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Thursday, June 17, 2021

Daily Dose: Taylor-Greene seeks to Abolish ATF

By Douglas V. Gibbs
Author, Speaker, Instructor, Radio Host

-- Political Pistachio Conservative News and Commentary

Carlsbad Constitution Class, No State Shall...

 Carlsbad

Health From Within Family Wellness Center
1818 Marron Rd., #103
Carlsbad, CA 92008
6:00 pm
Thursdays

For Zoom, www.1776foreverfree.com has the details

Constitution Class Handout
Instructor: Douglas V. Gibbs

 
www.politicalpistachio.com
www.douglasvgibbs.com
www.constitutionassociation.com
 
 Lesson 04
 
Legislative Prohibitions
 
Prohibitions to the Federal Government, and the States
 
 
- Prohibitions to the Federal Government
 
The Slave Trade and Immigration
 
The common misconception is that Article I, Section 9, Clause 1 is obsolete. The abolition of slavery in the United States made the clause obsolete, we are told. In reality, only a part of the clause is not longer in force. The clause addressed the Atlantic slave trade, and the migration of people into the United States. Slavery was abolished by Amendment 13 so the part of Article I, Section 9, Clause 1 that addresses slavery is obsolete. But is the part about migration still in force?
 
One could say that the “migration” portion of the clause is still in force because the 13th Amendment only addresses slavery. The standard belief among historians is that the entire clause is no longer in force.
 
The ramifications of this clause may indeed reach into today's issue regarding illegal immigration.
 
Why would the Founding Fathers include a mention of migration in a clause that is essentially geared toward the abolition of the importation of slaves?
 
The word “importation” in this clause applies wholly to slaves.
 
The word, migration, then, would seem to apply wholly to non-slaves.
 
The intention was that since the Constitution, as the contract that created our federal government, is a document that grants powers to the federal government, and that all authorities not expressly delegated, are reserved to the States, it was expected that immigration would remain as an issue that would be addressed by the States.
 
Other national governments prohibited migration as they saw fit, so the Founding Fathers determined that the new United States Government must have that same authority.
 
According to the clause, however, from the year 1808 Congress would possess the power to stop the importation of slaves, as well as the migration of people the Congress felt must be prohibited from entering this country as immigrants, through the Congress’ power of legislation.
 
The Constitution was written specifically in regards to the federal government. All powers originally belonged to the States. Some of those authorities were granted to the federal government for the purpose of protecting and preserving the union. Therefore, all authorities regarding immigration originally belonged to the States, and before 1808 the States had sole authority regarding all immigration issues. 
 
In Article I, Section 9, the federal government was given the opportunity to regulate immigration, but not until 1808. The reason for delaying the power to prevent migration were, to be simply put, to give the States twenty years to attract as many people as possible without Congressional regulatory consideration. After all, at this time in history we had immense and almost immeasurable territory, peopled by not more than two and a half million inhabitants. Therefore, migration was encouraged, especially of the kind of people that would bring a benefit to the new nation. The immigration of able, skilful, and industrious Europeans was encouraged.
 
Note that this clause gives the federal government the authority to prohibit certain persons from migrating into the United States, but it does not give the federal government the authority to dictate to the States which persons the States must admit inside their borders.
 
Habeas Corpus
 
Article I, Section 9, Clause 2 states that “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
 
Habeas corpus is a legal term that means quite literally in Latin: "you may have the body." In legal terms, Habeas corpus is a writ that releases a prisoner from unlawful detention. Habeas corpus comes from British common law, and has historically served as an important legal instrument safeguarding individual freedom against arbitrary state action that includes detention without the due process of law.
 
A writ of habeas corpus is a summons with the force of a court order that demands a prisoner be taken before the court, and that the custodian present proof of authority, allowing the court to determine if the custodian has lawful authority to detain the person. If the custodian does not have authority to detain the prisoner, then the prisoner must be released from custody.
 
Habeas corpus is designed to protect citizens against any detention that is forbidden by law. The U.S. Constitution specifically includes the habeas procedure, and instructs the Congress not to suspend such unless the detainment is the result of a “Rebellion or Invasion,” adding that “the public Safety may require it.”
 
