Federalist No.82

The Judiciary Continued

Wednesday, May 28, 1788

Alexander Hamilton


The question addressed by this paper is whether State courts would possess concurrent jurisdiction over matters of federal jurisdiction, and if so, what was the status of their authority compared to federal courts?


In the previous paper Hamilton discussed the possibility that district courts might be established to hear cases of federal importance, with a final appellate decision ultimately residing with the Supreme Court. In this paper, Hamilton’s basic response to the question is that unless State courts are barred from addressing specific cases, they maintain the same authority as they enjoyed prior to the ratification of the new Constitution. This is the same argument Hamilton applied to the question of State and Federal taxes. He claims he addresses it in Federalist No.31, but he does not address it specifically there, but in Federalist No.32 (See my summation in Federalist No.32.3 and 32.4)


The question then arises, in what circumstances is the State judiciary limited? In general terms, it is when the federal courts have an exclusive authority, where an authority is prohibited to the States, or where State authority is not compatible with federal authority.


The fact is, the manner in which these authorities are to be divided is not specifically laid out in the Constitution, and Hamilton imagines a few scenarios that might arise as the republic is established, which may either allow or disallow concurrent jurisdiction for the State courts. (For instance, it might be decided that only the Supreme Court and district courts could hear cases of federal import, thereby cancelling the States’ concurrent jurisdiction; or that courts throughout the Union should try cases with the Supreme Court having final appellate jurisdiction, thereby giving the States concurrent jurisdiction).


But Hamilton’s response is ultimately aimed at being reassuring. He writes that the State system should be seen as parts of one whole, since the State courts would have a concurrent jurisdiction in all cases arising under the laws of the Union, where it was not expressly prohibited. Meaning that the Constitution allows an assumed concurrent authority for any matters which States enjoyed prior to the Union. Other powers arising after the formation of the Union would be rightly outside the purview of State courts if that was deemed necessary.


This means that State courts could potentially be trying cases with federal implications, and since the Supreme Court has appellate jurisdiction over all cases of federal significance, it follows that appeals may be made from State courts to the Supreme court. If this were not so, State courts could not try federal cases; concurrent jurisdiction can only exist where the right of appeal to the Supreme Court exists from State courts.


The final question addressed by Hamilton is whether an appeal could be made from a State court to a subordinate federal court, namely one of the district courts Hamilton has already discussed. The simple answer is yes. Again, the Constitution does not engage in the minutiae of how the system will run, but the Constitution allows this arrangement, since it only specifically states that the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress shall ordain and establish. In other words, the Constitution allows district courts to deal with appeals because it does not disallow it. It is not specific. So when Hamilton wrote this paper, he could not predict with one hundred percent certainty how Congress would choose to arrange the system. But it is clear that he imagines federal cases tried in State courts could appeal to district courts, without moving to the Supreme Court, while the Supreme Court would maintain final judgement in all matters relating to federal cases.

18 December 2019