96. The people of the United States, like other sovereignties, possess not only legislative and executive functions, but also judicial. The possession of these three powers by sovereignty is essential to its existence and a condition of any conception of it. The judicial power of the United States is vested in one Supreme Court and in such inferior courts as Congress from time to time may ordain and establish. This is a delegation of judicial power.[243] The inferior courts are established by Congress but the power of these courts is delegated to them by the people of the United States through the Constitution. Thus it may be said that these inferior courts exist by act of Congress but their authority is delegated to them by the same sovereignty that empowers Congress to create them. The power of the Supreme Court is defined in the word supreme, and that of the inferior courts in the word inferior. Congress can neither increase nor decrease this power; the sovereign alone, the people of the United States can modify the grant. This it has done by the Eleventh Amendment, ratified in 1798:
The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State.[244]
This Amendment was added in compliance with the idea,—at the time dominant in America,—that a State, a member of the Union, is a sovereign, and being sovereign, cannot be made defendant (that is, cannot be sued) at the suit of a citizen or subject of another State, or of a foreign country. The idea was,—and is,—that an American Commonwealth may be petitioned, like any other sovereign, but can be sued only in its own courts and with its own consent.[245] In conformity to this idea the Constitution was so amended as to deny to the courts of the United States any jurisdiction whatever in any case in which an American Commonwealth is made a defendant.
97. This Amendment is a limitation of the judicial power delegated to the government of the United States and save in some particulars of applied judicial jurisdiction as original or appellate, is the only limitation. On the principle that the government of the United States “must possess all the means and have a right to resort to all the methods of executing the powers with which it is intrusted that are possessed and exercised by the governments of the particular States,”[246] the judicial power vested in the federal courts must be sufficient for all the functions and purposes of the federal government. The judicial power of the United States extends to all cases, in law and equity, arising under the Constitution, the laws of the United States, and the treaties made under its authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States is a party; to controversies between two or more States; between citizens of different States; between citizens of the same State claiming lands under grants from different States, and between a State, or its citizens, and foreign states, citizens, or subjects, save and except as jurisdiction is limited by the Eleventh Amendment.[247]
98. It will be observed that the judicial power thus delegated to the United States includes jurisdiction over cases arising outside the domain strictly included (as popularly understood) within the government of the United States. That government is, of necessity and by its nature, a distinct government, possessing powers and functions and purposes of its own, delegated and set forth in the Constitution. Fundamentally there is a government of the United States distinct from the government of the States. The judicial power of the United States includes jurisdiction over controversies to which States are a party,—that is, to controversies to which the United States is not a party. The jurisdiction here has no reference to the controversy but to the status of the parties to the controversy.
99. The Federalist sets forth the principle here involved:
If there are such things as political axioms, the propriety of the judicial power of a government being co-extensive with its legislative, may be ranked among the number. The mere necessity of uniformity in the interpretation of the national laws decides the question. Thirteen (1787; forty-eight, 1917) independent courts of final jurisdiction over the same causes, is a hydra in government, from which nothing but contradiction and confusion can proceed.[248]
This aspect of the judicial power of the United States concerns the interpretation of the supreme law. One purpose of that law is “to insure domestic tranquillity,”—that is, the peace of the Union.[249]
The Constitution imposes restrictions on the States, which of course means restrictions on their legislatures, their governors, and their courts. Upon principles of good government the States are prohibited from doing many things. How shall infractions of the supreme law be determined? Either by a congressional negative, or by the authority of the federal courts overruling whatsoever act of the State contravenes the Constitution.[250]
100. But the judicial power of the United States extends yet further,—to controversies “in which the State tribunals cannot be supposed to be impartial and unbiased.”[251] The principle here is that the whole is greater than a part;