Posted by
David Smith on Friday, October 12, 2007 8:19:33 PM
Can I share with you what I learned this week?
I learned a few things about the Federal Judiciary, jurisdiction, and the games people play pertaining to the issue of abortion. It is very interesting stuff, indeed!
Harvard-ites, tune in--you won't be learning this stuff at Con Law 101, I suspect!
First of all, Article 3 as it appears in the originally-ratified Constitution:
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 Behavior, 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."
Forgive me for excluding Section 3, which deals with Treason and is therefore irrelevent to my purposes.
Note that the 11th Amendment, ratified not 5 years after the Constitution, was the first instance of a "supreme Court" opinion being overturned by Constitutional Amendment by Congress and the States. Kind of a "slap down." When exactly did we get away from that?? The 11th Amendment:
"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."
Big deal, right? Well, this basically means that you cannot sue another State in Federal Court--go sue them in State Court--in their State! Also, note that while you may sue an individual from another State in Federal Court, you may not sue your State in Federal Court. Again, that is what State Court is for. This should be cited in every case that ever was heard in the Federal Judiciary that dealt with State Law: Dred Scott, Plessy, Brown, Roe--you name it!!
Do you understand the fundamental principle involved here, folks?? Review: The Federal Government only has that Power over the States which the States award to the Federal Government!!
I'm not seeing what is so hard to understand?!
Now, in case you're still scratching your head, consider those cases that I just rattled off.
Dred Scott v. San(d)ford (1857)--slavery; matter of State Law.
Plessy v. Ferguson (1896)--segregation; matter of State Law.
Brown v. Topeka Board of Education (1954)--reversed segregation; matter of State Law and "supreme Court" precedent.
Roe v. Wade (1973)--abortion; matter of State Law.
Note: None of these cases involves a State. Not one. Yet every single one of them involves a matter of State Law!
OK, I should probably state this before I proceed. First, slavery is terrible, and it is terrible that it was ever practiced in this country. It is terrible that it was recognized, though not regulated by, the Constitution, other than banning Congress from abolishing the International trade of slaves prior to 1808. It is terrible that the "supreme Court" declared slavery constitutional in Dred Scott. In my personal opinion, it is terrible that the "supreme Court" clerk could not even spell the defendant's name correctly in that matter.
It is terrible that we fought a war over slavery, among other issues. It is terrible that we endured the period of Reconstruction as a result of this war. It is terrible that segregation resulted, and that the "supreme Court" ruled this constitutional as well, although this time they spelled the defendant's name correctly!
It is terrible that it took the "supreme Court" nearly 50 years to right the wrong represented by Plessy. It is terrible that the Civil Rights era was so turbulent and that we had such a bitter debate over such a simple issue over 100 years after fighting said war. And it is terrible that through this whole time period from prior to 1860 to 1964, and even unto today, that we still look on each other, black and white, as terribly as we do.
Now, that all being said, what is the most terrible about all of this is the damage that has been done, continuously and repeatedly, to our Constitution. The "supreme Court" began this process, and today it continues with many other issues, namely abortion, religion, and capital punishment.
Here is what we know as it pertains to abortion. "Jane Roe," also known as Norma Jean McCorvey, claimed to be pregnant at the time the original case, Roe v. Wade, was filed in Dallas Federal Court. Ms. McCorvey/Roe now admits this was not the case.
We know that the prosecution in this case, notably two ladies very left of center on the modern political spectrum, went "cherry-picking" to find their "Jane Roe." Further, once they found their "Roe," the sued in Dallas Federal Court. Instead of naming the State of Texas as the defendant, since that is not allowed as showed above, they chose Dallas County District Attorney as their defendant, thus nullifying the issue altogether. Except that two individuals involved in a suit are supposed to go through State Court.
So we have a "made-up" name in "Roe" meant to disguise their "made-up" defendant, who actually had no grounds to file suit in this matter anyways, being that she now admits that she was not pregnant, filing a Federal suit in a matter that should have named the State as defendant in a State case filed in State Court.
Am I missing anything here??
