismissed.”)
324.
See Mitchell v. Forsyth, 472 U.S. 511 (1985), pp. 524–530 (district courts’ decisions denying immunity to the Attorney General for addressed wiretapping are immediately appealable in the U.S. Courts of Appeals).
325.
Compare Brennan (1977), pp. 498–500 (enumerating several cases in which the state courts consciously decided to deviate from the Supreme Court’s interpretation of an individual right and pursued an interpretation based independently on state law). The idea that state laws can guarantee more protection to fundamental rights than federal laws is nevertheless an illusion at least when considered outside of the criminal procedure. Insofar as fundamental rights represent obligations also for private individuals who are themselves subject of fundamental rights, the increased protection of a party in many situations will necessarily mean less protection to the counterparty. So, if either of these rights differs from its regulation under federal law, there will be a violation of the Supremacy Clause.
326.
Compare Bator (1963), p. 451 (“If one set of institutions is as capable of performing the task at hand as another, we should not ask both to do it.”).
327.
See, respectively, 28 U.S.C. (2006), §§ 2254 and 1257.
328.
See supra Sect. 3.2.1.2.
329.
See Hart (1959), pp. 103–108.
330.
Wiecek (1969), p. 334. See also Schwartz (1992), pp. 216–218.
331.
See, for instance, Brown v. Allen, 344 U.S. 443 (1953), pp. 457–460 (allowing re-litigation of all constitutional claims), and Fay v. Noia, 372 U.S. 391 (1963), pp. 438–439 (allowing litigation of constitutional claims not presented in state court when the petitioner did not bypass the state procedures deliberately).
332.
See, for instance, Friendly (1970), pp. 143–144 (“If 541 annual petitions for federal habeas corpus by state prisoners were an “inundation,” what is the right word for 7,500?”), and Freund (1972), pp. 12–13 (“But the problem of prisoner petitions […] has grown ever more pressing in the last decade or so, and does demand special attention […] The number of these petitions found to have merit is very small, both proportionally and absolutely.”).
333.
Compare, for instance, Burger (1981), p. 292 (“…but the judicial process becomes a mockery of justice if it is forever open to appeals and retrials for errors in the arrest, the search, or the trial.”); Powell and U.S. Judicial Conference (1989), pp. S13482 (“The Committee identified serious problems with the present system of collateral review. These many be broadly characterized under the heading of unnecessary delay and repetition. The lack of coordination between the federal and state legal systems often results in inefficient and unnecessary steps in the course of litigation.”), and Culp et al. (1990), p. 17 (“Habeas corpus is another prolific head of federal litigation instituted (largely) by state prisoners…”).
334.
Culp et al. (1990), p. 3.
335.
Chemerinsky (2012), p. 927.
336.
While there are certainly some non-criminal law related situations in which a person is in government custody (e.g., confinement in mental institutions or deportation procedures), review of criminal convictions represents “by far the most frequent use of habeas corpus.” Chemerinsky (2012), pp. 928–929. To emphasize that the problems surrounding federal habeas were related mostly to criminal procedures is also useful when comparing the American solutions with those followed by other legal systems with similar problems. As shown in infra Chap. 5, comparable issues arose in Mexico with the progressive expansion of a federal constitutional writ—called juicio de amparo—that was largely inspired in the American federal habeas corpus. Nevertheless, because the Mexican writ was not limited to deprivations of liberty and included many other fundamental rights, its troubling effects extended to all sorts of judicial procedures and not just the criminal ones.
337.
See Rose v. Lundy, 455 U.S. 509 (1982), p. 522 (“…because a total exhaustion rule promotes comity and does not unreasonably impair the prisoner’s right to relief, we hold that a district court must dismiss habeas petitions containing both unexhausted and exhausted claims.”) (Emphasis added). The exhaustion requirement was judicially created and remained under the discretion of the federal judges until it was incorporated to federal statutes in 1948. See 28 U.S.C. (2006), § 2254(b)(1) (“An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that—(A) the applicant has exhausted the remedies available in the courts of the State; or (B) (i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.”).
338.
See Rose v. Lundy, 455 U.S. 509 (1982), p. 520.
339.
See 28 U.S.C. (2006), § 2244(d)(1), as amended by U.S. Antiterrorism and Effective Death Penalty Act (1996), § 101, published in Stat. 110(104–132):1214–1319. This period can even be shorter in death penalty cases. See Yackle (2014), p. 1821.
340.
See 28 U.S.C. (2006), § 2244(a), as amended by U.S. Antiterrorism and Effective Death Penalty Act (1996), § 106. Regarding the AEDPA in general, see Yackle (1996), pp. 381–449.
341.
See 28 U.S.C. (2006), § 2244(b)(3)(A). See also Stewart v. Martinez-Villarreal, 523 U.S. 637 (1998), pp. 644–646 (clarifying that a petition dismissed without prejudice for lack of remedy exhaustion or of ripeness does not count as a petition).
342.
