The jurisdiction contemplated for this system of courts was intended to be quite broad. In addition to naming specific types of cases—such as maritime questions, cases in which foreigners are parties, and impeachments of federal officers—the Virginia Plan also stipulated that the federal courts could hear “questions which may involve the national peace and harmony.” Such vague wording would have given the federal courts potentially unlimited jurisdiction. But this broad jurisdiction would have been commensurate with a national legislature that had similarly amorphous boundaries. The Virginia Plan, after all, would have empowered Congress “to legislate in all cases, to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.” When deciding how broad the jurisdiction of the federal courts should be, then, the Framers were again revisiting the question of how much power the federal government should exercise vis-à-vis the states. And this question was bound to be controversial.
When the Committee of the Whole considered the Virginia Plan’s judiciary provisions on June 4, no one objected to the initial proposition that federal courts should be established, and the resolution passed unanimously. The Committee altered the wording merely to make clear that there should be only one “supreme tribunal,” but there would be “one or more inferior tribunals.” The next day, however, the question of inferior tribunals became more controversial, as delegates began to wonder whether a swarm of federal courts might intrude on the authority of the existing state courts.
John Rutledge argued that there should be no inferior federal courts at all, only one supreme tribunal: “The state tribunals are most proper to decide in all cases in the first instance.” He did not deny that it was necessary to supply a supreme federal court with appellate jurisdiction. This way, whenever it was alleged that cases brought to state courts involving federal questions had been improperly decided, they could be appealed to a federal tribunal. Indeed, Rutledge believed that a supreme federal court was the only way to safeguard the authority of the national government and ensure that judicial determinations affecting the whole union would be uniform. But he was opposed to “making an unnecessary encroachment on the jurisdiction of the states.” Roger Sherman seconded Rutledge’s motion, and dwelt in particular on the added expense of establishing a whole “new set of courts, when the existing state courts would answer the same purpose.”
Madison, on the other hand, was vehement about preventing state courts from deciding cases of federal importance in the first instance. He feared that many cases tried in state courts would result in “improper verdicts,” owing to “the biased directions of a dependent judge, or the local prejudices of an undirected jury.” Additionally, requiring parties to bring their cases to the seat of the federal government (if there were only one Supreme Court) would be too inconvenient for everyone concerned. An effective government with broad legislative powers required a federal judiciary with commensurate jurisdiction to decide those cases arising under federal law. “A government without a proper executive and judiciary,” Madison warned, would be a return to their impotent condition under the Articles of Confederation: “the mere trunk of a body, without arms or legs to act or move.” Wilson agreed, and he added that the federal courts needed more than appellate jurisdiction, since certain questions, such as admiralty cases, did not belong within the jurisdiction of state courts at all.
In spite of the protests by those who insisted that a new federal system of inferior courts was absolutely necessary, Rutledge’s motion to strike out the provision that would have established them passed the Committee, 6-to-4, with Massachusetts divided. Wilson and Madison then tried a different tack, based on an idea started by John Dickinson. Instead of a positive declaration in the Constitution that there shall be lower courts, they moved that Congress “be empowered to institute inferior tribunals.” After some brief argument from Pierce Butler, the delegates were convinced: they decided, 8-to-2, to give Congress the power to institute inferior courts as needed.
Toward the middle of June brief references to the jurisdiction of the federal courts were made, and alterations sometimes decided upon, but the delegates were mostly content to retain the language found in the Virginia Plan and defer more serious consideration of jurisdiction until later that summer. The jurisdiction of the federal courts would depend very much on their decisions regarding the extent of national powers, so it was best to decide the question of Congressional powers first.
Then, when the Convention reconsidered the question of the judiciary a month later, on July 18, the delegates largely rehashed the same arguments that had been rehearsed in the Committee of the Whole. No one objected to establishing a national judiciary, but several delegates questioned the necessity of inferior tribunals and worried that the states would revolt at this incursion into the jurisdiction of their own courts. Others countered that inferior courts would be necessary, especially to affirm the authority of federal laws over state laws whenever the two conflicted. In spite of a small but ardent band of naysayers, the states voted unanimously to retain the provision giving Congress the authority to institute inferior courts. On this day they also decided without debate to strike out the clause giving the judiciary the power to impeach members of the national government, and they simplified the wording of the jurisdiction of the federal courts. On Madison’s suggestion, they decided that it “shall extend to all cases arising under the national laws, and to such other questions as may involve the national peace and harmony.” With this formulation, the jurisdiction of the federal courts would be both simple and expansive.
Nonetheless, the August 6 report by the Committee of Detail—the same committee that had taken upon itself the task of enumerating the powers of Congress—reverted to a more complex enumeration of the jurisdiction of the federal courts. Although the list is extensive, its effect was to significantly curtail the potential jurisdiction of the federal judiciary from the simpler yet vague formulation that the Convention had devised. No longer could a federal court examine any “questions as may involve the national peace and harmony.” Instead, the list included, in addition to “all cases arising under laws passed by the legislature of the United States,” the cases involving maritime questions, foreigners, ambassadors, and other “public ministers and consuls,” and most controversies arising between states. Also, although the delegates had decided to remove the impeachment power from the courts, the committee’s report stipulated that the Supreme Court would be responsible for the trial of all impeachments. (The trial of impeachments would be changed to the Senate by the Committee on Postponed Matters, which reported on September 4, principally because the Supreme Court might be the body to try the president for a crime after he had been removed from office through the impeachment process.) Finally, the August 6 report made clear that the Supreme Court’s jurisdiction over federal laws would be appellate only, but it empowered Congress to assign original jurisdiction in the inferior courts where necessary.