Treatise on Article III, Section 2, Constitution of the United States,
by Judge J. J. Boesel. *

The U. S. Supreme Court has two different kinds of jurisdiction. Original and appellate.

Jurisdiction is the legal authority to decide a lawsuit brought before a Court. This is the first question the Court has to decide .... does this Court have the legal authority to decide this lawsuit? If it does, it will hear and decide the case. If it does not have jurisdiction over the case to hear and decide it, it will dismiss the case.

Now, what is ORIGINAL jurisdiction? This is the kind where the Court has power to hear the case begin in it. The case starts there.

On the other hand APPELLATE jurisdiction is the legal authority to REVIEW a case begun in a lower court. If the parties are not satisfied with the decision of say the FEDERAL DISTRICT COURT they may appeal to the Circuit Court of Appeals .... this is the first level of review of the lower court's decision.

If the parties are not satisfied with the decision of the Circuit Court of Appeals, they may then appeal to the U. S. Supreme Court. If the Supreme Court decides to take jurisdiction and hear the appeal, they will allow what is called a writ of certiorari .... send the case up to the Supreme Court.

But if the Supreme Court decides NOT TO REVIEW the decision of the Circuit Court of Appeals, that is the end of the case. What ever the Court of Appeals decided becomes the final law of the case.

Now let's examine the ORIGINAL JURISDICTION of the U. S. Supreme Court. The Supreme Court is given its ORIGINAL jurisdiction by the U. S. Constitution, and in an early case, Marbury v Madison, 1 Cranch 137 (1803) the Court held that Congress cannot add to or change the ORIGINAL jurisdiction given the Court by the Constitution.

Here is the Constitution's grant of ORIGINAL JURISDICTION: ARTICLE III, SECTION 2:

...... (omitting non-relevant parts)

In all cases affecting ambassadors, other public ministers and Consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction (emphasis added),

"In all other cases before mentioned,the Supreme Court shall have appellate jurisdiction..."

You can see how the States are granted a power line directly to the Supreme Court. Where a State has a case to file, the State may go directly to the Supreme Court and start the case there. There is no need to start with the lower echelon of the Federal District, and proceed with appeal after appeal. True, the Congress has given to the Federal District Courts CONCURRENT ORIGINAL JURISDICTION, but this does not take away the State's constitutional option to START the case directly in the Supreme Court. Congress cannot touch this ORIGINAL JURISDICTION given the Supreme Court by this section of the Constitution.

It is time for the States to come alive and become aware of their power line directly to the Supreme Court, now that JUSTICE Sandra Day O'Connor has declared a renewed rule on the government power relation between the States and the Federal government. She put it this way:

"Where Congress exceeds its authority relative to the States, departure from the Constitutional plan cannot be ratified by "consent" of State officials." NY v US, 112 S Ct 2408 (1992)

It is a renewed rule applied by JUSTICE O'Connor's Court to those acts .... "where Congress exceeds its authority relative to the States". The States are the principals and the Federal government is the Agent, .... whose acts cannot amount to a " .... departure from the constitutional plan."

Although JUSTICE O'Connor's Court did not refer to the early statement of the rule of Burton v U. S. (1906), her decision clearly confirmed the Burton rule that U. S. Senators .... "do not hold their places under the Government of the United States, but its members are chosen by the State legislatures."

"While the Senate, as a branch of the legislative department owes its existence to the Constitution and passes laws which concern the entire country, its members are chosen by the State legislatures, and cannot be said to hold their places under the Government of the United States." Burton v U.S. (1906) 202 U.S. 344

Now that Senators are chosen by the people of the States the same as members of the House, they are merely agents of the States temporarily assigned to duty in Congress.

The States have a Constitutional power line to the U. S. Supreme Court and will not "ratify" or "consent" to the acts of their agents in Congress, when they .... " make departures from the Constitutional plan" but are powerfully equipped to stop these "departures" in their tracks, with cases filed directly in the Supreme Court.


* Judge Boesel, graduate Ohio State University and University of Michigan Law School, is a former Professor of Constitutional Law, Capitol University Law School, Columbus, Ohio.

A retired Army Colonel, he served with the 4th Infantry Division, World War II, which made the assault landing on D-Day, Utah Beach, Normandy.

Participate in the action to restore the Constitution as the supreme law of the land.

Defend freedoms of person and property guaranteed to you by the Constitution.

Instruct your State legislators to introduce a State resolution to provide for enforcement of the Constitution. The Committee will show you how.

Archibald E. Roberts, LtCol, AUS, ret, Director
Post Office Box 986 Fort Collins, Colorado USA 80522

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