Oh, then there is the matter of the sister case in Georgia, Doe v. Bolton, following largely the same charade, except that the married plaintiff's alleged a hypothetical scenario under future circumstances. This is acknowledged fact as stated in the Roe case materials, which is why the "supreme Court" threw the Doe case out entirely.
Then there is the continuing legal strategy in Pennsylvania where Planned Parenthood v. Casey (1992) names State Attorney General, and not the State of Pennsylvania as defendant.
Are noticing a pattern here?
We are not allowed to sue our State in Federal Court.
We are not allowed to sue other citizens of our State in Federal Court in State matters.
We are required to bring matters of State Law to suit in State Court.
Interesting history there. Quite frankly, the Judiciary should have slapped this suit back down to Texas State Court, recognizing the funny business being engaged in by the plaintiff's counsel. Come on. In addition to not being the jurisdiction of the Federal Judiciary, the 10th Amendment trumps the Federal Government entirely. Wake up!
Now here is where my week gets interesting. Re-read that part in Article 3, Section 2 about jurisdiction. This is fun!
First, Section 1 grants Congress explicit, exclusive control over the "inferior Courts." That's what happens when you are allowed to "ordain and establish" something.
Think about it...
"We the people of the United States of...<blah, blah, blah>...do hereby ordain and establish this Constitution for the United States of America."
"The judicial Power of the United States, shall be vested in one supreme Court (hence my capitalization!), and in such inferior Courts (I love that term!) as the Congress may from time to time ordain and establish."
So in other words, "We the people" get to institute something as grand and extraordinary as the Constitution, and likewise, the Congress gets to set up the Federal Judiciary in the same manner!
This is really funny if you stop and think about it! Who rules over the Judiciary? The "supreme Court?" No! Congress!! The "all-powerfull" "supreme Court" isn't even given the Power to set up and rule it's own branch of government!!
But wait, there's more...
Article 3, Section 2 states that Congress may "Except" and "Regulate" the appellate jurisdiction of the "supreme Court!" Do you know how much that fact has got to tick off the Justices??
Well, not much. Because historically, Congress has failed to reign in the "supreme Court" at critical times when it was warranted. See that list of cases again. Congress acted not once to restrict the Judiciary in these matters. They did not step in and restrict the "inferior Courts" in their violations of States' Rights, they did not regulate the "inferior Courts" jurisdiction, and they did not step up to the plate and "Except" or "Regulate" the "supreme Court" in it's appellate jurisdiction.
Now, I know there are many who disagree with me to the death on the issue of abortion. But I have "supreme Court" Justices willing to go on the record stating that this is a matter that is none of the Federal Judiciary's business (Scalia, Planned Parenthood v. Casey 1992) and all you have is the tired old line, "Well, what about in the case of rape or incest." Please--most States' Laws took these cases into consideration. Come up with something of more intellectual value.
Now, here's where the discussion gets really interesting!
Congress can "restrict" the "supreme Courts" appellate jurisdiction, right? And Congress completely has Power over the "inferior Courts," right? And the Chief Executive is nowhere to be found in Article 3, right?
Now, consider the following scenario. Sen. Hillary Clinton is elected our next President--a likely possibility! But the Congress is lost to Republicans in both houses--another likely possibility given their current popularity polls!
It is possible that we could see Roe stripped from the Judiciary before Clinton even takes office, given that Congress takes office prior to the President! Now wouldn't that be one hell of a send-off for President George Bush!! And wouldn't it be the most beautiful thing in the world for the President and a liberal "supreme Court" to suddenly have no control over the issue of abortion??
Picture the Simpson's character when I say, "Ha-ha!"
And imagine this: Justice Scalia has well-stated, "We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining," also in Casey. How possible is it, do you think, to expect that the Judiciary would never again take up this matter? Even were Congress to be led by Democrats again, a distinct liklihood, how likely would it be that the Judiciary would ever take up this matter that has so divided the nation??
Keep it in the realm of politics and politicians, where, "All participants, even the losers, (have) the satisfaction of a fair hearing and an honest fight."
Viva la Constitution!!