Gorsuch and the Constitution

            The topic of discussion for this Constitution Monday is the liberal concerns about judges, using the Constitution to weigh decisions. It seems that liberals prefer judges to pull their decisions out of thin air rather than use the Supreme Law of the land. However, the Founders had different ideas when they created this law.

            The Constitution grants “the power to interpret the law of the United States” to the U.S. Supreme Court and lower federal courts. They are to hold office “during good behavior” and to be paid for their services. The Judicial Learning Center site has the following statement. 

Our founders understood that judges who are able to apply the law freely and fairly are essential to the rule of law. The Constitution guarantees our rights on paper, but this would mean nothing without independent courts to protect them.

In our unique judicial system, courts are protected from the influence of other branches of government, as well as shifting popular opinion. This allows the judiciary to make decisions based on what is right under the law, without political or personal consequences.

            Liberals have tried to undermine the Constitution for years, so it should be no surprise to see them attacking the newest Justice on the Supreme Court. According to Elizabeth Slattery of The Daily Signal, liberals are currently upset with Justice Neil Gorsuch because he frequently reminds listeners of the need to follow the Constitution. He habitually cites this necessity by saying, “Let’s look at what the Constitution says about this … It’s always a good place to start.”  

            Slattery reports that Nina Totenberg “took aim at Gorsuch” on a recently aired “First Mondays” on NPR. Her objection with him is that he brings “things back to first principles at oral argument.” He has a long-standing habit of standing on the originally understood meaning of the Constitution.

            After quoting numerous compliments as well as complaints about Gorsuch, Slattery gets to the real problem with liberals. “According to the left, Gorsuch shouldn’t be on the Supreme Court, and Trump shouldn’t be in the White House. In other words, these criticisms of Gorsuch can be explained as simply another iteration of the resistance movement.”

            The liberals are still resisting the fact that Americans chose Donald Trump over Hillary Clinton to lead our nation as well as the fact that this lawfully-elected President is selecting judges who follow the Constitution in their arguments and decisions. After an entire year of this resistance, it appears that the left has doubled down in their attempt to destroy the Constitution and do not appreciate Gorsuch for upholding it.

No Attainder of Treason

                The topic of discussion for this Constitution Monday comes from Article III, Section 3, and Clause 2:  “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.”  This clause was included in the Constitution to protect the family of any person accused of treason and their right to inherit the property of the accused person.

                “All of this harks back to the dark days in English history.  The Crown often indulged itself in plunder by accusing some wealthy landowner of treason and then confiscating his estate.  This was not done at a trial but by an act of Parliament, called a `bill of attainder.’  The `attainder’ referred to the pointing of the finger at the accused.  Once he had been `fingered’ or `attainted,’ his property could be permanently confiscated by the Crown after the culprit was executed.

                “The United States ran into a similar problem during the Civil War.  Officers of the military or the United States government, who were under oath to serve the Union but joined the Confederate cause, were declared to be not only rebels but guilty of treason.  Action was therefore taken against their estates and many of them were confiscated and sold.  Nevertheless, after the death of these individuals, their heirs demanded back the property on the basis of this provision.  To the shocked amazement of the purchasers, the Supreme Court ruled that the property had to be returned to the heirs.  The property of a rebel could be expropriated for the life of the offender, but it could not be permanently `attainted’ as far as his family was concerned.  The Constitution said so” (W. Cleon Skousen, The Making of America – The Substance and Meaning of the Constitution, p. 626).

Punishment for Treason

                The topic of discussion for this Constitution Monday comes from Article III, Section 3, and Clause 2:  “The Congress shall have Power to declare the Punishment of Treason….”  This provision in the Constitution preserves two rights:  the right of the Congress to declare the punishment for treason and the right of the accused to know who will be affixing the punishment.

                “In 1790 Congress prescribed death by hanging as the punishment for treason.  In 1862 Congress enacted a law punishing the traitor by death, as well as liberating his slaves; or imprisoning him for not less than five years, with a fine of not less than $10,000, and liberating his slaves.

                “Today the punishment is death, or imprisonment and fine, and the loss of any right to hold office under the United States” (W. Cleon Skousen, The Making of America – The Substance and Meaning of the Constitution, pp. 624-625). 

