The People's U.S. Constitution: Article III, The Judicial Branch
Posted: Thursday, November 13, 2008
by Jeff Brown
Inner Projection
OK, so there's not much here. We've gone from Article I with 10 sections to Article II with five sections down to Article III with three sections. The significance? Maybe those at the Constitutional Convention were getting more and more tired of convening. Have you ever convened? It's taxing. Oh, sorry, that's Article I.
Anyway, in more recent history, the Supreme Court believes that Article III gives it the power to determine whether Congress or the executive are doing anything unconstitutional. Now since the convention was composed of Congressmen (remember that the governing document previous was the Articles of Confederation which didn't deal with the executive or judicial), consider their situation. Would you be greatly interested in writing a lot about limiting your own powers or having your laws interpreted? Laws you just pretty much knew how they should be interpreted? Now that may seem a bit infantile, but we're talking human beings, and even smart one's at the head of the class have basic human emotions, wants, needs. For more on this, go back to Article II concerning emotional outbreaks and how they are dealt with by Congress. I digress.
Section 1: Judicial Powers
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.
OK, this "judicial power." What is it? The Founding Smart Guys didn't really know because like I said above this was all new. There was no national judicial power before the U.S. Constitution. And since this was new there was not much to say, as for instance, there was to say about the Congressional which was the only branch established under the previous governing document, the Articles of Confederation.
And there probably wasn't as much to say because some, like Alexander Hamilton-one of the chief brains behind our new government-said that the judicial was the "least dangerous" branch of government. The reason being that it could only interpret law not establish it as the Congressional can or enforce as the executive. But some say this is not true because these unelected judges have the power to overturn the decisions of elected officials.
So does the power to interpret law solely lie within the judicial? Kind of. If you listen to the Supreme Court and the way it has interpreted law and how people have reacted to that interpretations, well then, the answer is yes. However, over the years, on occasion states have had the power to declare the acts of Congress unconstitutional and even the president has stepped in and put in his two cents. But of course, it's actually the people who have the final say in accepting or rejecting changes to the Constitution through the amendment. But we know doing so is an arduous process and of the hundreds of proposed amendments only 27 have passed . . . so far.
Now, regarding the establishment of courts, only Congress has the power to do so. Today we have the federal district courts where trial cases are heard, U.S. appellate that hear the first level of appeals in the federal system, up to the Supreme Court where final appeals are heard.
But what about job requirements? The Constitution actually says nothing about this. Unlike Congress or the presidency there are no age limits or length of citizenship requirements. And lawyers before 1957 actually trained through apprentices. They had no law degrees. And today you don't even need to practice law or to have been a lawyer to be a judge. And if you are into having serious time off or time off like a European employee become a judge. The Court's term begins in October and ends in June. That's a three-month vacation. And interestingly enough, the court begins working on its most controversial issues in June. Got something you don't want to do? Put it off until June and you may not have to deal with it.
And what do we know of the judges and their duties? The Constitution only mentions the chief justice, he or she who is in charge of the entire judicial branch not just the Supreme Court. Stand by for more on this in the next clause.
Now what of this "good behavior" mentioned in this section? Is it just me or does this phrase stand out as a bit odd? Let's see why it's there in the first place.
Well, consider that judges are not voted into power (a main factor in the protection of minority rights), judges who are assigned not elected "of the people, by the people, and for the people." Here the "majority rule" concept of our republic gets dogged. And on top of all that these judges serve for life. The only way this life term can end is through impeachment. Today, many think that judges should have term limits.
But since constitutionally there are no specifics as to how judges should interpret or apply law, what's a judge to do? Well, you can basically, like in many political situations, go one of two ways: you can restrain yourself or get into it. You can go with set precedents or apply more personal interpretations of laws and precedents. You can interpret the Constitution narrowly or broadly. And until it's specifically put into the Constitution otherwise that's how judges do it and will continue to do so.
But herein lies a problem too, for interpretation is often so subjective. Look at the Bible. The Bible was written by followers of Christ or Christians. Some say that one should just follow its tenants or, more specifically, the Ten Commandments. However, if this was so easy to do we would only have one Christian church and not the dozens and dozens of offshoots and sects that exist.
So there's a large gray area here; for even those traditionalists who want to stick to original meaning, often times there's no original meaning to go to. Merely following the Constitution in many cases of law just won't fly because there's not enough written to lead one to a Constitution-bound decision. Even the framers often disagreed on interpretation.
Maybe John Hart Ely, author of Democracy and Distrust, says it best when he says that if it's not clearly stated in the Constitution, let majority rule. Amen.
Section 2 - Trial by Jury, Original Jurisdiction, Jury Trials
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. ( This italicized section is modified by the 11th Amendment.)
Initially, we see that the federal Supreme Court can hear cases regarding the Constitution, U.S. law, and treaties with foreign nations. You'll notice an important point here that the federal courts also have jurisdiction over "Controversies between two states." This was written so that prejudice between states would be avoided in a case of law with the Supreme Court riding shotgun.
Believe it or not, the federal courts do not hear hypothetical cases. For instance, if you felt you might be in a case to get sued by someone, you can't go to federal court with a "suppose this were to happen" case. You'd basically have to get advice from an attorney and do what was necessary to prevent a lawsuit and take it from there. The Supreme Court can only hear actual cases. It can also not just give advice, this working along the same lines as the court having to deal with a literal case and not mere theory or conjecture.
So if you're thinking of filing a hypothetical case regarding a possible defamation of character because you suspect your wife is telling your friends that you're watching a 24 DVD set titled The Westminister Dog Show, a Retrospective and NOT Monday Night Football . . . Well, sorry, there's nothing the Supreme Court can do. But I advise you get over to a football buddy's house on Monday Night and watch the damn dog and pony show on Tuesdays. Actually, I prefer Wednesdays. But your choice.
Oh, that stuff on the 11th Amendment? Well, we'll talk about that later.
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, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
OK, this gets a little muddled, but it really comes down to the Supreme Court being able to change "appellate jurisdiction," appeals from lower courts (as to which ones it hears), but its Constitutional or "original jurisdiction" can only be changed through amendments.
Over the last century, Congress has slowly gotten rid of appeals from the lower courts. And why not? Consider the growth in population form the 18th to the 20th-21st century. The Supreme Court gets thousands and thousands of petitions a year. That's a lot of work for nine judges, so only about 10% of the cases submitted are accepted.
But there are appellate cases that may need to be heard by the Supreme Court that Congress deems restrictive, such as school payer, abortion, and criminal procedure. But Congress has yet to restrict appellate jurisdiction regarding these issues even though the temptation to do so is there.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Here is expressed a civil liberty specifically in the Constitution not the Bill of Rights. Juries were primary to the framers and are mentioned four times. But how fair are juries? That's a loaded question and one that will be dealt with when we get to the 5th, 6th, and 7th amendments. However, I can tell you from personal experience that not only are juries not ideal they are considerably problematic.
Section 3: Treason
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
It used to be back in the Mother Country-England in the good old days-that if you spoke poorly of Her, regardless of what you said, this was construed as treasonous. To avoid such a bash of civil liberties, the Constitution requires a high standard of proof; therefore, convictions of treason in the U.S. have been infrequent.
However, even with the implied care of protecting the innocent, years after the Rosenberg Case in which Julius and his wife Ethel were put to death for espionage during WWII (leaking atomic secrets to the Soviet Union) it was discovered that Ethel was only a minor accomplice.
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