28 U.S.C. (2006), § 2244(b)(2)(A) (Emphasis added). See also Tyler v. Cain, 533 U.S. 656 (2001), p. 667 (“Because Tyler’s habeas application was his second, the District Court was required to dismiss it unless Tyler showed that this Court already had made Cage retroactive.”) (Emphasis added).
343.
28 U.S.C. (2006), § 2244(b)(2)(B) (Numerals added).
344.
See 28 U.S.C. (2006), § 2244(b)(3)(E). See also Felker v. Turpin, 518 U.S. 651 (1996), pp. 658–662 (validating the limitation on Supreme Court review on the grounds that the Court could still hear original habeas corpus petitions). See also Yackle (1996), p. 392 (criticizing these provisions as too strict).
345.
Compare Fay v. Noia, 372 U.S. 391 (1963), pp. 438–439 (new claims are banned only if the state shows that the defendant deliberately bypassed state procedures), with Wainwright v. Sykes, 433 U.S. 72 (1977), pp. 87–88 (rejecting in dicta the “deliberate bypass” standard of Fay as too expansive), and Coleman v. Thompson, 501 U.S. 722 (1991), p. 750 (explicitly overruling Fay). “Procedural default” is the name usually given to noncompliance with a procedural rule that governs the manner of raising claims in a trial.
346.
See Murray v. Carrier, 477 U.S. 478 (1986), pp. 488–489 (giving precisely these examples), and Lee v. Kemna, 534 U.S. 362 (2002), pp. 381–387 (holding that a state procedural rule under some exceptional circumstances is not an adequate ground of decision to ban a federal court’s decision on the merits if the state rule’s purpose was fulfilled in the state trial).
347.
Compare Meltzer (1986), pp. 1149–1150.
348.
Among many, House v. Bell, 547 U.S. _____ (2006), p. 18.
349.
See Trest v. Cain, 522 U.S. 87 (1997), pp. 89–90.
350.
The conditions of confinement can be challenged under 42 U.S.C. (2006), § 1983, provided the petitioner has exhausted available state remedies introduced to prison litigation in 1996. See supra Sect. 3.3.2.1. The Supreme Court had to harmonize the existence of habeas corpus and the civil action for deprivation of federal rights as federal remedies against constitutional violations committed by the states. The Court constrained the former to challenges against confinement itself and, conversely, extended the latter to all other deprivations of constitutional rights including the conditions of confinement. Compare Preiser v. Rodriguez, 411 U.S. 475 (1973), p. 500 (“…when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.”).
351.
Justiciability requirements are constitutional and prudential requisites that have to be met in order for a Court of the United States to issue a decision on the merits. They are, for instance, the case or controversy requirement, procedural standing, mootness, and that the issue is not a “political question.” See, in general, Chemerinsky (2012), pp. 42–175. These important limits to federal court jurisdiction are not discussed here in detail because they are normally met in actions for deprivation of fundamental rights. Nevertheless, it might very well happen that an individual is acknowledged standing to challenge a state official act in state court and then lack standing in federal court because the requisites are narrower. Compare, for instance, Steinglass (1993), p. 434 (mentioning how tax payers’ standing is broader in the state courts of Ohio than in the Courts of the United States).
352.
Yackle (1996), p. 398.
353.
See Teague v. Lane, 489 U.S. 288 (1989), p. 300 (“Retroactivity is properly treated as a threshold question, for, once a new rule is applied to the defendant in the case announcing the rule, even-handed justice requires that it be applied retroactively to all who are similarly situated.”). See 28 U.S.C. (2006), § 2254(d), as amended by U.S. Antiterrorism and Effective Death Penalty Act (1996), § 104. See also Yackle (1996), p. 415 (“Certainly the reference […] implies that federal habeas is not typically to be a vehicle for advancing the development of federal rights.”), and Horn v. Banks, 536 U.S. _____ (2002), p. 6 (“…none of our post-AEDPA cases have suggested that a writ of habeas corpus should automatically issue if a prisoner satisfies the AEDPA standard, or that AEDPA relieves courts from the responsibility of addressing properly raised Teague arguments.”).
354.
See Chemerinsky (2012), pp. 975–976. See also, for instance, Whorton v. Bockting, 549 U.S. _____ (2007), p. 8 (reversing the Ninth Circuit’s retroactive application of new Sixth Amendment’s confrontation law) (“A new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a watershed [rule] of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.”) (Inner citations omitted).
355.
See, for instance, Brown v. Allen, 344 U.S. 443 (1953), p. 508 (“The State court cannot have the last say when it, though on fair consideration and what procedurally may be deemed fairness, may have misconceived a federal constitutional right.”).
356.
See Mapp v. Ohio, 367 U.S. 643 (1961), p. 655.
357.
See Stone v. Powell, 428 U.S. 465 (1976), p. 494. See also Peller (1982), p. 669 (criticizing the exclusion of Fourth Amendment claims from habeas re-litigation as an invasion on Congress authority).
358.
See, for instance, Yackle (1996), p. 409 (“For Congress cannot constitutionally condition the decision that an Article III court can reach with respect to a legal question (and certainly a question of constitutional law), or a mixed question of law and fact, without invading the independence of the judicial branch.”).