                Skousen gave the following explanation about a very famous case of treason – Ethel and Julius Rosenberg.  “During World War II the atomic bomb was developed by the United States in an atmosphere of the most profound secrecy.  Through subversive activities, the Soviet Union used its allied status to secretly secure vast quantities of uranium salts and the associated ingredients necessary to construct an atomic bomb.  However, they were unable to obtain a detonator and therefore employed two Americans to get the U.S. design.  To the surprise of everyone, the Soviets exploded an atomic bomb many years before they were expected to do so, thereby creating an ominous tension throughout the world.  Under the umbrella of this new advantage, Joseph Stalin then launched a series of military conquests, and the United States soon found itself involved in heavy warfare as a result of its obligations to help defend its allies.  The United States was in Korea in the midst of a most costly conflict – in both treasure and bloodshed – at the time the FBI identified the two spies who had helped the Soviet Union get the plans for the detonator.  They were Julius and Ethel Rosenberg.  They were tried and convicted in 1951 and were executed in 1953.  Although there was a worldwide campaign to have their sentence commuted to life, the execution took place” (Making of America, p. 625).

                Bradley C.S. Watson of The Heritage Foundation wrote, “The actual punishments for those convicted of the federal crime of treason have generally been more lenient than the statutory maximums.  Those convicted for their part in the Whiskey Rebellion were pardoned by President George Washington.  The United States government regarded Confederate activity as a levying of war, but all Confederates were pardoned by presidential amnesty.  Max Haupt, convicted for giving aid and comfort to his alien son, was spared death and sentenced to life imprisonment.  (His son Herbert was convicted by a military tribunal for his role as saboteur, and executed.)  Tomoyo Kawakita, convicted of treason for abusing American prisoners of war, was sentenced to death but had his sentence commuted to life imprisonment by President Dwight D. Eisenhower.  By contrast, the Rosenbergs’ espionage convictions brought death sentences” (The Heritage Guide to the Constitution, p. 266).

Treason

                The topic for this Constitution Monday comes from Article III, Section 3, and Clause 1:  “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”  This provision plainly states that Americans can charge anyone with treason if they wage war against the United States or give aid and comfort to our enemies.

                W. Cleon Skousen further explained this provision:  “In colonial times, according to Blackstone, England had seventeen different acts which were described as `treason.’  The penalty was death by hanging until unconscious, followed by revival, then disemboweling, beheading, and quartering. [This sounds gruesome to me!]

                “In the Constitutional Convention it was proposed that the Congress be allowed to specifically define treason because the Founders felt that this might be abused by federal officials as it had been in England.  Treason became the only crime to be defined in the Constitution.  It was limited to two offenses, namely, levying war against the United States and adhering to its enemies by giving them aid and comfort.

                “It is noteworthy that treason can be committed by any citizen living either in the United States or abroad.  Treason can also be committed by an alien living within the United States and consequently receiving the benefit of its protection” (The Making of America – The Substance and Meaning of the Constitution, pp. 621-622).

                Skousen also explained that no foreign nation can be considered as an “enemy” unless Congress declares war against it.  There were people who were sympathetic to the communists in both North Korea and North Vietnam, but they could not be tried for treason because Congress did not declare war.  [I believe that Jane Fonda was treasonous during the Vietnam War.]

                Bradley C.S. Watson of The Heritage Foundation explained the purpose for including treason in the Constitution.  “Reflecting the American Founders’ concern with protecting individual rights and their fear of arbitrary governmental power, the Framers of the Constitution sought a precise and permanent definition of treason, the permissible means of proving it, and the limitations on the punishment for it.  The drafters of the Constitution reached back (as had the Continental Congress) to language in the statute of 25 Edward III (1350), which limited treason, among other things, to compassing or imagining the death of the king, levying war against the king, or adhering to the king’s enemies, giving them aid and comfort.  But the Framers’ work was even narrower.  They did not include the language of `compassing or imagining,’ which had been the basis of the English doctrine of `constructive treason,’ an effective and easily abused method for dealing with political opponents.  Thus, in the Constitution, treason consists only in levying war against the United States or adhering to its enemies by giving them aid and comfort. It may be proved only by confession in open court, or on the testimony of no fewer than two witnesses to the same overt act” (The Heritage Guide to the Constitution, p. 264).

