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March 2017 Policy Study, Number 17-5


A Commentary on the American Constitution


Part 14



Section 2 of Article III, in the main, concerns the scope of jurisdiction, which the “supreme (sic) Court” shall enjoy.  The first sentence of Section 2 reads in part:  “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.”  Although the comments in the following paragraphs will be directed toward the “supreme (sic) Court,” it is to be understood that they are equally applicable to the entire system of inferior (subordinate) federal courts.  This is because, like you and me, the “supreme (sic) Court” has not the authority to grant either power or greater authority to another (the inferior federal courts), that it itself does not already possess.


The phrase “to all cases, in law and equity” would indicate that the Court has jurisdiction in proceedings at both law and equity; but these are specifically restricted with respect to the several states.  It does not give the Court a carte blanche to meddle in the affairs of state courts.  In matters taking place wholly within a state, the phrase“arising under this constitution,” would seem to limit the level of the “supreme (sic) Court’s” involvement to tests of the legitimate constitutional fitness of state laws.  It does not endow them with the authority to make or repeal laws of the several states to suit their personal fancy.  It is my personal notion that this happens anyway.  Exercising power you do not have the authority to exercise is usurpation.


As to “the laws of the United States, and treaties made,” these are proper and constitutional objects of a national government.  Both are prohibited to any other, and both fall under the exclusive jurisdiction of the “supreme (sic) Court” without question.  Still, I have complaint with each of these areas.  My complaint does not fall on the Court, for it merely rules on the laws and treaties that are its natural responsibility.  But rather, it falls on Congress and the President respectively — Congress for enacting a plethora of national laws that in reality do not have the necessary requisites for a law to be legitimately considered as national in nature to recommend them and on the President for using treaties to completely bypass the constitutionally prescribed legislative process for the purpose of “enacting” laws of the land that very probably could not be obtained through the normal process.  This will be more fully explained in Article VI.  The scope of the legislative power of Congress was discussed at Article I, Section 8, Clause 18.  These acts of the executive and legislative branches give the judicial branch a much broader scope of influence than would appear to be constitutionally ordained.  Viewed in toto, this modus operandi could prudently be deemed repugnant to continued liberty.


The remaining portion of the first paragraph of Section 2 goes on to specifically designate in which other cases and what other relationships the Court shall enjoy jurisdiction.  The second paragraph delineates in which cases the Court shall have original jurisdiction and in which it shall have appellate jurisdiction.  The former will occur when it is the court of first recourse, and the latter will occur when it becomes the court of appeal or review.  In either case, it has purview over both law and fact, “with such exceptions, and under such regulations, as the Congress shall make.”  Even so, when it concerns matters internal to the state, the first paragraph of this section still limits the Court to items of a constitutional nature.  That is, to those items “arising under this constitution.”  The emphasized line just prior, and dealing with exceptions, is somewhat of a mystery to me at this point.  It is for this reason, and the uncertainty of the possible mischief for which it might be used, that it is mentioned.  What could be the legitimate reason or circumstance under which Congress would deny the Court jurisdiction over either law, or fact, or both?  Is this a procedure with which Congress might hold a runaway Court in check?  What of the potential for abuse?


It also grants to us a “trial of all crimes, except in cases of impeachment,” by jury; and specifies that the trial shall be held in the state in which the crime was committed.  This is one of the most precious legacies left to us by our Founders.  The value of the jury and its ability to not only dispense justice but also restrain government excess cannot possibly be overestimated.  It has been said that our liberty rests on three boxes: the ballot box, the jury box, and the cartridge box.  The jury box is the last defense of our liberty before the unthinkable.  Most people are not familiar with this aspect of the jury.




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