"Sovereignty of Reason:" An Approach to Sovereign Immunity and Copyright Ownership of Distance-Education Courses at Public Colleges and Universities

Journal of Law and Education, Apr 2005 by Klein, Michael W

During the Constitutional Convention of 1787, the delegates vigorously debated the creation of the federal courts and their relationship with the states. The convention assembled May 14, began deliberations May 25, and discussed a resolution regarding the judiciary for the first time on June 4 and 5, focusing on the selection of judges.74 Subsequent debate on the judiciary occurred sporadically, with competing proposals from Edmund Randolph of Virginia, William Paterson of New Jersey, and Alexander Hamilton of New York.75 On July 18, the convention delegates agreed on a resolution enabling the national legislature to create inferior courts, with "jurisdiction [that] shall extend to all cases arising under the National laws: And to such other questions as may involve the National peace & harmony."76

The Committee of Detail received this resolution, plus two others, and drafted a report while the convention adjourned.77 When the convention reconvened on August 6, John Rutledge from South Carolina presented the Committee of Detail's report in the form of a draft constitution comprising twenty-three articles.78 Article XI established the federal judiciary, with Section 3 defining the jurisdiction of the Supreme Court:

The Jurisdiction of the Supreme Court shall extend to all cases arising under laws passed by the Legislature of the United States; to all cases affecting Ambassadors, other Public Ministers and Consuls; to the trial of impeachments of officers of the United States; to all cases of Admiralty and maritime jurisdiction; to controversies between two or more States, (except such as shall regard Territory or Jurisdiction) between a State and Citizens of another State, between Citizens of different States, and between a State or the Citizens thereof and foreign States, citizens or subjects. In cases of impeachment, cases affecting Ambassadors, other Public Ministers and Consuls, and those in which a State shall be a party, this jurisdiction shall be original. In all other cases beforementioned, it shall be appellate, with such exceptions and under such regulations as the Legislature shall make. The Legislature may assign any part of the jurisdiction abovementioned (except the trial of the President of the United States) in the manner, and under the limitations which it shall think proper, to such Inferior Courts, as it shall constitute from time to time.79

In the final draft of the Constitution, signed by the delegates on September 17, 1787,80 the powers of the federal judiciary are delineated in Article III. Section 2 of that article addresses federal jurisdiction over law suits against the states: "The Judicial Power shall extend ... to Controversies between two or more States;-between a State and Citizens of another State;-between Citizens of different States; . . . and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."81

3. The Federalist and the Ratification Debate

Alexander Hamilton, one of New York's delegates to the Constitutional Convention, enlisted fellow delegates John Jay of New York and James Madison of Virginia to write a series of essays, to be published initially in New York newspapers and later in a bound volume, to explain the details of the Constitution to the public and help secure its ratification.82 Between October 1787 and August 1788, the three authors-writing under the pseudonym "Publius" to preserve the confidentiality of the Constitutional Convention-wrote eighty-five essays, which were soon published in two volumes totaling six hundred pages.83 Collectively called The Federalist, the first bound volume appeared on March 22, 1788 and the second on May 28, 1788, coinciding with the latter stages of the ratification process and having a particularly significant impact on the conventions in New York and Virginia, which both began in June 1788.84