360 CHAPTER 12|THE COURTS
Judicial Review in Practice
The contours of the relationship between the national government and the states
were largely defi ned by how active the Supreme Court was in asserting judicial
review and how willing it was to intervene in matters of state law. For much of
the nineteenth century the Court embraced dual federalism, in which the national
government and the states operated on two separate levels (see Chapter 3). Later
the Court involved itself more in state law as it moved toward an increasingly
active role for the national government in regulating interstate commerce and
using the Fourteenth Amendment to selectively incorporate the amendments that
constitute the Bill of Rights (see Chapter 4).
All in all, the Court has struck down more than 170 acts of Congress and about
1,400 state laws. This sounds like a lot, but Congress passed more than 60,000
laws in its fi rst 220 years, so only about one-quarter of 1 percent have been struck
down by the Court. The number of state laws passed throughout U.S. history isJURISDICTION OF THE FEDERAL COURTS AS DEFINED
IN ARTICLE III OF THE CONSTITUTION
NUTS & bolts
JURISDICTION OF LOWER FEDERAL COURTS
¾ Cases involving the U.S. Constitution, federal laws, and treaties.
¾ Controversies between two or more states. (Congress passed a law giving the Supreme Court exclusive jurisdiction
over these cases.)
¾ Controversies between citizens of different states.
¾ Controversies between a state and citizens of another state. (The Eleventh Amendment removed federal jurisdiction in
these cases.)
¾ Controversies between a state or its citizens and any foreign states, citizens, or subjects.
¾ Cases affecting ambassadors, public ministers, and consuls.
¾ Cases of admiralty and maritime jurisdictions.
¾ Controversies between citizens of the same state claiming lands under grants of different states.JURISDICTION OF THE SUPREME COURT
Original Jurisdictiona
¾ Cases involving ambassadors, public ministers, and consuls.
¾ Cases to which a state is a party.Appellate Jurisdiction
¾ Cases falling under the jurisdiction of the lower federal courts, “with such exceptions, and under such Regulations as
the Congress shall make.”aThis does not imply exclusive jurisdiction. For example, the Supreme Court may refer to a district court a case involving an ambas-
sador (the more likely outcome).
Source: Lee Epstein and Thomas G. Walker, Constitutional Law for a Changing America: Institutional Powers and Constraints, 5th ed.
(Washington, DC: CQ Press, 2004), p. 65.