Posted on 07/30/2010 5:19:55 AM PDT by afraidfortherepublic
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…
“Original” jurisdiction means the power to conduct the “trial” of the case (as opposed to hearing an appeal from the judgment of a lower court). You all know quite well what a “trial” is - you see them all the time on TV shows: Perry Mason, Boston Legal, The Good Wife, etc. Witnesses testify and are cross-examined, etc.
The style of the Arizona case shows quite clearly that the named defendants are:
State of Arizona; and Janice K. Brewer, Governor of the State of Arizona, in her Official Capacity, Defendants.Judge Susan R. Bolton has no more authority to preside over this case than do you.
See where it says, “State of Arizona”? And “Janice K. Brewer, Governor of the State of Arizona, in her official Capacity”? THAT (plus Art. III, Sec. 2, clause 2) is what gives the US Supreme Court “original Jurisdiction”, i.e., jurisdiction to conduct the trial of this case. THAT is what strips the federal district court of any jurisdiction whatsoever to hear this case. Judge Susan R. Bolton has no more authority to preside over this case than do you...
(Excerpt) Read more at canadafreepress.com ...
The article comprises the words of the author -- not the poster. BTW, the author IS a lawyer.
ONLY the US Supreme Court has Constitutional Authority to Conduct the Trial
Article III, Sec. 2, clause 2 says:
He's right. And, he's wrong.
Yes the Constitution says that.
But if he searched 'The Federal Judaical Center' History of the Federal Judiciary, he'd see that things have changed a tad with the Federal Court Structure since 1787.
This issue was litigated long ago and “settled” since then. I don’t know much about it, so I am not sure if it should be “unsettled”.
http://www.law.cornell.edu/anncon/html/art3frag40_user.html#fnb846
Under 28 U.S.C. Sec. 1345, by virtue of the fact that the original jurisdiction of the Supreme Court extends only to those cases enumerated in the Constitution, jurisdiction over suits brought by the United States against persons or corporation is vested in the lower federal courts.
But suits by the United States against a State may be brought in the Supreme Court’s original jurisdiction, 28 U.S.C. Sec. 1251 (b)(2), but may as well be brought in the district court [see Case v. Bowles, 327 U.S. 92, 97 (1946)].
Actually, I think you are looking for ‘chute’.
I finished the article, but the rules of FreeRepublic prevent me from posting it all. That is why there is a link at the end of the excerpt.
Since November 4, 2008, the Constitution be damned. The Democrat Party completed the coup it begin in 2006. They now control all three branhes of government and will, if necessary, employ deadly force to keep it.
But the original jurisdiction issue here, is real. The same point is raised in challenges to ObamaCare, and challenges to the supremacy of federal firearm law as represented in the Montana Firearms Act.
A good starting point to see the Supreme Court stiffarming it's duty is Illinois v. City of Milwaukee, 406 U.S. 91 (1972).
Interesting, in Marbury v. Madison, the Supreme Court ultimately held that as between a Congressional enactment granting jurisdiction, and a constitutional enactment that did not grant jurisdiction, the Supreme Court found that the constitution must prevail - that the Supreme Court did NOT have jurisdiction, and therefore could not hear the case.
In this case (and many others), the Supreme Court is holding that the Congressional grant of (original) jurisdiction to lower courts prevails over the plain language of the Constitution.
I wonder if the jurisdictional grant has ever been challenged on an "as applied" basis.
I would not bet on it.
Some court history would be interesting here. I wonder if when the constitution was ratified if SCOTUS was the only federal court? There were probably state, or colony court systems, but I wonder if the Articles of Confederation had set up a national court system?
It might be that we started with nothing but SCOTUS, then the Congress and/or SCOTUS expanded the federal system, and anything heard by a federal court was assumed to be constitutional since SCOTUS had final apellate jurisdiction over any newly established federal courts.
But it is pretty clear it would be humanly impossible for SCOTUS to now hear every case involving a state.
LOL, Yup yer rite.
§ 1331. Federal question
The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.
The Constitution only creates the SC, and gives Congress to create lower courts as it sees fit.
(Rhetorical question) Why do we have to get actual NEWS about America from a CANADIAN paper?? I’m NOT dissing the Canadians, I’m glad that they are providng the news that American “journolists” WON’T!!
But, it would be nice to see a major American news outlet actually cover the news!! It would be a refreshing change.
Leave Barney FWAnk out of this. LOL
§ 1251. Original jurisdiction
(a) The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States.
(b) The Supreme Court shall have original but not exclusive jurisdiction of:
(1) All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties;
(2) All controversies between the United States and a State;
(3) All actions or proceedings by a State against the citizens of another State or against aliens.
I thought Obimbo was a “constitutional law professor,” as we were reminded any times during the campaign /sarcasm
No, but this is from the first legal treatise written after Ratification. [Before anyone tries to convince you it's 'just philosophy' and doesn't mean anything, this same paper was submitted to the Supreme Court and accepted as legal evidence in the RKBA District of Columbia v. Heller case.]
[Section 9 — Powers of Congress (cont.)]
The common law has affixed such distinct and appropriate ideas to the terms denization, and naturalization, that they can not be confounded together, or mistaken for each other in any legal transaction whatever. They are so absolutely distinct in their natures, that in England the rights they convey, can not both be given by the same power; the king can make denizens, by his grant, or letters patent, but nothing but an act of parliament can make a naturalized subject. This was the legal state of this subject in Virginia, when the federal constitution was adopted; it declares that congress shalt have power to establish an uniform rule of naturalization; throughout the United States; but it also further declares, that the powers not delegated by the constitution to the U. States, nor prohibited by it to the states, are reserved to the states, respectively, or to the people. The power of naturalization, and not that of denization, being delegated to congress, and the power of denization not being prohibited to the states by the constitution, that power ought not to be considered as given to congress, but, on the contrary, as being reserved to the states. And as the right of denization did not make a citizen of an alien, but only placed him in a middle state, between the two, giving him local privileges only, which he was so far from being entitled to carry with him into another state, that he lost them by removing from the state giving them, the inconveniencies which might result from the indirect communication of the rights of naturalized citizens, by different modes of naturalization prevailing in the several states, could not be apprehended.
George Tucker / Volume 1 — Appendix / Note D
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What we call illegals are what the Founders referred to as denizens, and unless they've petitioned to become citizens, they are solely under the jurisdiction of the State in which they reside.
This is yet ANOTHER example of how the federal government has abdicated it's duty as an administrative organ in order to subjugate the laws of the civil States and create a totally centralized entity.
_____
"When all government, in little as in great things, shall be drawn to Washington as the Center of all power, it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated."
Thomas Jefferson to Charles Hammond, 1821
"The constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government - lest it come to dominate our lives and interests."
--Patrick Henry
Thank you very much. Mr. Tucker makes for interesting reading.
I think the disparate treatment still exists, as Marbury v. Madison asserts Congress cannot expand the Supreme Court's original jurisdiction; how then can Congress have the power to take jurisdiction from the Supreme Court, and share it with a lower court of Congressional creation?
Has 28 USC 1251 been challenged on an as-applied basis? Just curious. I don't expect any change in status quo as to the application of the statutory grant, just wondering if there is a directly on-point case where SCOTUS admits Congress has the power to spread jurisdiction. Would it be constitutional to change 1251(a) to say "original but not exclusive."?
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