The Trial of The Lawsuit Against The State of Arizona: Must Supreme Court Judges Obey The Constitution?
In my last paper, I showed that Our Constitution requires that the federal government’s lawsuit against Arizona and Gov. Brewer be tried in the supreme Court; and that federal district court judge Susan Bolton has no constitutional authority to preside over the trial.
But some lawyers responded that the case is properly before Judge Bolton because Congress & the supreme Court have said that cases where a State is a Party may be tried in federal district court.
Thus we come to The Pivotal Question of Our Time: Will we restore the Rule of Law, which prevails when people in the federal government obey The Constitution? Or will we side with those who seek to expand the Rule of Men, where people holding Power do whatever they want?
1. The Federalist Papers were written during 1787-88 by Alexander Hamilton, James Madison, and John Jay, to explain the proposed Constitution to The People and to induce them to ratify it. Thus, The Federalist is the most authoritative commentary on the genuine meaning of Our Constitution. And at a meeting of the Board of Visitors of the University of Virginia on March 4, 1825 at which Thomas Jefferson and James Madison were present, the following resolution selecting the texts for the Law school, was passed:
…on the distinctive principles of the government of our own state, and of that of the US. the best guides are to be found in 1. the Declaration of Independance, as the fundamental act of union of these states. 2. the book known by the title of `The Federalist’, being an authority to which appeal is habitually made by all, and rarely declined or denied by any as evidence of the general opinion of those who framed, and of those who accepted the Constitution of the US. on questions as to it’s genuine meaning…. (page 83) [emphasis added]
So! Thomas Jefferson, Author of the Declaration of Independence, and James Madison, Father of The Constitution, acknowledged the high authoritative status of The Federalist Papers. They saw The Constitution as having a fixed meaning which one could learn by consulting The Federalist!
2. But supreme Court judges soon refused to submit to The Constitution as explained by The Federalist Papers. In 1907, former Chief Justice Charles Evans Hughes said, “…the Constitution is what the judges say it is…”. Judges thus rejected the objective standard provided by The Federalist, and substituted their own subjective interpretations. Law schools embraced this subversion: Instead of teaching The Constitution as a set of fixed principles explained by The Federalist, they taught supreme Court opinions which say Congress may do whatever it pleases. They also taught that supreme Court judges have unbridled authority to say what the Constitution means. Law schools thus produced generations of constitutionally illiterate lawyers & judges who have been indoctrinated with the monstrous Lie that Our Constitution means whatever judges on the supreme Court say! And because these lawyers failed in their sacred duty to think, and uncritically accepted what they were told, Our Country is on the brink of destruction.
Roger Pilon of the Cato Institute understands this pivotal issue. He said:
Is it unconstitutional for Congress to mandate that individuals buy health insurance or be taxed if they don’t? Absolutely – if we lived under the Constitution. But we don’t. Today we live under something called “constitutional law” – an accumulation of 220 years of Supreme Court opinions – and that “law” reflects the Constitution only occasionally.
Now you see how we came to this sorry state where lawyers insist on a view of Art. III, §2 which is, to the eye of reason, contrary to The Constitution: They don’t obey The Constitution – they obey the supreme Court, as they were conditioned in law school to do.
3. Let us review Art. III, §2:
Clause 1 lists the categories of cases federal judges are permitted to hear.
Now look at clause 2: The FIRST SENTENCE lists two of the categories set forth in clause 1 (cases affecting “Ambassadors, other public Ministers and Consuls” & “those in which a State shall be Party”) and says that in ALL such cases, the supreme Court SHALL have original [trial] jurisdiction.
The SECOND SENTENCE says that in all the other cases set forth in clause 1, “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.”
The Constitution is clear! So is The Federalist. In No. 81, Hamilton sums it up:
We have seen that the original jurisdiction of the Supreme Court would be confined to two classes of causes, and those of a nature rarely to occur. In all other cases of federal cognizance, the original jurisdiction would appertain to the inferior tribunals; and the Supreme Court would have nothing more than an appellate jurisdiction, “with such EXCEPTIONS and under such REGULATIONS as the Congress shall make.” (15th para) [emphasis in original]
See also, as to the supreme Court’s original jurisdiction, No. 81 (13th para).
