Temecula Constitution Class, Wednesdays 6:00 pm
28120 Jefferson Avenue, Temecula, CA
Riverside County Republican Party Headquarters
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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Constitution Class Handout
Instructor: Douglas V. Gibbs
douglasvgibbs@reagan.com
Lesson 09
Concerning the States
Full Faith and Credit
Article IV, Section 1 begins with The Full Faith and Credit Clause. The clause reads, "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."
In simple, modern day language, under the Full Faith and Credit Clause judgments rendered in one State are acknowledged in others; when a U.S. citizen resolves an issue within one of the States that resolution must be recognized by all other States.
The Founding Fathers originally intended, with the Full Faith and Credit Clause, to protect the self-government autonomy of the States, while also promoting the union of the sovereign States as well. To do this, the Founding Fathers needed to make sure that judicial rulings in one State would be respected by all States, because otherwise there would be a substantial opportunity for abuse. Doing so affirmed the autonomy of the individual States, while also ensuring that the states remained unified.
Without the Full Faith and Credit Clause, something as simple as a marriage would not be recognized outside the State where the proceeding took place. If the married couple moved to another state, it would be necessary to marry all over again, otherwise they would still be considered unmarried. However, thanks to the Full Faith and Credit Clause, the State that serves as the new home of the transplanted married couple recognizes the marriage contract agreed upon in the State of origin.
The Full Faith and Credit Clause also protects against abusive litigation. If someone in one State sues someone and the court delivers a valid judgment in favor of the defendant, the person who filed the suit cannot file the same suit in another State against the same person. Under the Full Faith and Credit Clause, the outcome of the suit in the first State is recognized and considered to be the final judgment. Likewise, someone who is ruled against in litigation in a State cannot flee to another State to evade punishment, because the ruling in the first State's court is still valid in the new State.
As a result of the Full Faith and Credit Clause, professionals like doctors and lawyers only need to go to school once. As they move to new States, they can apply for reciprocity in certification so that they can practice in their new location. State privileges like drivers licenses also benefit from the Full Faith and Credit Clause, because when people move to different States, they can renew their driving licenses in the new State without having to go through drivers' education a second time, as long as the standards for licensure are similar between the two States.
Privileges and Immunities
Article IV, Section 2, Clause 1 gives the people of each state all the same privileges and immunities uniformly in each state. In other words, if a Texan moved to California, the Texan must be treated by California in no different manner than the State treats Californians. A State could not pass a law keeping Texans out of their state, but letting others in. This violates the Constitution. A State cannot play favoritism in such a manner for any reason. All persons must be treated uniformly in the eyes of the law. This is the clause the 14th Amendment's Equal Protection Clause sought to broaden, in order to ensure that the former slaves would also be afforded the same protection, privileges, and immunities.
Extradition
Article IV, Section 2, Clause 2 provides that "A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime."
Fugitives that flee a State from justice to another State will be extradited on the demand of executive authority (governor) of the State from which the person fled from. The Constitution, in this clause, demands the extradition of fugitives who have committed "treason, felony or other crime," which means that it includes all acts prohibited by the laws of a State, including misdemeanors and small, or petty, offenses.
Since the word "shall" is used regarding the extradition order by the governor of the State, that means the extradition order will not be questioned. That also means the accused cannot defend himself against the charges in the extraditing State. The fugitive may only defend himself against the charges in the State receiving him.
The courts have determined that the accused may prevent extradition by offering clear evidence that he was not in the State he allegedly fled from at the time of the crime in the case, Hyatt v. People ex rel. Corkran (1903).
Fugitive Slaves
Article IV, Section 2, Clause 3 is obsolete because of the abolition of slavery, as per the 13th Amendment. During the era the Constitution was written, slavery remained in place, and slaves were seen as property by the States in which slavery was legal. The Constitution, as a compromise to assure that southern States ratified the document, included Article IV, Section 2, Clause 3, as a compromise, which demanded that escaped slaves be returned to their owners in the south, even if that slave was in a northern State.
The Fugitive Slave Act of 1850 supported this clause of the Constitution, hoping to ensure under penalty of law that the slaves were in fact returned should they turn up in the north. Northern States were refusing to return escaped slaves, and the federal government refused to enforce the Fugitive Slave Act and the Constitution, creating, in the minds of the Southern States, a constitutional crisis.
