Notes – Week 1 – September 14, 2018 I. Introduction 1) The U.S. Constitution is a national consensus on the distribution of power between the governments and the people by the application of American values. a. The risk of danger is better than the guarantee of tyranny. It is better to free nine guilty people than to jail one innocent one. b. We shall all hang together, or we shall all hang separately. A slightly different version of the same idea is E Pluribus Unum, or From Many, One. c. To safeguard against tyranny, power must be decentralized. Spreading power horizontally between the Congress, the President and the Judiciary and vertically to the States will create a formal structure of checks and balances to protect the American people. d. The final barriers against tyranny are the informal structures that keep the machinery of government and society operating smoothly. For the goals of the Constitution to be achieved, there must be intelligent people acting in good faith and putting the common good above their self-interest participating at all levels of government. That includes each member of the body politic. Finally, there must always be the continuous parade of courageous Americans who stand up and say, “Enough. No More”. These three words, more than any others, define both the strength of our government and the essence of what it means to be an American. We have survived because each time that we need people to say “Enough. No More” they were there. This always represents our last best chance. e. A Republic is a form of government characterized by: i. Sovereignty is in the people, not the government or the ruler. Power FROM the people. ii. The people elect their representatives to the legislature. iii. The executive is appointed or elected. It is not an inherited position. 2) Course Introduction a. Change – Laws and Values; Aspirational Documents v. Legally Enforceable Documents; Winning Hearts and Minds b. Power, Policy, Politics and Persuasion i. Power is the authority to make a decision or take an action from the constitutionally allowed “Safe Box” of options ii. Policy is the actual decision or action chosen by the person or entity with the appropriate power iii. Politics refers to decisions or actions that further an individual’s or groups self-interest as compared to the public good iv. Persuasion is the process by which members of the body politic attempt to convince the person or entity with power to choose a particular decision or action.

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v. In reading or listening to persuasive documents or arguments, it is important to exercise critical reading and critical listening. Among other steps, this requires us to look for the “Wait A Second There” moment. That is the moment when we notice that something doesn’t make sense. It may be untrue, it may be unproven, it may not connect to the rest of the argument or anything else that makes you think “Wait A Second There”. c. What is Citizenship? What rights are included? i. Civil Rights – right to enter into contracts, own property, sue in court ii. Political Rights – vote, serve on jury iii. Social Rights – intermarriage, go to school; live where you want 3) The Law as a Process – Science & Math v. Art & Architecture 4) General Principles for Understanding the U.S. Constitution a. Words are given their plain meaning. i. Words are to be interpreted by their ordinary meaning unless the result would be absurd. ii. If the plain meaning fails to solve the underlying problem for which the provision was passed, is it absurd? Or is it simply a mistake? b. If the provision is unclear or ambiguous after applying the plain meaning rule, the next step is to see if the provision can be made clear by reviewing the overall purpose of the document or section in which it is found. If it is still unclear or ambiguous, then a review of the drafters’ intent follows. This would include statements made at the time of the drafting. c. Words Matter i. The same words mean the same thing ii. Different words mean different things iii. Lists are sometimes exclusive, but sometimes not d. Facts Matter i. Interpretations depend on the particular facts of the situation being considered ii. Time changes everything, not always for the good 5) Evaluating A Supreme Court Case – First Look 6) The Golden Lesson is the first and most important advice that the founders gave us in the constitution. It defines how we should act as members of the body politic and defines what it means to be an American: i. Part One: “Just because the guy in the front of the room says it, it don’t make it true.” Or: Authority should never be taken at face value. It must always be questioned. ii. Part Two: It is the right and responsibility of each member of the body politic to make an independent assessment of the facts and circumstances of any policy taken by government and to decide what is true, right and good.

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iii. Part Three: It is the right and responsibility of each member of the body politic to act on that independent assessment.

