The judicial Power shall extend to ...all Cases affecting Ambassadors, other public Ministers and Consuls....Article III, Section 2, Clause 1
At the Constitutional Convention, William Paterson put forward the New Jersey Plan designed to counter the more nationalist plan set out by Virginia. Despite its focus on the rights of the states, Paterson's plan nonetheless acknowledged the necessity of national competency and supremacy in a number of areas. It proposed to authorize, for example, the federal judiciary to hear appeals from state courts in "all cases touching the rights of Ambassadors." The provision excited no discussion, and the Committee of Detail penned the final version, including placing the subject within the original jurisdiction of the Supreme Court. (See Article III, Section 2, Clause 2.)
All, including the Anti-Federalist Brutus, seemed to agree with the sentiments of Alexander Hamilton that placing the jurisdiction of cases dealing with foreign ministers had "an evident connection with the preservation of the national peace." The Federalist No. 80. Justice Joseph Story in his Commentaries on the Constitution of the United States thought that every question involving the "rights, powers, duties, and privileges" of public ministers was "so intimately connected with the public peace, and policy, and diplomacy of the nation, and touches the dignity and interest of the sovereigns of the ministers connected so deeply, that it would be unsafe, that they should be submitted to any other, then the highest judicature of the nation."
In Osborn v. Bank of the United States (1824), the Supreme Court declared that the foreign diplomat need not be a party to the case to trigger federal jurisdiction, although original jurisdiction is not mandated when the diplomat is merely a victim of a crime. United States v. Ortega (1826). Federal jurisdiction under this clause does not apply to United States diplomats, Ex parte Gruber (1925), nor to divorce suits involving foreign diplomats, Ohio ex rel. Popovici v. Agler (1930), nor to suits involving former foreign diplomatic agents or those whose tours of duty in the United States have ended. Farnsworth v. Sanford (1940). Furthermore, although the Ambassador Clause speaks of "Ambassadors, other public Ministers and Consuls," under modern practice consuls are not normally regarded as diplomatic agents and hence are not subject to this provision. Finally, the fact that the Constitution lodges these cases in the federal judiciary does not preclude the foreign diplomatic agent from pleading sovereign immunity.
- David F. Forte
- Professor of Law
- Cleveland-Marshall College of Law