359.
28 U.S.C. (2006), § 2254(d).
360.
Simplifying, a majority of the Court believed that whereas ‘contrary to’ relates to choosing the correct legal rule governing the analysis of a claim, ‘unreasonable application’ refers instead to applying that correctly chosen rule to the facts of the case. See, for instance, Williams v. Taylor, 529 U.S. 362 (2000), pp. 412–413 (Justice O’Connor, concurring) (“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.”), and Bell v. Cone, 535 U.S. 685 (2002), p. 694(repeating the distinction).
361.
See Primus (2010), p. 11 (“Under AEDPA, it is not enough if a state decision was wrong: it has to have been unreasonably wrong.”), and Renico v. Lett, 559 U.S. _____ (2010), p. 5 (“We have explained that an unreasonable application of federal law is different from an incorrect application of federal law.”).
362.
Primus (2010), p. 2.
363.
See, among many, Renico v. Lett, 559 U.S. _____ (2010), pp. 11–12 (stating that the state court’s failure to apply the precedent of the Sixth Circuit cannot independently authorize relief under AEDPA), and Lopez v. Smith U.S. (2014), p. 5 (same argument to reverse a decision of the Ninth Circuit that granted habeas corpus based only on its own precedent).
364.
See Steinglass (1993), p. 438. It is a completely different matter when state judges have to comply with a federal injunction. These are not precedents, but rather concrete orders whose noncompliance give cause to hold the state judicial officer in contempt.
365.
28 U.S.C. (2006), § 2254(e)(1).
366.
See 28 U.S.C. (2006), § 2254(e)(2)(A).
367.
See 28 U.S.C. (2006), § 2254(e)(2) (B).
368.
See, notably, Cullen v. Pinnholster, 563 U.S. ______ (2011), pp. 9–10 (reversing a decision that had allowed a federal evidentiary hearing on habeas to determine whether there was ineffective counsel to a defendant sentenced to death). See also Wiseman (2012), pp. 968–972 (enumerating several lower federal court cases that follow the strict limits to evidentiary hearings set by Pinnholster).
369.
Cullen v. Pinnholster, 563 U.S. ______ (2011), pp. 13–14.
370.
See, for instance, Hoffmann and King (2009), p. 793 (“In 99.99 % of all state felony cases—excluding those cases in which the defendant is sentenced to death— the time, money, and energy spent on federal habeas litigation is wasted, generating virtually no benefit for anyone. Noncapital federal habeas is, in essence, a lottery, funded at great expense by taxpayers, open almost exclusively to the small group of state inmates who are sentenced to the longest prison terms, and producing almost no marginal increase in the enforcement of constitutional rights.”), and Primus (2010), p. 11 (“Critically, the fact that federal judges ultimately deny almost all petitions for relief without considering their substantive merits means that the habeas system does not deter states from violating defendants’ constitutional rights.”).
371.
28 U.S.C. (2006), § 2253, as amended by U.S. Antiterrorism and Effective Death Penalty Act (1996), § 102.
372.
See, for instance, Lopez v. Smith 574 U.S. _____ (2014), p. 1 (“We have emphasized, time and again, that the [AEDPA] prohibits the federal courts of appeals from relying on their own precedent to conclude that a particular constitutional principle is ‘clearly established’.”) (Inner citations omitted).
373.
See, for instance, Hoffmann and King (2009), pp. 791–849 (arguing for the elimination of federal habeas review of state criminal judgments except for claims of actual innocence, claims based on retroactively applicable new rules, and death sentence).
374.
See U.S. Judges’ Bill (1925), § 1. The court had also the original—though not always exclusive—jurisdiction pursuant to U.S. Const. (1789), art. III.
375.
Compare, for instance, Freund (1972), p. 26 (“…the existence of two different procedures is confusing and burdensome to the bar, and there is even some ambiguity about the significance of a dismissal for want of a substantial federal question or a summary affirmance. […] [In] view of the great number of cases now reaching the Court, and the little time available for each, the disposition of most appeals on a summary basis is not a satisfactory equivalent for the judgment on the merits it is supposed to be.”). See also supra Sect. 3.2.2.2.
376.
Compare Stern et al. (1988), pp. 66–67. Back then the decisions where a federal district court had declared a federal statute unconstitutional and several decisions issued by specially convened three-judge district courts could be appealed directly to the Supreme Court without going through a U.S. Court of Appeals. See, respectively, 28 U.S.C. §1252 (1959), repealed by U.S. Discretion in the Supreme Court Act (1988), § 1, and 28 U.S.C. §§2281–2282 (1948), repealed by U.S. Three-Judge District Courts Elimination Act (1976), § 1, published in Stat. 90(94–381):1119–1120.
377.
U.S. Supreme Court’s letter to Congress of 1982, quoted in Stern et al. (1988), p. 68.
378.
See U.S. Discretion in the Supreme Court Act (1988), §§ 1–3.
379.
Compare U.S. Sup. Ct. Rules (2013), rule 10, available at http://www.supremecourt.gov/ctrules/2013RulesoftheCourt.pdf (“Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons.”).
380.
