The Trial of The Lawsuit Against The State of Arizona: Must Supreme Court Judges Obey The Constitution?

By Publius Huldah

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
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?