As to the “exceptions & regulations” respecting the supreme Court’s appellate jurisdiction, see No. 81 (last 6 paras): the exceptions & regulations merely address the mode of doing appeals.
I explained the original intent of the “exceptions clause” in a previous paper. But the most eloquent explanation of this whole issue is that given by Dr. Alan Keyes in his recent article at World Net Daily, and in his linked article on his website.
The supreme Court once knew that Congress could not reduce its original jurisdiction! In Marbury v. Madison (1803), the supreme Court discussed Art. III, §2, clause 2:
…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…(p 174)
…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] (p 175)
Marbury v. Madison got it right – THAT is what the Constitution & The Federalist Papers actually say! But today, supreme court jurisprudence has “evolved” to embrace a view which contradicts The Constitution, The Federalist Papers, and Marbury v. Madison!
4. So! In a recent article at World Net Daily, Bob Unruh quoted constitutional lawyers Herb Titus and John Eidsmoe to the effect that the “exceptions & regulations” language in the SECOND SENTENCE of clause 2 (which defines the supreme Court’s appellate jurisdiction), permits Congress to reduce the supreme Court’s original jurisdiction granted in the FIRST SENTENCE of clause 2!
Why do lawyers say this? Because Congress at 28 USC § 1251 et seq., & the supreme Court (e.g., Case v. Bowles (1946) at page 97) said so; and they go by what the supreme Court last said, not by the Constitution! Lawyers are trained to obey the supreme Court – they do not actually believe that the supreme Court is subject to The Constitution. Like Charles Evans Hughes, they see the supreme Court as above The Constitution!
5. Mr. Titus is also quoted as saying, “Could you imagine every case that involves a state as a party being before the Supreme Court? The court would be so loaded with those kinds of cases.” Mark Levin (audio rewind for 08/03 at 69) said there was a “200 year history”, “states are sued all the time”, “every time a state is sued it goes to the supreme court?”, and that only lawyers “who have no idea of what the history is” would say that only the supreme Court has jurisdiction to conduct the trial of the case against Arizona!
I do not wish to pillory good men. But really, gentlemen! THINK! In addition to failing to consider the actual text of Art. III, §2, clause 2; you have failed to consider two obvious points:
ONE: As Art. III, §2, clause 1 shows on its face, the judicial Power of the United States extends only to cases of “federal” or “national” cognizance. Hamilton explains each category of case in Federalist No. 80, and shows why each is a proper object of the federal courts. Read it, and you will see that the judicial Power does not extend to matters of internal concern to States. Furthermore, in Federalist No. 83 (8th para), Hamilton said:
…the judicial authority of the federal judicatures is declared by the Constitution to comprehend certain cases particularly specified. The expression of those cases marks the precise limits, beyond which the federal courts cannot extend their jurisdiction, because the objects of their cognizance being enumerated, the specification would be nugatory if it did not exclude all ideas of more extensive authority. [emphasis added]
Yes! The powers of the federal courts are enumerated! Federal courts are not supposed to hear any case which does not fall within the categories listed at Art. III, §2, clause 1. If the supreme Court would stay within its enumerated powers, its case load would be greatly reduced. Read No. 80 carefully, and much will become clear – to open minds.
TWO: Congress’ powers are also enumerated! Congress has constitutional authority over international commerce and war. Domestically, it has authority to establish an uniform commercial system (bankruptcy laws, a monetary system, weights & measures, patents & copyrights, a limited power over interstate commerce, and mail delivery.) It has authority to establish an uniform Rule of Naturalization. The Amendments granted Congress powers to protect former slaves, voting rights, and lay income taxes. That’s about it!
This is why Hamilton was able to say in Federalist No. 81 (15th para),
…the original jurisdiction of the Supreme Court would be confined to two classes of causes, and those of a nature rarely to occur. [emphasis added]
Congress’ law making power is so limited by The Constitution that it has authority to make only a few laws affecting States such that litigation involving a State would arise!
