Article III of the US Constitution: Judiciary
In the Preamble, the second listed purpose of the Constitution was “to establish justice,” and Article III defines the system that will accomplish this goal. It is also the shortest of the articles of the Constitution that deal with the three main branches – and has some very interesting phrasing embedded in its three short sections.
Section 1 defines the basic structure of the judiciary and the requirements for judges. It establishes one Supreme Court, and permits Congress to establish inferior Courts as they see the need. Judges of all courts will be compensated with a pay level that is not to be diminished while they hold their office – and those offices are held “during good behavior.”
The Founders, in two sentences, have given us enough discussion topics to fill at least as many pages!
Let’s start with one of the Founders’ nods to their own recent history – the compensation “not to be diminished” while the judge holds office. One of the Crown’s tactics to pressure Colonial judges to rule as the King wished was to punish those who did not, by cutting their pay. When any ruling counter to the Crown’s interest could cut off one’s ability to support one’s family, is it any wonder that many Colonial judges ruled in the Crown’s interest instead of by the rules of the law? This portion of Article III was put in place to insure that judges would not be coerced into making bad decisions simply to keep their families fed.
The number of inferior courts is left open. Currently, there are 94 federal district courts; these each are under the direction of one of 13 circuit courts of appeal (11 numbered circuit courts, one circuit court for Washington DC, and one called the “Federal circuit” whose jurisdiction is over the entire country, but limited by type of case), and the one supreme court. A map of the district courts can be found here: http://en.wikipedia.org/wiki/United_States_courts_of_appeals . Congress has the authority to change the geographic jurisdictions, number of judges, and the number of courts, as needed.
Judges hold their offices “during good behavior,” which means that they may keep their positions until they retire, die while in office, or are removed, by impeachment, for bad behavior. The Founders wanted the Supreme Court’s justices, and other federal judges, to be protected from the all-too-common taint and corruption that follows running for and being elected to office. There is, of course, no way to legislate a requirement to choose people with integrity and ethics to hold these offices; it is implied by the “good behavior” phrasing. The Constitutional remedy for a judge whose decisions demonstrate a lack of “good behavior:” evidence of corruption, lack of integrity or ethics, bias, or lack of understanding of the law or the Constitution they swore to uphold – is impeachment. This remedy has been used far too infrequently in our 200-plus year history. Judges now assume their positions are inviolable, and legislate from the bench, inventing “rights” and assuming “jurisdiction” that does not assist. Shame on us for not demanding of our Congress-critters that they remove such judges from office!
There is also no requirement for the minimum or maximum number of justices appointed to the Supreme Court. Congress has increased and decreased the number of justices on the Supreme Court several times since the original call for six justices codified in the Judiciary Act of 1789. It settled at nine in 1869 and has remained there since. However, FDR threatened to appoint additional justices to the supreme court (up to a maximum of 15) when the then-sitting court did not want to support his New Deal programs (since many were usurpations of powers not granted and should never have been allowed to stand). While FDR’s plan did not make it through Congress, the threat itself worked. Some of the justices capitulated, and then older justices began to retire. By the end of 1941 FDR had appointed seven new justices and his New Deal proposals were not struck down, as most should have been. Shame on the Supreme Court for not standing up to FDR and his socialist schemes, and shame on Congress for not removing those justices! A very poor precedent was set, whereby a sitting President had proven he could exert pressure on the Supreme Court to rule in his favor. Corruption and coercion between and amongst the three branches (five branches actually, including the states and the people) is a strong tool with which to undermine the tenets of limited government.