See, for instance, 42 U.S.C. (2006), § 2000a-5(b) (providing for three-judge district courts upon request of the Attorney General and establishing direct appeal to the Supreme Court against their judgments in cases to prevent discrimination in places of public accommodation); 42 U.S.C. (2006), § 1971(g) (same rules on suits to prevent impairment of voting rights on account of race), and U.S. Code Title 26 (26 U.S.C.) (2006), § 9010 (authorizing three-judge district courts upon request of the Federal Election Commission on suits regarding presidential election campaign funds). The Court will always require, however, that there is a substantial federal question in need of clarification in order to admit an ostensibly mandatory appeal. See, for instance, Zucht v. King, 260 U.S. 174 (1922), pp. 176–177 (dismissing an appeal for want of substantial federal question because there was clearly a precedent controlling the case). See also Hartnett (2000), pp. 1708–1709 (critical of such practice).
381.
See U.S. Sup. Ct. Rules (2013), rule 10.
382.
See, for instance, Brown v. Allen, 344 U.S. 443 (1953), p. 497 (Justice Frankfurter, concurring). On the other hand, the grant of certiorari review means exclusively that at least four Justices believed that the case presented a question worth of reviewing, but the case can be later dismissed by the majority.
383.
See Hartnett (2000), p. 1706 (“This practice of limited grants of certiorari has become so uncritically accepted that, under current Supreme Court rules, no writ of certiorari brings before the Court all questions presented by the record.”). See also U.S. Sup. Ct. Rules (2013), rule 14(1)a.
384.
Hartnett (2000), p. 1707.
385.
See Hartnett (2000), p. 1707 (“Especially in light of its expressed lack of interest in simple error correction, the result can well be the affirmance of judgments that, while correct as to the controversial issue on which certiorari is granted, are nevertheless erroneous because based on a simpler error that the Supreme Court declines to consider.”).
386.
See, fundamentally, Murdock v. City of Memphis, 87 U.S. 590 (1875), p. 638. See also supra Sect. 3.2.1.2.
387.
See Herb v. Pitcairn, 324 U.S. 117 (1945), p. 126 (stating that the prohibition against advisory opinions banned the Court from hearing cases that are based on independent and adequate state grounds). But see Matasar and Bruch (1986), pp. 1301–1304 (arguing that the ban does not compel the adequacy doctrine). Other acknowledged justifications for the doctrine of independent and adequate state grounds are the avoidance of unnecessary constitutional questions, preventing tensions among federal and state courts, and allowing the Supreme Court to focus on the more relevant cases. See Chemerinsky (2012), pp. 738–739.
388.
See, respectively, Arizona v. Evans, 514 U.S. 1 (1995), pp. 9–10 (reviewing the merits of a decision ostensibly based on Arizona law but interpreted on the light of the Fourth Amendment’s exclusionary rule jurisprudence), and Michigan v. Long, 463 U.S. 1032 (1983), pp. 1043–1044 (reviewing a decision based on the Michigan Constitution because it relied on federal precedents to interpret the state provision regarding unlawful searches and seizures).
389.
See, for instance, Parker v. North Carolina, 397 U.S. 790 (1970), pp. 798–799 (precluding review of a claim against the composition of a grand jury because it was presented in an untimely fashion in state court).
390.
See, for instance, respectively, James v. Kentucky, 466 U.S. 341 (1984), pp. 348–349 (allowing review because the rule applied by the state court was not regularly followed) and Lee v. Kemna, 534 U.S. 362 (2002), pp. 375–388 (considering that the interest served by the state procedural rule that required continuance motions to be made in written form was served by the defendant’s multiple oral motions for a continuance after his witnesses had mysteriously disappeared).
391.
See, Kloppenberg (1994), p. 1062 (“The Court retains the ability to determine if the state ground is truly adequate and independent of federal law.”) (Emphasis in original).
392.
Chemerinsky (2012), p. 761. Though the doctrine started as a dispositive issue, it is now considered a jurisdictional one and thus affects the authority of the court to review, not the merits.
393.
See, for instance, Kloppenberg (1994), p. 1062. It should be noted, furthermore, that this cannot be true when the litigation involves fundamental rights of two private individuals (e.g., in non-criminal procedures). Because no fundamental right is prima facie more important than other, the enforcement—or more protection—of a right of a party necessarily involves the restriction—or less protection—of the right of the other one. Thus, the lawfulness of the increased protection of fundamental right will always be determined by federal law.
394.
See, for instance, Michigan v. Long, 463 U.S. 1032 (1983), pp. 1037–1045 (allowing review of the Michigan Supreme Court’s decision that had ruled in favor of a criminal defendant on certiorari petition by the state government), and Arizona v. Evans, 514 U.S. 1 (1995), pp. 6–10 (same situation).
395.
Compare U.S. Supreme Court’s letter to Congress of 1982, quoted in Stern et al. (1988), p. 68.
396.
Chemerinsky (2012), p. 686.
397.
Compare Cooper v. Aaron, 358 U.S. 1 (1958), p. 18.
398.
28 U.S.C. (2006), § 1257.

