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 ...
I mean to say in the previous post:
The statement that the founders intended the Article III original jurisdiction matters given to the Supreme Court to be EXCLUSIVE is a FALSEHOOD.
Really? Well let's see what Alexander Hamilton, a delegate to the Constitutional Convention, had to say in regard to whether or not a suit involving the State as a party could be handled by a court lower than the Supreme Court:
Let us now examine in what manner the judicial authority is to be distributed between the supreme and inferior courts of the Union. The Supreme Court is to be invested with original jurisdiction, only "in cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party." Public ministers of every class are the immediate representatives of their sovereigns. All questions in which they are concerned are so directly connected with the public peace, that as well for the preservation of this, as out of respect to the sovereignties they represent, it is both expedient and proper that such questions should be submitted in the first instance to the highest judicatory of the nation. Though consuls have not in strictness a diplomatic character, yet as they are the public agents of the nations to which they belong, the same observation is in a great measure applicable to them. In cases in which a state might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal.
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.
It would appear that you are the one who is being deliberately dishonest. Either that or you are just being obtuse.
The significance of what was done in the Judiciary Act of 1789 is not hard to understand regarding the question of exclusivity.
That was done COLLECTIVELY by President Washington and the Congress.
That COLLECTIVE UNDERSTANDING is far more telling than a statement by any individual.
You still have FAILED to address the matter of the FACT that in 1789 Congress took a matter of original jurisdiction to the Supreme Court in the Constitution and gave concurrent jurisdiction to the District Courts.
Are you saying that what they did in 1789 was unconstitutional?
President Washington and the first Congress, a group consisting largely of the men who wrote the Constitution, in your opinion did not understand the very document they wrote and did something UNCONSTITUTIONAL in 1789?
Hmmmmmm??
Or are you just going to continue to IGNORE that?
Is your dishonesty really worth trying to win an argument?
They did not attempt to allow lower courts to adjudicate suits where the state was a party. Had they done so, then it would have been unconsitutional. Just because it was the First Congress does not mean that they were immune from violating the constitution they had passed. Remember the Constitution was designed to limit the power of the Federal Government, and allowing a lawsuit between the United States and one or more of the States in the Union to be heard by lower courts would clearly violate both the spirit and the letter of the Constitution.
Hamilton made a very persuasive argument for the exclusive jurisdiction of the highest court in the nation to hear these disputes. To allow lower courts to hear these issues would give an unfair advantage of larger states or more populist states or the United States against smaller states where the larger states or the US could shop for a lower court venue that would be more favorable to them.
Additionally the idea of State Sovereignty was paramount in the development of the Constitution and to allow lower courts to adjudicate disputes where the a state is a party diminishes that sovereignty.
Your position on this is typically progressive.
Is your dishonesty really worth trying to win an argument?
I have said nothing dishonest. I have expressed my opinion based on both the letter of the law in the Constitution and the words of at least one of the founding fathers. You have not quoted a single founding father on whether or not their intention was to allow inferior courts to rule on disputes between the United States and one or more of the several states. That is a fact.
Now show me a single quote from a founding father that would even suggest that under the Constitution the United States can sue the sovereign state of Arizona in a court inferior to the United States Supreme Court.
They allowed lower courts to adjudicate suits brought by ambassadors!
The power to adjudicate suits involving ambassadors was given to the Supreme Court in THE VERY SAME clause as the power to adjudicate suits involving a state!!
Here is the text of the Constitution:
"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."
If Congress can give concurrent jurisdiction to the district courts involving cases brought by ambassadors, then by the same power it can give concurrent jurisdiction to the district courts in cases involving a state!
If you pretend to continue not to see the FACT that in 1789 President Washington and the first Congress took some of the Supreme Court’s “original jurisdiction” granted in the Constitution and gave concurrent jurisdiction to the District Courts, then you are being dishonest.
If your position is that YOU have a better understanding of the Constitution than President Washington and the first Congress, a document they WROTE, then you are a fool.
As the Supreme Court itself has observed about this first Congress:
“[The Judiciary Act of 1789] was passed by the first Congress assembled under the Constitution, many of whose members had taken part in framing that instrument, and is contemporaneous and weighty evidence of its true meaning.” Wisconsin v. Pelican Ins. Co., 127 U. S. 265 at 297 (1888).
So which is it, are you dishonest or a fool?
May I quote the Seminal Case on Judicial Review to show your folly?
Marbury v. Madison, 5 U.S. 1 (1803), written by Chief Justice John Marshall. At pages 174-175, Justice Marshall discusses Art. III, §2, clause 2:
If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage — is entirely without meaning — if such is to be the construction. If Congress remains at liberty to give this court appellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and original jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution, is form without substance. [emphasis added]
***
When an instrument organizing fundamentally a judicial system divides it into one Supreme and so many inferior courts as the Legislature may ordain and establish, then enumerates its powers, and proceeds so far to distribute them as to define the jurisdiction of the Supreme Court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction, the plain import of the words seems to be that, in one class of cases, its jurisdiction is original, and not appellate; in the other, it is appellate, and not original…. [emphasis added]
.
