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Thursday, August 03, 2017

Temecula Constitution Class: Judicial Branch Continued

Join us tonight at 6:30 pm as we continue to examine the Judicial Branch, Article III of the U.S. Constitution

Faith Armory, 41669 Winchester Road, Temecula, CA
Constitution Class Handout
Instructor: Douglas V. Gibbs
douglasvgibbs@reagan.com

www.politicalpistachio.com
www.douglasvgibbs.com
www.constitutionassociation.com


Lesson 7: Faithfully Execute

He

The first word of Article II, Section 3 is "He."  The word refers to the President of the United States.  I have actually had some people, who oppose the Constitution, tell me that the word "He" being used is evidence that the Constitution disallows women from being President.  They then argue that if a woman was to become President, because of the word "He" being used in the Constitution, anything she did in office would be unconstitutional since the Constitution does not allow women to be President of the United States.

Not necessarily.

As with other writings, such as the Holy Bible, often the word "He" may be used as a general term to represent both sexes.

In the case of the Constitution, it is conceivable, considering the mindset of the day, that the Founders did not think a woman would someday become President of the United States.  I assure you, people like John Adams and Aaron Burr were exceptions to that line of thinking.

Aaron Burr was Vice President under Thomas Jefferson, and he actually was one that proposed that there be a uniform rule across the nation that enabled women to vote.

If you look through the Constitution, there is no place in the Constitution that says women cannot vote, or run for office.  The reason women were not able to vote, or run for office, was because the States were given the authority over the rules of elections, and during that time the States did not allow women to vote or hold office.  Much of that changed in some States and territories long before the Suffrage Movement, but it took a Constitutional amendment to make the practice uniform among all States.

Therefore, the first word of Article II, Section 3, being "He," is simply a general term.  Whoever the first female President is in the future, she will be fully entitled, upon being elected, to assume the Office of the President of the United States.

            State of the Union

"He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient."

The State of the Union address is supposed to be as it is worded in the Constitution, a speech about the state of the union addressed to Congress by the President.  It is not supposed to be a campaign speech, it is not supposed to be a popularity speech, nor a chance to take a stab at political opposition.  The speech is simply supposed to be an opportunity for the President to give the Congress information regarding the state of the union.

The speech is also not supposed to be designed as an address to the people, either.  It was expected that the electorate would be interested in hearing the speech, and that the press would report on the speech, for it is in our interest to know what the state of the union is.  But, the specific reason for the State of Union address is to give Congress information of the state of the union.

There is an additional reason for the State of Union address should the President deem it necessary.  According to the Constitution, he may during the speech "recommend to their Consideration such measures as he shall judge necessary and expedient."  Of course, he can do this during the normal course of his presidency, as well.  The word "recommend to their consideration" in this part of the clause gives us a clue to the limits on the powers of the President.

Article I, Section 1 reads: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

This means that the authority to make law, modify law, repeal law, and strike down law - "all" legislative powers - are granted to the Congress by the States.

Article II, Section 3 says the President can "recommend" to their "consideration" such measures.  He cannot act without Congress, he cannot put measures into place "with or without Congress," and at best he can "recommend" to Congress his own ideas regarding legislation that he would like to see Congress initiate.  The President can only "recommend to their consideration," because he has no legislative capacity.  He cannot make Congress do anything, and he cannot act legislatively without Congress.

            Executive Orders

The President has the authority to issue Executive Orders.  An Executive Order is a proclamation.  Executive Orders began back when George Washington was President.  His Thanksgiving Proclamation was an Executive Order.  Executive Orders serve two functions.  They may be used to change the processes within the Executive Branch, because the rules of the internal workings of the Executive Branch are up to the President.  Or, an Executive Order may be used to issue a proclamation that is not legally binding.

No place in the Constitution does the document give the President the allowance through Executive Order to modify, repeal or make law.  Executive Orders have been used often in history to modify law, but that is an unconstitutional executive action.  The President does not have that kind of authority.