References

Abernathy CF (1992) Civil rights and constitutional litigation: cases and materials, 2nd edn, American casebook series. West, St. Paul
Google Scholar
Ackerman BA (1998) We the people: transformations. Belknap Press of Harvard University Press, Cambridge
Google Scholar
Adams J (1897) James Otis argument. In: Moore F (ed) American eloquence: a collection of speeches and addresses by the most eminent orators of America. D. Appleton & Co., New York, pp 6–7
Google Scholar
Amar AR (1990) The two-tiered structure of the Judiciary Act of 1789. U Penn L Rev 138(6):1499–1567
Article Google Scholar
Amar AR (1998) The bill of rights: creation and reconstruction. Yale University Press, New Haven
Google Scholar
Amsterdam AG (1965) Criminal prosecutions affecting federally guaranteed civil rights: federal removal and habeas corpus jurisdiction to abort state court trial. U Penn L Rev 113(6):793–912
Article Google Scholar
Barragán Barragán J (ed) (1987) Proceso de discusión de la ley de amparo de 1869. A: Fuentes b) Textos y Estudios Legislativos, vol 24. Instituto de Investigaciones Jurídicas-UNAM, México
Google Scholar
Bator P (1963) Finality in criminal law and federal habeas corpus for state prisoners. Harv L Rev 76(3):441–528
Article Google Scholar
Beer LW (1990) Constitutionalism and rights in Japan and Korea. In: Henkin L, Rosenthal AJ (eds) Constitutionalism and rights: the influence of the United States constitution abroad. Columbia University Press, New York, pp 225–259
Google Scholar
Bice SH (1975) The limited grant of certiorari and the justification of judicial review. Wis L Rev 1975:343–483
Google Scholar
Billias GA (ed) (1990) American constitutionalism abroad: selected essays in comparative constitutional history. Contributions to the study of world history, vol 16. Greenwood Press, New York
Google Scholar
Billias GA (2009) American constitutionalism heard round the world, 1776–1989: a global perspective. New York University Press, New York
Book Google Scholar
Bingham JA (1871) Enforcement of the constitution and laws of the United States and rights of the people: speech of Hon. J. A. Bingham of Ohio, Cong. Globe 42nd Congress (1st Session):81–84
Google Scholar
Blackstone W (1893) Commentaries to the laws of England. J.B. Lippincott Company, Philadelphia
Google Scholar
Brennan WJ (1977) State constitutions and the protection of individual rights. Harv L Rev 90(3):489–504
Article Google Scholar
Burger WE (1981) Annual report to the American Bar Association by the Chief Justice of the United States. A B A J 67:290–293
Google Scholar
Burnham W (2006) Introduction to the law and legal system of the United States, 4th edn. Thomson/West, St. Paul
Google Scholar
Cappelletti M (1970) Judicial review in comparative perspective. Cal L Rev 58(5):1017–1049
Article Google Scholar
Chemerinsky E (2008) Absolute immunity: general principles and recent developments. Touro L Rev 24:473–499
Google Scholar
Chemerinsky E (2012) Federal jurisdiction, 6th edn, Aspen student treatise series. Wolters Kluwer Law & Business, New York
Google Scholar
Cogan NH (1997) The complete bill of rights: the drafts, debates, sources, and origins. Oxford University Press, New York
Google Scholar
Commager HS (ed) (1973) Documents of American history, 9th edn. Prentice-Hall, Englewood Cliffs
Google Scholar
Conley PT, Kaminski JP (eds) (1992) The bill of rights and the states: the colonial and revolutionary origins of American liberties. Madison House, Madison
Google Scholar
Cossío Díaz JR (2011) Sistemas y modelos de control constitucional en México. Estudios Jurídicos, vol 186. Instituto de Investigaciones Jurídicas-UNAM, Mexico
Google Scholar
Cowan E (1866) Intervention on of Senator Edgar Cowan regarding the Habeas Corpus Bill, Cong. Globe 39th Congress (1st Session):4228–4230
Google Scholar
Culp DG, Kramer L, Wheeler RR, Hauptly DJ, Rowe TD (1990) Report of the Federal Courts Study Committee, Washington, DC
Google Scholar
Curtis MK (1986) No state shall abridge: the fourteenth amendment and the bill of rights. Duke University Press, Durham
Google Scholar
Curtis MK (1997) Resurrecting the privileges or immunities clause and revising the slaughter-house cases without exhuming lochner: individual rights and the fourteenth amendment. B C L Rev 38(1):1–106
Google Scholar
de Tocqueville A (1966) Democracy in America. Harper and Row Publishers, New York
Google Scholar
Doernberg DL (1987) There’s no reason for it; it’s just our policy: the well-pleaded complaint rule sabotages the purposes of Federal Question Jurisdiction. Hast L J 38:597–663
Google Scholar
Eisenberg T, Schwab S (1986) The reality of constitutional tort litigation. Cornell L Rev 72:641–695
Google Scholar
Elliot J (ed) (1836) The debates in the several state conventions on the adoption of the Federal Constitution, 2nd edn. Washington
Google Scholar
Farrand M (1913) The framing of the constitution of the Unites States. Yale University Press, New Haven
Google Scholar
Farrand M (ed) (1919) The records of the Federal Convention of 1787. Yale University Press, New Haven
Google Scholar
Farrell JM (2003) The child independence is born: James Otis and Writs of assistance. In: Medhurst MJ (ed) A rhetorical history of the United States: significant moments in American public discourse, vol 2. Michigan State University Press, East Lansing
Google Scholar
Favoreu L (1990) Constitutional review in Europe. In: Henkin L, Rosenthal AJ (eds) Constitutionalism and rights: the influence of the United States constitution abroad. Columbia University Press, New York, pp 38–62
Google Scholar
Foner E (1997a) Slavery, the civil war, and reconstruction. In: Foner E (ed) The new American history. Temple University Press, Philadelphia, pp 85–106 (rev. and expanded ed.)