Other Trials

                The topic of discussion for this Constitution Monday comes from Article III, Section 2, and Clause 3:  “When [a crime is] not committed within any state, the Trial shall be at such Place or Places as the Congress may by Law have directed.”  This provision in the Constitution states that Congress will designate the place of trials of any crimes committed outside of any state, such as territories or on the open sea.

                W. Cleon Skousen explained, “In the Northwest Ordinance, passed in 1787 – the same year the Constitution was written – Congress had provided for the administrative affairs of the one major territory that was under its jurisdiction at that time.  However, there were other regions for which no provision was made.  In the above section the Founders indicated that any judicial questions outside of any state or on the high seas should be settled in a manner dictated by Congress” (The Making of America – The Substance and Meaning of the Constitution, p. 621).

Place of Trial

                The topic of discussion for the Constitution Monday comes from Article III, Section 2, and Clause 3:  “The Trial of all Crimes … shall be held in the State where the said Crimes shall have been committed….”  This provision in the Constitution allows defendants to be tried in a location where the witnesses and relatives can attend the trial.

                W. Cleon Skousen quoted Edmund Pendleton of Virginia who “commented on the safeguards which the Founders were endeavoring to provide the accused in a criminal case.  He said that this provision and the one preceding it guarantee `that the trial shall be by jury [and] that it shall be in the state where the offense is committed….  We have this security – that our citizens shall not be carried out of the state, and that no other trial can be substituted for that by a jury.’

                “One of the most serious complaints in the Declaration of Independence against King George III was the fact that he was condemned by the American colonies `for transporting us beyond [the] seas to be tried for pretended offenses.’

                “Under the new Constitution the founders did not want similar incidents of injustice to occur where a citizen was tried in one state for a crime allegedly committed in another” (The Making of America – The Substance and Meaning of the Constitution, pp. 620-621).

                Rachel E. Barkow of The Heritage Foundation explained:  “Article III (and the Sixth Amendment) also contain[s] provisions relating to venue, the place where a case is to be tried, and vicinage, the place from which the members of the jury pool trying the case are to be drawn.  The Declaration of Independence condemned the English practice of transporting colonial defendants overseas to England for trial by juries of Englishmen.  In response, the Constitution guarantees a criminal defendant both the right to be tried in the state where his alleged crime was committed and by a jury drawn from the population of the state and district where the alleged crime occurred” (The Heritage Guide to the Constitution, p. 263).

Trial for Crimes

                The topic of discussion for this Constitution Monday comes from Article III, Section 2, and Clause 3:  “The Trial of All Crimes, except in Cases of Impeachment, shall be by Jury….”  This provision informs us that individuals indicted for crimes have the right to a trial by jury; it also tells us that impeachment proceedings, which take place in the U.S. Senate, do not qualify for jury trials.

                Our Founding Fathers considered trials by jury to be important enough to include this clause in the Constitution.  W. Cleon Skousen gave the following explanation:  “Up until 1895 Americans enjoyed all of the powers of the original common law jury.  This was a far more powerful instrument of justice than the jury system today.  In fact, the Founders considered it the foremost defense in the American legal structure to protect the people against oppressive laws passed by the legislature or abusive judges deliberately misinterpreting the law.

                “The common law jury not only had power to `determine the facts,’ but it also had authority to `determine the law.’  It could determine what the law meant and whether or not the jury considered it constitutional.  The jury could even ignore the law if it felt it would cause an injustice if applied to the case at hand.

                “Under these circumstances the jury was allowed to hear the arguments of attorneys on both sides as to the meaning of the law and how it should be applied in that particular case.

                “Furthermore, although the judge interpreted the law for the jury, they were not bound to accept his interpretation.  In other words, the interpretation of the judge was merely `advisory.’  The jury was free to reach its own conclusions as to just what the law required.

                “Such were the powers of the original American common law jury” (The Making of America – The Substance and Meaning of the Constitution, pp. 614-615).

                Rachel E. Barkow at The Heritage Foundation gave further explanation:  “The American right to a trial by a jury of one’s peers traces its lineage back to 1297 and the Magna Carta.  By the mid-sixteenth century, the jury had already taken on the form it retains to this day in federal courts and some state courts – twelve citizens were summoned to sit in sworn judgment of the criminal allegations against one of their peers….