Please note that there is, in fact, NO requirement for Supreme Court justices previously to have been federal or state judges, or even to be lawyers. The Founders intended (and indeed, so wrote) that the Constitution be understandable, in its original intent, by the citizenry. When deciding on issues according to the tenets and principles in the Constitution, there should be no disqualification for appointment to the Supreme Court based on lack of law degree or admission to any bar. Thoughtful persons of integrity and high principles, who will study (a) the Constitution, (b) the Declaration of Independence, (c) the Federalist papers (including a couple of available translations into “modern” day English), (d) Madison’s contemporaneous Journal of the Federal Convention, (e) the Anti-Federalist papers which showed just how the new government would gradually outgrow its proper boundaries, and have available for reference (f) an old publication of an American Dictionary (because word meanings do change with time), are well able to determine the Constitution’s objective, original meaning, and make decisions based on those meanings. (Those study requirements should apply to anyone on the supreme bench!) We might well be better served by nine such persons than we are by many of the current crop – who went to law school and studied not the Constitution, but Supreme Court case law. Starting in the early 1900’s (recall the myriad incursions at this time by the early Progressives, bent on destroying the Constitution), law schools left off teaching the Constitution as a set of fixed principles as expounded and explained in the Federalist Papers. Instead, they began teaching what they call “constitutional law,” which is based upon Supreme Court case opinions - and those opinions vary ever more widely from original intent as more time passes, as is inevitable. (Think of building a brick wall: if one does not use a level, the courses will shift bit by bit, until what one ends up with is a crooked mess.) They have also spread, as if absolute truth, the falsehood that Supreme Court judges have unbridled authority to say what the Constitution means. These law school practices continue to this day.
Section 2 states the types of cases over which the courts shall have jurisdiction – and which court is assigned jurisdiction over what type of case. Obviously a court cannot hear a case if it does not have jurisdiction. You cannot sue your neighbor for putting their fence over the property line in a court in another state – that state does not have jurisdiction and rightfully refuses to hear the case, regardless of how good your proofs are. “The judicial power shall extend to all cases, in law and equity, arising under this Constitution...” but what does that “law and equity” phrase mean? They refer to “common law” and “equity law,” respectively. Common law, according to Black’s Law Dictionary, “comprises the body of those principles and rules of action, relating to the government and security of persons and property, which derive their authority solely from usage and customs of immemorial antiquity.” It also derives from “common sense” and has two strictures – don’t trespass on the property of others (criminal courts), and always keep your promises (civil courts). The Constitution is based on common law. Equity law, according to Black’s Law Dictionary, is “justice administered according to fairness as contrasted with the strictly formulated rules of common law.” Many of the English common laws called for rather harsh penalties; equity law was supposed to be based on what was more fair for the situation presented.
Section 2 also grants the federal courts jurisdiction over all cases affecting ambassadors, admiralty and maritime law (but NOT military – those are the courts martial), suits against the country, and suits between two or more states. Furthermore, it specifies that in all cases “affecting ambassadors... and those in which a state shall be party, the Supreme Court shall have original jurisdiction.” Why, then, did the federal suit against Arizona (for the “crime” of enforcing federal law which the federal government was not, itself, enforcing) come to be heard in a federal district court? The answer is simple: the district court, Congress, the attorneys for Arizona, and the supreme court ALL ignored (or did not know!) the Constitution in this instance. A fabulous and detailed analysis of this event can be found here: http://publiushuldah.wordpress.com/2010/08/16/the-trial-of-the-lawsuit-against-the-state-of-arizona-must-supreme-court-judges-obey-the-constitution-3/ and we will not delve into the matter further in this brief exposition except to state that we must restore the Rule of Law in accordance with our Constitution.
The last paragraphs of Article III, Section 2 are expounded upon in detail by Alexander Hamilton in Federalist #81. The second sentence of paragraph two addressed the technical issues of trials and appeals. In the cases where the Supreme Court has appellate (hears appeals) jurisdiction, they may look at both the rulings of law and the facts presented of the case. Congress may make rules and exceptions in these technical areas: methods of appeal for common versus civil law; cases heard and decided by judge or by jury, etc. In the final paragraph, technical details, which Congress may not change by statute, are set. Trials must be by jury except in cases of impeachment (which case is addressed in Article I, Section 3). Trials must be held in the state where the crime was committed (to ensure that those charged will be tried by their peers, not taken long distances from home and for long times, etc.). Crimes “not committed within any state” refer mainly to maritime crimes. Those trials are held as Congress “may by law have directed.”