Normally, habeas corpus proceedings accompany questions of jurisdiction and authorities of the court that sentenced a defendant. The suspension of habeas corpus has recently become an issue regarding the detainment of terrorists, but one must ask if the public safety requires the suspension of habeas corpus in the case of terrorists, as prescribed in the Constitution. Secondly, one must consider that the Constitution applies to American citizens, so the question on whether or not Article I, Section 9, Clause 2 applies to captured combatants seems to be a moot point since it is obvious that the detained are not American Citizens, and therefore are not protected by Constitutional protections. Also, remember that Congress has the sole authority to make rules regarding captures on land and water as per Article I, Section 8, Clause 11.
 
Bills of Attainder
 
A Bill of Attainder is when the legislature declares the guilt of a person or group of persons, and punishes them without due process (the benefit of a trial).
 
In Britain, bills of attainder were used as a convenient way for the King to convict subjects of crimes and confiscate their property without the bother of a trial, and without the need for a conviction or indeed any evidence at all. Such actions were seen as tyrannical because often this power was used against political enemies, and the Founding Fathers did not wish to give the new federal government those same kinds of powers. Some states, prior to the Constitution, did use attainders against British loyalists, but the practice all but disappeared after the Constitution so specifically forbid the use of attainders by the U.S. Congress, and the States.
 
Prohibiting the use of bills of attainder serves a number of purposes. One purpose is that by disallowing the bills of attainder the separation of powers is reinforced. By disallowing bills of attainder, it literally forbids the legislature from performing a judicial function. Another purpose is in regard to the protection of the concept of due process, which was later reinforced by the Fifth Amendment to the Constitution.
 
The true danger of a bill of attainder is that such a legislative act inflicts punishment without a judicial trial, and takes away the life, liberty or property of the target.
 
Ex Post Facto law
 
Ex post facto Law is literally retroactive law, or a law that retroactively changes the legal consequences (or status) of actions committed or relationships that existed prior to the enactment of the law. Ex post facto law could criminalize actions that were legal when committed, or in the case of amnesty laws, decriminalize certain acts or alleviate possible punishments. Generally speaking, ex post facto laws are seen as a violation of the rule of law as it applies in a free and democratic society. Ex post facto laws are expressly forbidden by the United States Constitution.
 
Direct Taxation
 
The U.S. Constitution originally forbade direct taxation upon the people by the federal government. Taxation of the people by the federal government could only be laid in relation to population. When the idea for the income tax came to fruition, an amendment (16th) had to be passed to allow for the direct taxation of the people without dependence upon the enumeration of the population.
 
Article I, Section 9, Clause 4 states that in addition to direct taxation, the federal government was forbidden from using Capitation. Capitation is a head tax. A Poll Tax is a kind of head tax. In the context of the period, any tax that singles out groups both directly and indirectly regardless of possession of lands or personal property is Capitation. Since Article I, Section 9 is a prohibitory section, the specific call by the Founding Fathers in that clause was that there shall be No Capitation, which included No Poll Tax.
 
In early New England, in keeping with traditions from the homeland, capitation (caput, meaning head), or poll taxes, were common. These taxes were levied as a way to manipulate the people for the “good of the government.”
 
Alexander Hamilton, though condemning capitation taxes in his Federalist Papers writings, was in favor of “head taxes” for emergency revenue reasons. He felt that since sources for revenue were so few, if the government needed to expand for any reason, the ability to lay head taxes, or direct taxation, needed to be an option. However, most of the Founding Fathers disagreed, not only because of their belief that taxation must be indirect and small, but also because of their opinion that the federal government must remain limited to the few authorities granted to it by the U.S. Constitution.
 
Article I, Section 9, Clause 4 forbids Congress to lay a tax upon individuals except uniformly, and in proportion to the census provided for in Article I, Section 2, Clause 3, where this subject is first brought up. In other words, direct taxation was forbidden. What the federal government did was tax the States, based on proportion to the census, or enumeration. The States then taxed the people in order to pay the tax to the federal government. The method of taxation by the States was left up to each individual State. The federal government, in this way, used indirect taxation to tax the people.
 
As we have learned, the U.S. Constitution is not designed to necessarily tell the federal government what it can't do as much as it is designed to tell the federal government what few authorities it has. But the Founders felt this to be so important that in addition to not giving direct taxation to the Federal Government as an authority, they felt they must also spell it out that the Federal Government cannot tax in this manner in any form. This clause restricts the Congress a lot more because it is prohibitive. Article 1, Section 8 provides a list of "enumerated powers," but knowing that politicians would bend and twist meanings to gain more power, Article 1, Section 9 was designed to spell out some very specific things the Congress is prohibited from doing (such as direct taxation and capitation taxes).
 
Preference in Commerce
 
Article I, Section 9, Clause 6 states that “No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.”
 