                “Because judges themselves were part of the government, many framers feared they would not be an adequate check on government abuse of the criminal process.  The jury, therefore, was made part of the original structure of government in order to provide a mechanism for ensuring that individuals would not lose their liberty under a criminal law until the people themselves concurred.

                “In many criminal cases in the nation’s early history, the jury not only applied the law to the fats it found, but decided questions of law themselves….

                “Over time, however, this power eroded.  In 1895, the Supreme Court concluded in Sparf and Hansen v. United States that the jury did not have the `right’ to decide legal questions.  As a result, today judges can – and do – instruct juries that they must accept the judge’s view of the law, and lawyers are no longer allowed to argue the merits of the law to the jury.  Because the jury possesses authority to issue an unreviewable general verdict of acquittal, the jury nevertheless retains the raw power to check general laws with which it disagrees in individual cases.  But because the trial judge does not instruct the jury that it has this authority, the jurors may not know that they have it.  In addition, even if the jurors are aware of this power, they must exercise it knowing it is contrary to the judge’s instructions, even when the jury itself disagrees with the law in question, with the judge’s interpretation of the law, or with the law’s application in the case before it.”

                Barkow stated that the power of the jury to check the government has eroded in other ways as well.  1) A defendant can now waive a jury trial in favor of a bench trial but could not do so prior to 1930.  2) The majority of cases never reach the jury because they are resolved by plea bargain.  3) Congress and state legislatures “identify blameworthy behavior and specify the criminal punishment for that behavior” and insist “that judges, not juries, apply these laws” (The Heritage Guide to the Constitution, pp. 262-263).

                These two explanations helped me to understand more clearly why some criminals are not forced to pay the price for their behavior and are set free to prey on the people once again.  It also makes clear how judges with their own agendas can do more damage to our society than would be done by a group of people who are the defendant’s peers.  The framers were very wise when they wrote the Constitution, but their founding document and instructions have been changed to suit the designs of evil men and women.

Appellate Jurisdiction

                The topic of discussion for this Constitution Monday comes from Article III, Section 2, and Clause 2:  “In all the other Cases before mentioned [all cases arising under the Constitution or the federal laws and treaties], 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.”

                “This provision gives the Congress the RIGHT to limit the appellate jurisdiction of the Supreme Court on any subject not previously allocated to it as a matter of primary jurisdiction by the Constitution.

                “This provision was not designed to give Congress the power to limit the jurisdiction of the federal courts, but simply to make decisions on many topics conclusive after a hearing in the lower courts.  It was the purpose of the Founders to protect the Supreme Court from being submerged by a mountain of trivial cases when it should be concentrating its attention on matters of national importance” (See W. Cleon Skousen in The Making of America – The Substance and Meaning of the Constitution, p. 612).

                “Recent debate over the Appellate Jurisdiction Clause has centered on proposals for legislation that would remove existing Supreme Court jurisdiction.  Constitutional scholars strongly disagree as to how far Congress may go in removing Supreme Court jurisdiction under the clause….

                “The Supreme Court has remained aloof from the scholarly contest, leaving its precedents to stand for broad congressional authority to limit the appellate jurisdiction of the Supreme Court.  Thus far, the Court has followed the lead of John Marshall, who stated in the Virginia ratifying convention:  `Congress is empowered to make exceptions to the appellate jurisdiction, as to law and fact, of the Supreme Court.  These exceptions certainly go as far as the legislature may think proper for the interest and liberty of the people’” (See Andrew S. Gold in The Heritage Guide to the Constitution, p. 260).

Cases Where a State is Party

                The topic of discussion for this Constitution Monday comes from Article III, Section 2, and Clause 2:  “In all Cases … in which a State shall be Party, the supreme Court shall have original Jurisdiction….”

                “When a sovereign and independent state is a party to a federal case, it is essential that it have the RIGHT to be heard in the highest court in the land.

                “This provision was in deference to the anxieties of the states that the federal judiciary would treat the states as subordinate departments of the general government.  This provision was to emphasize that the federal government would always be fully cognizant of the sovereign entity represented in each state of the Union.  As Alexander Hamilton put it:  `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’” (As quoted by W. Cleon Skousen in The Making of America – The Substance and Meaning of the Constitution, p. 607).

