Posted on 08/02/2010 10:07:12 PM PDT by Regulator
Does anyone read the U.S. Constitution these days? American lawyers don’t read it. Federal Judge Susan R. Bolton apparently has never read it. Same goes for our illustrious Attorney General Eric Holder. But this lawyer has read it and she is going to show you something in Our Constitution which is as plain as the nose on your face.
Article III, Sec. 2, clause 2 says:
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. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction…
(Excerpt) Read more at canadafreepress.com ...
Huh? He seems to believe that the Judiciary Act of 1789 is still in force.
Now maybe he is walking around in a long-tailed coat lined with buttons and wearing a tricorner hat.
For the rest of us, current law is 28 USC 1251.
From the link Cboldt provided above:
We recently reaffirmed that “our original jurisdiction should be invoked sparingly” in Illinois v. City of Milwaukee, 406 U.S. 91, 93 -94 (1972), where we additionally stated:
“We construe 28 U.S.C. 1251 (a) (1), as we do Art. III, 2, cl. 2, to honor our original jurisdiction but to make it obligatory only in appropriate cases. And the question of what is appropriate concerns, of course, the seriousness and dignity of the claim; yet beyond that it necessarily involves the [425 U.S. 794, 797] availability of another forum where there is jurisdiction over the named parties, where the issues tendered may be litigated, and where appropriate relief may be had. We incline to a sparing use of our original jurisdiction so that our increasing duties with the appellate docket will not suffer.”
And, nearly 40 years ago in Massachusetts v. Missouri, 308 U.S. 1, 18 -19 (1939), the Court said:
“In the exercise of our original jurisdiction so as truly to fulfill the constitutional purpose we not only must look to the nature of the interest of the complaining State - the essential quality of the right asserted - but we must also inquire whether recourse to that jurisdiction . . . is necessary for the State’s protection. . . . We have observed that the broad statement that a court having jurisdiction must exercise it . . . is not universally true but has been qualified in certain cases where the federal courts may, in their discretion, properly withhold the exercise of the jurisdiction conferred upon them where there is no want of another suitable forum.”
I think the bottom line is that the Supreme Court doesn’t want to hear very many cases without letting it filter up thru the lower courts, and petitioning them to do so is a good way to piss them off.
Earlier today, I spent 4 hours getting a permit to build a horse corral. After 4 hours, the person giving final approval noted a 60 foot setback ‘because it is an accessory structure’. That is a blatantly false statement made by someone who doesn’t know her own regulations...but did I call her an idiot and insist on correcting it?
Nope. The guy next to me was getting hassled over building 400’ of fence - what type wire will you use, how many supporting posts, we need a detailed drawing to scale and you’ll need to use larger paper to fit it all on, etc. Meanwhile, I had a hand drawing on a single piece of paper for a corral made of ‘wood or metal’...if I got into a fight, I would lose even if I won, if you know what I mean.
So I’ll build it right, and if anyone ever challenges me, I’ll THEN stick the bureaucrat’s nose into their own books and point out that accessory structures are defined as having a roof, and corrals don’t have roofs. Meanwhile, I walked out with a permit in hand...
Not pretty, and I know why builders hate regulators. But if you know your case will need to go to the Supreme Court, you don’t start off by spitting on the Supreme Court!
BTW - I’m sure the cowboy next to me left, and he will build his fence like they’ve been built for 100 years, and if the county ever shows up, he’ll say “Sorry, I didn’t know I needed a permit to put up a range fence...” Just as I will build with a 40 foot setback (0 feet is what the code actually says) and let someone complain.
Just blowing off steam...it took 4 hours to get approval for a horse corral, and I was twice threatened with the ‘You need engineering drawings to scale...’ crap before a more reasonable person overruled and said, “It is just a corral, for goodness sakes!”
And 3 years ago, when I built the original corral, I went thru the same thing - an idiot saying it was an accessory structure and not allowed on my land - until his boss came by, looked at him like he was an idiot, and pointed out that accessory structures have roofs and corrals do not. At that time, I had printed out their own regulations, and the guy was STILL insisting a corral was an accessory structure even though by definition it was not.
And government employees wonder what so many of them are hated...
Still, spitting on the judge isn’t the way to win.
This is correct. Arizona could file tomorrow with the Supreme Court a motion for leave to remove the case directly to the Supreme Court, but there is no doubt that the Supreme Court would deny the motion or hold it in abeyance until after the Ninth Circuit had issued its opinion.
No, he believes the Constitution has not been amended and that even the Supreme Court, Congress, George Washington, and John Adams in agreement is still not the prescribed way to amend the Constitution.
I see no way to avoid the argument that the Constitution has been amended by fiat.
It is the same with the filibuster of justices, a situation in which the Senate has amended its responsibility to advise and consent.
