Plenary No Longer: How the Fourteenth Amendment "Amended" Congressional Jurisdiction-Stripping Power

Authors

Maggie Blackhawk, University of Pennsylvania Carey Law SchoolFollow

Document Type

Article

Publication Date

2011

Abstract

This Note proposes a solution to the long-standing debate among federal courts scholars as to where to draw the limits of congressional power to strip appellate jurisdiction from the Supreme Court and to strip original jurisdiction from the lower federal courts. Although the Supreme Court has rarely addressed the possibility of limitations on congressional jurisdiction-stripping power, the few determinative cases to go before the Court reveal an acceptance of the orthodox view of plenary power. Proponents of the orthodox view maintain that state courts, bound to hear constitutional claims by their general jurisdictional grant and to enforce the Constitution by the Supremacy Clause, would suffice as arbiters of federal constitutional rights. In contrast, this Note argues that ratification of the Fourteenth Amendment - which, as the Supreme Court acknowledged in Fitzpatrick v. Bitzer, implicitly amended the Eleventh Amendment - similarly amended Article III, Section 1, and the Exceptions Clause, withdrawing Congress’s plenary jurisdiction-stripping power for claims brought to vindicate Fourteenth Amendment rights.

Through an analysis of original intent behind the Fourteenth Amendment, this Note explores the undertheorized field of how amendments to the Constitution - an undoubtedly multigenerational text - alter the reach and meaning of the original document. The framers of the Fourteenth Amendment, an often forgotten second major framing generation, drafted and ratified the amendment just after our country emerged from its bloodiest domestic war, long after the establishment of an extensive system of federal courts and during a time of great suspicion of state forums. An examination of major Reconstruction Acts and their legislative history, alongside a textual analysis of the Fourteenth Amendment that incorporates pragmatic context, reveals clear intent that ratification of the Fourteenth Amendment would necessarily limit any plenary jurisdiction-stripping power vested in Congress at the Founding.

Keywords

Jurisdiction Stripping, External Contraints, Originalism, Constitutional Interpretation, Pragmatics, Linguistic Anthropology

Publication Title

Stanford Law Review

Publication Citation

63 Stan. L. Rev. 1213 (2011)

Repository Citation

Blackhawk, Maggie, "Plenary No Longer: How the Fourteenth Amendment "Amended" Congressional Jurisdiction-Stripping Power" (2011). All Faculty Scholarship. 1892.
https://scholarship.law.upenn.edu/faculty_scholarship/1892