                “The Supreme Court’s original jurisdiction is limited to a narrow but important range of cases.  The grant of appellate jurisdiction under Article III is far broader, although under the Appellate Jurisdiction, Congress has at least some discretion to modify it. The Court has been assiduous in protecting the Constitution’s core grant of original jurisdiction from congressional expansion.  The Court explicitly declared in Marbury v. Madison (1803) that Congress cannot add to the Supreme Court’s original jurisdiction.  Under Section 13 of the Judiciary At of 1789, Congress had granted the Court mandamus power (the power to order lower courts or executive officials to perform duties required by law).  In Marbury, Chief Justice John Marshal held that the mandamus power as applied to executive officials was actually a grant of original jurisdiction, and that Congress could not constitutionally expand the original jurisdiction of the Supreme.  Writing for the Court, the Chief Justice declared Section 13 unconstitutional and denied the relief sought.  Marshall’s carefully crafted (1) by limiting its scope to the categories of cases contained in the text; and, as a consequence, (2) by shifting its focus from executive matters to suits between states….

                “There have been fewer than two hundred state-versus-state original cases in the history of the Republic, less than one per year of constitutional life. There have been only two original cases under the `affecting Ambassadors’ section of the clause.  Despite these relatively modest numbers, original jurisdiction continues to serve an indispensable purpose in resolving matters of high moment between states.  No forum other than the Supreme Court can act with the authority and dignity necessary to resolve what are in effect diplomatic encounters between contending sovereigns under our constitutional system” (See Paul Verkuil in The Heritage Guide to the Constitution, pp.257-258).

Cases Involving Diplomatic Officers

                The topic of discussion for this Constitution Monday comes from Article III, Section 2, and Clause 2:  “In all Cases affecting Ambassadors, other public Ministers and Consuls …, the supreme Court shall have original Jurisdiction….”

                “Because of the delicate relationships with foreign powers, this provision gives any top diplomatic officer the RIGHT to have immediate access to the highest tribunal in the land in order to settle any legal problem.

                “The traditional protocol between nations has always allowed a diplomat representing the ruler or leaders of a sovereign nation to deal with the top leaders of the host nation.  The same principle applies where an ambassador or minister of a foreign country has become entangled in some legal problem which might affect the relationship between the United States and the country he represents.  Alexander Hamilton gave the following explanation:

                “`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” (As quoted by W. Cleon Skousen in The Making of America – The Substance and Meaning of the Constitution, p. 607).

Controversies with Foreigners

                The topic of discussion for this Constitution Monday comes from Article III, Section 2, and Clause 1:  “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 … and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.  This clause gave State or Citizen the right to have their case with foreigners heard by Federal Courts. 

                “After the Revolutionary War there were claims and counter-claims in vast numbers between Americans and foreign litigants and the agents of foreign nations.  The great problem in all of these cases was finding a tribunal in which the parties were willing to have their claims litigated.

                “In this provision, the United States was making available to both its own citizens and foreign complainants the highest tribunals of the land – courts which represented the juridical forum of the nation rather than one of its parts, such as a state” (W. Cleon Skousen in The Making of America – The Substance and Meaning of the Constitution, pp. 605-606).

                This clause was changed by the Eleventh Amendment, which was ratified February 7, 1795:  “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” 

                “… [T]he important point for present purposes is simply that the proper reading of the Eleventh Amendment – and the scope of state sovereign immunity generally – remains bound up with disputes about what the Framers intended to accomplish with the Citizen-State Diversity Clauses” (Ernest A. Young in The Heritage Guide to the Constitution, p. 253).

Controversies Involving Land

                The topic of discussion for this Constitution Monday comes from Article III, Section 2, and Clause 1:  “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 … between Citizens of the same State claiming Lands under Grants of different States.”   When disputes involve lands or grants in states other than their own, this provision gives citizens of the same state the right to have their case heard in a federal court.

                “When this provision was discussed in the debates there was great concern that this measure would deprive the states of their legitimate jurisdiction over the affairs of their own citizens.”  (See W. Cleon Skousen in The Making of America – The Substance and Meaning of the Constitution, p. 604).