Since all of the regulatory agencies in the United States Government are a part of the executive branch, they are also bound by the same limitations.  Like the President, regulatory agencies cannot act legislatively.  Whenever they make a regulation that is not to directly regulate (put in good order and execute) an existing constitutional law, but to regulate an unconstitutional law, or to create a new law, it is outside the authorities granted to the executive branch by the Constitution.

On March 26, 2012, Cap and Trade auto emission legislation failed to pass through Congress. The Environmental Protection Agency began to auction greenhouse gas allowances anyway, effectively taxing emissions and regulating in a manner consistent with Cap and Trade should it have passed as a piece of legislation.

On December 20, 2010, when an Internet regulation bill failed to pass through Congress, the Federal Communications Commission announced it would regulate the Internet anyway. The FCC's new regulations controlled the way service providers may manage their network transmissions.

The regulatory agencies are under the Executive Branch, and are not a part of the Legislative Branch.  A Separation of Powers exists, limiting each branch to only the authorities granted to it, and any part of the executive branch, including the regulatory agencies, do not have any legislative authority.

            Extraordinary Occasions

"He may, on extraordinary occasions, convene both Houses, or either of them."

What is an extraordinary occasion?  That would be an emergency, or during a time that matters are urgent.  If the President believes a matter needs to be tended to, he can compel the Congress to be in session.  In other words, it is constitutional when the President says something like, "I'm working, so Congress needs to be, too."

An extraordinary occasion can be wartime, budget discussions, or anything else the President determines to be an extraordinary occasion.

This includes when there is a "disagreement between them (the Houses)."  The President may choose when the Houses will meet, as he feels is proper.

The President was expected to be a man of sacred honor, and it was believed he would use this authority wisely, and not in excess based on the whims of his ideology fancy.

In Article I, Section 5 the Constitution instructs that the Houses may not adjourn without the permission of the other House.  But what if they refuse to allow the other House to adjourn?  This is where the President comes in.  If, because of disagreement, the Houses won't allow each other to adjourn, the President, if he feels it is necessary, "may adjourn them to such time as he shall think proper."

The President can compel the Houses to convene, or adjourn, as he feels necessary, as well.

He can't force them to make particular laws, per se, but he can make them be in session to get the work done, or take a break if he sees it as necessary.

As much as Congress has control over when they convene or adjourn, the President does have the authority if things are getting out of hand, or for whatever other reason he deems necessary, to override Congress' decision of when to convene or adjourn.

An appropriate example would be during wartime.  The President's war powers enable him to put the military into action.  If he feels there should be a declaration of war, would like to discuss his war plans with the Congress, or requires an apportionment of funding for the military effort, he can compel them to be in session.  He cannot force Congress to declare war, or approve of his actions, but he can ensure they are in session so that the politics of war may be discussed.

If some of the members of Congress have a problem with the actions of the President so that they refuse to convene, he can then order Congress to convene so that he may discuss with them the issues at hand.  If there are enough to qualify as a quorum, it is not necessary to compel the absent members to be in attendance.  If Congress does not meet the requirement for a quorum, and the President believes the matter to be an extraordinary occasion, he can then compel the absent members to attend.

            Receiving Ambassadors and Other Public Ministers

The President may invite important people to Washington, be they ambassadors, or other officials.  Having the Chinese leader over for a dinner at the White House, or entertaining a group of diplomats, for example, is completely constitutional.

            Regulatory Agencies

"He shall take Care that the Laws be faithfully executed."

This clause establishes the enforcement arm of the Executive Branch, which eventually became the regulatory agencies.

The clause is definitive in its instruction to the President regarding the execution of the laws of the United States by using the word "shall."  The words "take Care" places an additional importance upon ensuring the laws of the United States are executed.  The word "Care" in this clause is capitalized, placing emphasis on the word in a manner that we use today with italics.  The laws must be executed with Care, and the Laws are expected to be "faithfully executed."  Faithfully, without exception, without preferences, and without ideological interference.

Some people say the Executive Branch is supposed to "enforce" the laws - and in a sense that is correct.  But really, the Executive Branch is supposed to execute the laws - ensure they are carried out - Laws that were put into place constitutionally.

