The Judicial Power
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ance system of the Constitution. Section 1 of Article III states that the ‘‘judicial power’’ of the Federal government shall be vested in the Federal
courts, and Section 2 of Article III lists the kinds of cases or controversies
in which this power may be exercised. There are nine such classes of
cases: (1) Cases arising under the Constitution, under a Federal law, or
under a treaty; (2) cases affecting ambassadors, other public ministers,
and consuls; (3) cases of admiralty and maritime jurisdiction; (4) controversies between two or more States; (5) controversies between a State and
citizens of another State; (6) controversies between citizens of different
States; (7) controversies between citizens of the same State claiming land
under grants of different States; (8) controversies between a State and a
foreign citizen; and (9) controversies between an American citizen and a
foreign citizen. Taken literally, Section 2 would seem to say that the judicial power also extends to controversies between a State or citizen
thereof and a foreign State. Under established principles of sovereignty
and the law of nations, however, a foreign State cannot be sued without
its consent. Thus, Mexico would be immune from a suit filed by the State
of Texas or a citizen thereof. As a result of the Eleventh Amendment,
which shall be examined later, this immunity also works in reverse, and
the State of Texas would be immune from a suit filed by a citizen of
Mexico.
Another way of understanding what kinds of cases the Federal courts
are empowered to hear is to divide them into two categories: (1) the nature of the dispute; (2) the parties to the dispute. Under this first category fall
cases arising under the Constitution, a Federal law or treaty, cases arising
under admiralty and maritime jurisdiction, and cases involving title to
land that is claimed because of land grants of two or more States. The
second category, based on the parties to the dispute, covers cases in which
the United States government is a party, cases in which a State is a party,
cases in which the parties are citizens of different States, and cases that affect foreign ambassadors, ministers, and consuls.
The Constitution speaks of the ‘‘judicial power,’’ but the term is nowhere defined. What did the Framers mean when they conferred the ‘‘judicial power’’ of the United States on the Federal courts? In answering
this question, it is important to understand the difference between authority and power. In general, the authority to act is the right to act, whereas the