Late in the Convention, a delegate proposed to extend the judicial power to cases arising under the Constitution of the United States as well as under its laws and treaties. Madison's notes continue: ''Mr. Madison doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising under the Constitution, and whether it ought not to be limited to cases of a Judiciary Nature. The right of expounding the Constitution in cases not of this nature ought not to be given to that Department.
''The motion of Docr. Johnson was agreed to nem : con : it being generally supposed that the jurisdiction given was constructively limited to cases of a Judiciary nature--''. 292
That the Framers did not intend for federal judges to roam at large in construing the Constitution and laws of the United States but rather preferred and provided for resolution of disputes arising in a ''judicial'' manner is revealed not only in the language of Sec. 2 and the passage quoted above but as well in the refusal to associate the judges in the extra-judicial functions which some members of the Convention--Madison and Wilson notably--conceived for them. Thus, four times proposals for associating the judges in a council of revision to pass on laws generally were voted down, 293 and similar fates befell suggestions that the Chief Justice be a member of a privy council to assist the President 294 and that the President or either House of Congress be able to request advisory opinions of the Supreme Court. 295
This intent of the Framers was early effectuated when the Justices declined a request of President Washington to tender him advice respecting legal issues growing out of United States neutrality between England and France in 1793. 296 Moreover, the refusal of the Justices to participate in the congressional plan for awarding veterans' pensions 297 bespoke a similar adherence to the restricted role of courts. These restrictions have been encapsuled in a series of principles or doctrines, the application of which determines whether an issue is meet for judicial resolution and whether the parties raising it are entitled to have it judicially resolved. Constitutional restrictions are intertwined with prudential considerations in the expression of these principles and doctrines, and it is seldom easy to separate out the two strands. 298
By the terms of the foregoing section, the judicial power extends to nine classes of cases and controversies, which fall into two general groups. In the words of Chief Justice Marshall in Cohens v. Virginia: 299 ''In the first, jurisdiction depends on the character of the cause, whoever may be the parties. This class comprehends 'all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.' This cause extends the jurisdiction of the Court to all the cases described, without making in its terms any exception whatever, and without any regard to the condition of the party. If there be any exception, it is to be implied, against the express words of the article. In the second class, the jurisdiction depends entirely on the character of the parties. In this are comprehended controversies between two or more States, between a State and citizens of another State,' and 'between a State and foreign States, citizens or subjects.' If these be the parties, it is entirely unimportant, what may be the subject of controversy. Be it what it may, these parties have a constitutional right to come into the courts of the Union.'' 300
Judicial power is ''the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.'' 301 The meaning attached to the terms ''cases'' and ''controversies'' 302 determines therefore the extent of the judicial power as well as the capacity of the federal courts to receive jurisdiction. According to Chief Justice Marshall, judicial power is capable of acting only when the subject is submitted in a case and a case arises only when a party asserts his rights ''in a form prescribed by law.'' 303 ''By cases and controversies are intended the claims of litigants brought before the courts for determination by such regular proceedings as are established by law or custom for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs. Whenever the claim of a party under the Constitution, laws, or treaties of the United States takes such a form that the judicial power is capable of acting upon it, then it has become a case. The term implies the existence of present or possible adverse parties whose contentions are submitted to the Court for adjudication.'' 304
Chief Justice Hughes once essayed a definition, which, however, presents a substantial problem of labels. ''A 'controversy' in this sense must be one that is appropriate for judicial determination. A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical character; from one that is academic or moot. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.'' 305 Of the ''case'' and ''controversy'' requirement, Chief Justice Warren admitted that ''those two words have an iceberg quality, containing beneath their surface simplicity submerged complexities which go to the very heart of our constitutional form of government. Embodied in the words 'cases' and 'controversies' are two complementary but somewhat different limitations. In part those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government. Justiciability is the term of art employed to give expression to this dual limitation placed upon federal courts by the case and controversy doctrine.'' 306 Justice Frankfurter perhaps best captured the flavor of the ''case'' and ''controversy'' requirement by noting that it takes the ''expert feel of lawyers'' often to note it. 307
From these quotations may be isolated several factors which, in one degree or another, go to make up a ''case'' and ''controversy.''
