The Founders, Religion and Government shared Article Three, Section 1 – The Judiciary In our last installment, we discussed the idea of separation of powers, the authority of the government divided among separate branches each having their own responsibilities and jurisdictions. The fact that there are three branches has led some to assume that they are three EQUAL branches, but the powers of government were not divided into equal thirds. A quick review the three articles reveals that the first is the longest, listing more powers for the legislative branch than for either of the other two. The second article is a bit shorter than the first, and the third the shortest of all. The fewer powers granted to the courts reflects the distrust the Framers felt after the abuses of the British courts as listed in the Declaration of Independence. The first section of Article Three outlines the makeup of the federal courts. “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.” Another common fallacy is that federal judges serve for life. While they do not have specified terms, they can and have been removed from the bench for behavior that Congress deemed reflected poorly on their office, sometimes even for private behaviors. The fact that it does not happen so much now may be a reflection on the behavior of those who can remove the judges. The second section of Article Two lists the powers granted to the courts. The first paragraph was altered by the 11th Amendment. “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.” We often think of the Supreme Court as a court of appeals, but in the areas listed it has the authority to hear some cases first. “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 second section also enshrines one of the rights the colonists had claimed, and been denied in some places, as British citizens – trial by jury. It also establishes jurisdiction for cases other than impeachment. “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.” The final section of Article Three deals with treason and reiterates some of the limits found in Article One, Section 9. “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.” Corruption of Blood is an old English punishment for treason. It prevented the family of the person executed from inheriting his estate. Sadly, this practice had continued for some time after the Revolution when state courts passed this sentence on Loyalists. It should be noted that we were able to cover all of Article Three in a single post. This reflects the limited scope of the courts. Being that they were the most removed from the people, part of the Framers’ design to keep the courts outside of politics, they were given the least amount of authority. Yet we can see how with just these authorities they can overstep the separations of powers and write laws and determine which should be enforced. These are not powers enumerated by the Constitution, though it can be argued they, to a certain extent, are implied. But the greater issue is that these men and women are not chosen by the people, but by those we send to office. That doubles the importance of choosing wisely. If we make a mistake in a president, he may be removed in four years. If we choose a bad Senator, we can rectify it in six years. But if that president chooses an unprincipled person for the courts, and that Senator approves the nomination, then through their carelessness the people have allowed a bad person on the bench. As Supreme Court Justice James Wilson said, "If the people, at their elections, take care to chuse none but representatives that are wise and good; their representatives will take care, in their turn, to chuse or appoint none but such as are wise and good also." Let us take care to choose wisely.
Posted on: Fri, 02 Aug 2013 02:28:06 +0000
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