HODGSON AND THOMPSON v. BOWERBANK 5 Cranch 303 (1809)

Hodgson is a constitutional trivium, of little doctrinal importance. Its interest today is captured in a question: Was Hodgson the one occasion between marbury v. madison (1803) and dred scott v. sandford (1857) when the Supreme Court held an act of Congress unconstitutional? Various scholars have answered that question differently.

Article III of the Constitution does not explicitly authorize Congress to confer jurisdiction on federal courts to decide a case in which one alien sues another. The judiciary act of 1789, however, conferred such jurisdiction on the circuit court when "an alien is a party." In Hodgson, plaintiffs were British subjects; defendants' citizenship was unknown. Chief Justice john marshall, responding to counsel's claim of jurisdiction, was quoted by the reporter, Cranch, as saying only this: "Turn to the article of the constitution of the United States, for the statute cannot extend the jurisdiction beyond the limits of the constitution."

Hodgson plainly holds that Congress cannot constitutionally confer federal court jurisdiction in the alien-versus-alien case. But was Marshall merely limiting the 1789 act's construction to avoid constitutional problems, or was he holding a part of the act's reach unconstitutional? Eighteen decades after the event, the debate goes on.

Kenneth L. Karst
(1986)

(see also: Unconstitutionality.)

Bibliography

Mahoney, Dennis J. 1982 A Historical Note on Hodgson v. Bowerbank. University of Chicago Law Review 49:725–740.