Section 3 of Article III addresses and defines the issue of treason against the United States. Treason is specifically defined in this section, taking an expansion of this crime’s definition out of the hands of Congress. This step was to protect the new country from someday following excesses in English history where partisan divisions were deemed by Parliament to be treason, with commensurate punishment (and we see the epithet "traitor" bandied about by the partisan press against those who seek to uphold the Constitution today; thank heavens the Framers took this definition away from Congress!). Treason is defined by the Constitution as citizens levying war against the United States, “adhering” to enemies of the United States (1828 dictionary definition of “to adhere:” ...to hold to, be attached, or remain fixed, either by personal union or conformity of faith, principle, or opinion; as, men adhere to a party, a leader...), or giving those enemies “aid and comfort.”
This section also describes the requirements to prove treason – again, limiting Congress’ power to make a treason conviction too easy to obtain in the same way that Parliament and the King had done. They used the Biblical requirement from ancient Jewish law, necessitating the testimony of two witnesses to the same act (not separate acts) – or confession in open court (not in private) – as the minimum requirements to convict for treason.
The final sentence of Article III, Section 3, has one of the most colorfully phrased sentences in the Constitution. “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.” Well! Once we get past the first part where Congress gets to decide the punishment of treason, what does all the rest mean? Again, we hearken back to a rejection of English law and practice. Attainder is a “staining” or “rendering impure” and under English law, if one is convicted of treason (or some felonies), the judgment “corrupts” or “taints” one’s bloodline and renders one unable to inherit lands, goods, or money. Lands held are forfeited to the Crown, and one is permanently disqualified to be a witness in any court of law. When a sentence of death is levied, the “corruption of blood” attaints one’s family, leaving them in permanent penury. Conviction of treason in our country, however, affects only the traitor and not his or her family. While Congress is permitted to make laws that would confiscate the property of a traitor, that forfeiture can only be for the life of the convicted traitor, reverting to the family once the traitor’s life has ended. Nor can the family’s rights to inherit be touched.
Refs:
“Good To Be King,” Michael Badnarik – Chapter Two on Rights and Privileges available online FREE at http://www.constitutionpreservation.org/ - first choice under the “Purchase Book” menu.
“The 5,000 Year Leap,” W. Cleon Skousen
Publius Huldah’s blog at http://publiushuldah.wordpress.com, specifically the articles on Article III and the judiciary.
Justia Law Annotated US Constitution at law.justia.com
http://www.1828-dictionary.com/
© 2012 by the author
Section 1 defines the basic structure of the judiciary and the requirements for judges. It establishes one Supreme Court, and permits Congress to establish inferior Courts as they see the need. Judges of all courts will be compensated with a pay level that is not to be diminished while they hold their office – and those offices are held “during good behavior.”
The Founders, in two sentences, have given us enough discussion topics to fill at least as many pages!
Let’s start with one of the Founders’ nods to their own recent history – the compensation “not to be diminished” while the judge holds office. One of the Crown’s tactics to pressure Colonial judges to rule as the King wished was to punish those who did not, by cutting their pay. When any ruling counter to the Crown’s interest could cut off one’s ability to support one’s family, is it any wonder that many Colonial judges ruled in the Crown’s interest instead of by the rules of the law? This portion of Article III was put in place to insure that judges would not be coerced into making bad decisions simply to keep their families fed.
The number of inferior courts is left open. Currently, there are 94 federal district courts; these each are under the direction of one of 13 circuit courts of appeal (11 numbered circuit courts, one circuit court for Washington DC, and one called the “Federal circuit” whose jurisdiction is over the entire country, but limited by type of case), and the one supreme court. A map of the district courts can be found here: http://en.wikipedia.org/wiki/United_States_courts_of_appeals . Congress has the authority to change the geographic jurisdictions, number of judges, and the number of courts, as needed.
Judges hold their offices “during good behavior,” which means that they may keep their positions until they retire, die while in office, or are removed, by impeachment, for bad behavior. The Founders wanted the Supreme Court’s justices, and other federal judges, to be protected from the all-too-common taint and corruption that follows running for and being elected to office. There is, of course, no way to legislate a requirement to choose people with integrity and ethics to hold these offices; it is implied by the “good behavior” phrasing. The Constitutional remedy for a judge whose decisions demonstrate a lack of “good behavior:” evidence of corruption, lack of integrity or ethics, bias, or lack of understanding of the law or the Constitution they swore to uphold – is impeachment. This remedy has been used far too infrequently in our 200-plus year history. Judges now assume their positions are inviolable, and legislate from the bench, inventing “rights” and assuming “jurisdiction” that does not assist. Shame on us for not demanding of our Congress-critters that they remove such judges from office!
