Ed Current
Since Oct 1, 2004
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Ed Current
Since Oct 1, 2004
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United States Constitution, Article III Constituency
Where does the U.S. Constitution state that a simple majority in the U.S. Supreme Court has exclusive interpretation of the U.S. Constitution?
Article VI of the Constitution provides that "This Constitution, and the Laws of the United States which shall be made in pursuance thereof . . . shall be the supreme Law of the Land," and it requires that all "judicial Officers . . . shall be bound by Oath or Affirmation, to support this Constitution. Thus, the Constitution is the governing law and federal judges are required to rule in accordance with it because it is from the Constitution that federal judges derive their authority.
Are the U.S. President and Congress bound by the U.S. Supreme Court?
Article 6, Clause 3 The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;....
The federal judiciary/weakest branch has inverted the source and distribution/balance of power according to the U.S. Constitution.
The People acting through their elected representatives in the states and U.S. Congress amend the Constitution. The executive and judicial branches aren't involved in this procedure. This fact alone should convince all but the terminally confused, where most of the power is distributed in a Constitutional Republic which is governed by a written Constitution requiring adherence, or amendment.
The only power that any federal court has is the power of majority opinion. Congress can remove any federal judge and can remove jurisdiction from the federal courts. Congress controls the funding and is involved in the appointment of federal judges and amendments to the Constitution. The federal courts are only involved in opinion. The President can veto legislation and force Congress to override. If the President (A. Lincoln, A. Jackson) refuses to enforce any federal court majority opinion, that opinion will not be enforced. The federal courts have no power other than opinion, and when they err, the President, the Congress, the States and the People must correct their error using the numerous approaches available in the Constitution. When the court is the main source of the problem, it is the court that needs to be corrected and not the Constitution. Amending the Constitution provides more words for the federal courts to misinterpret (14th Amenement). Either remove the federal judge(s) from the case (impeach & remove), or remove the case from the federal judges (regulating jurisdiction).
5/9th of the flimsiest limb among the federal branches is destroying the strongest nation on earth. It is happening because the People, States, President and Congress believe the myth that they can't review judicial opinions and judge the judges. The founders designed a Constitutional Republic that has through apathy and ignorance degenerated into judicial oligarchy.
How do the citizens & their elected representatives know when the federal courts have erred?
"[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean." Dred Scott v. Sandford, 19 How. 393, 621 (1857) (Curtis, J., dissenting).
"On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed."- Thomas Jefferson (1743-1826), letter to Judge William Johnson, (from Monticello, June 12, 1823) FOUNDER'S LIBRARY
"The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary, as distinguished from technical meaning; where the intention is clear, there is no room for construction, and no excuse for interpolation or addition." - Martin v. Hunter's Lessee, 1 Wheat 304; Gibbons v. Ogden, 9 Wheat 419; Brown v. Maryland, 12 Wheat 419; Craig v. Missouri, 4 Pet 10; Tennessee v. Whitworth, 117 U.S. 139; Lake County v. Rollins, 130 U.S. 662; Hodges v. United States, 203 U.S. 1; Edwards v. Cuba R. Co., 268 U.S. 628; The Pocket Veto Case, 279 U.S. 655; (Justice) Story on the Constitution, 5th ed., Sec 451; Cooley's Constitutional Limitations, 2nd ed., p. 61, 70.
"Mr. Chairman, as a nonlawyer, I count it a high privilege to serve as a Member of this Subcommittee. However, as a student of the United States Constitution, I would not be truthful if I said that I have always understood as perceived by this nonlawyer to be a disconnect between the plain wording and construction of the Constitution and the opinions handed down by the Federal judiciary as, quote, "''constitutional,''" end quote.
But this perceived disconnect was explained to me with such clarity by, and rightfully so, a lawyer when I read the testimony of Dr. Leo Graglia, before the House of Representatives Judiciary Committee's Subcommittee on Courts and Intellectual Property, of May 15, 1997. Dr. Graglia, who is the A. Dalton Cross Professor of Law at the University of Texas law school, profoundly observed that, quote, ''the first and most important thing to know about constitutional law is that it has virtually nothing to do with the Constitution,'' end quote. At that point, the scales fell from my eyes, and I realized that I cannot confuse what is taught in our Nation's law schools and what is expounded by so-called constitutional scholars on the 24-hour news talk shows with the work of folks like Madison, Hamilton, Jay, and Washington, and others at Philadelphia in 1787, or for that matter the first Congress in 1789 or the 39th Congress in 1866." Mr. HOSTETTLER
What are the consequences of allowing the error(s) to go uncorrected?