This proposal was placed before the Constitutional Convention by the delegates from Maryland, their fear being that congressional legislation might prefer Chesapeake Bay ports of Virginia to those of their State. Under the Articles of Confederation, each State was free to impose duties and make regulations to the disadvantage of others, and it was desired that equality in commerce be maintained in the future. This also gives us a clue to the intentions of the Commerce Clause in Article I, Section 8. The Founding Fathers did not wish to give the Federal Government control over commerce, only the ability to ensure that commerce was maintained in an equitable manner in regards to the several States.
 
U.S. Treasury
 
Article I, Section 9, Clause 7 reads: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”
 
This clause was inspired by the lessons learned in regards to merry old England. The Founding Fathers did not believe it should be in the power of the Executive alone, or of the legislature alone, to raise or spend the money at will. Article I, Section 7, Clause 1 requires that all bills for raising money must originate in the House of Representatives; but they must then pass the Senate and be signed by the President. In 1842 Congress began to make appropriations by joint resolution; but as that also must be approved by both Houses, and signed by the President, there is no real difference. Also, in the interest of transparency to the people, the records of all monetary transactions both of receipts and expenditures must be made available for public scrutiny.
 
Divided Allegiance
 
Article I, Section 9, Clause 8 reads: “No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”
 
The Founding Fathers did not believe there should be any foreign influences in the affairs of our government.
 
This provision was taken from a provision in the first section of Article VI of the Articles of Confederation. It permitted persons holding office under a State to accept, with the consent of Congress, the objectionable gifts or distinctions; but the constitutions of at least two of the States at that time forbade them altogether. This republic, being a nation born as a result of the tyranny of a monarchy, should not grant titles of nobility, that much was easily understood. Nobility betrayed the trust and honor of the people through the use of prestige and favoritism. This was the kind of government that did not protect the liberties of the people.
 
Jefferson, as President, accepted from Alexander I of Russia a bust of that Emperor, which he said would be "one of the most valued ornaments of the retreat I am preparing for myself at my native home." He said that he had laid it down as a law of his official conduct not to accept anything but books, pamphlets, or other things of minor value; but his "particular esteem" from the Emperor "places his image in my mind above the scope of the law." However, without the consent of Congress, who was the final determining factor, he could not have accepted that gift.
 
In 1810 Congress proposed an amendment, the original Thirteenth amendment (some would call it the lost 13th Amendment because some records showed it was ratified, then suddenly disappeared - as explained below), to add a heavy penalty to this clause by this wording:
 
"If any citizen of the United States shall accept, claim, receive or retain any title of nobility or honor, or shall, without the consent of Congress, accept and retain any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding office of trust or profit under them, or either of them."
 
The people were told that the proposed amendment lacked the necessary ratifying votes. Ongoing research has shown that the proposed amendment was indeed properly ratified, the State Department WAS notified, and the amendment was on the books and records of the various States until at least 1876. From 1810 to 1812, twelve states ratified this amendment. The War of 1812 destroyed the library of Congress and these documents were thought destroyed, but in 1994 it was discovered they still exist after a chance discovery in Maine in 1983 made historians aware of the existence of the original 13th Amendment.
 
Terms:
 
Indirect Taxation: An indirect tax is contrasted with a direct tax which is collected directly by government from the people. An indirect tax, for example, may increase the price of a good so that consumers are actually paying the tax by paying more for the products. Another example of indirect taxation is for one entity to tax another entity, and then the second entity taxing the people to recoup the taxes it paid.
 
Joint Resolution: A joint resolution is a legislative measure requiring approval by the Senate and the House and then is presented to the President for approval or disapproval. There is generally no legal difference between a joint resolution and a bill. Laws enacted by virtue of a joint resolution are not distinguished from laws enacted by a bill. Constitutional amendments are passed by joint resolutions, which are instead presented to the States for ratification. Resolutions are often temporary in nature.
 
Questions for Discussion:
 
1. How was immigration regarded by the Founding Fathers?
 
2. Why is Habeas Corpus so important?
 
3. If the Founding Fathers disagreed with divided allegiance, what would they think of dual citizenship?
 
Resources:
 
Articles of Confederation, March 1, 1781; http://avalon.law.yale.edu/18th_century/artconf.asp
 
Larry Schweikart and Michael Allen, A Patriot’s History of the United States; New York: Sentinel (2004).
 