But most of the laws made by Congress for over 100 years are unconstitutional as outside the scope of the legislative powers granted to Congress. And since the judicial Power of the federal courts includes all Cases arising under “the Laws of the United States”, the federal courts are clogged with cases arising out of unconstitutional federal laws!
Requiring the supreme Court to obey the Constitution [that’s a novel idea!] and conduct the trials of cases of federal cognizance where a State is Party, would be a check on the powers of Congress. If the supreme Court’s trial docket were clogged with cases arising out of unconstitutional federal laws, perhaps it would do its duty & declare the laws unconstitutional!
6. To Herb Titus, John Eidsmoe, Mark Levin, and all the attorneys who contacted me citing the US Code and more recent supreme Court decisions which purport to say the supreme Court is not required to exercise original jurisdiction in ALL cases of federal cognizance in which a State is a Party: -
Take another look! If we are to restore our Constitutional Republic with its federal form of government, we all must reconsider and reexamine everything we think we “know” about The Constitution. Because most of what we think we know, just ain’t so. PH
August 16, 2010; revised August 23, 2010.
ONLY the US Supreme Court has Constitutional Authority to Conduct the Trial of the Case Against Arizona & Governor Brewer.
By Publius Huldah.
1. Does anyone read the U.S. Constitution these days? American lawyers don’t read it. It is certain that only a few in Congress have even heard of 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… [emphasis added]
“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.
See where it says, “State of Arizona”? THAT (plus Art. III, Sec. 2, clause 2) is what requires the US Supreme Court 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 (unless you are a US Supreme Court justice).
In Federalist No. 81 (13th para), Alexander Hamilton commented on this exact provision of Art. III, Sec. 2, clause 2:
…Let us now examine in what manner the judicial authority is to be distributed between the supreme and the 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…[boldface added, caps in original]
Yet Attorney General Eric Holder filed the case in a court which is specifically stripped, by the Constitution, of jurisdiction to hear it.
2. So! Counsel for the State of Arizona should consider:
(a) File a Petition for Removal before federal district court Judge Susan R. Bolton demanding that the case be removed to the Supreme Court on the ground that under Art. III, Sec. 2, clause 2, US Constitution, only the Supreme Court has jurisdiction to conduct the trial of this case.
(b) If Judge Bolton denies the Petition for Removal, file a Petition for Writ of Mandamus in the Supreme Court asking that court to order Judge Bolton to transfer the case to the Supreme Court.
A Petition for Writ of Mandamus is an old common-law “extraordinary writ”: It asks a court to ORDER a lower court or other public official to something which it is its duty to do. In Kerr v. US District Court for Northern District of California (1976), the Supreme Court said, respecting the propriety of issuing writs of mandamus:
….the fact still remains that ‘only exceptional circumstances amounting to a judicial ‘usurpation of power’ will justify the invocation of this extraordinary remedy.’ …(para 13)
When a federal district court judge presides over a case which the Constitution specifically prohibits her from hearing, and even issues a ruling enjoining the enforcement of a State Law, then that federal district court judge usurps power. She is specifically stripped – by Art. III, Sec. 2, clause 2 – of jurisdiction to preside over the case against the STATE of Arizona.
For procedures for filing the Petition for Writ of Mandamus, see Supreme Court Rule 20.
3. Now, let us examine a hurdle before us: For a very long time, as PH continually points out, Congress and the federal courts have ignored the Constitution. Congress has made innumerable laws which exceed the scope of the legislative powers delegated to it, and the supreme Court has applauded such usurpations!
But respecting the judicial power of the federal courts, Congress has made a law which directly contradicts Art. III, Sec. 2, clause 2 of Our Constitution! That pretended law is 28 USC § 1251:
(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. [emphasis added].
Do you see what this pretended “law” purports to do? It purports to say that lawsuits filed by the United States government against States can be tried in federal district courts!
