Center for Public Research and Leadership
Did the Framers attempt to establish an effectual power in the national judiciary to void state law that is contrary tofederal law, yet permit Congress to decide whether or not to confer federal jurisdiction over cases arising under federal law? Does the Constitution, then, authorize its own destruction? This Article answers "yes" to the first question, and "no" to the second. Based on a new study of the meticulously negotiated compromises that produced the texts of Article HI and the Supremacy Clause, and a new synthesis of several classic Federal Courts cases, the Article shows that, by self-conscious constitutional design, and by dint of a consistent pattern of constitutional interpretation by the Supreme Court, the principal mechanism for keeping federal law supreme over contrary state law is not an assured "quantity" of federal "arising under" jurisdiction but, instead, an assured "quality" of federal judging in cases in which Congress confers jurisdiction. Encompassed within "[tihe judicial Power" are five qualitative means to the overriding structural objective of national legal supremacy: An Article HI court must decide (1) the whole federal question (2) independently and (3) finally, based on (4) the whole supreme law, and (5) impose a remedy that, in the process of binding the parties to the court'sjudgment, effectuates supreme law and neutralizes contrary law. Applying these principles, the Article explains why the qualified immunity and Teague v. Lane doctrines, and one reading of amended section 2254(d)(1) of the Antiterrorism and Effective Death Penalty Act, are constitutional, and why the Fifth, Seventh, and Eleventh Circuits' reading of section 2254(d)(1) is unconstitutional.
James S. Liebman & William F. Ryan,
Some Effectual Power: The Quantity and Quality of Decisionmaking Required of Article III Courts,
Colum. L. Rev
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/121