Federal Judicial Power

Federal Judicial Power

The earlier sections of this chapter answered the first question any prosecution raises, which is whether the sovereign that enacted the offense had power to define and punish the conduct. A second question follows, and it concerns a different institution: whether the court in which the case is filed has power to adjudicate it. The two questions draw on different sources. Congress's power to proscribe comes from the grants in Art. I, while a federal court's power comes from Art. III and from the jurisdictional statutes Congress writes under it, so a perfectly valid federal crime can still be charged in a court that has no authority to hear the charge. The organizing principle is that federal courts are courts of limited jurisdiction, empowered to hear only those cases that fall within the judicial power as the Constitution defines it and that Congress has entrusted to them by a jurisdictional grant.¹

That principle has two practical consequences that matter in a criminal case. The party invoking federal jurisdiction must demonstrate that the case is within it, and the facts showing jurisdiction must be affirmatively alleged, so the presumption runs against the federal court until the showing is made.² The parties also cannot supply what the Constitution and Congress have withheld: lack of jurisdiction cannot be waived by consent, by conduct, or by estoppel, and the court must notice the defect on its own motion, even late in the proceedings.³ The reason is structural. A federal court that decided a case outside its jurisdiction would intrude on powers the Constitution reserves to the states, and that intrusion injures the states whatever the litigants prefer. A defendant who would gladly accept a federal forum therefore cannot create federal power by agreeing to it.

The constitutional layer begins with Art. III § 1, which vests the judicial power of the United States in one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish.⁴ The same section gives the judges of those courts their offices during good behavior and a compensation that cannot be diminished while they serve.⁵ Those protections answer a specific danger. The colonists had complained that the Crown made judges dependent on its will for their tenure and pay, and the Framers responded by removing both levers so that each decision would be rendered without an eye toward currying favor with Congress or the Executive.⁶ The incentive problem is sharpest in criminal cases, because the branch that writes the offense and the branch that prosecutes it are the two branches a judge would otherwise have reason to please. In Martin v. Hunter's Lessee the Court read the vesting language as mandatory, since the judicial power “shall be vested” rather than “may be vested.”⁷ The first sub-section below develops that reading.

Article III § 2 then defines how far the vested power reaches. It extends to cases arising under the Constitution, the laws of the United States, and treaties, and to controversies to which the United States is a party, among other listed categories.⁸ A federal prosecution under a valid federal statute fits at least two of those categories at once, since it arises under a law of the United States and the United States is the party that brings it. The same section contains one clause written for crimes alone: the trial of all crimes except impeachments is to be by jury and held in the state where the crime was committed, or at a place Congress directs if the crime was committed outside any state.⁹ The terms “cases” and “controversies” also set a limit, because the judicial power reaches only actual disputes between adverse parties, and Art. III restricts that power as much as it confers it.¹⁰

Within that list the Constitution also sorts cases between the Supreme Court's original jurisdiction, the power to hear a case as a court of first instance, and its appellate jurisdiction. Original jurisdiction belongs to the Supreme Court only in cases affecting ambassadors, other public ministers and consuls, and cases in which a State is a party, and in every other listed case the Court's jurisdiction is appellate, subject to the exceptions and regulations Congress makes.¹¹ Martin made the same observation about the two classes of original jurisdiction.¹² The allocation has an evident function: the Court sits mainly as a court of final review, so first-instance trial of the ordinary run of prosecutions falls to the lower courts that Congress establishes.