But Article III, Sec. 2, clause 2 says that in “ALL” [federal] Cases in which a State shall be Party, the supreme Court “SHALL” have original jurisdiction (i.e., the supreme Court is to conduct the trial). In Our Constitution, We delegated to the supreme Court alone the authority to conduct the trials of such cases in which States are a party. We most manifestly did NOT grant that power to inferior tribunals. And Congress may not alter, by any pretended “law”, Our grant of power which was to the supreme Court alone.
The Federalist Papers were written to explain the proposed Constitution to the People and to induce them to ratify it. For this reason, the Federalist is the most authoritative commentary we have on the original intent of the Constitution. The States understood, before their delegations ratified the Constitution, that if they were ever sued by the new federal government, their case would be tried before the supreme Court! As noted above, Hamilton said, respecting suits against States:
…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…
Congress may not unilaterally change the rules after the fact!
Article V sets forth the procedures for amending the Constitution. Note that the 11th Amendment (ratified 1795) was ratified to reduce the Art. III, Sec. 2, clause 1, Jurisdiction of the federal courts. If it is desired to extend to federal district courts the judicial Power to preside over [federal] cases in which a State is a party, then it can only be done by constitutional amendment.
In Federalist No. 78 (10 para), Alexander Hamilton says:
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. [emphasis added]
Congress may not amend Our Constitution by making a “law”. Any such pretended “law” is void.
4. Article IV, Sec. 4, requires the federal government to protect each of the States against invasion! Not only is the Obama regime refusing to perform this specific Constitutional duty – it seeks to prohibit the Sovereign STATE of Arizona from defending herself! PH.
July 31, 2010
I don’t cite SCOTUS opinions as authority, because they have become nothing more than judges’ personal opinions on the cases before them. We have well over 100 years accumulation of such opinionated precedent! And, as when making photocopies of copies, after a while the original meaning is lost altogether.
Because of the firestorm over this paper, I now break my own rule and cite a SCOTUS case. And the case I cite is the most famous case in our country. It is a case which every American lawyer is supposed to have read in law school. That case is 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]
But current supreme court jurisprudence has “evolved” to embrace the view which Chief Justice John Marshall ridiculed in this 1803 landmark case.
Folks! This is The Question of our Time: Must SCOTUS obey the Constitution?
How Federal Judges Violate Our Constitution.
By Publius Huldah.
1. Read Article III, US Constitution. Article III establishes the federal courts (the 3rd branch of the federal government). Section 2 enumerates the categories of cases which federal courts are allowed to hear. Section 2 also distributes the “judicial power” (the authority to hear cases) between the supreme Court and the lower federal courts.
Article I, Sec. 8, clause 9, authorizes Congress to create courts inferior to the supreme Court. Accordingly, Congress has set up some 94 federal district courts and 13 circuit courts of appeal (11 numbered circuits plus the DC Circuit & the Federal Circuit). This Chart shows the territorial jurisdiction of the 11 numbered circuit courts. Federal district courts are scattered throughout these united States. Click on your circuit to see the locations of the federal district courts in your State.
The trials of most federal cases take place in the district courts. The loser may appeal to the circuit court of appeal for that district. The supreme Court hears some appeals from the circuit courts of appeal.
2. But in TWO of the categories of cases enumerated in Art. III, Sec. 2, the Constitution grants “original” [i.e., "trial"] jurisdiction to the supreme Court: (1) All cases affecting Ambassadors, other public Ministers & Consuls; and (2) Those in which a State is a Party. For these TWO categories of cases, the supreme Court acts as the trial court.
In all the other enumerated categories of cases, “…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.”
What does the quoted phrase (the so-called “exceptions clause”) mean?
a) Alex Glashausser of Washburn University School of Law, says the phrase means that Congress may extend the supreme Court’s “original” (trial) jurisdiction to include more cases than just (1) Those affecting Ambassadors, other public Ministers & Consuls, and (2) Those in which a State is a Party. Glashausser’s view is COMPLETELY WRONG & UNCONSTITUTIONAL! Congress may not unilaterally amend the Constitution by expanding the supreme Court’s “original” jurisdiction!