Laws, under the federal government, are only valid laws, if they are constitutional.  If the laws are not made in line with the authorities granted to the federal government by the Constitution, they are not legal laws.  The Constitution says that the executive branch shall "execute" the laws - so we must ask, does that mean only constitutional laws?

This is where a great deal of debate emerges.  Does the President have the authority to refuse to execute an unconstitutional law?  In other words, does the President have the authority to "interpret" the U.S. Constitution?

We the People and the States (who are the contract-makers) are the final arbiters of the Constitution.  While the President can have an opinion about the constitutionality of a law, a power similar to the courts, by refusing to execute a law the President is essentially striking down a law, which is a legislative power, an authority he does not have.

When President Obama determined the Defense of Marriage Act (DOMA) was unconstitutional, and decided his agencies would not execute that law, he was acting constitutionally in the sense that marriage is not an issue the federal government has authority over, but at the same time unconstitutionally because the Constitution does not give him the power to make that determination.  The law is the law, and until it is repealed by Congress, the law remains in force.

If a President refuses to execute a law on the books because he deems it unconstitutional, Congress can override his decision just like they can override a veto.  Article I, Section 8 grants to Congress the authority to "provide for calling forth the Militia to execute the Laws of the Union."

The reverse is also true.  If the President tries to execute law, calling it constitutional, when it is not constitutional, the States can ignore those federal laws, or nullify them.

Unconstitutional laws are supposed to be caught before they get that far.  The early Presidents of the United States vetoed bills based on the constitutionality of the bill, or the lack thereof, and not necessarily because they disagreed with it ideologically.

In 1817, when President Madison deemed a public works bill unconstitutional, he simply refused to sign the bill into law, indicating in his written explanation that he vetoed the bill because it unconstitutional.


            Officers of the United States

"... and shall commission all the Officers of the United States."

The "United States," as mentioned here in this final part of Article II, Section 3, does not mean The United States as a country.  The United States is mentioned often in the Constitution, and whenever the "United States" is mentioned, it means one of two things.  Either, it means "these States that are united," or the "federal government."  Remember, to these early Americans, who considered themselves citizens of their States before they considered themselves "Americans," the United States meant "these States that are united," rather than a single, nationalistic, entity.

In this particular clause the "United States" means "federal government."

As a result of that definition, you could also say that this part of the Constitution reads: "and shall commission all the officers of the federal government."

The Senate must give consent, as indicated in Article II, Section 2 and Article I, Section 3, to the appointment of these officers, therefore, giving the U.S. Senate (and therefore "the States" prior to the 17th Amendment) the power of oversight over the President's choices.  This, in turn, means that any and all of the President's czars are unconstitutional.  Officers of the United States are any office holders in the government exercising significant authority pursuant to the laws of the United States, and czars are included in that definition.

            Impeachment

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Impeachment is a term that means "To charge with misconduct."  Removal from office does not happen unless the official is "convicted."  In the case of the President and Vice President, the hearings are held by the U.S. Senate.

The reasons for impeachment may be for "Treason, Bribery, or other high Crimes and Misdemeanors."

Treason is defined in Article III, Section 3 as "levying War against them (these States that are United), or adhering to their Enemies, giving them Aid and Comfort."

Bribery is defined as meaning the exchange of money, promises, or other things, with someone in office, in order to influence that person's views or conduct.

The real confusion comes when we talk about the final part: "or other high Crimes and Misdemeanors."

When it comes to the phrase, "high crimes and misdemeanors" and the meaning of that phrase to the Founding Fathers, we must recognize the language used.

The word "high" in this context does not necessarily mean "more serious".  It refers to those punishable offenses that only apply to high persons, meaning "public officials," or those who, because of their official status, are under special obligations that ordinary persons are not under.

For an official who was placed in office by the people, a crime offends the sense of justice of the people.  When a public official commits these crimes, they can be more serious than if the same crime is committed by a citizen, because of the trust put into the office the official holds.

One of those high crimes is Perjury, which is more than merely "lying under oath".  Under the definitions used by the Founders, perjury also means "violation of one's oath (or affirmation)".  Therefore, the President refusing to protect and defend the Constitution, could be considered perjury.