In both versions the statute is valid and the case is within Art. III, so the difference lies entirely in which court was asked to act. A further limit concerns what kind of tribunal Congress may use at all. The opinion in Northern Pipeline Construction Co. v. Marathon Pipe Line Co. rejected the argument that Congress may create courts free of Art. III's requirements whenever some Art. I power makes that expedient, and it observed that where Art. III applies, all of the legislative powers in Art. I are subject to it, including the power to punish certain crimes.¹³ A footnote in the same opinion adds that the public-rights doctrine, which lets Congress send some disputes with the government to non-Article III tribunals, does not extend to criminal matters even though the government is a proper party, and that criminal matters, with the narrow exception of military crimes, remain with Art. III courts.¹⁴ In Stern v. Marshall the Court supplied the reason: Art. III could not serve its purpose in the system of checks and balances if the other branches could confer the government's judicial power on entities outside Art. III.¹⁵ Applied to prosecutions, the point is concrete. If the power to define an offense carried a power to choose who tries it, Congress could write the crime and staff the court with judges who depend on Congress for their jobs and pay, and the independence that tenure and salary protection secure would disappear in the very cases where an individual's liberty is at stake.

Congress's control over federal court jurisdiction is broad, but it does not include power to dictate how a case must come out. In United States v. Klein the Court recognized that Congress could deny an appeal in a class of cases under its power to make exceptions to appellate jurisdiction, yet it held that a proviso requiring dismissal once a court found a certain state of things, so as to give pardons an effect contrary to what the Court had decided, prescribed a rule of decision in pending cases and passed the limit that separates legislative from judicial power.¹⁶ Klein arose from a civil claim for the proceeds of captured property, so its application to prosecutions is by analogy, but the same reasoning would place a statute directing the outcome of a pending criminal case on the wrong side of the line.

The four sub-sections that follow isolate the separate rules built into this structure. The first treats the vesting rule of Art. III § 1 and Martin's reading of it. The second takes the reach rule, the list of cases and controversies in § 2. The third takes the trial-location rule in the last sentence of § 2, which fixes the jury and the state of trial for crimes. The fourth treats the limit that arises when a State is a party, a subject on which Amendment XI modified the text of § 2.¹⁷

Students lose this issue when they stop after proving that the statute rests on an enumerated power, because adjudicatory authority is a separate question with its own sources in Art. III and in Congress's jurisdictional grant.²³ A stem that places a charge directly in the Supreme Court, or before a tribunal whose judges lack tenure and salary protection, tests this second question even when the statute is entirely valid.

Vesting the Judicial Power

Article III § 1 allocates federal judicial power in two sentences. The first vests the judicial power of the United States in one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish, and the second gives the judges of those courts their offices during good behavior and a compensation that cannot be diminished while they serve.²⁶ The preceding discussion showed that a federal court may hear a prosecution only if the judicial power is vested in it, so the verb in the first sentence carries real weight. Does it command Congress to supply courts, or does it merely allow Congress to supply them if it chooses? The answer in Martin v. Hunter's Lessee is the starting point, and it is clearest when its steps are taken one at a time.

The case arose when the Virginia court of appeals refused to carry out a mandate of the Supreme Court, declaring that the Supreme Court's appellate power did not extend to that court and that the provision of the Judiciary Act extending it to state courts was not in pursuance of the Constitution.²⁷ Justice Story began his answer with the text of Art. III. He read the language as binding on the legislature, because the judicial power “shall be vested,” not “may be vested,” in a Supreme Court and in the inferior courts that Congress ordains and establishes.²⁸ His reason was structural: the Constitution creates three departments of government, and without a judicial department some of its express provisions could not be carried into effect, so Congress had a duty to vest the judicial power in some courts, and to suppose otherwise would imply that Congress might defeat the Constitution itself.²⁹

The mechanism behind that reading is easy to see in the criminal setting. Congress writes federal offenses, and if the vesting verb were only permissive, the same body could leave the third department unfilled and so decide for itself whether its statutes are ever tried before a court at all. A mandatory verb removes that choice at the source. As applied to the Supreme Court, the consequence is that Congress could not lawfully refuse to create it or to vest it with its constitutional jurisdiction.³⁰