The presence of adverse litigants with real interests to contend for is a standard which has been stressed in numerous cases, 308 and the requirement implicates a number of complementary factors making up a justiciable suit. A concrete example of the requirement being one of the decisive factors, if not the decisive one, is Muskrat v. United States, 309 a case not now deemed of great importance, in which the Court struck down a statute authorizing certain named Indians to bring a test suit against the United States to determine the validity of a law affecting the allocation of Indian lands. Attorneys' fees of both sides were to be paid out of tribal funds deposited in the United States Treasury. ''The judicial power,'' said the Court,''. . . is the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction. . . . It is true the United States is made a defendant to this action, but it has no interest adverse to the claimants. The object is not to assert a property right as against the government, or to demand compensation for alleged wrongs because of action upon its part. The whole purpose of the law is to determine the constitutional validity of this class of legislation, in a suit not arising between parties concerning a property right necessarily involved in the decision in question, but in a proceeding against the government in its sovereign capacity, and con cerning which the only judgment required is to settle the doubtful character of the legislation in question.'' 310
Collusive and Feigned Suits .--Prime among the cases in which adverse litigants are required are those suits in which two parties have gotten together to bring a friendly suit to settle a question of interest to them. Thus, in Lord v. Veazie, 311 the latter had executed a deed to the former warranting that he had certain rights claimed by a third person and suit was instituted to decide the ''dispute.'' Declaring that ''the whole proceeding was in contempt of the court, and highly reprehensible,'' the Court observed: ''The contract set out in the pleadings was made for the purpose of instituting this suit. . . . The plaintiff and defendant are attempting to procure the opinion of this court upon a question of law, in the decision of which they have a common interest opposed to that of other persons, who are not parties to the suit. . . . And their conduct is the more objectionable, because they have brought up the question upon a statement of facts agreed upon between themselves . . . and upon a judgment pro forma entered by their mutual consent, without any actual judicial decision. . . .'' 312 ''Whenever,'' said the Court in another case, ''in pursuance of an honest and actual antagonistic assertion of rights by one individual against another, there is presented a question involving the validity of any act of any legislature, State or federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must . . . determine whether the act be constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.'' 313 Yet, several widely known constitutional decisions have been rendered in cases in which friendly parties contrived to have the actions brought and in which the suits were su pervised and financed by one side. 314 And there are instances in which there may not be in fact an adverse party at certain stages, that is, some instances when the parties do not actually disagree, but in which the Court and the lower courts are empowered to adjudicate. 315
Stockholder Suits .--Moreover, adversity in parties has often been found in suits by stockholders against their corporation in which the constitutionality of a statute or a government action is drawn in question, even though one may suspect that the interests of plaintiffs and defendant are not all that dissimilar. Thus, in Pollock v. Farmers' Loan and Trust Co., 316 the Court sustained the jurisdiction of a district court which had enjoined the company from paying an income tax even though the suit was brought by a stockholder against the company, thereby circumventing a statute which forbade the maintenance in any court of a suit to restrain the collection of any tax. 317 Subsequently, the Court sustained jurisdiction in cases brought by a stockholder to restrain a company from investing its funds in farm loan bonds issued by federal land banks 318 and by preferred stockholders against a utility company and the TVA to enjoin the performance of contracts between the company and TVA on the ground that the statute creating it was unconstitutional. 319 Perhaps most notorious was Carter v. Carter Coal Co., 320 in which the president of the company brought suit against the company and its officials, among whom was Carter's fa ther, a vice president of the company, and in which the Court entertained the suit and decided the case on the merits. 321
[Footnote 292] 2 M. Farrand, op. cit., n. 1, 430.
[Footnote 293] The proposal was contained in the Virginia Plan. 1 id., 21. For the four rejections, see id., 97-104, 108-110, 138-140, 2 id., 73- 80, 298.
[Footnote 294] Id., 328-329, 342-344. Although a truncated version of the proposal was reported by the Committee of Detail, id., 367, the Convention never took it up.
[Footnote 295] Id., 340-341. The proposal was referred to the Committee of Detail and never heard of again.
[Footnote 296] 1 C. Warren, op. cit., n. 18, 108-111; 3 Correspondence and Public Papers of John Jay, H. Johnston ed. (New York: 1893), 633-635; Hart & Wechsler, op. cit., n.250, 65-67.