                Skousen continued with a number of questions, which were answered with quotes from the Founders.  Basically, the Founders said that this type of dispute should be considered the same as “determination of controversies between different states and their citizens” (A. Hamilton), “this provision does not affect the internal affairs of the State” (W. Davie), “this clause takes nothing from the States” (Wilson), and “such disputes involve the interests of two states” (Marshall).

                “Derived from Article IX of the Articles of Confederation, the Framers included the Land Grant Jurisdiction Clause along with the Citizen-State Diversity Clause in order to promote `peace and harmony’ among the states by providing, as Justice Joseph Story described, an impartial federal tribunal in matters where `a state tribunal might not stand indifferent in a controversy where the claims of its own sovereign were in conflict with those of another sovereign.’  Town of Pawlet v. Clark (1815).

                “The Framers were mindful of the possibility of serious disputes over the western lands among the states and between citizens of the several states and of the same state. It was the same concern that had led to the predecessor clause in the Articles of Confederation.  Maryland refused to ratify the Articles of Confederation until 1781 – four years after the Continental Congress had approved the document – because of conflicting land claims.  Maryland’s primary concern was that Virginia would be able to dominate the national congress should it prevail in its extensive claim to all the lands west `to the South Sea,’ as conveyed in its initial royal charter.  Moreover, several other states – Massachusetts, Connecticut, North Carolina, South Carolina, and Georgia – had similar, overlapping claims, derived from their own royal charters, and New York as `suzerain of the Iroquois Indians,’ also laid claim to vast expanses of land west of the Delaware River.  These conflicting claims threatened to embroil the states in a series of border disputes that were significant enough to place the new union itself at risk.

                “Virginia’s cession of the lands northwest of the Ohio River in 1783, the parallel cessions of the western lands by the other states over the following decade, and the passage of the Northwest Ordinance while the Constitutional Convention was meeting all defused much potential conflict.  These often-overlooked cessions demonstrated the commitment and the sacrifice that the states made for the sake of the future stability of the union.  Nonetheless, boundary disputes among ten of the states convinced the Framers of the need of a federal forum to settle such conflicts….” (See John C. Eastman in The Heritage Guide to the Constitution, p. 255.)

Controversies between Citizens of Different States

                The topic of discussion for this Constitution Monday comes from Article III, Section 2, and Clause 1:  “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 … between Citizens of different States ….”  This provision was put in place in order that citizens of different states would have a “neutral arena” for their case to be heard.

                “One of the greatest deficiencies under the Articles of Confederation was the lack of a federal judiciary to handle problems of this type.  When citizens of different states had a matter to be adjudicated, neither felt he could get a fair trial anywhere but in his own state, and thus the matter could not be satisfactorily settled” (W. Cleon Skousen in The Making of America – The Substance and Meaning of the Constitution, p. 604).

Controversies between States and Citizens of Other States

                The topic of discussion for this Constitution Monday comes from Article III, Section 2, and Clause 1:  “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 …. Controversies … between a State and Citizens of another State….”  This provision was repealed by the Eleventh Amendment after only one instance of being used.

                “This provision, which gave a citizen of one state the RIGHT to sue another state in federal court, created a storm of protest during the debates because traditionally no state can be sued without its consent.  This allowed any ordinary citizen with a complaint against another state to have it hauled into federal court without its consent.

                “As we shall see … it took only one instance where this provision was put into effect to fire up the anger of enough states to get this provision eliminated.  The … comments made during the various conventions demonstrate the profound concern which many felt and which turned out to be valid” (W. Cleon Skousen in The Making of America – The Substance and Meaning of the Constitution, pp. 602-603).

                “Article III’s provisions extending the federal judicial power `to Controversies between a State and Citizens of another State’ and `between a State … and foreign States, Citizens or Subjects’ are generally known as the Citizen-State Diversity Clauses. Although these clauses have a variety of applications, they have played a primary role in enduring controversies over the scope of state sovereign immunity in suits by private parties.