Story then turned to the harder question, whether Congress must also create inferior courts, and he conceded that this question was more difficult.³¹ His argument proceeds in links. If Congress must vest the whole judicial power, it must vest it in some courts, and the Supreme Court's original jurisdiction, its power to hear a case as a court of first instance, covers only two classes of cases: those affecting ambassadors and those in which a state is a party.³² The Constitution's own list fixes those classes, and in Marbury v. Madison the Court treated Congress as unable to add to it.³³ An ordinary federal prosecution of a private individual affects no ambassador and has no state as a party, so it falls outside both classes, and every other listed case reaches the Supreme Court only on appeal.³⁴ Congress can vest judicial power only in courts it has ordained and established, and state courts might lack jurisdiction over some of the enumerated cases, so the Supreme Court's appellate power could not reach those cases and the command that the power be vested would go unobeyed. Story therefore concluded that it would seem Congress is bound to create some inferior courts to hold the jurisdiction the Supreme Court cannot take originally.³⁵

Story's own hedging matters, because the so-called Madisonian Compromise, the Convention's way out of its disagreement over lower courts, points the other way. The delegates could not agree whether to create lower federal courts and left that question to future Congresses.³⁶ The majority in Printz v. United States described Art. III § 1 in the same terms, as establishing only a Supreme Court and making the creation of lower federal courts optional with Congress, even though the Supreme Court alone obviously could not hear every federal case.³⁷ Romero v. International Terminal Operating Co. added that a system of lower federal courts is not an inherent requirement of a federal government and that Congress could leave the enforcement of federal rights to state courts.³⁸ Most observers therefore accept broad congressional control over the existence of lower courts, although a minority argues that the Constitution requires them for at least some matters, most often federal criminal cases.³⁹ The two accounts do not have to be reconciled to be used. The Supreme Court's existence and constitutional jurisdiction are mandatory, and the lower federal courts exist because Congress has chosen to establish them, as it did in the Judiciary Act of 1789 when it created thirteen district courts and three circuit courts.⁴⁰

Whichever view of lower courts prevails, creating a court is a separate act from giving it jurisdiction. In Myers v. United States the majority observed that establishing an inferior federal court does not vest in it all of the judicial power described in Art. III § 2, but only the jurisdiction Congress confers on that court in the law that creates or amends it.⁴¹ Ankenbrandt v. Richards restated the same rule: even when inferior federal courts exist, Congress is not required to invest them with all the jurisdiction that Art. III would allow.⁴² Section 2 therefore works as a reservoir and outer boundary, and a jurisdictional statute decides how much of it flows to which court. Federal criminal jurisdiction in a lower court rests on both acts together.

The second sentence of § 1 explains who may exercise the power that the first sentence vests. Judges hold office during good behavior and receive pay that cannot be diminished, and those two terms take away the levers, removal and salary reduction, that the other branches could otherwise use to reward or punish a judge for a particular decision.⁴³ Judges of legislative courts created under Art. I need not receive those protections, so tenure and protected pay mark the courts in which Art. III's vesting actually operates.⁴⁴ Vesting also gives those courts a sphere of their own. In Plaut v. Spendthrift Farm, Inc. the Court held that Congress cannot require federal courts to reopen final judgments, because the judicial power is a power to render dispositive judgments.⁴⁵ Plaut was a civil securities case, but the same reasoning extends by analogy to a statute that tried to reopen a final criminal judgment, since the judgment would then be open to revision by the branch that wrote the law.

Students lose this issue when they assume that establishing a court is the same as giving it jurisdiction, or when they treat the vesting verb as permissive for the Supreme Court. A stem asking whether Congress may decline to create the Supreme Court tests the mandatory reading, and a stem asking whether a newly created lower court may hear a particular federal prosecution tests the separate requirement of a jurisdictional grant.

Reach of Article III

Once a court is one in which the judicial power is vested, the next question is whether the prosecution is the kind of case that power reaches. Article III § 2 answers by listing nine categories of cases and controversies to which the judicial power extends, among them cases arising under the Constitution, the laws of the United States, and treaties, and controversies to which the United States is a party.⁴⁹ Only two of the entries matter for a federal prosecution, so this section works with those two, then turns to what the list leaves out and to how Congress may shape the Supreme Court's part in it.