b) Some, such as David Barton of Wallbuilders, say the phrase means that Congress may withdraw from the federal courts authority to hear certain types of cases. That is also incorrect. It is true that the federal courts have been hearing cases which they are not authorized by Art. III, Sec. 2, to hear; but the remedy for that is impeachment & removal of the usurping judges. The “exceptions clause” does not permit Congress to diminish the enumerated powers of the federal courts!
c) Alexander Hamilton explains the original meaning of the phrase in Federalist No. 81. When we have sworn to support the Constitution, then we must defend it or we violate our Oaths. If we reject the original intent of the Constitution – the meaning it was understood to have when it was ratified – then we don’t have a Constitution. All we have is a pack of judges, law professors & others running around spewing out their own personal evolving opinions as to what they think the provisions in Our Constitution mean. That is the rule of men – and they want to be “the men” making the rules.
3. Let us examine these views:
a) As to Professor Glashausser: The Constitution dictates the categories of cases for which the supreme Court has “original” (trial) jurisdiction, and the categories for which it has appellate jurisdiction! Hamilton explains this in Federalist No. 81:
…Let us now examine in what manner the judicial authority is to be distributed between the supreme and the 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….(at para 13) [boldface added, caps in original]
…Let us resume the train of our observations. We have seen that the original jurisdiction of the Supreme Court would be confined to two classes of causes, and those of a nature rarely to occur. In all other cases of federal cognizance, the original jurisdiction would appertain to the inferior tribunals; and the Supreme Court would have nothing more than an appellate jurisdiction, “with such EXCEPTIONS and under such REGULATIONS as the Congress shall make.” (at para 15) [boldface added, caps in original]
Congress may not unilaterally amend the Constitution by adding categories of cases for which the supreme Court will have “original” jurisdiction! Someone, please! Send Professor Glashausser a copy of The Federalist Papers! He is teaching our future lawyers & judges!
b) As to David Barton: The Constitution lists the categories of cases which federal courts may hear. In Federalist No. 80, Hamilton explains each category of case. ANY RESTRICTIONS OR EXPANSIONS OF THAT LIST CAN ONLY BE DONE BY AMENDMENT TO THE CONSTITUTION! Look at the Eleventh Amendment (ratified 1795). It withdrew from federal courts the power to hear a certain category of case. So! Congress may NOT make a law diminishing the constitutionally granted powers of the federal courts.
Now, listen up: It is true that federal judges have long been hearing cases which they have no constitutional authority to hear. Such judicial usurpation is explained in a previous paper: What Are the Enumerated Powers of the Federal Courts? But the best remedy for federal judges hearing cases which they have no constitutional authority to hear is to impeach them & remove them from the bench (Federalist No. 81, 8th para).
What are some cases which federal judges have been hearing which they have no constitutional authority to hear? For starters, they have no constitutional authority to hear cases seeking to overturn State laws criminalizing abortion & sodomy. Those cases do not fall within any of the categories enumerated at Art. III, Sec. 2. Judges on the supreme Court know they have no constitutional authority to hear such cases! So! This is what they did to get around Our Constitution:
Article III, Sec. 2 permits federal courts to hear [among other enumerated categories] “all Cases…arising under this Constitution…”. So! In order to claim authority to hear cases seeking to overturn State laws criminalizing abortion and sodomy, federal judges looked at the word, “liberty” in Sec. 1 of the 14th Amendment, and found hiding under that word a constitutional right to kill babies and another constitutional right to engage in sodomy! They fabricated “constitutional rights” so that they could then overturn State laws criminalizing those practices. Once baby-killing & sodomy were elevated to the status of “constitutional rights”, they then could be said to “arise under this Constitution”. Do you see? And we have to stand up when these people walk into a room!
The federal courts also have no constitutional authority to hear cases involving prayer in public places throughout the States. The 1st Amendment restricts only the powers of CONGRESS. We The People may do whatever We like respecting prayer in public places, and the federal courts have no authority whatsoever to interfere. How the supreme Court usurped power to ban religious speech in Our Country is explained in The TRUTH about “Separation of Church and State”. Does the Supreme Court have constitutional authority to ban religion from the public square?