                “The Founding generation seems generally to have accepted the notion that the states enjoyed some form of sovereign immunity, derived from the common law, that shielded them against suits by private individuals.  Article III’s express provision for federal court jurisdiction over suits between individuals and state governments thus raised the possibility that ratification of the Constitution would override this common-law immunity…

                “The Supreme Court rejected … [the idea that this clause `left the states’ preexisting immunities intact’]… however, in Chisholm v. Georgia (1793).  That case involved a suit by a South Carolina citizen to recover Revolutionary War debts owed by the State of Georgia.  The State of Georgia insisted that it was immune from such suits, but the Court upheld its jurisdiction.  While Justice Wilson rejected the very notion of state sovereign immunity on the broad ground that it was antithetical to republican government, Justices John Jay, John Blair, and William Cushing relied primarily on the Citizen-State Diversity Clauses. They argued that those clauses had in fact done precisely what the Anti-Federalists feared – that is, overridden the common-law immunity that the states would otherwise have enjoyed in a suit by a private individual.  Only Justice James Iredell dissented, primarily on the ground that Congress had not passed any statute that clearly authorized private suits against state government in the federal courts.

                “The Court would later say, in Hans v. State of Louisiana (1890), that Chisholm `created such a shock of surprise throughout the country that, at the first meeting of Congress thereafter, the Eleventh Amendment to the Constitution was almost unanimously proposed, and was in due course adopted by the legislatures of the States.’  …. [The] important point for present purposes is simply that the proper reading of the Eleventh Amendment – and the scope of state sovereign immunity generally – remains bound up with disputes about what the Framers intended to accomplish with the Citizen-State Diversity Clauses” (Ernest A. Young in The Heritage Guide to the Constitution, pp. 252-253).

Cases with USA as a Party

                The topic of discussion for this Constitution Monday comes from Article III, Section 2, Clause 1:  “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 … to Controversies to which the United States shall be a Party….”

                “Because the United States government is the highest level of legal authority in the Union, it is only appropriate that any issue in which it is a party should be adjudicated as a matter of RIGHT in the highest available tribunals of the nation” (W. Cleon Skousen in The Making of America – The Substance and Meaning of the Constitution, p. 601).

                “Among the numerous jurisdictional grants to the new federal court system, one of the least controversial was the proposition that the new federal courts should have jurisdiction over any case to which the new United States was a party.  The provision for jurisdiction over cases to which the United States is a party was a comparatively late addition to the Constitution, adopted long after the Committee of Detail had completed its work.  It seemed to reflect nothing more than a correction of an oversight.  As Alexander Hamilton said of this jurisdictional grant:  `any other plan would be contrary to reason.’  The Federalist No. 80.  Even the Constitution’s most vigorous opponents in the Anti-Federalist camp acknowledged the logic of this position.  Later, Chief Justice John Jay noted in Calder v. Bull (1798) that federal jurisdiction over cases involving the United States was necessary `because in cases in which the whole people are interested, it would not be equal, or wise, to let any one state decide, and measure out the justice due others.’

                “Today, the interesting legal questions about this clause involve determinations of precisely what entity is the `United States’ and when the United States has consented to be a party to a lawsuit” (David F. Forte in The Heritage Guide to the Constitution, p. 248).

Admiralty and Maritime Jurisdiction

The topic of discussion for this Constitution Monday comes from Article III, Section 2, Clause 1:  “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 of admiralty and maritime Jurisdiction….”  This clause has to do with the jurisdiction of courts of law over cases concerning ships or the sea and other navigable waters.

                “Because maritime and admiralty cases relate to problems lying outside the normal jurisdiction of a state, this provision gives litigants the RIGHT to have their case heard in a federal court” (W. Cleon Skousen in The Making of America – The Substance and Meaning of the Constitution, p. 600).

                Skousen also provided the following quote from Alexander Hamilton:  “The judiciary authority of the Union ought to extend … to all [cases] which originate on the high seas, and are of admiralty or maritime jurisdiction….  Maritime causes … so generally depend on the laws of nations and so commonly affect the rights of foreigners that they fall within the considerations which are relative to the public peace” (The Making of America, p. 600).

                “In England, a long-established separate system of courts, beginning with Edward III, dealt with maritime and admiralty issues.  According to Sir William Blackstone in Commentaries on the Laws of England, these courts had jurisdiction `to determine all maritime injuries, arising upon the seas, or in parts out of the reach of the common law.”  During the Revolution, state prize courts often violated international law by condemning prizes belonging to sister states, or nations that were neutral or even allies of the United States.  Consequently, after Independence, both the Articles of Confederation and the Constitution gave the national government exclusive admiralty and maritime jurisdiction.  In Philadelphia, the only debate among the Framers of the Constitution was whether to lodge admiralty questions in a separate court or, as they finally decided, in the federal judiciary.  There was unanimity, even among the Anti-Federalists, that this power should be national” (David F. Forte in The Heritage Guide to the Constitution, p. 247).