Nullification is often blamed for its part in the onset of the American Civil War. Those that argue that nullification was a part of bringing about the War Between the States will argue that the Southern States were guilty of nullifying perfectly reasonable federal laws. In reality, the Southern States did not nullify any federal law. It was the northern States that actively nullified federal law. They nullified The Fugitive Slave Act by ignoring the legislation, and refusing to abide by it. However, since The Fugitive Slave Act was constitutional, the nullification of the law by the northern States was unlawful, and unconstitutional. Threatened by the fact that the northern States were ignoring constitutional law, the federal government was refusing to enforce the law, and anti-slave candidate Abraham Lincoln had won the presidential election without even being on the ballot in the South, eleven southern States withdrew from the union in 1860.
New States
Article IV, Section 3, Clause 1 gives Congress the authority to admit new States. If a new State is formed within the borders of an existing State, from a portion of an existing State, or by combining two States, then the State legislatures of all States affected must also get involved. This provision came into play is when West Virginia was formed from part of Virginia during the Civil War. The Virginia State legislature had to approve the formation of the new State of West Virginia before the new State could claim it was a separate sovereign State.
In California, there has been a number of recommendations for breaking up the large State, from a 2014 suggestion of forming six States from the former Golden State, to thirteen counties that threatened to secede in 2010 as suggested by a local politician. If any of these plans for new States out of the existing State of California had an opportunity to follow through with their threat, the approval process would still need to go through the existing California State Legislature. The loss of taxation, and representation in Congress, would probably convince the legislature to deny losing any portion of their State to the formation of a new State.
Territories and Federal Property
Article IV, Section 3, Clause 2 gives the Federal Government "power over the territory and property of the United States." Territories like Puerto Rico fall under this clause, treating the territories not as individual sovereign states, but as territories under the control of the U.S. Government. Territories still enjoy a certain amount of autonomy, but ultimately, their governance falls under the authorities granted to Congress. Washington DC also falls under this clause, which means that Congress has authority over the functions of the city. In reality, Washington DC was supposed to only be the seat of government, and was not supposed to contain any residencies. Many of the framers envisioned Washington DC as being a thriving commercial center.
Border Security and Insurrection
Article IV, Section 4 reads, "The United States shall guarantee to every State in this Union a Republican Form of Government," meaning that each State may have its own constitution, as well as a representative government based on the rule of law.
The second part of Article IV, Section 4 provides that the United States "shall protect each of them [the States] against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence."
The Federal Government, according to the final clause of Article IV, must protect each State from invasion, which, in line with the Necessary and Proper clause of Article I, Section 8, is a firm directive to the federal government to keep the national borders secure so as to protect the States from foreign invasion. If executive agencies fail to take the actions necessary to secure the border in order to protect the States from invasion, the militia can be called into service by either the Congress, or the governor of the State being invaded, in order to repel the invasion.
The Federal Government, in this clause, is also tasked with quelling domestic violence. This part of the clause refers to insurrection, and it is likely the writing of this clause was directly influenced by the occurrence of Shays' Rebellion in 1786.
Terms:
Extradite: The surrender of a person charged with a crime by one state or country to another state or country.
Full Faith and Credit: In the context of the U.S. Constitution, Article IV, the phrase is defined as requiring all States in the U.S. to recognize and give effect to the legislation, public records, and judicial decisions of other States in the United States. Full Faith and Credit also means: An unconditional commitment to pay interest and principal in debt, usually issued or guaranteed by the U.S. Treasury or another government entity.
Nullification: State power to ignore unconstitutional federal law.
Questions for Discussion:
1. What kind of issues does the Full Faith and Credit Clause affect in today's American society?
2. How does the Full Faith and Credit Clause protect the autonomy of the State, while protecting their unity?
3. For what kind of crimes may a person be extradited for?
4. The northern States believed the Fugitive Slave Act to be a bad law, even though it was Constitutional, and believed that they had a right to nullify it because they perceived it to be immoral. The Federal Government failed to enforce it, possibly for the same reasons. How did this make the Southern States feel, and how did this action contribute to the secession of the Southern States?
5. The federal government is tasked with the duty of protecting the States against invasion. How does this affect the issue of illegal immigration?
Resources:
Doris Kearns Goodwin, Team of Rivals: The Political Genius of
Abraham Lincoln; New York: Simon & Schuster Paperbacks (2005)
Hyatt v. People ex rel. Corkran, 188 U.S. 691 (1903) ("We are of opinion
that, as the relator showed...he was not within the state of Tennessee at the times stated in the indictments found in the Tennessee court, nor at any time when the acts were, if ever, committed, he was not a fugitive from justice within the meaning of the Federal statute upon that subject...")
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 I, Section 8, Clause 5 to Article VII; Indianapolis: Liberty Fund (1987)
Thomas J. DiLorenzo, The Real Lincoln: A New Look at Abraham
Lincoln, His Agenda, and an Unnecessary War; Roseville, California: Prima Publishing, a division of Random House (2002)
Copyright: Douglas V. Gibbs, 2015
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