There is also no requirement for the minimum or maximum number of justices appointed to the Supreme Court. Congress has increased and decreased the number of justices on the Supreme Court several times since the original call for six justices codified in the Judiciary Act of 1789. It settled at nine in 1869 and has remained there since. However, FDR threatened to appoint additional justices to the supreme court (up to a maximum of 15) when the then-sitting court did not want to support his New Deal programs (since many were usurpations of powers not granted and should never have been allowed to stand). While FDR’s plan did not make it through Congress, the threat itself worked. Some of the justices capitulated, and then older justices began to retire. By the end of 1941 FDR had appointed seven new justices and his New Deal proposals were not struck down, as most should have been. Shame on the Supreme Court for not standing up to FDR and his socialist schemes, and shame on Congress for not removing those justices! A very poor precedent was set, whereby a sitting President had proven he could exert pressure on the Supreme Court to rule in his favor. Corruption and coercion between and amongst the three branches (five branches actually, including the states and the people) is a strong tool with which to undermine the tenets of limited government.
Please note that there is, in fact, NO requirement for Supreme Court justices previously to have been federal or state judges, or even to be lawyers. The Founders intended (and indeed, so wrote) that the Constitution be understandable, in its original intent, by the citizenry. When deciding on issues according to the tenets and principles in the Constitution, there should be no disqualification for appointment to the Supreme Court based on lack of law degree or admission to any bar. Thoughtful persons of integrity and high principles, who will study (a) the Constitution, (b) the Declaration of Independence, (c) the Federalist papers (including a couple of available translations into “modern” day English), (d) Madison’s contemporaneous Journal of the Federal Convention, (e) the Anti-Federalist papers which showed just how the new government would gradually outgrow its proper boundaries, and have available for reference (f) an old publication of an American Dictionary (because word meanings do change with time), are well able to determine the Constitution’s objective, original meaning, and make decisions based on those meanings. (Those study requirements should apply to anyone on the supreme bench!) We might well be better served by nine such persons than we are by many of the current crop – who went to law school and studied not the Constitution, but Supreme Court case law. Starting in the early 1900’s (recall the myriad incursions at this time by the early Progressives, bent on destroying the Constitution), law schools left off teaching the Constitution as a set of fixed principles as expounded and explained in the Federalist Papers. Instead, they began teaching what they call “constitutional law,” which is based upon Supreme Court case opinions - and those opinions vary ever more widely from original intent as more time passes, as is inevitable. (Think of building a brick wall: if one does not use a level, the courses will shift bit by bit, until what one ends up with is a crooked mess.) They have also spread, as if absolute truth, the falsehood that Supreme Court judges have unbridled authority to say what the Constitution means. These law school practices continue to this day.
Section 2 states the types of cases over which the courts shall have jurisdiction – and which court is assigned jurisdiction over what type of case. Obviously a court cannot hear a case if it does not have jurisdiction. You cannot sue your neighbor for putting their fence over the property line in a court in another state – that state does not have jurisdiction and rightfully refuses to hear the case, regardless of how good your proofs are. “The judicial power shall extend to all cases, in law and equity, arising under this Constitution...” but what does that “law and equity” phrase mean? They refer to “common law” and “equity law,” respectively. Common law, according to Black’s Law Dictionary, “comprises the body of those principles and rules of action, relating to the government and security of persons and property, which derive their authority solely from usage and customs of immemorial antiquity.” It also derives from “common sense” and has two strictures – don’t trespass on the property of others (criminal courts), and always keep your promises (civil courts). The Constitution is based on common law. Equity law, according to Black’s Law Dictionary, is “justice administered according to fairness as contrasted with the strictly formulated rules of common law.” Many of the English common laws called for rather harsh penalties; equity law was supposed to be based on what was more fair for the situation presented.