The President is bound by his oath of office in all matters until he leaves office to follow the oath of office. While he holds that office, he is always under oath, therefore his failing to uphold the oath, or lying at any time, constitutes perjury if it is not justified for national security.

An executive official is also ultimately responsible for any failures of his subordinates and for their violations of the oath he and they took, which means violations of the Constitution and the rights of persons.  The President's subordinates include everyone in the executive branch, and their agents and contractors.  It is not limited to those over whom he has direct supervision.  He is not protected by plausible deniability.  The President is legally responsible for everything that everyone in the executive branch is doing.

Impeachment and removal proceedings may then encompass a full range of offenses against the Constitution and against the rights of persons committed by subordinate officials and their agents which have not been adequately investigated or remedied.

The meaning of the phrase "high crimes and misdemeanors," was common knowledge during the time of the founding of this nation.  The phrase imports a concept in English Common Law of the word "misdemeanors" that essentially means bad behavior.

"Misdemeanors" in the language of the Founders, then, did not necessarily refer to a criminal act as many believe, but opened up the opportunity for impeachment of the President should he be guilty of gross incompetence, gross negligence, or outright distasteful actions which clearly show "malevolence toward this country and constitution, which is unabated."

The subject of impeachment was adopted from the English concept of this idea.  In England impeachment was a device to remove from office someone who abused his office or misbehaved, but who was protected by the Crown.

James Madison said during the federal convention that impeachment ought to be used to reach a bad officer sheltered by the President and to remove him "even against the will of the President; so that the declaration in the Constitution was intended as a supplementary security for the good behavior of the public officers."

At first, during the debates in the Constitutional Convention, the grounds for removal of the president were to be upon conviction "of mal-practice or neglect of duty" and subsequently this was changed to "Treason, or bribery."  George Mason objected to this limitation, saying that the term did not encompass all the conduct which should be grounds for removal.  So, Mason proposed adding the term maladministration following ''bribery.''

Madison objected, believing the term to be too vague, or too general.  Mason then suggested ''other high crimes and misdemeanors,'' which was adopted without further recorded debate.

Term:

Adjourn - Suspend proceedings to a later time and/or place.

Bribery - The exchange of money, promises, or other things, with someone in office, in order to influence that person's views or conduct.

Cap and Trade - Emissions trading; a regulatory approach to control pollution by providing economic incentives for achieving reductions in the emissions of pollutants; central control limit of amount of pollutants that can be emitted (cap), and companies are permitted to sell the unused portion of their limits to other companies who are struggling to comply (trade).

Executive Branch - The branch of government responsible for executing, or carrying out, the laws.  An executive in government can be a president, or a governor.

Executive Order - An order issued by the President of the United States that may be a proclamation, or an order to change the processes within the Executive Branch.

High Crimes - Punishable offenses that only apply to high persons, meaning "public officials," or those who, because of their official status, are under special obligations that ordinary persons are not under.

Legislative Authority - See Legislative Powers.

Legislative Branch - Congress; the branch of the federal government that is vested with all legislative powers and consists of two Houses, the House of Representatives, and the United States Senate.

Legislative Powers - The ability to make law, modify law, repeal law, and anything else that has to do with affecting law.

Maladministration - Inefficient or dishonest administration; mismanagement.

Misdemeanors - In the Constitution the definition is bad behavior including, but not limited to, gross incompetence, gross negligence, or outright distasteful actions which clearly show "malevolence toward this country and constitution, which is unabated"; maladministration.

Nullification - State power to ignore unconstitutional federal law.

Perjury - Lying under oath, violation of one's oath (or affirmation).

Plausible Deniability - Circumstances where denial of responsibility or knowledge of wrongdoing cannot be proved as true or untrue due to a lack of evidence proving the allegation; when high ranking officials deny responsibility for or knowledge of wrongdoing by lower ranking officials; any act that leaves little or no evidence of wrongdoing or abuse.

Quorum - Minimum number of members of an assembly necessary to conduct the business of that group.