Judicial Power and Ambassadors

                The topic of discussion for this Constitution Monday comes from Article III, Section 2, Clause 1:  “The judicial Power shall extend to all Cases … affecting Ambassadors, other public Ministers and Consuls….”  This provision means that our Constitution will protect the rights of any high official of foreign government in any cases in which he/she is involved.

                “One of the most delicate relationships with foreign powers is the occasion when their ambassadors or various ministers become entangled in some irregularity or violation of the laws of the host state.  The diplomatic corps of any nation has always received the most courteous consideration on the highest levels of government in order to avoid any misunderstanding or strain between the two nations.

                “Experience has vindicated the Founders’ wisdom in setting up this procedure” (W. Cleon Skousen in The Making of America – The Substance and Meaning of the Constitution).

Judicial Power and Laws of US

                The topic of discussion for this Constitution Monday comes from Article III, Section 2, Clause 1:  “The judicial Power shall extend to all Cases, in Law and Equity, arising under … the Laws of the United States….”  Because this clause is in the Constitution, Americans have the right to appeal to the federal courts whenever there is a question about the interpretation or enforcement of any of the laws of the United States.

                “In many cases there are crimes or other situations where the federal government and the state have joint jurisdiction.  These cases frequently have to be referred to the federal courts to determine whether the defendant comes under a law of the United States.  If so, the federal courts have jurisdiction.”  (See W. Cleon Skousen in The Making of America – The Substance and Meaning of the Constitution, p. 596.)

Judicial Power and the Constitution

                The topic of discussion for this Constitution Monday comes from Article III, Section 2, Clause 1:  “The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution….”  This provision in the Constitution simply states that the people can take any constitutional question directly to the federal court system.

                “Even though the Founders emphasized that the jurisdiction of the state courts was to be kept entirely separate from that of the federal courts, if a constitutional question is raised during the litigation of a state case, the matter can be immediately referred to the federal courts for a decision.

                “One question answered by the Founders in connection with this provision was… Why must constitutional questions always be referred to a federal court?

                “[Alexander Hamilton explained that the] federal judiciary is the exclusive guardian of the Constitution:  `It seems scarcely to admit of controversy that the judiciary authority of the Union ought to extend … to all [cases] which concern the execution of the provisions expressly contained in the articles of Union ….  There ought always to be a constitutional method of giving efficacy to constitutional provisions….’

                “[Hamilton also argued that” laws must conform to the Constitution:  `The Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution….”  (See W. Cleon Skousen in The Making of America – The Substance and Meaning of the Constitution, pp. 595-596.)

Judicial Power for All

                The topic of discussion for this Constitution Monday comes from Article III, Section 2, Clause 1:  “The judicial Power shall extend to all Cases, in Law and Equity….”  This principle in the Constitution bestowed up the federal courts the power and authority to handle all cases whether pertaining to law or equity.

                “Article III, Section 2, delineates the scope of the federal judicial power by listing nine kinds of `Cases’ and `Controversies’ to which the `judicial Power’ of the United States may extend.  By far the most important is the category encompassing `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.’  This is often referred to as the `federal question’ jurisdiction, and, although that is something of a misnomer, it is a convenient label.

                “From the beginning, the Framers intended the scope of the jurisdiction to be broad....

                “There was little discussion of this provision at the Convention.  In the course of a single day, the Convention deleted the reference to `the general Legislature’ and extended the judicial power to cases arising under the Constitution and treaties in addition to the cases arising under federal laws.  When the Committee of Style reported to the Convention in September, the provision read substantially as it does today….

                “Finally, it should be made clear that federal jurisdiction extends to cases, not issues.  When a federal court has jurisdiction over a case that arises under federal law, the jurisdiction extends to the whole case, and the court will often have power to consider other issues in the case whether state or federal.”  (See Arthur Hellman in The Heritage Guide to the Constitution, pp. 241-243.)