The list works as a ceiling, and the reason lies in the nature of the federal courts. They are courts of limited jurisdiction that may hear only cases within the judicial power as the Constitution defines it and as Congress has entrusted to them by statute.⁵⁰ Congress cannot enlarge the constitutional list by legislation. In Marbury v. Madison the Court held that Congress could not give the Supreme Court original jurisdiction beyond the cases the Constitution names, since the constitutional distribution of original and appellate jurisdiction would otherwise be form without substance.⁵¹ Ankenbrandt v. Richards likewise describes § 2 as setting the absolute limits on federal jurisdiction.⁵² The ceiling also protects the states, because a federal court that took a case outside its jurisdiction would invade authority the Constitution leaves to them, and for that reason the parties cannot create jurisdiction by agreeing to it or by failing to object.⁵³ A prosecutor and a defendant who both preferred a federal forum could not move a purely state-law prosecution there by agreement.

A federal prosecution fits the first of the two relevant entries, cases arising under the laws of the United States, because federal law creates the charge. The offense exists only because a federal statute defines it, and the government's power to seek punishment and the defendant's exposure to it both trace to that statute, so the case cannot be described without reference to federal law.⁵⁴ Martin v. Hunter's Lessee explains why cases of this kind sit inside the judicial power. The Court there sorted the listed items into two classes, placed cases arising under the Constitution, laws, and treaties in the first, and reasoned that the vital importance of that class to national sovereignty justified a grant of judicial power as wide as the mischiefs the Constitution meant to remedy.⁵⁵

The second entry, controversies to which the United States is a party, also describes a federal prosecution, since the United States is the party that brings the charge.⁵⁶ Authorities treat both entries as the constitutional foundation for the district courts' jurisdiction over federal crimes.⁵⁷ The first entry is the safer anchor on an exam, because “Cases” is the broader word and reaches criminal matters, while “Controversies” is read more narrowly to cover suits of a civil nature.⁵⁸ Both words also carry a built-in condition: the dispute must be a real contest between adverse parties that a court can resolve, and an abstract request to declare legal rights does not qualify.⁵⁹ A prosecution meets that condition because the United States charges a particular defendant with a particular offense and the court can impose or withhold the punishment.

Martin also read the verb in § 2. The Court held that the words “the judicial power shall extend” are used in an imperative sense and import an absolute grant of judicial power, and it found confirmation in the next clause, which lets Congress make exceptions to and regulations of the Supreme Court's appellate jurisdiction. That clause shows, the Court said, that the framers used the verb imperatively and meant to enable Congress to regulate and restrain appellate power.⁶⁰ The Court added that where the judicial power extends to a case, the Constitution leaves the choice of tribunal open, because the nature of the case supplies the jurisdiction.⁶¹ Two consequences follow. The list is an imperative grant of judicial power rather than a permissive one, and a prosecution that fits the list still needs a court that Congress has assigned to hear it, which is why the analysis runs in two steps, first the constitutional category and then the statutory grant.⁶²

Martin further observed that the criminal jurisdiction of the United States belongs among the national matters that are fitly exclusive of state authority.⁶³ The reason is functional. Federal criminal law expresses the nation's own interest in punishing offenses against it, and if the courts of any one state could decide whether those laws were violated, enforcement would depend on the willingness of state tribunals to apply them. Congress has made the point concrete in 18 U.S.C. § 3231, which makes federal district court jurisdiction over federal crimes exclusive.⁶⁴ Ordinary state-law matters stay with the state courts, so the list also keeps the federal courts within a bounded set of cases.

