582 RUTLEDGE, J., concurring. The sole reason Marshall assigned for the decision was "a conviction that the members of the American confederacy only are the states contemplated in the constitution," a conviction resulting as he said from an examination of the use of that word in the charter to determine "whether Columbia is a state in the sense of that instrument." 2 Cranch at 452. "When the same term which has been used plainly in this limited sense [as designating a member of the union] in the articles respecting the legislative and executive departments, is also employed in that which respects the judicial department, it must be understood as retaining the sense originally given to it." Ibid. This narrow and literal reading was grounded exciusively on three constitutional provisions: the requirements that members of the House of Representatives be chosen by the people of the several states; that the Senate shall be composed of two Senators from each state; and that each state "shall appoint, for the election of the executive," the specified number of electors; all, be it noted, provisions relating to the organization and structure of the political departments of the government, not to the civil rights of citizens as such. Put to one side were other provisions advanced in argument as showing "that the term state is sometimes used in its more enlarged sense" on the ground that "they do not prove what was to be shown by them." Ibid. But cf. 446 448, 450. Whether or not this answer was adequate at the time,' 13 13 Counsel for the plaintiffs had made, among others, two different, though closely related, arguments. One was that "state" as used in the diversity clause should be given what Marshall characterized as "the signification attached to it by writers on the law of nations," a political entity in a broad and general sense. To this argument his answer was obviously appropriate. But in view of other constitutional provisions relied upon in the argument, 2 Cranch 446-448, 450, it seems at least questionable that the answer met the other contention, namely, that "those territories which are under the exclu RUTLEDGE, J., concurring. 337 U.S. our Constitution today would be very different from what it is if such a narrow and literal construction of each of its terms had been transmuted into an inflexible rule of constitutional interpretation. It is to be remembered, as bearing on the very issue before us, that the Sixth Amendment's guarantee of "an impartial jury of the State . . . wherein the crime shall have been committed" extends to criminal prosecutions in the Nation's capital." Similarly, the word "Citizens" has a broader sive government of the United States are to be considered in some respects as included in the term 'states' as used in the constitution." Id. at 446. 14 The Court's initial determination that District residents were entitled to a jury trial in criminal cases, Callan v. Wilson, 127 U. S. 540, rested in large measure on the more inclusive language of Article III, §2: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed." The Court in the Callan case rejected the Government's argument that Article III, § 2, permits Congress to dispense with a jury when the crime takes place in the District rather than in a state. But Article III does not seem to have been the sole basis of decision, for the Court said, 127 U. S. at 550: "In Reynolds v. United States, 98 U. S. 145, 154, it was taken for granted that the Sixth Amendment of the Constitution secured to the people of the Territories the right of trial by jury in criminal prosecutions; ... We cannot think that the people of this District have, in that regard, less rights than those accorded to the people of the Territories of the United States." See District of Columbia v. Clawans, 300 U. S. 617, 624; Capital Traction Co. v. Hof, 174 U. S. 1, 5; cf. Thompson v. Utah, 170 U. S. 343, 348–349. But, though it be true that "The Sixth Amendment was not needed to require trial by jury in cases of crimes," United States v. Wood, 299 U. S. 123, 142, nevertheless the recognized right of District residents to an "impartial jury" is conferred by the force of the Sixth Amendment. See Frazier v. United States, 335 U. S. 497, 498, 514. Nor is this distinction a mere form of words: In United States v. Wood, supra, at 142-143, Chief Justice Hughes, in weighing the impartiality of a District of Columbia jury, noted the Article III 582 RUTLEDGE, J., concurring. 16 meaning in Article III, § 2, where it now includes corporations," than it has in the privileges and immunities clause of Article IV, § 2, or in the like clause of the Fourteenth Amendment." Instances might, but need not, be multiplied. In construing the diversity clause we are faced with the apparent fact that the Framers gave no deliberate consideration one way or another to the diversity litigation of citizens of the District of Columbia. And indeed, since the District was not in existence when the guarantee of a jury trial and then observed: "The Sixth Amendment provided further assurances. It added that in all criminal prosecutions the accused shall enjoy the right 'to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence." " Thus it has been uniformly assumed that in criminal prosecutions a resident of the District of Columbia is possessed of Sixth Amendment rights "to a speedy... trial," United States v. McWilliams, 69 F. Supp. 812, affirmed 163 F. 2d 695; "to be informed of the nature and cause of the accusation," cf. Johnson v. United States, 225 U. S. 405, 409, 411; "to be confronted with the witnesses against him," Curtis v. Rives, 123 F. 2d 936, 937; Jordon v. Bondy, 114 F. 2d 599, 602, "to have compulsory process for obtaining witnesses in his favor," ibid.; "and to have the Assistance of Counsel for his defence," Noble v. Eicher, 143 F. 2d 1001; see Williams v. Huff, 142 F. 2d 91, 146 F. 2d 867. 