The language is what it is. I really don't see a way around it.
Actually, I am waiting for some governor with guts to say, "I appreciate the court weighing in on this important issue. However, our government is based on a balance of power, and the Executive branch is co-equal to the Legislative and Judicial branches in that regard. Therefore, regardless of any rulings the court may issue, as Chief Executive I will continue to act in the best interests of my state and in accordance with my Constitutionally defined duties. Thank you. Thank you very much."
Yeah sure... I'll see a governor with guts someday.
Who could ever forget Governor Jeb Bush cowering before a county probate judge in the Schiavo case?
I think I'll go throw up now. Thank you. Thank you very much.
No, actually you are reading into it language that is not there.
You are pretending that the word "exclusive" is in the grant of jurisdiction to the Supreme Court.
It is not.
And it has been understood that way all the way back to 1789, by the very people who wrote the Constitution.
Sorry, I will take their understanding of the actual language they wrote over yours.
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. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
And here's the amendment language:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
You can’t just read make-believe words into the Constitution because you don’t think it works right.
There has been far too much of that already, thank you very much.
I copy/pasted straight from the US Constitution. I didn’t change anything????
You are pretending that the word “exclusive” is in the grant of original jurisdiction to the Supreme Court. They certainly didn’t pretend it was in there in 1789.
You clearly know how the amendment procedure works.
If you want to change the Constitution to provide that this grant is exclusive, then go get an amendment done.
I hear you now agreeing that an amendment would have been a better route.
I agree. The language is what it is.
Now you are being intentionally obtuse.
Have a nice day.
Just to bolster that, ask, "Where, in the constitution, does one find a grant of appellate jurisdiction to the Supreme Court, for Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party?" Answer, there is no such grant. And, if Marbury v. Madison is of any value as a precedent, the Court cannot expand its jurisdiction beyond what is granted by the constitution.
Con law is an ad hoc exercise. It's not about being faithful to precedent or authority -- there is enough of both to argue both sides of any case -- it's about winning the argument.
An incoherent body of law is an invaluable resource to facilitate outcome-oriented pronouncement.
Did AZ goof this somehow? That is to ask,
was there something that AZ could have done
to get original jurisdiction in SCOTUS?
This is specifically about Jury trials.
It was clear that the intention of the founders (which you accused me of ignoring in your post 36) was that the Supreme Court would have EXCLUSIVE and ORIGINAL Jurisdiction is cases where the State was a party. The constitution was clear and the intention of the framers of the constitution was clear that the Supreme Court and ONLY the Supreme Court would hear a case in which the Federal Government sued one of the Several States.
Congress does not have the authority to amend the Constitution without following the procedures for amending the Constitution. By granting lower courts original jurisdiction over these matters, the Congress has attempted to bypass the language of the Constitution by Congressional fiat.
The Supreme Court has apparently acquiesed to this violation of the founding compact because they are apparently too busy granting people the right to kill their children or determining that local communities can't recognize their religious traditions to bother with such mundane issues as whether or not the State of Arizona has the right to protect its own borders when the president and congress have violated their oaths to protect our country from foreign invasion.
If 28 USC 1251 purports to grant Susan Bolton authority to decide a lawsuit filed by The United States against one of the Sovereign states, then 28 USC 1251 is not constitutional and any decision she made is void.
I believe the Constitution is still in force.
For the rest of us, current law is 28 USC 1251.
For some of us the Constitution is still the current law.
If 28 USC 1251 purports to give Susan Bolton jurisdiction to determine a lawsuit by the United States Government against the State of Arizona, then 28 USC 1251 is unconstitutional and any ruling she made on the case is void.
You are correct that the Constitution was not properly amended to permit other than Scotus to hear a case between the US and a state.
There is no such amendment.
It was “clearly” NOT the “intention of the founders” that the original jurisdiction given to the Supreme Court in Article III be EXCLUSIVE.
We KNOW this for a FACT.
We know this because President Washington and the first Congress, largely the SAME group of people who wrote the Constitution, took matters that were given to the ORIGINAL jurisdiction of the Supreme Court in the Constitution (in my example, cases brought by Ambassadors) and gave CONCURRENT jurisdiction over those matters to the District Courts in 1789.
This is NOT a matter open for SPECULATION.
Article III does not SAY that the matters given to the Supreme Court as original jurisdiction were EXCLUSIVE.
And it is a PROVABLE FACT that the founders did not consider this to be exclusive.
If they believed it to be exclusive, they COULD NOT have taken the matter as to ambassadors and given it also to the concurrent jurisdiction of the District Courts in 1789.
The statement that the founders intended the Article III original jurisdiction matters given to the Supreme Court is a FALSEHOOD.
I don’t know if it is because you can’t grasp the point I am making, or if you are being intentionally dishonest.
If the truth is not in you, that is sad indeed.
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