Regulatory Agencies - Agencies within the Executive Branch tasked with executing the laws of the nation; the enforcement arm of the Executive Branch.

Separation of Powers - A division of governmental authority into three branches: legislative, executive, and judicial; division of powers between the States and federal government.

State of the Union address - A speech about the state of the union addressed to Congress by the President.

Treason - Levying war against the States, or adhering to the enemies of the States, giving aid and comfort to the enemy.

Veto - The power of a chief executive to reject a bill passed by the legislature in order to prevent or delay its enactment into law.

Questions for Discussion:

1. During what kind of circumstance can the President of the United States act legislatively?  Why?

2.  What kind of circumstances do you believe would be considered extraordinary by the Founding Fathers?

3.  What is the proper role of the Regulatory Agencies?

4.  Should failing to preserve and protect the United States Constitution be an impeachable offense?  Why, or why not?

Resources:

Jon Roland, Meaning of "High Crimes and Misdemeanors"; Constitution
Society: http://www.constitution.org/cmt/high_crimes.htm, (1999)

Joseph Andrews, A Guide for Learning and Teaching The Declaration of
Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).

Madison's Notes Constitutional Convention, Avalon Project, Yale
University: http://avalon.law.yale.edu/subject_menus/debcont.asp

Philip B. Kurland and Ralph Lerner, The Founder's Constitution -
Volume Four - Article I, Section 8, Clause 5 to Article VII; Indianapolis: Liberty Fund (1987)

Vincent Gioia, What is a 'Misdemeanor' Under the Constitution and
Why is it Important?; Right Side News: http://www.rightsidenews.com/2010091511636/editorial/rsn-pick-of-the-day/what-is-a-misdemeanor-under-the-constitution-and-why-is-it-important.html, (2010)


Copyright Douglas V. Gibbs 2017


Constitution Class Handout
Instructor: Douglas V. Gibbs
douglasvgibbs@reagan.com

www.politicalpistachio.com
www.douglasvgibbs.com
www.constitutionassociation.com


Lesson 08

Judicial Branch

Establish Justice

The United States Constitution was written to establish a federal government for the United States of America. Article III establishes the federal court system.  Article I, Section 8 gives the Congress the power to "constitute tribunals inferior to the supreme Court."  Given the power to establish these courts, Congress also has the authority to do away with any of these inferior courts.  This power of Congress is repeated in Article III, Section 1 during the first sentence.

When reading Article III, one must keep in mind the fact that the article was specifically written to affect the federal court system, not the state courts. The authorities contained within this article, and the restrictions thereof, are to be applied to the federal courts, not the state courts. One must also bear in mind, as one reads this article, the additional limits placed on the federal courts by the 11th Amendment. No case against a state by citizens of another state, or by the citizens or subjects of a foreign state, shall be heard by a federal court.

In other words if citizens of a State sues a State, or foreign government sues a State, the case can't go to the federal courts.  The highest that case can go is the State Supreme Court.  These limitations placed upon the court system by the 11th Amendment were proposed by the people (House of Representatives) and the States (Senate), and finally ratified by the States, in order to better control a federal court system that was attempting to compromise State Sovereignty.  Judges, the lesson of the 11th Amendment shows us, are not the wielders of the rule of law.  They are not the powerful men of honor when it comes to the law.  The guardians of the rule of law are the people, and the States.  The courts had proven that they can become an enemy of the law, proclaiming that their rulings are the rule of law, but as the 11th Amendment reminds us, the judges are merely men, and their system is the rule of man attempting to manipulate the law through their rulings.  For their bad behavior, the people and the States judged them, and further limited them with a new constitutional amendment.


Good Behavior

The conventional understanding of the terms of federal judges is that they receive lifetime appointments because no time restriction is placed upon them in the Constitution.  The only limitation on term placed upon the judges can be found in Article III, Section 1 where the Constitution states that judges, both of the supreme and inferior courts, "shall hold their offices during good behavior."  Conventional wisdom dictates that bad behavior is defined as unlawful activities.

