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Constitution Class Handout
Instructor: Douglas V. Gibbs
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
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