The same list fixes how the Supreme Court enters a prosecution. Its original jurisdiction exists in cases affecting ambassadors, other public ministers and consuls, and cases in which a State is a party, and in all the other listed cases its jurisdiction is appellate, with such exceptions and under such regulations as Congress makes.⁶⁵ An ordinary federal prosecution of a private individual falls in neither original category, so it reaches the Supreme Court on appeal, and the Exceptions Clause gives Congress a say over how. Ex parte McCardle shows how far that say extends. The Court there treated its appellate jurisdiction as conferred by the Constitution but subject to Congress's exceptions, and when Congress expressly repealed the statute authorizing a pending habeas appeal, the Court dismissed for want of jurisdiction, declining to inquire into legislative motives because the power to make exceptions is given in express words.⁶⁶

United States v. Klein marks the boundary of that power. Congress may withhold appeal in a class of cases as an exception to appellate jurisdiction, but a provision that withdraws jurisdiction only as a means of dictating how pending cases must be decided prescribes a rule of decision and crosses the line between legislative and judicial power.⁶⁷ Neither McCardle nor Klein was a criminal prosecution, so applying them to criminal cases is an extension by analogy: a plain repeal of a category of appeals sits on McCardle's side, and a statute directing the result of a pending prosecution sits on Klein's. Experts continue to dispute how far the Exceptions Clause reaches, and the historical record shows that Congress has almost never stripped the Court's appellate jurisdiction despite many calls to do so.⁶⁸

The list also explains what stays out of the federal courts. A State that charges its own citizen under its own penal code presents no case arising under federal law, has no United States as a party, and fits none of the entries defined by the character of the parties, which describe pairings such as a State and citizens of another State or citizens of different States, and never a State and its own citizens.⁶⁹ Hans v. Louisiana acknowledged the last point when it conceded that where jurisdiction depends alone on the character of the parties, a controversy between a State and its own citizens is not embraced within the grant.⁷⁰ Hans itself was a civil suit by a citizen against his own State, and its holding on whether a federal question can overcome a State's immunity belongs to the later section on States as parties, so only the concession is used here.

Students lose this issue when they classify a prosecution by the conduct charged instead of by the source of the charge, because one act can violate both federal and state law and only the prosecution resting on federal law falls within the list.⁷¹ Adding a federal defense does not change that sorting. Martin recognized that a state criminal indictment may be defended as an ex post facto law, in which event the state court must hear and decide the federal question and the Supreme Court's appellate power can reach its answer where necessary.⁷² The state prosecution remains a state prosecution, and the federal issue travels to the Supreme Court through review of the state judgment, a route taken up in the section on state courts and federal law. A stem that describes a state prosecution and asks whether a federal court may hear it tests this negative pole.

Jury and Place of Trial

The last sentence of Art. III § 2 turns from the cases the judicial power reaches to the way a criminal case is tried. It commands that the trial of all crimes, except in cases of impeachment, shall be by jury, that the trial shall be held in the state where the crimes were committed, and that when a crime was not committed within any state, the trial shall be at such place or places as Congress has directed by law.⁷⁶ That one sentence holds three rules: one about who decides guilt, one about where the trial happens, and a fallback for crimes that have no state to name. A federal prosecution that fits the list of cases and has a court Congress has assigned to it still has to meet these commands, so the clause supplies the last constitutional layer before the case can proceed.

The jury command is mandatory, because the text says the trial "shall be by Jury," and its only stated exception is impeachment.⁷⁷ The exception makes sense because the Constitution treats impeachment as its own process for removing officers from their posts, separate from an ordinary criminal prosecution.⁷⁸ For every other crime the jury has a structural job: it places the decision on guilt with ordinary citizens chosen for that case, instead of leaving it with the officials who bring and hear the charge. The Sixth Amendment repeats the commitment for all criminal prosecutions and sharpens the place requirement, promising an impartial jury of the state and district where the crime was committed, a district that must have been ascertained by law beforehand.⁷⁹ Art. III therefore fixes the state, and the Sixth Amendment narrows the location further to a district. The statutory and procedural rules that decide venue, meaning the particular place where a given prosecution may be filed, belong to a later reading, and this section stays with the constitutional baseline.