The definition of bad behavior is not limited to only illegal activities.  Judges take an oath to preserve, protect, and defend the United States Constitution, which is the Law of the Land.  Bad behavior, then, from the point of view of the Founding Fathers, may also include unconstitutional actions, or failure to preserve, protect, and defend the Constitution.

Impeachment by Congress may be used if a judge acts in bad behavior.  If a judge refuses to attend the hearing at the behest of the United States Senate, the federal marshall may be used to retrieve the judge, and compel them to stand before Congress to answer for their bad behavior.  Congress is the check and balance against the courts, not the other way around.





Limits

The powers of the federal courts "shall extend to 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."

The federal courts, in other words, may hear all cases that fall within their authority.  These cases are regarding those in which the federal government has authority, be it by laws passed within the authorities granted to the federal government by the Constitution, or regarding issues related to treaties made that have been signed by the President and ratified by the U.S. Senate.  The courts may not hear cases that are regarding issues not within the authorities of the federal government.

A recent example would be the flurry of federal court rulings against State laws defining marriage as between a man and a woman.  In California, the State's attempt to protect the government definition of marriage was with Proposition 8.  The proposition changed the State Constitution to read that marriage is between a man and a woman.  Marriage is not an issue that falls under the authorities of the federal government as expressly granted by the Constitution, nor is the issue of marriage prohibited to the States.  Therefore, as per the authorities granted, and not granted, in line with the 10th Amendment, the government authority over marriage is reserved to the States.  Since the issue of marriage is a State issue, the case should not have gone beyond the State Supreme Court.  The federal courts hearing the case regarding Proposition 8, or any of the State laws regarding marriage, are acting unconstitutionally.  The governors of these States, whose marriage laws were overturned by an activist federal court system, have the right to disregard all rulings by the federal courts on this issue.  The action of ignoring the rulings is a type of nullification, and States have the right to nullify unconstitutional laws or actions by the federal government..

Other limitations have been placed upon the federal courts as well.  The 11th Amendment changed the intent of Article III.  As limited as the courts were supposed to be, the Founding Fathers realized the courts weren't limited enough, and as a result, the 11th Amendment wound up being ratified in 1795.  The 11th Amendment was encouraged by a federal case called Chisolm v. Georgia (1793).


Chisolm v. Georgia (1793)

An increasing problem with federal intrusion on the States via the federal court system culminated in the case of Chisholm v. Georgia in 1793, which eventually led to the proposal, and ratification, of the 11th Amendment.  A citizen of South Carolina sued the State of Georgia for the value of clothing supplied by a merchant during the Revolutionary War. After Georgia refused to appear, claiming immunity as a sovereign state, as per the Constitution (Article III, Section 2) the federal courts took the case.  The judges in the court system tended to embrace a nationalist view of the federal government, and their nationalist point of view encouraged the judges to deem that in the Chisolm v. Georgia case, Georgia was not a sovereign state, therefore the Supreme Court entered a default judgment against Georgia.  What ensued was a conflict between federal jurisdiction and state sovereignty that reminded the anti-federalists of their fears of a centralized federal government consolidating the states, and destroying their right to individual sovereignty.

Realizing that the clause in Article III gave the federal courts too much power over state sovereignty, Congress immediately proposed the 11th Amendment in order to take away federal court jurisdiction in suits commenced against a State by citizens of another State or of a foreign state. This is the first instance in which a Supreme Court decision was superseded by a constitutional amendment, and evidence that the founders saw the legislative branch, and the States, as being a more powerful part of government over the federal judiciary.
Authorities

The 10th Amendment to the Constitution of the United States of America states that the powers not delegated to the United States by the Constitution, or prohibited by it to the States, are reserved to the States respectively, or to the people.  The federal courts are included in that, as being a part of the United States federal government.  As a result of the nature of how federal authorities are granted, the federal court system can only hear cases that fall within the constitutional authorities for the federal government.

When one understands the importance of protecting state sovereignty, and that the courts are supposed to be very limited in their scope and power, Article III becomes much simpler to understand.

As stated earlier in this section, the first sentence of Article III, Section 2, reads: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States (which are only supposed to be passed if they are within the authorities granted by the Constitution), and Treaties made . . .