Google Scholar
Foner E (ed) (1997b) The new American history (rev. and expanded ed). Critical perspectives on the past. Temple University Press, Philadelphia
Google Scholar
Foner E (2011) Give me liberty! An American history, 3rd edn. W.W. Norton, New York
Google Scholar
Frankfurter F, Fisher AS (1938) The business of the Supreme Court at the October terms, 1935 and 1936. Harv L Rev 51(4):577–637. doi:10.2307/1333873
Article Google Scholar
Frankfurter F, Landis JM (1928) The Supreme Court under the Judiciary Act of 1925. Harv L Rev 42(1):1–29
Article Google Scholar
Freund PA (1972) Report of the study group on the caseload of the Supreme Court. Federal Judicial Center, Washington
Google Scholar
Friendly HJ (1970) Is innocence irrelevant? Collateral attacks on criminal judgments. U Chi L Rev 38(1):142–172
Article Google Scholar
Gales J (ed) (1834) Debates and proceeding in the Congress of the United States: with an appendix containing important state papers and public documents. Gales and Seaton, Washington
Google Scholar
García Sarubbi D (2011) Federalism and constitutional review in Mexico and the United States: a normative assessment of two different jurisdictional schemes. Mex L Rev NS 4(1):35–58
Google Scholar
Gibbons JJ (1984) Federal law and the state courts 1789–1860. Rutg L Rev 36:399–453
Google Scholar
Gillman H (1993) The constitution besieged: the rise and demise of Lochner era police powers jurisprudence. Duke University Press, Durham
Google Scholar
Glick J (2003) On the road: The Supreme Court and the history of circuit riding. Cardozo L Rev 24(4):1753–1843
Google Scholar
Glickstein J (2013) After midnight: the circuit judges and the repeal of the Judiciary Act of 1801. Yale J Law & Humanities 24(2):543–578
Google Scholar
Hamilton A (2001a) The Federalist 22: the same subject continued (other defects of the present confederation). In: Hamilton A, Jay J, Madison J (eds) The Federalist. The Gideon Edition. Liberty Fund, Indianapolis
Google Scholar
Hamilton A (2001b) The Federalist 78: the judicial department. In: Hamilton A, Jay J, Madison J (eds) The Federalist. The Gideon Edition. Liberty Fund, Indianapolis
Google Scholar
Hamilton A (2001c) The Federalist 80: the powers of the judiciary. In: Hamilton A, Jay J, Madison J (eds) The Federalist. The Gideon Edition. Liberty Fund, Indianapolis
Google Scholar
Hamilton A (2001d) The Federalist 81: the judiciary continued and the distribution of the judicial authority. In: Hamilton A, Jay J, Madison J (eds) The Federalist. The Gideon Edition. Liberty Fund, Indianapolis
Google Scholar
Hamilton A (2001e) The Federalist 82: a further view of the judicial department, in reference to some miscellaneous questions. In: Hamilton A, Jay J, Madison J (eds) The Federalist. The Gideon Edition. Liberty Fund, Indianapolis
Google Scholar
Hamilton A (2001f) The Federalist 84: certain general and miscellaneous objections to the constitution considered and answered. In: Hamilton A, Jay J, Madison J (eds) The Federalist. The Gideon Edition. Liberty Fund, Indianapolis, pp 442–451
Google Scholar
Hamilton A (2001g) Writings, 2nd edn. Library of America, vol 129. Literary Classics of the United States, New York
Google Scholar
Hamilton A, Jay J, Madison J (eds) (2001) The Federalist. The Gideon Edition. Liberty Fund, Indianapolis
Google Scholar
Hart HM (1959) The Supreme Court 1958 term. Harv L Rev 73(1):84–240
Article Google Scholar
Hart HM, Wechsler H (2009) The federal courts and the federal system, 6th edn. University casebook series. Foundation Press/Thomson Reuters, New York
Google Scholar
Hartnett E (2000) Questioning certiorari: some reflections seventy-five years after the judges’ bill. Colum L Rev 100(7):1643–1738
Article Google Scholar
Henkin L, Rosenthal AJ (eds) (1990) Constitutionalism and rights: the influence of the United States constitution abroad. Columbia University Press, New York
Google Scholar
Hoffmann JL, King NJ (2009) Rethinking the federal role in state criminal justice. N Y U L Rev 84(3):791–849
Google Scholar
Holt W (1985) The first federal question case. Law & Hist Rev 3(1):169–189
Article Google Scholar
Howard D (1992) Rights in passage: English liberties in early America. In: Conley PT, Kaminski JP (eds) The bill of rights and the states: the colonial and revolutionary origins of American liberties. Madison House, Madison, pp 3–15
Google Scholar
Howard D (2007) The bridge at Jamestown: The Virginia Charter of 1606 and constitutionalism in the modern world. U Rich L Rev 42:9–36
Google Scholar
Indiana University (1951) Civil Rights Act: emergence of an adequate federal civil remedy? Ind L J 26(3):361–379
Google Scholar
Jackson VC, Tushnet MV (1999) Comparative constitutional law. University casebook series. Foundation Press, New York
Google Scholar
James JB (1956) The framing of the fourteenth amendment. University of Illinois Press, Urbana
Google Scholar
Jefferson T (1999) Political writings. Cambridge texts in the history of political thought. Cambridge University Press, Cambridge
Google Scholar
Kaczorowski RJ (2005) The politics of judicial interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866–1876. Fordham University Press, New York
Google Scholar
Kau M (2007) United States Supreme Court und Bundesverfassungsgericht: Die Bedeutung des United States Supreme Court für die Errichtung und Fortentwicklung des Bundesverfassungsgerichts. Springer, Berlin
Book Google Scholar
Kent J (1826) Commentaries on American law. Halsted, New York
Google Scholar
King NJ, Cheesman FL, Ostrom BJ (2007) Final technical report: habeas litigation in U.S. District Courts: an empirical study of habeas corpus cases filed by state prisoners under the antiterrorism and effective Death Penalty Act of 1996