Madison’s Notes on the Constitutional Convention, Avalon Project, Yale University: http://avalon.law.yale.edu/subject_menus/debcont.asp
 
The Original 13th Article of Amendment; American Patriot Friend’s Network:
http://www.apfn.org/apfn/13th.htm Thomas J. DiLorenzo, Hamilton's Curse; New York: Three Rivers Press (2008).
 
- Prohibitions to the States
 
The articles in the U.S. Constitution all apply to the federal government unless otherwise noted. Article I, Section 10, notes otherwise. Each clause begins with the words “No State shall,” making Article I, Section 10 prohibitive to the States.
 
Article I, Section 10, Clause 1 begins by disallowing the States to enter into any treaty, alliance, or Confederation. The goal was to keep the union intact, have all dealings with foreign governments go through the federal government, and to ensure there was no divided loyalties among the States. Treaties and alliances are external issues.
 
The disallowance of the States entering into a confederation was the argument used against the Confederacy during the American Civil War. President Lincoln considered the southern states seceding and joining into a confederation to be unlawful, partly due to this clause in the Constitution. However, by seceding, the States no longer fell under the jurisdiction of the Constitution, making the Confederacy a legal arrangement.
 
No State could grant letters of Marque and Reprisal, or coin money. These authorities were granted to the federal government in Article I, Section 8. States were not allowed to coin money so that they would not use currency as a means to gain an unfair advantage over each other in relation to interstate commerce.
 
Article I, Section 10 prohibits the States from emitting bills of credit. Bills of credit take two forms. Bills of credit are receipts for currency, such as a treasury note, and bills of credit can be items of credit such as bonds. What this means is that the States could not issue paper money, nor could States issue instruments of debt. In other words, the States were not allowed to borrow money. Today, all but two States of the union are in debt. The State deficits are in violation of the U.S. Constitution.
 
The States were also disallowed from passing bills of attainder, ex post facto law, or passing any law that would impair the obligation of contracts. The States, as the federal government, could not issue any title of Nobility. Ex post facto law has become a large concern in recent politics. Ex post facto law is retroactive law. By disallowing the passage of ex post facto law, the States (just like the federal government) cannot constitutionally pass laws retroactively. A gun legal at the time of purchase cannot be made retroactively illegal. Immigrants who entered the State illegally cannot be made retroactively legal. A tax cannot be retroactively imposed, creating a sudden large balance of tax due.
 
States are allowed to tax imports or exports, but only with the consent of Congress. Because States are tasked with having their own inspection laws, any costs necessary for executing those inspection laws may be recouped through imposts or Duties without the consent of Congress.
 
“The net produce of all duties and imposts, laid by any State on imports or exports, shall be for the use of the Treasury of the United States.” In other words, the States cannot over tax imports and exports. They are only to charge taxes necessary to cover their costs, such as “executing inspection laws.” Any net produce, or what would be considered “profit” in the private sector, goes to the U.S. Treasury. All of the States inspection laws, or other laws regarding imports and exports, are also subject to revision and control by the Congress.
 
Having a military is also forbidden to the States in time of peace, except with the consent of Congress. However, if a State is invaded, or the State feels they are in imminent danger, they are allowed to form a military. Currently, 23 States have State Defense Forces, or “State Militias.” In recent years, State Defense Forces have proven vital to homeland security and emergency response efforts.
 
 
 
Questions for Discussion:
 
1. What does the various prohibitions to the States have in common?
 
2. How do the prohibitions to the States relate to concepts like the Tenth Amendment?
 
Resources:
 
21st-Century Militia: State Defense Forces and Homeland Security, Heritage Foundation: http://www.heritage.org/Research/Reports/2010/10/The-21st-Century-Militia-State-Defense-Forces-and-Homeland-Security
 
Madison’s Notes on the Constitutional Convention, Avalon Project, Yale University: http://avalon.law.yale.edu/subject_menus/debcont.asp
 
UNITED STATES v. COMSTOCK (No. 08-1224), Clarence Thomas Dissenting Opinion (State Sovereignty): http://www.law.cornell.edu/supct/html/08-1224.ZD.html (2010)
 
 
Copyright 2015 Douglas V. Gibbs

Beaumont Constitution Class, Judicial Authorities

 

Beaumont Constitution Class

Marla's Mexican Food
1310 E. 6th Street
Beaumont, Ca

10:00 am
Thursdays
Constitution Class Handout
Instructor: Douglas V. Gibbs
douglasvgibbs@reagan.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:
Copyright: Douglas V. Gibbs, 2015