"[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal." A. Lincoln, First Inaugural Address (Mar. 4, 1861), reprinted in Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101-10, p. 139 (1989).
ARTICLE III
Section 1.
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. Section 2. Clause 1 Clause 2 * Notes on Article 3, Section 2, Clause 1 & 2
Clause 1 enumerates jurisdictions, and clause 2 classifies jurisdictions enumerated in clause 1 into original or appellate jurisdiction. The first in the list of enumerated jurisdictions in clause 1 is the first half of the first sentence in clause 2. Identifying the remainder of original jurisdiction cases only requires determining which cases have one or more States as a Party. 'Between a State and citizen of that State' isn't explicitly stated anywhere in the Constitution. Martin v. Hunter's Lessee, 1 Wheat. 304 (1816), assumed that the USSC could review a state court decision, and that assumption could only be implied under appellate jurisdiction. The Constitution only explicitly gives the Supreme Court appellate jurisdiction over cases originating in the lower federal courts. A Constitutional amendment stating;"between a State and a Citizen of that State," would empower the USSC to review a state court decision under original jurisdiction.
If the belabored explanation above fails to convince, perhaps the following appeal to authority will. Either way, the difference is critical to understand Article 3.
The words in the constitution, 'in all cases ... in which a state shall be party, the supreme court shall have original jurisdiction,' necessarily refer to all cases mentioned in the preceding clause in which a state may be made of right a party defendant, or in which a state may of right be [143 U.S. 621, 644] a party plaintiff. It is admitted that these words do not refer to suits brought against a state by its own citizens or by citizens of other srtates, or by citizens or subjects of foreign states, even where such suits arise under the constitution, laws, and treaties of the United States, because the judicial power of the United States does not extend to suits of individuals against states. United States v. Texas, 143 U.S. 621
Article III creates one Supreme Court, but it does not state any specifics about the makeup of the Court. The specifics of the Supreme Court were left up to Congress, and Congress acted in its first session by passing the Judiciary Act of 1789. That which Congress created can be abolished or altered by Congress and requires no amendment to the Constitution, nor permission from the federal courts. Congress and the States are no more required to adhere to federal judicial precedent that is contrary to the Constitution, than they are required to regard the opinion of Dan Ratherbiased. Congress has plenary authority to regulate and even abolish all jurisdiction of the lower federal courts and it has near plenary authority to restrict the jurisdiction of the United States Supreme Court.
The court could issue a writ of mandamus to force the executive to enforce the laws of the union, because that is the central role of the executive, but such a writ may only be issued in cases where the court has original jurisdiction.
Currently, the lower federal courts consist of eleven Circuit Courts, the District of Columbia District Court (the DC Circuit), and the Court of Appeals for the Federal Circuit (the "CAFC"), all of which serve as courts of appeals. These courts of appeals hear cases brought up from the federal district courts which are established within the jurisdiction of each circuit court. The jurisdiction of the lower federal courts is limited by Article III, Section 2, but Congress is able to further limit the jurisdiction because it has the power to establish these courts.
"§ 1697. In the next place, the jurisdiction, which is by the constitution to be exercised by the Supreme Court in an original form, is very limited, and extends only to cases affecting ambassadors, and other public ministers, and consuls, and cases, where a state is a party. And congress cannot constitutionally confer on it any other, or further original jurisdiction.
The direction, that the Supreme Court shall have appellate jurisdiction in all cases, with such exceptions, as congress shall make, will be no restriction, unless the words are to be deemed exclusive of original jurisdiction. And accordingly, the doctrine is firmly established, that the Supreme Court cannot constitutionally exercise any original jurisdiction, except in the enumerated cases. If congress should confer it, it would be a mere nullity."Article 3, Section 2, Clause 2: Joseph Story, Commentaries on the ... Definitions:
APPELLATE - About appeals; an appellate court has the power to review the judgement of another lower court or tribunal.