II. Article III – The Judiciary a. Article III, Section 1, Clause 1 - The Judicial Power of the , shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. In 1789, there were 6 Supreme Court Justices and 13 District Court Judges in 13 District Courts. Today there are 9 Supreme Court Justices, 179 authorized Circuit Court Judges in 13 Circuit Courts (11 Regional, 1 for D.C. and 1 nationwide Federal Circuit for specialty cases) and 677 District Court Judges in 94 District Courts (every state and territory has at least one District Court, the most in any one state is 4). b. The Role of the Judiciary – judges resolve disputes by balancing the interests of the parties to produce fair, certain and predictable rules that assist in the development of the nation’s values. The judicial power, in its broadest sense, is the power to resolve disputes between parties who are before the courts. c. There are no specific qualifications to be a judge or a justice. The Judiciary is the only branch whose members are selected by the other two branches, the President appoints, and the Senate confirms. It is also the only branch that has no authority to remove its members for malfeasance. That authority is left to the impeachment process granted to the Congress in Article I, Sections 2 and 3. d. Article III, Section 1, Clause 2: 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. Article III judges are granted life tenure, the only Officers of the U.S. government with that protection. The guarantee of not having their salaries reduced is another of the checks and balances, preventing Congress from trying to pressure the courts. e. The position of Supreme Court Justice was not held in high regard at the beginning of the new nation. The first Chief Justice, John Jay, served from October 18, 1789 – June 29, 1795. He left to become the Governor of New York. The second Chief Justice, John Rutledge, was first nominated and confirmed as an Associate Justice in 1789. He resigned that position to become the Chief Justice of the South Carolina Court. After Chief Justice John Jay resigned in 1795, President Washington made a recess appointment of John Rutledge to be Chief Justice on August 12, 1795. On December 15, 1795, the Senate rejected his nomination by a vote of 14-10. He was the only one of 15 Supreme Court recess appointments to ever be rejected and the only member of the Supreme Court to be removed involuntarily. President Washington next nominated Associate Justice , who declined to be Chief Justice but continued as an Associate Justice. President Washington then nominated Oliver Ellsworth, who served from March 8, 1796 – December 15, 1800, when ill health led him to resign. President Adams then wanted to nominate the first Chief Justice, John Jay to succeed Chief Justice Ellsworth. On January 20, 1801, John Jay declined and chose retirement

3 instead. President Adams nominated to be Chief Justice. John Marshall was then the incumbent Secretary of State. Marshall was confirmed on January 27 and took office on February 4, 1801, continuing to serve as both Chief Justice and Secretary of State until March 4, 1801 when the Jefferson Administration took Office. Marshall continued as Chief Justice until July 6, 1835 and was the longest serving Chief Justice in U.S. history. f. Article III, Section 2: The Jurisdiction of the Supreme Court - 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. i. As with the Congress, the Constitution grants limited powers to the Judiciary. The first paragraph lists the only kinds of cases where the federal courts have the authority to hear the case. The first 3 areas all involve federal law. The others involve a variety of areas where the need for a national, uniform body of law was deemed important. ii. Original jurisdiction means that the case begins in the Supreme Court. There are a very limited number of circumstances in which the Supreme Court has been granted original jurisdiction. Appellate jurisdiction is the power to review a case that was first heard in a lower court, where an evidentiary hearing or trial would have been held. The Supreme Court is primarily a court of appellate jurisdiction with a few instances where it has original jurisdiction. iii. In another instance of checks and balances, it was the Congress that had the power to “constitute Tribunals Inferior to the Supreme Court”, Article I, Section 8, Clause 9. Note that Article I has the word “constitute” and compare with the language of Article III, “ordain and establish”. The Article I language goes beyond merely creating the courts. That gave Congress the power to not only create the courts but to determine the kinds of cases that they could hear and the kinds of

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remedies that the federal courts had available to use. While questions of jurisdiction and rules of procedure and legal remedies seem like rather dry technical issues, they are highly politically charged. Those areas will determine which court resolves the disputes of the citizens of a state. States wanted to make sure that they would control the fates of their own citizens. Rather than leave these questions to the “apolitical” judiciary branch, they were assigned to the Congress, the most political and state-focused of the three branches. Today, the Supreme Court issues rules and submits them to the Congress which can veto them. As an example, the first time that an amendment to the Constitution was passed after the Bill of Rights was as a direct result of the language of Article III, Section 2. In Chisholm v. Georgia, 2 U.S. 419 (1793), one of the first major cases decided by the Supreme Court, the Court held that a lawsuit filed by a citizen of South Caroline against the State of Georgia in a federal court was proper under Article III, Section 2. Chisholm sued Georgia in the federal court for the value of clothing supplied by him to Georgia during the Revolutionary War. Georgia refused to appear in the federal court and claimed that its sovereign immunity prevented the federal court from having jurisdiction to hear the case, Article III notwithstanding. The Supreme Court ruled against Georgia because the Union, through the Constitution, had the authority to limit Georgia’s state sovereignty. The result was the passage of the Eleventh Amendment in 1798 which removed federal court jurisdiction over suits between citizens of one state against another state. iv. Also, note the use of the word “citizen” in Article III. It was clear that the federal courts were to be open to women and free African-Americans. g. Article III, Section 3 – Treason 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. i. A charge of treason is the ultimate weapon of a tyrannical government. It is not surprising that the Constitution’s drafters would be concerned enough to want to limit the authority of the new federal government to bring a charge of treason. ii. The requirement for two witnesses to the same overt act and only a confession in open court limited the risk of a frame-up or torture. iii. The treason trail of Aaron Burr turned on the failure of the prosecution to offer two witnesses to the commission of an overt act in the furtherance of Burr’s alleged conspiracy to establish an independent country in North America, made up in part from lands included in the Louisiana Purchase. With Chief Justice John Marshall sitting as a Circuit Judge in Virginia, the jury acquitted Aaron Burr of treason on September 1, 1807.