Google Scholar
Kloppenberg LA (1994) Avoiding constitutional questions. B C L Rev 35(5):1003–1066
Google Scholar
Kommers DP (1998) Can German constitutionalism serve as a model for the United States? HJIL 58:787–798
Google Scholar
Law DS, Versteeg M (2012) The declining influence of the United States constitution. N Y U L Rev 87(3):762–858
Google Scholar
Lee RH (1888) Letters of the federal farmer to the republican. In: Ford PL (ed) Pamphlets on the constitution of the United States, published during its discussion by the people, 1787–1788: edited with notes and a bibliography, Brooklyn, pp 277–325
Google Scholar
Lutz DS (ed) (1998) Colonial origins of the American constitution: a documentary history. Liberty Fund, Indianapolis
Google Scholar
Madison J (1999) Writings. The library of America, vol 0109. Literary Classics of the United States, New York
Google Scholar
Marcus M, Wexler N (1992) The Judiciary Act of 1789: political compromise or constitutional interpretation? In: Marcus M (ed) Origins of the federal judiciary: essays on the Judiciary Act of 1789. Oxford University Press, New York
Google Scholar
Mason G (1976) Objections to the constitution. In: Jensen M, Kaminski JP, Saladino GJ (eds) The documentary history of the ratification of the constitution, vol 13. State Historical Society of Wisconsin, Madison, pp 349–350
Google Scholar
Matasar RA, Bruch GS (1986) Procedural common law, federal jurisdictional policy, and abandonment of the adequate and independent state grounds doctrine. Colum L Rev 86(7):1291–1390
Article Google Scholar
McDonald F (1979) E Pluribus Unum: the formation of the American Republic, 1776–1790, 2nd edn. Liberty Press, Indianapolis
Google Scholar
Meltzer DJ (1986) State court forfeitures of federal rights. Harv L Rev 99(6):1128–1236. doi:10.2307/1341251
Article Google Scholar
Moore F (ed) (1897) American eloquence: a collection of speeches and addresses by the most eminent orators of America. D. Appleton & Co., New York
Google Scholar
Neuborne B (1977) The myth of parity. Harv L Rev 90(6):1105–1131
Article Google Scholar
Nichol GR (1987) Federalism, state courts and Section 1983. Va L Rev 73(6):959–1010
Article Google Scholar
Nowak JE, Rotunda RD (2010) Constitutional law. Hornbook series, 8th edn. Thomson/West, St. Paul
Google Scholar
Oaks DH (1965) Habeas corpus in the states 1776–1865. U Chi L Rev 32:243–288
Article Google Scholar
Otis J (1896) On the writs of assistance: before the Superior Court of Massachusetts. February, 1761. In: Johnston A (ed) American eloquence: studies in American political history, vol 1, pp 9–10
Google Scholar
Peller G (1982) In defense of federal habeas corpus relitigation. Harv CR-C L L Rev 16:579–691
Google Scholar
Pettys TE (2007) State habeas relief for federal extrajudicial detainees. Minn L Rev 92(2):265–322
Google Scholar
Pieroth B (1989) Amerikanischer Verfassungsexport nach Deutschland. NJW 42:1333–1337
Google Scholar
Posner RA (1996) The federal courts: challenge and reform. Harvard University Press, Cambridge
Google Scholar
Powell LF, U.S. Judicial Conference (1989) Report and proposal of the ad hoc committee on federal habeas corpus in capital cases, Cong. Rec. 101st Congress (1st Session):S13481–S13486
Google Scholar
Primus EB (2010) A structural vision of habeas corpus. Cal L Rev 98(1):1–58
Google Scholar
Prince OH (ed) (1837) Digest of the laws of the state of Georgia, 2nd edn. Olvier H, Prince
Google Scholar
Quincy J (ed) (1865) Reports of cases argued and adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay, between 1761–1772 with an appendix upon the General Writs of Assistance. Little, Brown & Co., Boston
Google Scholar
Randolph E (1936) Essay on the revolutionary history of Virginia (1774–1782) (continued). Part III, The Virginia Magazine of History and Biography 44(1):35–50
Google Scholar
Redish MH (1984) Abstention, separation of powers, and the limits of the judicial function. Yale L J 94:71–115
Google Scholar
Redish MH, Woods CE (1975) Congressional power to control the jurisdiction of lower federal courts: a critical review and a new synthesis. U Penn L Rev 124(1):45–109. doi:10.2307/3311460
Article Google Scholar
Safran W (1990) The influence of American constitutionalism in postwar Europe: The Bonn Republic Basic Law and the constitution of the fifth French Republic. In: Billias GA (ed) American constitutionalism abroad: selected essays in comparative constitutional history. Greenwood Press, New York, pp 91–112
Google Scholar
Schwartz B (1992) The great rights of mankind: a history of the American bill of rights. Rowman & Littlefield, Lanham (expanded ed)
Google Scholar
Seward WH (1889) The works of William H. Seward. Houghton Mifflin, New York
Google Scholar
Solimine ME, Walker JL (1983) Constitutional litigation in federal and state courts: an empirical analysis of judicial parity. Hast Const L Q 10(2):213–254
Google Scholar
Steinberger H (1990) American constitutionalism and German constitutional development. In: Henkin L, Rosenthal AJ (eds) Constitutionalism and rights: the influence of the United States constitution abroad. Columbia University Press, New York, pp 199–224
Google Scholar
Steinglass SH (1993) Section 1983 litigation in the Ohio Courts: an introduction for Ohio lawyers and judges. Clev St L Rev 41:407–501
Google Scholar
Stern RL, Gressman E, Shapiro SM (1988) Epitaph for mandatory jurisdiction. A B A J 74(12):66–70
Google Scholar
Stevenson JB (1871) Ku Klux Klan: Speech of Hon. Job. B. Stevenson of Ohio in the house of representatives, Cong. Globe 42nd Congress (1st Session):283–300 (Appendix)