APPELLATE JURISDICTION. The jurisdiction which a superior court has to bear appeals of causes which have been tried in inferior courts. It differs from original jurisdiction, which is the power to entertain suits instituted in the first instance.
The cases in which the Supreme Court has original jurisdiction-i.e., where another court need not first consider the controversy-are those in which diplomats or a state is a party.
Typical wording of Article 3 legislation:
No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution_____________________
EX PARTE MCCARDLE, 74 U.S. 506 (Wall.) (1868)
The CHIEF JUSTICE delivered the opinion of the court.The first question necessarily is that of jurisdiction; for, if the act of March, 1868, takes away the jurisdiction defined by the act of February, 1867, it is useless, if not improper, to enter into any discussion of other questions.
It is quite true, as was argued by the counsel for the petitioner, that the appellate jurisdiction of this court is not derived from acts of Congress. It is, strictly speaking, conferred [74 U.S. 506, 513] by the Constitution. But it is conferred 'with such exceptions and under such regulations as Congress shall make.'
For among the earliest acts of the first Congress, at its first session, was the act of September 24th, 1789, to establish the judicial courts of the United States. That act provided for the organization of this court, and prescribed regulations for the exercise of its jurisdiction.
The source of that jurisdiction, and the limitations of it by the Constitution and by statute, have been on several occasions subjects of consideration here. In the case of Durousseau v. The United States, particularly, the whole matter was carefully examined, and the court held, that while 'the appellate powers of this court are not given by the judicial act, but are given by the Constitution,' they are, nevertheless, 'limited and regulated by that act, and by such other acts as have been passed on the subject.' The court said, further, that the judicial act was an exercise of the power given by the Constitution to Congress 'of making exceptions to the appellate jurisdiction of the Supreme Court.' 'They have described affirmatively,' said the court, 'its jurisdiction, and this affirmative description has been understood to imply a negation of the exercise of such appellate power as is not comprehended within it.'
The principle that the affirmation of appellate jurisdiction implies the negation of all such jurisdiction not affirmed having been thus established, it was an almost necessary consequence that acts of Congress, providing for the exercise of jurisdiction, should come to be spoken of as acts granting jurisdiction, and not as acts making exceptions to the constitutional grant of it.
We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.
What, then, is the effect of the repealing act upon the case before us? We cannot doubt as to this. Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. And this is not less clear upon authority than upon principle.
The commentary for Article 3, Section 2, Clause 2 is found in Federalist No. 81
In the 107th Congress (2001-2002), Congress used the authority of Article III, Section 2, clause 2 on 12 occasions to limit the jurisdiction of the federal courts. Article III, Section 2 - The Washington Times: Editorials/OP-ED . But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates The Avalon Project : Federalist No 51 It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power 1 The celebrated Montesquieu, speaking of them, says: "Of the three powers above mentioned, the judiciary is next to nothing.'' "Montesquieu: The Spirit of Laws.'' vol. i., page 186. The Avalon Project : Federalist No 78
Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
"It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it." The Federalist #48 The federal courts, using an injudicious doctrine known as the 'Incorporation of the 14th Amendment' (Gitlow v. New York (1925) [19] ) , have hyperinflated their jurisdiction beyond the confines of the U.S. Constitution to grotesque proportions. Rather than admit they have no jurisdiction, as Marshall did in Amendment V: Barron v. Baltimore and declare what the Constitution states with regard to a particular case over which they have jurisdicion - federal judges fabricate their own private interpretation from the hubris opined in novel dicta and deviant precedent, from which even greater deviation is justified in subsequent decisions.
For the history and thorough refutation of the Incorporation Doctrine, see the following: The Ten Commandments and the Ten Amendments: A Case Study in Religious Freedom in Alabama, 49 Ala. L. Rev.434-754 (1998)., Jaffree v. Board of School Commissioners of Mobile County (1983), Rehnquist's Dissent in Wallace v Jaffree (1985) and Government by Judiciary:The Transformation of the Fourteenth Amendment Sec Ed, Raoul Berger, The Fourteenth Amendment and the Bill of Rights; The Incorporation Theory, Charles Fairman, Stanley Morrison, Leonard Williams Levy, Da Capo Press , January 1970
The 107th Congress Limited Federal Court Jurisdiction in the following cases:
1. 21st Century Department of Justice Appropriations Authorization Act (PL 107-273, § 201(a)).