The place-of-trial command ties the forum to the location of the offense, since the trial "shall be held in the State where the said Crimes shall have been committed."⁸⁰ The reason lies in who controls the filing. A federal statute operates across the whole country, and the prosecutor decides where to bring the charge, so without a place rule the government could choose a distant forum that separates the accused from witnesses, counsel, and family and puts the case before jurors with no connection to the offense. Tying the place of trial to the place of the crime takes that choice away from the prosecutor and gives it to the facts. It also means the jurors come from the community where the offense happened and whose peace it disturbed.

Some crimes happen where no state exists, and for them the place rule would have nothing to point to. Art. I § 8 gives Congress the power to define and punish piracies and felonies committed on the high seas, which is the open ocean outside the territory of any state.⁸¹ A felony there is committed within no state, so asking for the state where it was committed produces no answer, and without a fallback Congress would hold the power to define and punish the offense while the Constitution named no place to try it. The clause closes that gap by letting Congress direct the place or places of trial by law.⁸² The fallback is narrow in two ways. It applies only when the crime was committed outside every state, and it changes the place of trial while leaving the mode untouched, since the jury command covers all crimes wherever they occur.

Treason shows how these rules sit beside a proof rule written for a single offense. A treason trial is a criminal trial like any other, so the jury and place commands apply to it, and Art. III § 3 adds that no person may be convicted of treason except on the testimony of two witnesses to the same overt act or on confession in open court.⁸³ The two-witness rule governs proof and leaves the place and mode of trial untouched, so it neither replaces the jury nor moves the forum. A stem about a treason prosecution therefore calls for the jury and place analysis and, as a separate question, for a check on whether the proof meets the two-witness or confession requirement.

Students lose this issue when they treat Congress's power to define a federal crime as a power to choose where the crime is tried, because the fallback reaches only crimes committed outside every state.⁸⁴ A crime committed inside a state stays tied to that state however national the statute that created it, and no application of the fallback removes the jury.

States as Parties

The state-party clauses of Art. III § 2 extend the judicial power to controversies between two or more States and between a State and citizens of another State, and the same section gives the Supreme Court original jurisdiction in cases in which a State is a party.⁸⁷ The preceding section showed that a State prosecuting its own citizen under its own penal code fits none of the categories defined by the character of the parties. The question here runs in the other direction: when a State does appear in a federal case, may a private person bring it in as a defendant? The answer matters for criminal jurisdiction because a State prosecutes as a sovereign. The history of these clauses shows that the Constitution lets a State come to federal court on its own initiative while denying private litigants the power to haul it in against its will. This section concerns suits against a State, and a State's own criminal prosecution is not such a suit.

The first reading of the clauses followed their letter alone. In Chisholm v. Georgia the Court took jurisdiction of an action in assumpsit, a common-law claim on a promise, brought by a South Carolina citizen against the State of Georgia.⁸⁸ Justice Cushing reasoned that a citizen's demand against a State of which the citizen is not a member is as much a controversy between a State and a citizen of another State as a demand running the other way, so the case fell within the letter of the Constitution.⁸⁹ He met the objection that States could not have been meant to be defendants by pointing to the neighboring clauses. A controversy between two States, or between a State and a foreign state, necessarily makes one State a defendant, and the clause on a State and citizens of another State uses the same mode of language.⁹⁰ Justice Wilson reached the same result from the idea of a national government, finding in the text and structure no basis for limiting the clause to cases in which the State is plaintiff.⁹¹ Both opinions treat the words as the end of the inquiry: if the language covers the dispute, the court hears it.

That reading did not last. The decision startled the country, and the Eleventh Amendment was ratified in less than two years.⁹² The Amendment directs that the judicial power shall not be construed to reach suits against one of the United States by citizens of another State or by citizens or subjects of a foreign state.⁹³ It repudiated the premise of Chisholm that the jurisdictional categories of Art. III overrode the sovereign immunity, meaning the freedom from private suit, that the States held before they joined the Union.⁹⁴ The episode teaches a point of method that exam questions return to. A court's literal reading of a constitutional clause can be displaced by amendment, and here the people chose that corrective, leaving the text of § 2 in place and instructing courts how to construe it.