[Footnote 298] See, e.g., Justice Brandeis dissenting in Ashwander v. TVA, 297 U.S. 288, 341 , 345-348 (1936). Cf. Flast v. Cohen, 392 U.S. 83, 97 (1968); Rescue Army v. Municipal Court, 331 U.S. 549, 568 -575 (1947).
[Footnote 300] Id., 378.
[Footnote 302] The two terms may be used interchangeably, inasmuch as a ''controversy,'' if distinguishable from a ''case'' at all, is so only because it is a less comprehensive word and includes only suits of a civil nature. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239 (1937).
[Footnote 307] ''The jurisdiction of the federal courts can be invoked only under circumstances which to the expert feel of lawyers constitute a 'case or controversy.''' Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 149 , 150 (1951).
[Footnote 308] Lord v. Veazie, 49 U.S. (8 How.) 251 (1850); Chicago & G.T. Ry. Co. v. Wellman, 143 U.S. 339 (1892); South Spring Hill Gold Mining Co. v. Amador Medean Gold Mining Co., 145 U.S. 300 (1892); California v. San Pablo & T.R.R., 149 U.S. 308 (1893); Tregea v. Modesto Irrigation District, 164 U.S. 179 (1896); Lampasas v. Bell, 180 U.S. 276 (1901); Smith v. Indiana, 191 U.S. 138 (1903); Braxton County Court v. West Virginia, 208 U.S. 192 (1908); Muskrat v. United States, 219 U.S. 346 (1911); United States v. Johnson, 319 U.S. 302 (1943); Moore v. Charlotte-Mecklenburg Board of Education, 402 U.S. 47 (1971).
[Footnote 310] Id., 361-362. The Indians obtained the sought-after decision the following year by the simple expedient of suing to enjoin the Secretary of the Interior from enforcing the disputed statute. Gritts v. Fisher, 224 U.S. 640 (1912). Other cases have involved similar problems, but they resulted in decisions on the merits. E.g., Cherokee Intermarriage Cases, 203 U.S. 76 (1906); La Abra Silver Mining Co. v. United States, 175 U.S. 423, 455 -463 (1899); South Carolina v. Katzenbach, 383 U.S. 301, 335 (1966); but see id., 357 (Justice Black dissenting). The principal effect of Muskrat was to put in doubt for several years the validity of any sort of declaratory judgment provision in federal law.
[Footnote 312] Id., 254-255.
[Footnote 314] E.g., Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796); Fletcher v. Peck, 10 U.S. (6 Cr.) 87 (1810); Scott v. Sandford, 60 U.S. (19 How.) 393 (1857); Cf. 1 C. Warren, op. cit., n. 18, 147, 392-395; 2 id., 279-282. In Powell v. Texas, 392 U.S. 514 (1968), the Court adjudicated on the merits a challenge to the constitutionality of criminal treatment of chronic alcoholics although the findings of the trial court, agreed to by the parties, appeared rather to be ''the premises of a syllogism transparently designed to bring this case' within the confines of an earlier enunciated constitutional principle. But adversity arguably still existed.
[Footnote 315] Examples are naturalization cases, Tutun v. United States, 270 U.S. 568 (1926), entry of judgment by default or on a plea of guilty, In re Metropolitan Ry. Receivership, 208 U.S. 90 (1908), and consideration by the Court of cases in which the Solicitor General confesses error below. Cf. Young v. United States, 315 U.S. 257, 258 -259 (1942); Casey v. United States, 343 U.S. 808 (1952); Rosengart v. Laird, 404 U.S. 908 (1972) (Justice White dissenting). See also Sibron v. New York, 392 U.S. 40, 58 -59 (1968).
[Footnote 316] 157 U.S. 429 (1895). The first injunction suit by a stockholder to restrain a corporation from paying a tax was apparently Dodge v. Woolsey, 59 U.S. (18 How.) 331 (1856). See also Brushaber v. Union Pacific R. Co., 240 U.S. 1 (1916).
[Footnote 321] Stern, The Commerce Clause and the National Economy, 59 Harv. L. Rev. 645, 667-668 (1948) (detailing the framing of the suit).