2. Approval of World War II Memorial Site and Design (PL 107-011, § 3).
3. Aviation and Transportation Security Act (PL 107-071, § 117).
4. Intelligence Authorization Act for Fiscal Year 2003 (PL 306, § 502).
5. Public Health Security and BioTerrorism Preparedness and Response Act of 2002 (PL 107-188, § 102).
6. Small Business Liability Relief and Brownfields Revitalization Act (PL 107-118, § 102).
7. Terrorism Risk Insurance Act of 2002 (PL 107-297, § 102).
8. Trade Act of 2002 (PL 107-210, § 5101).
9. USA Patriot Act (PL-056).
10. 2002 Supplemental Appropriations Act for Further Recovery from and Response to Terrorist Attacks on the United States (PL 107-206, § 706):
Tom Daschle (D-S.D.) had an amendment added to this legislation protecting the Black Hills Forest by prohibiting the federal courts from handling challenges to timber-thinning to control forest fires in the forest. The Amendment provided, in part: "Due to the extraordinary circumstances present here, actions authorized by this section shall proceed immediately . . . Any actions authorized by this section shall not be subject to judicial review by any court of the United States."
Other Examples of Congressional Limitation on the Federal Courts' Jurisdiction
1. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996: Stripped federal courts of jurisdiction over Immigration and Naturalization Service (INS) decisions on whether and to whom to grant asylum. The act effectively permitted the INS to deny an individual asylum without the decision being reviewable by the federal courts.
2. The Prison Litigation Reform Act of 1996 (PLRA): Restricted remedies that a judge can provide in civil litigation concerning prison conditions. 3. Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA): Limited the number of habeas corpus petitions that a state prisoner is allowed to file in federal court.
Congress has plenary authority to regulate and even abolish all jurisdiction of the lower federal courts and it has near plenary authority to restrict the jurisdiction of the United States Supreme Court.
1. William J. Quirk, The Fourth Choice:Ending the Reign of Activist Judges
2. Gerald Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 Stan. L. Rev. 895 (1984).
3. James McClellan, Congressional Retraction of Federal Court Jurisdiction, 27 Vill. L. Rev. XX (1982); McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government 511- 516 (3d ed. 2000).
4. Charles E. Rice, Congress and the Supreme Court's Jurisdiction, 27 Vill. L. Rev. 959 (1982); Rice, Withdrawing Jurisdiction from the Federal Courts, 7 Harv. J. L. & PP. 13 (1984).
5. Ralph A. Rossum, Congress, the Constitution, and the Appellate Jurisdiction of the Supreme Court: The Letter and Spirit of the Exceptions Clause, 24 Wm. & Mary L. Rev. 385 (1983).
6. Julian Valasco, Congressional Control Over Federal Court Jurisdiction: A Defense of the Traditional View, 46 Cath. L. Rev. 677 (1997).
7. William Van Alstyne, A Critical Guide to Ex Parte McCardle, 15 Ariz. L. Rev. 229 (1973).
8. Daniel J. Meltzer, The History and Structure of Article III, 138 U. Penn. L. Rev. 569 (1990).
9. Martin Redish, Text, Structure, and Common Sense in the Interpretation of Article III, 138 U. Pa. L. Rev. 1633 (1990); Redish, Constitutional Limitations on Congressional Power to Control Jurisdiction: A Reaction to Professor Sager, 77 Nw. U. L. Rev. 143 (1982).
The federal branches are to coordinate in governing with co-equal interpretative power:
Gary Lawson, Interpretive Equality as a Structural Imperative (or "Pucker Up and Settle This!"), 20 Const. Comm. 379 (2004). Lawson argues for the view traditionally known as "departmentalism," which advocates equal interpretive powers for each of the three branches of government concerning the Constitution. Lawson also provides reasons why it is not necessarily logical that the Supreme Court should be the final authority on theConstitution.
