Questions or Case Law Citations 6
by Robert Hedges ©


Question
- Is the power reserved to the states to clarify, codify and define the edge of jurisdiction, so that the state judiciary will know for what, when and how it may be sued in tort for acts carried out "without jurisdiction" ?

We are of course deeply shocked where it is not the private citizen, but the public officer under oath to uphold the law who leads in flouting it. Louis Jaffe - 76 Harvard LR 1111-1112 (1963)

Congress is empowered to pass legislation which defines and enforces the application of the 13th-15th Amendments on the various states. Congress has no power to restrict, abrogate or dilute these powers, only to enforce equal protection. Thus passing a bill to regulate the state judiciary regarding constitutional infringements is easily within the the authority of Congress.

[T]he power is complete in itself. It is no encroachment on state's rights. _Gibbons v Ogden, 22 US 1, (1824)

The Constitution carves from the general mass of legislative powers then possessed by the states, such portions as it was thought desirable to vest in the Federal Government.

there is nothing in our entire governmental structure which has a more leak-proof claim to legitimacy than the function of the courts in reviewing state acts for federal constitutionality - Charles Black - Structure & Relationship in Constitutional law - 74-76 (1969)

There is no doubt that the power to control the state judiciary by legislation allowing suit against a judge is in the state legislature, and also in the state judiciary, but does similar power exist in Congress ?

1) Is Congress excluded from exercising further legislative control over the state judiciary ?

2) Is further legislative control of the state judiciary, other than based on constitutional deprivations, necessary.

3 a) Does the subject require a single uniform rule to operate equally, or does the topic demand diversity to meet local necessity ?

3 b) Is it best provided by one authoritative plan of regulation, or by legislative discretion reflecting local pecularities ?

4) Is there a state interest in this question and if so does the state interest outweighed by a national interest ?


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Last modified: March 1996