Here’s another great article by my friend and retired Constitutional Lawyer Publius Huldah. In this article she explains why the Supreme Court and federal judges can’t Constitutionally strike down certain State laws like they do routinely today.
How Federal Judges Violate Our Constitution.
By Publius Huldah Friday, July 16, 2010
1. Read Article III, US Constitution. This Article 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, and you will 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 conservatives, 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 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.