Notice the phrase, "arising under this Constitution."  If the case is not involving the federal government as one of the parties, or is not regarding an issue that falls under the authorities of the U.S. Constitution, the federal courts can simply not take the case. The State Supreme Court, in those cases, is the highest court the case can go to.


Judicial Review

Federal judges maintain that the federal courts have the power of judicial review, or the power to determine the constitutionality of laws.  In response to the judicial urgings for the powers to judge the extent of the federal government's powers, in the Kentucky and Virginia Resolutions of 1798, Thomas Jefferson and James Madison warned us that giving the federal government through its courts the power of judicial review would be a power that would continue to grow, regardless of elections, putting at risk the all important concept of the separation of powers, and other much-touted limits on power.  The final arbiters of the Constitution are not the courts, argued the Founding Fathers who supported the foundation of limiting principles of the U.S. Constitution.  The power of the federal government must be checked by State governments, and the people. The States and the People are the enforcers and protectors of the U.S. Constitution.

In today's society it is commonly accepted that one of the roles of the federal court system is to interpret the Constitution, and issue rulings determining the constitutionality of laws.  The Constitution does not grant this authority.  The power of Judicial Review was given to the courts by themselves.

The first attempt to establish "Judicial Review" as an authority to the federal court system was through the Judiciary act of 1789, but the authority allowing the United States federal courts to hear a civil case because the plaintiff has alleged a violation of the United States Constitution, federal law, or a treaty to which the United States is a party, was limited to only the United States Supreme Court.  The lower federal courts, at this point, were not allowed hear cases questioning the federal government's "federal question jurisdiction."  Anti-federalists, and Jefferson Republicans immediately railed against the legislation, arguing that legislation cannot determine authorities granted.

The Federalists, in an attempt to allow the lower courts to wield the power of judicial review, briefly created such jurisdiction in the Judiciary Act of 1801, but it was repealed the following year.  Unable to establish the federal court system as the final arbiters of the United States Constitution through legislative means, the Federalists turned to the courts themselves to drive into place the controversial authority.

During John Adams' final moments in the presidency, he appointed a whole host of "midnight judges" (appointing 16 Federalist circuit judges and 42 Federalist justices of the peace to offices created by the Judiciary Act of 1801) in the hopes of retaining federalist control of the courts as Jefferson's Democratic-Republicans gained control of the Congress, and Jefferson himself accepted the presidency.

Thomas Jefferson's Democratic-Republicans were appalled by the appointment of the Midnight Judges, recognizing the stacking of the courts as a desperate attempt by the Federalists to try and continue Federalist influence despite their election loss.  In Jefferson's view, the Federalists "retired into the judiciary as a stronghold . . . and from that battery all the works of Republicanism are to be beaten down and destroyed."

While Adams was still in office, most of the commissions for these newly appointed judges were delivered.  However, unable to deliver all of them before Adams' term expired, some of them were left to be delivered by the incoming Secretary of State, James Madison.  Jefferson ordered them not to be delivered, and without the commissions delivered, the remaining new appointees were unable to assume the offices and duties to which they had been appointed to by Adams.  In Jefferson's opinion, the undelivered commissions were void.

One of those appointed judges was a man named William Marbury.  He sued, and the case worked its way up to the Supreme Court.  After all of the dust settled, on February 24, 1803, the Court rendered a unanimous (4-0) decision that Marbury had the right to his commission, but the court did not have the power to force Madison to deliver the commission.  Chief Justice Marshall wrote the opinion of the court, and in that opinion he wrote that the federal court system has the power of judicial review.  Rather than simply applying the law to the cases, Marshall decided, based on case law and precedent, that the courts have the authority to determine the validity of the law as well.  This opinion, however, went against all of the limitations placed on the courts by the Constitution.

One of the most obvious fundamental principles of the Constitution is the limitations it places on the federal government.  The Constitution is designed not to tell the federal government what it can't do, but to offer enumerated powers to which the authorities of the federal government are limited to.  The powers are granted by the States, and any additional authorities must also be approved by the States through the ratification of any proposed amendments.  It takes 3/4 of the States to ratify an amendment.  The congressional proposal of an amendment, with the ratification of that amendment, in the simplest terms, is the federal government asking the States for permission to a particular authority.