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h. Judicial Review – Marbury v. Madison, 5 U.S. 137, (1803). In the aftermath of the election of 1800, partisan control of the White House and the Congress changed for the first time. The new President and the new Congress would both take control on March 4, 1801. Chief Justice Marshall was confirmed by the outgoing Federalist Congress on January 27, 1801. The Federalist Congress passed the Judiciary Act of 1801 on February 13, 1801 which reorganized the courts and added 18 new Circuit judges. The new Democratic-Republican Congress repealed the Judiciary Act of 1801 on March 8, 1801, thereby eliminating the 18 new judgeships for the Circuit Courts. Separate Circuit Court judges were not added to the federal judicial system until 1869. In perhaps the earliest example of “repeal and replace”, the Congress passed the Judiciary Act of 1802 on April 29. The act continued the practice of “circuit-riding” by the 6 Supreme Court Justices. It also delayed the next term of the Court until February, 1803, resulting in the Court being unable to hear cases from December, 1801 until February, 1803. In addition to the Judiciary Act of 1801, the outgoing Congress also passed the District of Columbia Act which was signed by President Adams on February 27, 1801. The act created dozens of new justices of the peace positions. The President submitted 42 nominations for these new positions and they were all confirmed on March 2 and 3. William Marbury was one of the new justices of the peace. To make the commission of the justice position complete, the President had to sign the commission and the Secretary of State had to affix the seal of the United States upon it before the new administration came into power on March 4, 1801. Both steps were completed in time but the sitting Secretary of State, who, of course, just happened to be the sitting Chief Justice of the Supreme Court was busy and so he asked his brother to complete the final legally necessary step, the actual delivery of the commissions to the new justices. And, of course, his brother never delivered some of the commissions, including Marbury’s. In December, 1801, Marbury filed a lawsuit in the Supreme Court based on the original jurisdiction of the Supreme Court under the to grant the remedy of mandamus, an extraordinary remedy directed at a governmental officer ordering him to take a non-discretionary act. In plain English, Marbury wanted the Supreme Court to tell the new Secretary of State, James Madison, to give him his commission. Chief Justice Marshall concluded that Marbury was entitled to the commission, that he had a legal remedy to have the delivery of the commission enforced and that mandamus was indeed the proper remedy. And for one of the first times in American history, Marshall then invoked the doctrine of “tough”. The Chief Justice wrote that while mandamus was the right remedy, the Supreme Court was the wrong court. He looked at the grant of original jurisdiction under Article III, Section 2, Paragraph 2 and said that the Congress did not have the authority to enlarge the original jurisdiction of the Supreme Court. He asserted that the Judiciary Act of 1789 by granting to the Supreme Court original jurisdiction in actions against federal officers in cases seeking mandamus violated the provisions of Article III, Section 2, Paragraph 2 and was unconstitutional. i. That was the first time that the Supreme Court ruled that an act of Congress was unconstitutional. The Court would not rule another act of Congress to be

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unconstitutional again until 1857 in the infamous Dred Scott decision. ii. It was not the first time that the Court ruled on the constitutionality of a Congressional act. That happened in Hylton v. United States, 3 U.S. 171 (1796), when the Court ruled that the Congressional tax on carriages was not a “direct tax” under Article I, Section 9 and did not have to be apportioned according to the census count of each state. iii. The week after Marbury, the Court ruled that the “repeal and replace” of the Judiciary Act of 1802, was constitutional. iv. In Marbury, Chief Justice held that the Supreme Court had the final word on interpreting the Constitution and the laws of the new federal government under the doctrine of “judicial review”. He wrote:

It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each. [p178] So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. i. How does the Supreme Court decide which cases to accept? The answer is in the Rules of the Supreme Court: Rule 10. Considerations Governing Review on Certiorari Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court’s discretion, indicate the character of the reasons the Court considers: (a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s supervisory power; (b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals; (c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or

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has decided an important federal question in a way that conflicts with relevant decisions of this Court.

A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.

Rule 11. Certiorari to a United States Court of Appeals Before Judgment A petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court. See 28 U. S. C. § 2101(e). j. Surfing the Supreme Court website: www.supremecourt.gov Also, see www.scotusblog.com

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