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
Post Script:

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?

The Federal Court System, The “Exceptions Clause”, & The 14th Amendment:

By Publius Huldah.

1. Article III, US Constitution, establishes the federal courts (the 3rd branch of the federal government).  Section 2 enumerates the categories of cases 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. But  what he says is not true.  Congress may not unilaterally amend the Constitution by expanding the supreme Court’s “original” jurisdiction!

b) Some,  such as David Barton of Wallbuilders, claim the phrase means that Congress may withdraw from the federal courts authority to hear certain types of cases.  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 genuine 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.

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.

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 one 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, a proper remedy for judicial usurpations is to impeach & remove federal judges who demonstrate such contempt for Our Constitution. Others have suggested 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?  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.  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.

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.

July 16, 2010