Your problem Mister Barley Corn is that you think that anyone who disagrees with you is being dishonest.
That makes you the fool.
Marshall’s view was later repudiated by the Supreme Court, as you ought to know.
You still FAIL to deal with the FACT that the Constitution DID NOT SAY that the Supreme Court’s original jurisdiction was EXCLUSIVE and that collectively the framers did NOT BELIEVE it was exclusive, as demonstrated by what the first Congress did in 1789.
I am not going to continue to argue with a dishonest fool.
Done.
Bye.
That was really.... interesting. Have you run into this guy on the forum before?
Here's your problem. The Constitution states that, inter alia, in cases where the States are a party the Supreme Court has Original Jurisdiction, but "in all OTHER cases" the Supreme Court has appellate Jurisdiction. So in essence the Supreme Court does not have appellate Jurisdiction in cases where the States are a party. This was Marshall's point in Marbury v. Madison. Congress cannot give the lower courts "original jurisdiction" over these cases because the Supreme Court does not have "appellate jurisdiction" in them.
I’m a fan of “Traffic’s” great version of “John Barleycorn Must Die”, among the greatest of their offerings, and among the best of the entire rock era.
I’ve seen his name (is there another freeper with barleycorn as his handle?) and it caught my attention because of the song.
If I’ve interacted with him, I don’t recall the circumstance, but I’ve been on here a long time, so it’s a real possibility.
One thing I noticed today is that our arguments aggravated him beyond measure. I’ve no doubt that on the words of the Constitution, he had the short end of this debate. Of course, he is right about the way the law currently is being treated, but to you and I that simply highlights that they’re not following the letter of the Constitution.
As your posting from CJ John Marshall points out, neither were those who illegitimately exchanged the wording about original and appellate, even if they were among the Founders.
However, it’s not as if John Marshall were some 21st century law student. He, too, had some Founder connections and had been around the block once or twice already in his time as a Rev War vet, as a friend of Washington, and as part of the Virginia body that pushed ratification of the Constitution.
Barleycorn apparently seems to think that the Judicial Act of 1789 MUST be constitutional because it was passed by the Same Congress that Ratified the Constitution. But that is not necessarily the case. 3/4 of the State Legislatures were required to pass the Constitution and I would dare to say that they would NEVER have ratified it, if they thought that their Sovereignty would be subject to the jurisdiction of lower courts that congress had not even yet created. They wanted one Supreme Court, not beholden to any region or state but beholden only to the Constitution to be resolving these matters.
In regard to the issue of Ambassadors, the 1789 Judicial Act did appear to modify the language and allowed for lower courts to hear those cases that "were brought by Ambassadors". IOW where an Ambassador is the PLAINTIFF. I think the originalist interpretation would clearly allow for this "modification" because the purpose of the provision in regard to Ambassadors was to protect the sovereignty of foreign states while operating within the jurisdiction of the United States. Any Ambassador who would be suing a Citizen of the United States would necessarily be waiving the privileges of Ambassadorship and submitting themselves to the jurisdiction of the United States Judicial System voluntarily.
Hence even though it was a modification, it was, in fact, merely a restatement of intent and consistent with the founders intentions.
The founders did not change the provision regarding the States as a party in 1789. That probably would have ended the Union before it even got off the ground.
While normally it is customary to ping someone you talk about, I am not pinging Mr. Barleycorn because he has made this thing personal from the start and ended it with an insult to my integrity. (Something which in 1789 would have resulted in a duel at dawn)
SirJohnBarleycorn is a dolt.
You want to know what is aggravating? I'll tell you what is aggravating.
Through umpteen posts on the thread you ignored the point I made about the 1789 Judiciary Act and jurisdiction of cases brought by ambassadors, or pretended not to understand the significance of it. And the point is not hard to grasp.
That is intellectual dishonesty.
THAT is what is aggravating.
The points you made about Hamilton’s statement and Marshall’s statement are not illegimitate. The cold, hard fact is they are not nearly as significant, in terms of evidence of what the founders collectively intended as to “exclusivity” in the Constitution, as the official action of the first president and the first congress reflecting a collective, contemporaneous understanding of these men who were to a large extent involved in writing the Constitution.
But your approach was not to respond to the fact of it, but rather to ignore it or pretend not to understand it, throughout most of the discussion. And even now you pretend not to grasp the larger principle that if the grant of original jurisdiction as to ambassadors was not exclusive, then neither was any other type of case enumerated in the same sentence of the Constitution. Or else you are claiming that Washington and the first Congress did not understand their own Constitution as well as YOU do now.