Edwin Meese III, The Law of the Constitution, 61 Tulane L. Rev. 979 (1987). This is the touchstone piece on this subject, wherein Meese reminded people that the only binding authority the Supreme Court possesses is on the parties to the particular case on which it rules.
Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law is, 83 Geo. L. J. 373 (1994); Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81 (1993). Paulsen also argues for a form of departmentalism, i.e., that each branch of the federal government has co-equal power to interpret the Constitution independently, with no requirement of giving deference to another branch's interpretation. Specifically, he states that if the Supreme Court renders a decision with which the President disagrees on constitutional grounds, the President is at liberty to refuse to enforce the judgment. G. Charles Warren, The Supreme Court in United States History 470-71 (1923).
"If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve." The Avalon Project : President Jackson's Veto Message Regarding ...
At the close of the Constitutional Convention in Philadelphia on September 18, 1787, a Mrs. Powel anxiously awaited the results, and as Benjamin Franklin emerged from the long task now finished, asked him directly: "Well Doctor, what have we got, a republic or a monarchy?" "A republic if you can keep it" responded Franklin. A Republic, If You Can Keep It
Congress has the CONSTITUTIONAL power! They lack the WILL power, because Will O. DePeoples knows more about TV than the Constitution.
Only 41 percent can name the three branches of government, but 59 percent can name the Three Stooges. National Constitution Center: New Survey Shows Wide Gap Between ...
"As noted before, the Supreme Court did not invent abortion. There might be plenty of abortion, perhaps authorized or permitted by state laws, even without Roe and Casey. Moreover, the Court is, arguably, not directly responsible for the wrong moral choices of individuals that the Court's decisions permit. Finally, the Court is not responsible - cannot be responsible, consistent with its constitutional role - for correcting all injustices, even grave ones. But the Court is responsible for the injustices that it inflicts on society that are not consistent with, but in fact betray, its constitutional responsibilities. To the extent that the Court has invalidated essentially all legal restriction of abortion, it has authorized private violence on a scale, and of a kind, that unavoidably evokes the memories of American slavery and of the Nazi Holocaust. And by cloaking that authorization in the forms of the law - in the name of the Supreme Law of the Land - the Court has taught the American people that such private violence is a right and, by clear implication, that it is alright. Go ahead. The Constitution is on your side. This is among your most cherished constitutional freedoms. Nobody ought to oppose you in your action. We have said so.
The decision in Casey, reaffirming Roe and itself reaffirmed and extended in Carhart, in my view exposes the Supreme Court, as currently constituted, as a lawless, rogue institution capable of the most monstrous of injustices in the name of law, with a smugness and arrogance worthy of the worst totalitarian dictatorships of all time. The Court, as it stands today, has, with its abortion decisions, forfeited its legal and moral legitimacy as an institution. It has forfeited its claimed authority to speak for the Constitution. It has forfeited its entitlement to have its decisions respected, and followed, by the other branches of government, by the states, and by the People. The enthusiasm of liberal intelligentsia for the Court's abortion decisions, the sycophancy of the law professorate, of the legal profession, and of our elected officials, and the docility of the American people with respect to our lawless, authoritarian Court rivals the pliancy of the most cowardly, servile peoples toward ruinous, brutal, anti-democratic regimes throughout world history. We suffer people to commit despicable acts of private violence and we welcome - some of us revere - a regime that destroys popular government for the sake of perverted, Orwellian notions of "liberty." After a twentieth century that saw some of the worst barbarisms and atrocities ever committed by humankind, at a time when humankind supposedly had progressed to more enlightened states, we still have not learned. The lesson of the Holocaust - "Never Forget" - is lost. We fail to recognize the amazing capacity of human beings to commit unthinkable, barbaric evil, and of others to tolerate it. We remember and are aghast at the atrocities of others, committed in the past, or in distant lands today. But we do not even recognize the similar atrocities that we ourselves commit, and tolerate, today."Michael Stokes Paulsen, The Worst Constitutional Decision of All Time, 78 Notre Dame L. Rev. 995, 1003-1007 (2003).