As stated above, the proper remedy for judicial usurpations is to impeach & remove federal judges who demonstrate such contempt for Our Constitution. Others might say that Congress could make a law, perhaps under the “necessary & proper” clause (Art. I, Sec. 8, last clause), specifying that federal courts may NOT hear cases involving abortion, sodomy, prayer at high school football games, etc. But what would be the result? One possibility is that federal judges would see the list as a blank check to hear every case which was not listed. So Congress would need to keep amending the law to add new categories of off-limits cases. Or, perhaps the federal judges would do as they have done with Our Constitution: just ignore the list altogether.
4. So, then, what does the following phrase at Art. III, Sec. 2, clause 2, actually mean?
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.
Hamilton tells us (in his usual exhaustive detail) in the last five paragraphs of Federalist No. 81. The quoted phrase merely addresses technical issues respecting the mode of doing appeals: Will the appeal be heard by a jury, or by judges? Will the appellate court be able to revisit matters of Fact, or will it be restricted to reviewing rulings on matters of Law? Will the mode of doing appeals be the same for cases involving the “common law” and the “civil law”, or will it be different for each? Congress will decide. That’s it, Folks!
5. What should you learn from this paper?
a) When you hear people talking about The Constitution, don’t believe a word they say. They are usually wrong. That includes the lawyers, judges & law professors who spout off on TV. (Remember, they were educated by people like Professor Glashausser!) So, you must look it up yourself in The Federalist Papers. Mary E. Webster makes it easy. She has “translated” The Federalist Papers into modern English. They are now easy to understand. YOU can learn the “original intent” of every clause in Our Constitution! Then YOU can educate everyone within your spheres of influence. (You will also amaze your friends and confuse & confound our enemies.)
b) We need to radically change the way we have been looking at the World. There really is an objective Reality out there: Some things are True, other things are False. Some things are Good, other things are Evil. We need to start paying attention to objective standards again. We need to embrace the Good, the Noble, and the Intelligent. We need to reject the Bad, the Low, and the Stupid. The Constitution has an objective meaning. That meaning is revealed in The Federalist Papers, The Declaration of Independence, Madison’s Journal of the Federal Convention, and (for word meanings) an old American Dictionary. THAT is where we look to find the original intent of Our Constitution. We must NOT look to the federal judges. A pox on them and their precious & perverted precedents! PH.
July 16, 2010
The Judicial Power of the Federal Courts.
By Publius Huldah.
1. “Judicial Power” refers to a court’s power to hear and decide cases. Art. III §2, U.S. Constitution, lists the cases which federal courts are permitted to hear. They may hear only cases:
a) Arising under the Constitution, or the Laws of the United States, or Treaties made under the Authority of the United States  [“federal question” jurisdiction];
b) Affecting Ambassadors, other public Ministers & Consuls; cases of admiralty & maritime Jurisdiction; or cases in which the U.S. is a Party [“status of the parties” jurisdiction];
c) Between two or more States; between a State & Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States; or between a State (or Citizens thereof) & foreign States, Citizens or Subjects [“diversity” jurisdiction].
These are the ONLY cases which federal courts have constitutional authority to hear! Alexander Hamilton wrote in Federalist No. 83, 8th para:
…the judicial authority of the federal judicatures is declared by the Constitution to comprehend certain cases particularly specified. The expression of those cases marks the precise limits beyond which the federal courts cannot extend their jurisdiction, because the objects of their cognizance being enumerated, the specification would be nugatory if it did not exclude all ideas of more extensive authority. [emphasis added]
In Federalist No. 80, Hamilton commented on each of these itemized “proper objects” of judicial authority. But here, we will consider only cases “arising under the Constitution”, which concern “the execution of the provisions expressly contained in the articles of Union” (2nd para). 
2. Consider State laws criminalizing abortion or homosexual conduct. Are these “proper objects” of the judicial power of the federal courts? Do these laws fit within any of the categories of cases which federal courts are authorized to hear? No, they don’t! Nothing in the Constitution forbids States from criminalizing abortion or homosexual conduct! The federal courts have no “federal question jurisdiction”, no jurisdiction based on status of the parties, and no “diversity jurisdiction” to hear such cases!