The power of Judicial Review, or the authority to determine if laws are constitutional, was not granted to the courts by the States in the Constitution.  The courts took that power upon themselves through Justice Marshall's opinion of Marbury v. Madison.

The federal courts are a part of the federal government.  The Constitution was designed to limit the authorities of the federal government by granting only a limited number of powers.  Judicial Review enables the federal government, through the courts, to determine if the laws that the federal government made are constitutional.  In other words, the federal government, through Judicial Review, can determine for itself what its own authorities are.

The idea that the federal court system has the authority to interpret the Constitution, and can decide if a law is constitutional or not, is unconstitutional, and is simply an attempt by those that believe in big government to gain power, and work towards a more centralized big federal governmental system.


Original Jurisdiction

In Article III, Section 2, Clause 2 the Constitution reads: "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction."

What this means is that in all of those above listed cases, the federal appellate courts cannot take the case.  Such cases must bypass the federal appellate system, and go straight to the Supreme Court.  Since one of those stipulations is in regards to cases "in which a State shall be a Party," that means that the case "U.S. v. Arizona" where the federal government sued Arizona to block the State's immigration law, was unconstitutional.  It was unconstitutional for the inferior federal courts to hear the case.  The Supreme Court had original jurisdiction.  Therefore, when the district court ruled in July of 2010 on the case, and struck down parts of the Arizona immigration law, not only did that court not have jurisdiction to hear the case in the first place, but the very act of striking down portions of the law was unconstitutional. After all, Article I, Section 1 grants the legislative branch all legislative powers, and those powers would include the ability to strike down law.  The courts were not vested with any legislative powers, and therefore cannot strike down laws, or portions of laws.


Trial by Jury

Article III, Section II, Clause 3 sets up the right to a trial by jury, except in the cases of impeachment.

This clause also requires that a trial must be held in the state where the crime was committed. If the crime was not committed in any particular state, then the trial is held in such a place as set forth by the Congress.



Treason

Article III, Section 3 defines treason, as well as the granting of the power by the Congress to declare the punishment.  When the Constitution says that "no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attained," it means that the punishment cannot be inherited or passed down (corruption of blood), nor shall the person be denied due process (attainder).

Corruption of blood also means that all inheritable qualities are destroyed, and the Founding Fathers did not believe this English practice should be an American one.

No forfeiture meant that despite treason, the properties of the person could not be forfeited to the government.  The property would remain as property of the individual, or remain with family.  Even when it came to the despicable act of treason, the founders believed that the individual should be able to retain certain rights.


Terms:

Corruption of Blood: Punishment inherited or passed down, all inheritable qualities are destroyed.

Judicial Review: The unconstitutional authority of the federal courts to review law, interpret the Constitution regarding laws, and then determine the constitutionality of laws.

Original Jurisdiction: In the Constitution the Supreme Court has original jurisdiction on some cases, which means the case must proceed directly to the Supreme Court, and the high court must make a determination on whether or not to accept the case.

Treason:Levying war against the States, or adhering to the enemies of the States, giving aid and comfort to the enemy.

Questions for Discussion:

1.  How would life in the United States be different if there was no federal court system?

2.  Why did the Founding Fathers limit the authorities of the federal courts?

3.  How has Judicial Review changed our system of government?

4.  Why do you think the Supreme Court has Original Jurisdiction over some cases?

5.  In what ways is the presence of a Judicial Branch important?

Resources:

Draft of the Kentucky Resolutions (Jefferson's Draft), Avalon Project, Yale University: http://avalon.law.yale.edu/18th_century/jeffken.asp

Madison's Notes Constitutional Convention, Avalon Project, Yale University: http://avalon.law.yale.edu/subject_menus/debcont.asp

Virginia Resolution - Alien and Sedition Acts, Avalon Project, Yale University:
http://avalon.law.yale.edu/18th_century/virres.asp
Copyright: Douglas V. Gibbs, 2015


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