Your argument for the most part merely consists of repeating the phrase “the Constitution is clear” and ignoring contemporaneous evidence of the founders’ intention.
It is not possible to have a reasonable discussion about a topic where one party displays a lack of integrity.
In post 38 you actually cited the text of the 1789 Judiciary Act as if it were a good, current authority as to which types of cases the Supreme Court now has exclusive original jurisdiction as opposed to concurrent original jurisdiction. Of course it is not, and any lawyer or even any informed person on this topic would know that.
But that’s not my point. My point is, if you don’t know what you are talking about, why are expressing such strong opinions?
I expect that from liberals, but it is always disappointing to see that on Free Republic.
Your general approach seems to be that anyone without any particular knowledge of its subject matter can simply read the text of the Constitution and come to a definitive understanding of it.
That proposition is patently absurd.
For example, an average person reading the phrase “a well regulated militia, being necessary...” is unlikely to come to a proper understanding of what it means without knowing quite a lot about the legal and historical background of these terms and their use in other contexts. In fact, that person is unlikely to properly understand even the one word “regulated.” But I know that hasn’t stopped many ignorant people from expressing strong opinions about it.
Perhaps it was the disagreeable tone of my posts that provoked you into irrationality. If so, you allowed your pride to cloud your judgment.
I thought you were “done”.
One thing I have found fascinating in this discussion are the references by the progressives to the Judiciary Act of 1789 which modified the language of the Constitution. The progressives have said that because this act was passed by the first Congress and by many of the founders that it therefore reflected the intent of the founders in regard to the meaning of “original jurisdiction”. Having re-read Marbury v. Madison it is interesting to note that Marshall used the 1789 Judiciary act to confirm the literal language of the constitution and to overturn the congressional attempt to modify the language.
Specifically the case was brought before the Supreme Court under the 1789 Judiciary Act because Congress had extended “original jurisdiction” on certain cases not specifically delineated in the Constitution to the Supreme Court. Marshall used the occasion to declare that the language extending the original jurisdiction to cases not specified in Article III was not constitutional and declined to allow the Supreme Court to take the case under it’s original jurisdiction powers.
Fast forward to Title 28 Section 1251 and the entire meaning of the term original jurisdiction is changed to allow original jurisdiction in courts where such jurisdiction was not mentioned or implied in the actual wording of the Constitution. Clearly Marshall would no more allow the lower courts to have Original jurisdiction in the Arizona case than he would have allowed the Supreme Court to have original jurisdiction in the Marbury v. Madison case.
And they say we are the liars and the ones who are “obtuse”. But at least we are consistent in our insistence upon the Federal Government and the Federal courts following the strictures of the Constitution.
Keep the faith.
So with no legal basis for your "argument" you now try to SMEAR those you disagree with as a "progressive"?
What a pathetic a-wipe you are.
I gave you my legal basis. I quoted the founders. I quoted the Constitution. You just decided to throw insults because you had no argument.
What a pathetic a-wipe you are.
When you run out of ammunition, start throwing insults.
Sorry John. You've lost the argument.
Done.
Say, wouldn’t this same argument hold true for the Proposition 8 case?
George Washington signed the Judiciary Act of 1789 into law.
By your definition, that makes him a “progressive.”
It takes a rare combination of arrogance and stupidity to define George Washington as a “progressive.”
On that score, you certainly do win!
The attempt to convey original jurisdiction on the Supreme Court for cases that were not specifically mention in the Constitution was declared unconstitutional by John Marshall in Marbury v. Madison. Marshall went on to say that granting lower courts original jurisdiction on cases that the Supreme Court had original jurisdiction would likewise be unconstitutional.
Marshall was an originalist. The tendency to interpret the constitution liberally so as to give the Federal Government more power over the states is progressive. That is where you are coming from in this matter between the United States and Arizona.
By your definition, that makes him a “progressive.”
Not necessarily. The Judiciary Act of 1789 did not expand the role of the Federal Government by granting lower courts the jurisdiction to rule on cases like the United States v. Arizona. It attempted to expand the original jurisdiction of the Supreme Court beyond that which it was constitutionally authorized to have. Marshall knocked that down. Had George Washington attempted to allow the Federal Government to walk all over the rights of the States to have their controversies heard only under the Jurisdiction of the Supreme Court, then George Washington could rightly be labeled as an early progressive. But he didn't; so he wasn't.
You however support the notion that the United States can forum shop for the right inferior courts and loyal judges to bring lawsuits against the several states. I think George Washington would have been appalled at that idea. Hamilton (who was the closest thing to a modern progressive that you could find in 1789) was certainly appalled at that idea. Marshall was certainly appalled by that idea. Obama loves it. Holder loves it. You love it. Need I say more?
BTW I thought you were "done".
Was that just blowing smoke are are you now "Done". If you are "done" don't answer.
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