Section 2 also grants the federal courts jurisdiction over all cases affecting ambassadors, admiralty and maritime law (but NOT military – those are the courts martial), suits against the country, and suits between two or more states. Furthermore, it specifies that in all cases “affecting ambassadors... and those in which a state shall be party, the Supreme Court shall have original jurisdiction.” Why, then, did the federal suit against Arizona (for the “crime” of enforcing federal law which the federal government was not, itself, enforcing) come to be heard in a federal district court? The answer is simple: the district court, Congress, the attorneys for Arizona, and the supreme court ALL ignored (or did not know!) the Constitution in this instance. A fabulous and detailed analysis of this event can be found here: http://publiushuldah.wordpress.com/2010/08/16/the-trial-of-the-lawsuit-against-the-state-of-arizona-must-supreme-court-judges-obey-the-constitution-3/ and we will not delve into the matter further in this brief exposition except to state that we must restore the Rule of Law in accordance with our Constitution.
The last paragraphs of Article III, Section 2 are expounded upon in detail by Alexander Hamilton in Federalist #81. The second sentence of paragraph two addressed the technical issues of trials and appeals. In the cases where the Supreme Court has appellate (hears appeals) jurisdiction, they may look at both the rulings of law and the facts presented of the case. Congress may make rules and exceptions in these technical areas: methods of appeal for common versus civil law; cases heard and decided by judge or by jury, etc. In the final paragraph, technical details, which Congress may not change by statute, are set. Trials must be by jury except in cases of impeachment (which case is addressed in Article I, Section 3). Trials must be held in the state where the crime was committed (to ensure that those charged will be tried by their peers, not taken long distances from home and for long times, etc.). Crimes “not committed within any state” refer mainly to maritime crimes. Those trials are held as Congress “may by law have directed.”
Section 3 of Article III addresses and defines the issue of treason against the United States. Treason is specifically defined in this section, taking an expansion of this crime’s definition out of the hands of Congress. This step was to protect the new country from someday following excesses in English history where partisan divisions were deemed by Parliament to be treason, with commensurate punishment (and we see the epithet "traitor" bandied about by the partisan press against those who seek to uphold the Constitution today; thank heavens the Framers took this definition away from Congress!). Treason is defined by the Constitution as citizens levying war against the United States, “adhering” to enemies of the United States (1828 dictionary definition of “to adhere:” ...to hold to, be attached, or remain fixed, either by personal union or conformity of faith, principle, or opinion; as, men adhere to a party, a leader...), or giving those enemies “aid and comfort.”
This section also describes the requirements to prove treason – again, limiting Congress’ power to make a treason conviction too easy to obtain in the same way that Parliament and the King had done. They used the Biblical requirement from ancient Jewish law, necessitating the testimony of two witnesses to the same act (not separate acts) – or confession in open court (not in private) – as the minimum requirements to convict for treason.
The final sentence of Article III, Section 3, has one of the most colorfully phrased sentences in the Constitution. “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.” Well! Once we get past the first part where Congress gets to decide the punishment of treason, what does all the rest mean? Again, we hearken back to a rejection of English law and practice. Attainder is a “staining” or “rendering impure” and under English law, if one is convicted of treason (or some felonies), the judgment “corrupts” or “taints” one’s bloodline and renders one unable to inherit lands, goods, or money. Lands held are forfeited to the Crown, and one is permanently disqualified to be a witness in any court of law. When a sentence of death is levied, the “corruption of blood” attaints one’s family, leaving them in permanent penury. Conviction of treason in our country, however, affects only the traitor and not his or her family. While Congress is permitted to make laws that would confiscate the property of a traitor, that forfeiture can only be for the life of the convicted traitor, reverting to the family once the traitor’s life has ended. Nor can the family’s rights to inherit be touched.
Refs:
“Good To Be King,” Michael Badnarik – Chapter Two on Rights and Privileges available online FREE at http://www.constitutionpreservation.org/ - first choice under the “Purchase Book” menu.
“The 5,000 Year Leap,” W. Cleon Skousen
Publius Huldah’s blog at http://publiushuldah.wordpress.com, specifically the articles on Article III and the judiciary.
Justia Law Annotated US Constitution at law.justia.com
http://www.1828-dictionary.com/
© 2012 by the author
Article III
Section. 1. 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 Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Section. 2. 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.
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.
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.
Section. 3. 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.
Section. 1. 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 Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Section. 2. 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.
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.
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.
Section. 3. 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.