But the federal courts have evaded the constitutional limits on their power to hear cases by fabricating individual “constitutional rights” so that they can then pretend that the cases “arise under the Constitution”!
Thus, in Roe v. Wade (1973) http://supreme.justia.com/us/410/113/case.html seven judges on the U.S. Supreme Court said a
right of privacy…founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action (p. 153)
makes unconstitutional State laws making abortion a criminal offense! These seven judges just made up a “constitutional privacy right” which they said prohibits States from outlawing abortion!
In Lawrence v. Texas (2003) http://supreme.justia.com/us/539/558/case.html six judges on the U.S. Supreme Court said a Texas Law criminalizing homosexual conduct was unconstitutional because it violated practitioners’
…right to liberty under the Due Process Clause (p.578)…of the Fourteenth Amendment (pp. 564, 579).
But nothing in our Constitution prohibits the States from making laws declaring abortion or homosexual conduct to be crimes! Nothing in our Constitution grants “rights” to individuals to engage in these practices!
3. But federal judges used the 14th Amendment as a blank check to prevent the States from outlawing conduct which the federal judges want to legalize. They simply make up a “constitutional right” to do those things. Under their view, there is no limit to their powers! States criminalize child rape, but 5 judges on the Supreme Court can fabricate a “constitutional right” to have sex with children – a “liberty & privacy right” in the 14th Amendment to have sex with children! If these “liberty & privacy rights” mean that women can abort babies & homosexual conduct is fine; why can’t they also mean that adults can have sex with children? Why can’t they mean that people have “liberty & privacy rights” to use crack cocaine & heroin? What’s the limit? There IS no limit! Anthony Kennedy, who wrote the majority opinion in Lawrence v. Texas, said:
…As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. (p. 579)
Kennedy just tossed Art. III §2 out the door! He and his ideological allies recognize no limits on their power! Just name an act you want legalized and if 5 of them agree, Voila! A new “liberty” “right”! And a State law prohibiting that act bites the dust. And since federal judges also claim the right to “set policy” for all of these United States, and we have let them do it, State laws throughout the land prohibiting that act bite the dust. And that is how we got a handful of un-elected judges setting “policy” for everyone in the country.
4. Abortion, homosexual conduct, prostitution, child sex, drugs, etc. are issues for The People of the several States to decide (subject to any restrictions imposed by their respective State Constitutions). Congress is not authorized to make laws on these subjects, and these are not listed as “rights” in the U.S. Constitution.
5. What does the due process clause of the 14th Amendment really mean? Professor Raoul Berger’s meticulously researched book, Government by Judiciary: The Transformation of the Fourteenth Amendment  proves that the purpose of the 14th Amendment was to protect freed slaves from southern Black Codes which denied them basic rights of citizenship. In Ch. 11, Berger discussed the meaning of the “due process” clause of the 14th Amendment:
…nor shall any State deprive any person of life, liberty, or property, without due process of law…
The clause, “due process of law” is a term of art with a well-known & narrow meaning  going back to the Magna Charta! It means that a person’s Life, Liberty or Property can’t be taken away from him except by the judgment of his peers pursuant to a fair trial! Specifically, that freed slaves could not be punished except pursuant to the judgment of their peers after a fair trial where they could appear, cross-examine witnesses and put on a defense! “Life” meant “life” as opposed to being lynched; “liberty” meant being out of prison instead of in prison; and “property” meant the person’s possessions.
6. So! We see that the federal judges have redefined “Liberty”. To them, “liberty” is freedom from moral restraints; they do not see “liberty” as freedom from coercive civil government. They have no problem with making us objects to be plundered & controlled by the federal government! They have no problem with suppressing our religion & silencing our speech. They have no problem with imposing their values & radical conception of “liberty” on us.
But Professor Berger proves that the framers of the 14th Amendment did not understand “Liberty” as freedom from moral restraints. The purpose of the due process clause of the 14th Amendment was to protect freed slaves from being put to death, imprisoned, or having their stuff taken away except pursuant to the judgment of their peers after a fair trial!