Google Scholar
Stone Sweet A (2003) Why Europe rejected American judicial review and why it may not matter. Mich L Rev 101:2744–2780
Article Google Scholar
Stone Sweet A (2008) Constitutions and judicial power. In: Caramani D (ed) Comparative politics. Oxford University Press, Oxford, pp 217–239
Google Scholar
Storing HJ, Dry M (eds) (2007) The complete anti-federalist. University of Chicago Press, Chicago
Google Scholar
Story J (2001) Commentaries on the constitution of the United States: with a preliminary review of the constitutional history of the colonies and states, before the adoption of the constitution, 3rd edn. Lawbook Exchange, Union, NJ
Google Scholar
Strom T (1957) Filibuster of Senator Strom Thurmond against Civil Rights Legislation, Cong. Rec. 85th Congress (1st Session):16263–16456
Google Scholar
Teubner G (2001) Legal irritants: how unifying law ends up in new divergences. In: Hall PA, Soskice DW (eds) Varieties of capitalism: the institutional foundations of comparative advantage. Oxford University Press, Oxford, pp 417–441
Chapter Google Scholar
Thorpe FN (ed) (1909) The federal and state constitutions, colonial charters, and other organic laws of the state, territories, and colonies now or heretofore forming the United States of America: compiled and edited under the Act of Congress of June 30, 1906. GPO, Washington
Google Scholar
Tomuschat C (2001) Das Bundesverfassungsgericht im Kreise anderer nationalen Verfassungsgerichte. In: Badura P, Dreier H (eds) Festschrift, 50 Jahre Bundesverfassungsgericht, vol 1. Mohr Siebeck, Tübingen, pp 246–288
Google Scholar
Trenor WM (2005) Judicial review before Marbury. Stan L Rev 58:455–562
Google Scholar
U.S. Continental Congress (1904) Friday, May 10, 1776. J Continental Congress 4:341–347
Google Scholar
U.S. Senate (1871) Report on the alleged outrages in the southern states by the Select Committee of the Senate: March 10, 1871. GPO, Washington
Google Scholar
U.S. Senate (1996) Senate report 104–366: Federal Courts Improvement Act of 1996. To accompany S. 1887. http://www.gpo.gov/fdsys/pkg/CRPT-104srpt366/pdf/CRPT-104srpt366.pdf. Accessed 21 July 2015
Ukai N (1988) The significance of the reception of American constitutional institutions and ideas in Japan. In: Beer LW (ed) Constitutionalism in Asia: Asian views of the American influence. School of Law, University of Maryland, Baltimore, pp 111–127
Google Scholar
Varnum JM (2011) The case, Trevett against Weeden: on information and complaint, for refusing paper bills in payment for Butcher’s meat, in market, at par with specie. Making of modern law. Gale Ecco, Providence
Google Scholar
Veit HE, Bowling KR, Bickford CB (1991) Creating the bill of rights: the documentary record from the First Federal Congress. The Johns Hopkins University Press, Baltimore
Google Scholar
Virginia State Department of Education (2009), The Road to Independence: Virginia 1763–1783. Virginia State Department of Education, Richmond
Google Scholar
Vladeck SI (2008) The suspension clause as a structural right. U Miami L Rev 62:275–304
Google Scholar
Vladeck SI (2012) The new habeas revisionism. Book review. Harv L Rev 124:941–992
Google Scholar
Warren C (1913) Legislative and judicial attacks on the Supreme Court of the United States: a history of the twenty-fifth section of the Judiciary Act. Am L Rev 26(1):1–34
Google Scholar
Warren C (1923) New light on the history of the Federal Judiciary Act of 1789. Harv L Rev 37(1):49–132. doi:10.2307/1328407
Article Google Scholar
Wiecek WM (1969) The reconstruction of federal judicial power, 1863–1875. Am J Leg Hist 13(4):333–359
Article Google Scholar
Wiecek WM (1992) Murdock v. Memphis: Section 25 of the 1789 Judiciary Act and Judicial Federalism. In: Marcus M (ed) Origins of the federal judiciary: essays on the Judiciary Act of 1789. Oxford University Press, New York, pp 223–247
Google Scholar
Wilmarth AE (1989) The original purpose of the bill of rights: James Madison and the founders’ search for a workable balance between the federal and the state power. American Criminal Law Review 26(4):1261–1321
Google Scholar
Winkle JW (1974) Dimensions of judicial federalism. Annals Am Ac Polit SS 416(1):67–76
Article Google Scholar
Wiseman SR (2012) Habeas after Pinnholster. B C L Rev 53:953–1007
Google Scholar
Wright CA (1969) Restructuring federal jurisdiction: the American law institute proposals. Wash & Lee L Rev 26(2):185–208
Google Scholar
Yackle LW (1996) A primer on the new habeas corpus statute. Buffalo L Rev 44:381–449
Google Scholar
Yackle LW (2014) The new habeas corpus in death penalty cases. Am U L Rev 63:1791–1853
Google Scholar
Zeigler DH (1985) Federal court reform of state criminal justice systems: a reassessment of the younger doctrine from a modern perspective. U C Davis L Rev 19:31–111
Google Scholar

Download references

Author information

Authors and Affiliations

Berlin, Germany
Alfredo Narváez Medécigo

Authors

Alfredo Narváez Medécigo
View author publications
You can also search for this author in PubMed Google Scholar

Rights and permissions

Reprints and permissions

Copyright information

About this chapter

Cite this chapter

Narváez Medécigo, A. (2016). Constitutional Review in the United States of America: Does “Diffused” Mean Complete Decentralization?. In: Rule of Law and Fundamental Rights. Springer, Cham. https://doi.org/10.1007/978-3-319-24562-1_3

Download citation

DOI: https://doi.org/10.1007/978-3-319-24562-1_3
Published: 08 November 2015
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-24561-4
Online ISBN: 978-3-319-24562-1
eBook Packages: Law and CriminologyLaw and Criminology (R0)

Publish with us

Policies and ethics