15 See note 12 supra. Compare Louisville, C. & C. R. Co. v. Letson, 2 How. 497, with Bank of the United States v. Deveaux, 5 Cranch 61. 16 Paul v. Virginia, 8 Wall. 168, 177. It is to be noted, however, that Hamilton's 80th Federalist expressly justified the grant of diversity jurisdiction as effectively implementing the guaranties of the privileges and immunities clause of Article IV. 17 Hague v. C. I. O., 307 U. S. 496, 514, cf. id. at 527; Grosjean v. American Press Co., 297 U. S. 233, 244; Orient Insurance Company v. Daggs, 172 U. S. 557, 561. 337 U.S. RUTLEDGE, J., concurring. Constitution was drafted, it seems in no way surprising that the Framers, after conferring on Congress plenary power over the future federal capital, made no express provision for litigating outside the boundaries of a hypothetical city conjectured controversies between unborn citizens and their unknown neighbors. Under these circumstances I cannot accept the proposition that absence of affirmative inclusion is, here, tantamount to deliberate exclusion. If exclusion of District citizens is not compelled by the language of the diversity clause, it likewise cannot be spelled out by inference from the historic purposes of that clause. We have, needless to say, no concern with the merits of diversity jurisdiction; 18 nor need we resolve scholarly dispute over the substantiality of those local prejudices which, when the Constitution was drafted, the grant of diversity jurisdiction was designed to nullify." Our only duty is to determine the scope of the jurisdictional grant, and we must bow to congressional determination of whether federal adjudication of local issues does more good than harm. But, in resolving the imme 18 For contrasting views prior to Erie R. Co. v. Tompkins, 304 U. S. 64, compare Yntema, The Jurisdiction of the Federal Courts in Controversies between Citizens of Different States, 19 A. B. A. J. 71 (1933), and Yntema and Jaffin, Preliminary Analysis of Concurrent Jurisdiction, 79 U. Pa. L. Rev. 869 (1931), with Frankfurter, A Note on Diversity Jurisdiction-In Reply to Professor Yntema, 79 U. Pa. L. Rev. 1097 (1931), and Frankfurter, Distribution of Judicial Power between United States and State Courts, 13 Corn. L. Q. 499, 520330 (1928). For post-Erie analyses see Shulman, The Demise of Swift v. Tyson, 47 Yale L. J. 1336 (1938); Clark, State Law in the Federal Courts: The Brooding Omnipresence of Erie v. Tompkins, 55 Yale L. J. 267 (1946). 19 See note 18, and see also Friendly, The Historic Basis of Diversity Jurisdiction, 41 Harv. L. Rev. 483 (1928); Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49, 81-90 (1923); Frank, Historical Bases of the Federal Judicial System, 13 Law & Contem. Prob. 3, 22-28 (1948). 582 RUTLEDGE, J., concurring. diate issue, we should not blink the fact that, whatever the need for federal jurisdiction over suits between litigant citizens of the several states, the same need equally compels the safeguards of federal trial for suits brought by citizens of the District of Columbia against citizens of the several states. Conversely, if we assume that today's ruling tacitly validates suits brought by state citizens against citizens of the District of Columbia, it would seem the plaintiff citizen of a state is as deserving of a federal forum when suing a District defendant as when suing a defendant in a neighbor state. Marshall's sole premise of decision in the Hepburn case has failed, under the stress of time and later decision, as a test of constitutional construction. Key words like "state," "citizen," and "person" do not always and invariably mean the same thing. His literal application disregarded any possible distinction between the purely political clauses and those affecting civil rights of citizens, a distinction later to receive recognition. 20 Moreover, Marshall himself recognized the incongruity of the decision: "It is true that as citizens of the United States, and of that particular district which is subject to the jurisdiction of congress, it is extraordinary that the courts of the United States, which are open to aliens, and to the citizens of every state in the union, should be closed upon them." But, he added, "this is a subject for legislative not for judicial consideration." 2 Cranch at 453. With all this we may well agree, with one reservation. In spite of subsequent contrary interpretation and Marshall's own identification of the statutory word "state" with the same word in the Constitution, we cannot be unreservedly sure that the last-quoted sentence referred to the process of constitutional amendment rather than 20 Cf. notes 14-17 supra and text. |