7. When federal judges redefine terms in the Constitution, they “amend” the Constitution in violation of Art. V. Article V. sets forth the two lawful methods of amending the Constitution, neither of which is “redefinition by judges”.
8. Are there remedies for this judicial lawlessness? YES! Congress should use its Impeachment Power to remove the usurping judges. How many times have you heard they have “lifetime appointments”? They don’t! The only reason it ends up that way is because our representatives in Congress are ignorant & lack the Will to do the right thing. Alexander Hamilton addressed judicial usurpations & the judiciary’s “total incapacity to support its usurpations by force” in The Federalist No. 81, 9th para:
…the important constitutional check which the power of instituting impeachments in one part of the legislative body [House], and of determining upon them in the other [Senate], would give to that body [Congress] upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it [the impeachment power], while this body [Congress] was possessed of the means of punishing their presumption by degrading them from their stations. While this ought to remove all apprehension on the subject it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments [some had said impeachments should be tried in the supreme court]. [italics added]
Folks, ignorance & misinformation will do us in if we don’t learn the Truth pretty soon. “Everybody” says judges have “lifetime appointments”, & we believe it. Well, now YOU know that federal judges can be impeached, convicted & kicked off the bench for usurping power! We hear that “The Rule of Law” requires us to go along with all court decisions. That is a Lie! If the decision is based on an usurpation, the Rule of Law requires us to spit on the decision and demand that the judges be impeached & removed from the bench.
9. Finally, a word about our Rights: The Constitution is about the Powers which We the People delegated to the 3 Branches of the Federal Government. It is NOT about Our Rights, which come from God, are unalienable, & predate the Constitution! We created the Constitution & the federal government! Why would the Creator (that’s us) grant to our “creature” (the federal courts), the power to determine & define OUR Rights?
Alexander Hamilton opposed adding a Bill of Rights to the Constitution. He said they were unnecessary & dangerous because they contain exceptions to powers which are not granted. Thus, they afford a pretext to regulate those Rights (The Federalist No. 84, 10th Para). Hamilton was a prophet as well as a genius in political philosophy.
Today, we have been conditioned to believe that the source of our “Rights” is the Constitution, as defined & “discovered”, from time to time, by unelected federal judges. But D.C. v. Heller (2008) http://supreme.justia.com/us/554/07-290/ which upheld private ownership of guns, was a 5 to 4 decision! One vote switched to the other side, and the Supreme Court will rule that we have no right to bear arms.
THIS is what happens when we substitute the Constitution for God as the Source of our Rights. You must always insist that your Rights to Bear Arms – to defend yourself – are unalienable and come from God, not the Second Amendment! Don’t forget that We had that Right before the Constitution was ratified. The same principle applies to all of our Rights. If, like the Declaration of Independence, we insist that they come from God and are unalienable, no human court or legislative body can take them away from us.
Publius/Huldah (June 22, 2009; revised July 16, 2010)
 Since ours is a Constitution of delegated & enumerated Powers, the U.S. must be authorized by the Constitution to act on a subject before any Treaty on that subject qualifies as part of the “supreme Law of the Land” (Art. VI, cl.2).
 Hamilton said this is the only instance in which the Constitution contemplates the federal courts hearing cases between citizens of the same State. The Federalist No. 80 (3rd Para from end).
 The 11th Amendment (ratified 1795) withdrew from the federal courts the power to hear cases filed against one of the States by Citizens of another State or by Citizens or Subjects of any foreign State.
 Hamilton gave examples: If a State violates the constitutional provisions which prohibit States from imposing duties on imported articles, or from issuing paper money [Art. I, §10], the federal courts are in the best position to overrule infractions which are “in manifest contravention of the articles of Union. [i.e., Constitution]” (3rd Para).
 Prof. Berger retired in 1976 as Senior Fellow in American Legal History, Harvard University. His book is at http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php%3Ftitle=675&Itemid=28 It is fascinating!
 Here is the link to Ch. 11. Read it! You will then know more about “due process” than most federal judges! http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=675&chapter=106938&layout=html&Itemid=27