The Amendment's words leave a gap, because they name citizens of other States and foreigners and say nothing about a citizen suing the citizen's own State. Hans v. Louisiana presented that gap with a federal question attached. A Louisiana citizen sued Louisiana in federal court, arguing that the arising-under clause makes no exception for the character of the parties, so that a State has no exemption when the case truly arises under the Constitution or federal law.⁹⁵ The Court conceded that where jurisdiction depends on party character alone, a controversy between a State and its own citizens is outside the grant, but it rejected the argument that a federal question changes the result.⁹⁶ Its reasoning came from history. At ratification, opponents had read the state-and-citizen clause to authorize suits against States, and Hamilton, Madison, and Marshall answered that no such suit was intended. The Court observed that adhering to the mere letter might permit such suits, as Chisholm had held, but that the view later confirmed by the people was the correct one.⁹⁷ It also found it implausible that an Amendment adopted to repel suits by citizens of other States was meant to leave open suits by a State's own citizens.⁹⁸

Later decisions describe the Amendment's greater significance as its affirmation that sovereign immunity limits the grant of judicial authority in Art. III, which is why Hans bars a federal court from hearing a citizen's suit against the citizen's own State despite the Amendment's limited terms.⁹⁹ The rule is now stated for unconsenting States generally: they are immune in federal court from suits by their own citizens as well as by citizens of other States, and a suit that in essence seeks payment from the state treasury is treated as a suit against the State even when officials are the named defendants.¹⁰⁰ Justices have disagreed about method. Majority opinions have treated reliance on the Amendment's words alone as an ahistorical way to measure state immunity,¹⁰¹ while a dissent in Seminole Tribe of Florida v. Florida argued that Hans was wrongly decided and should be treated as federal common law that Congress could change.¹⁰² Only the majority view states the law, but the debate shows why the text of the Amendment is the starting point and not the whole rule.

The bar runs one way. Madison and Marshall told the Virginia convention that the clause would let a State that wished to sue a citizen of another State do so in federal court, and Marshall accepted the resulting asymmetry as unavoidable.¹⁰³ The Amendment's text agrees, since it withdraws only suits "commenced or prosecuted against" one of the United States.¹⁰⁴ The original-jurisdiction clause fits the same pattern. It distributes the judicial power that Art. III has already defined and does not enlarge it, so a suit by the United States against a State is within it, while a suit by a State against its own citizen is ordinarily outside the judicial power altogether. The Supreme Court's original jurisdiction is also limited to civil cases, and the Court has declined to hear a suit in which a State sought to enforce a judgment for a penalty.¹⁰⁵ For criminal jurisdiction the consequence is direct: a State enforces its penal law in its own courts as sovereign, and nothing in the state-party clauses or the Eleventh Amendment lets a private person reverse that caption in a federal court.

The reason for the asymmetry can be read off the structure of the rule. A State that files a complaint chooses the forum and the claim, so it controls its own exposure. A State sued by private claimants controls neither, and a judgment against it could reach public money that its own political process had already committed, which is why courts look to the real party in interest and not to the caption.¹⁰⁶ The historical problem was concrete. Many States came out of the Revolutionary War heavily indebted and were vitally interested in whether the new national courts would subject them to private suits, and Chisholm put that fear into practice and drew the prompt response of the Eleventh Amendment.¹⁰⁷

Students lose this issue when they read the Amendment's words as the complete rule and conclude that a citizen's suit against the citizen's own State survives because the text mentions only citizens of another State.¹⁰⁸ Hans closes that route, and an arising-under label does not reopen it, since Hans itself involved a federal question. The opposite error also appears: treating every case with a State in the caption as barred. The Amendment restricts suits against a State, so a State as plaintiff, the United States suing a State, and one State suing another remain within § 2.¹⁰⁹