Article III |
We ended our last chapter on Article II with a quote from a famous Supreme
Court case. That leads us into this chapter on Article III quite well, I think,
because Article III establishes the judicial branch of government and the Supreme
Court.
Our discussion of this third article could be very long or it could be very
brief, depending on how I decide to handle it.
In one of my many copies of the Constitution (a pocket edition that also contains
the Declaration of Independence, the Articles of Confederation, and several
very interesting facts about early America), Article I takes up about 6 ¾
pages. Article II is about 2 ¾ pages. Article III is the smallest (of
those) at just more than one page.
Remember that the purpose of the Constitution is to establish the three branches
of government, and immediately to put limitations on them. Article III establishes
the judicial branch, but it is also the shortest article of the "main"
three (Articles IV, V, V, and VII are shorter), so it puts less limitations
on the judicial branch.
Of the three branches, it is easy to point to the judicial as being the greatest
threat to our Liberty. This is no coincidence.
Hence my troubles. Article III is very short, so it would be logical to assume
this chapter would be as well. On the other hand, the judicial system is out
of control, so it would also be logical to assume this chapter would be very
long, so I could analyze more of the troubles with the judicial.
I finally settled on a "happy medium." This chapter will not paint
anything near a complete picture of the judicial branch. I'll simply analyze
Article III, with a few brief comments about related issues. And then, later
in the book, I'll go into greater detail on the complex issues surrounding the
judicial branch. Some of these issues are so complex, entire books have been
written on them without covering all there is to know, so there's no way I can
presume to cover them in a way that will make you understand in only a few pages
of this chapter.
3.1.1 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 Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Ta-Daa! We've got courts now.
That's all most people understand about this clause: that it establishes the
Supreme Court. But there's a lot more here than just, "There's a Supreme
Court."
This also establishes the possibility of other inferior courts. I could talk
about these inferior courts for a very long time, but the issues quickly become
to complicated for the purposes of this chapter. Rest assured, we will get back
to these inferior courts in great detail in a later chapter.
The judges hold their office during good behavior. If you recall Article II,
the President has the authority to appoint judges to the Supreme Court (the
Senate has to confirm his nominations). Well, this means that the judges hold
that office for life. Remember also that I said the President's appointments
to various offices is the main thing to worry about-the Supreme Court should
be the mother of all things to worry about.
The Supreme Court has an extraordinary amount of power. And once a judge is
appointed, we're stuck with him for life. There are only three ways to get rid
of a Supreme Court judge:
He can die.
He can willfully resign.
He can be impeached.
So, unless he decides he doesn't want to retain the position (for whatever reason)
or is convicted of a crime, he's going to be deciding cases for a long time.
Why would the Founding Fathers give them this office for life? Well, it may
not have been the best idea, but they did have good reasons.
The Supreme Court, they understood, would have a lot of power. The judicial
branch is supposed to help keep the other two branches in line.
Well, here's the thing. If you follow political campaigns on the television
or in the newspaper, what do you see? Lots and lots of advertisements. Those
ads cost a lot of money. The politicians don't pay for those ads themselves,
though. They rely on campaign contributions.
Libertarians get donations of $20 or $50 from their supporters, who are trying
to change the system. Their campaigns usually don't cost more than a couple
hundred thousand dollars. A lot of money, yes. But…
Democrats and Republicans spend millions (indeed, often into the hundreds of
millions) of dollars on their campaigns. Yes, they get some of the same $20
and $50 donations from their supporters (they just get more of them). But that's
small change. Most of their campaign funds come from enormous donations from
corporations.
Basically, politicians end up owing people a lot of money. Even if the funds
are officially written off as "donations," these corporations expect
to get their money's worth. The politicians understand this. They can get away
with not doing what the corporations want if they don't want to seek re-election.
But if they're going to run again, they better keep those businesses happy so
they can get contributions again the second time around.
The campaign contributions have the power to corrupt the politicians.
Our Founding Fathers, though they never could have predicted what exists today,
understood the power of the campaign contribution, and they didn't want that
to corrupt the judicial branch.
Their logic is simple: If the judges never have to worry about raising money
to campaign again in a few years, they'll be able to vote their conscience and
not worry about all these other distractions.
There are downsides, of course. But it wasn't a bad idea. It could have worked.
Only one problem. Article III doesn't specify how many judges sit on the Supreme
Court. For a period of time, that number changed frequently. Eventually, it
balanced out at nine.
And then, along came Franklin Delano Roosevelt, who managed to do something
that was previously thought impossible. He corrupted the Supreme Court. FDR
had been working to pass through a series of new laws, collectively known as
the New Deal (actually, the "New Deal" is just socialism with a different
label). The Supreme Court struck them down as un-Constitutional.
I can just imagine what FDR was thinking. Probably something like: "How
can I get my New Deal past the Supreme Court? I'm the President, damn it! I
should be able to do anything I want. I should have the power to…wait a
minute. I can appoint judges to the Supreme Court!"
And that's the idea he brought to the Court. He threatened to stack the deck
with liberal judges. Since the Constitution doesn't specify how many judges
there are, FDR said he would nominate as many as forty-five new judges to the
Supreme Court.
Afraid of being the laughing stock of the entire nation, the Supreme Court finally
allowed the New Deal to pass, and America has been feeling the results ever
since.
So, we've learned a few things. One is that FDR may well have been the single
worst president in the history of our nation (the stories I could tell if I
had the time!). Also, the Supreme Court is appointed for life to avoid corruption.
A great idea (or at least a good idea). But thanks to a corrupt President, we
now get easily corruptible judges, and they're still appointed for life.
3.2.1 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 Ambassadors, other public Ministers and Consuls; --to all Cases of admiralty and maritime Jurisdiction; --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.]
Again, we have a lot of information in a single clause. We should note first
that the bracketed text was altered by the Eleventh Amendment.
Now, what does this clause discuss? Jurisdiction.
If you watch TV as much as most Americans do (far more than I ever have, and
hopefully more than I ever will) you've probably seen your share of cop shows.
A major theme in these programs is jurisdiction, but they only get it partially
right.
Generally, in the cop shows, the bad guy crosses over a state or city line,
and the police can't arrest him anymore because they have no jurisdiction in
the neighboring area. Often, the police go after him anyway, suggesting that
jurisdiction is something that just makes a cop's job harder and that it should
be ignored when necessary.
Television, however, can be very misleading. The first thing I'd like to point
out is that the "law enforcement officers" who ignore legal jurisdiction
in their quest to "stop the bad guys" aren't doing the right thing.
There's an old saying that the path to hell is paved with good intentions. I
have no doubt that the television cops-and the real life cops on which they
are based-have nothing but good intentions when they ignore jurisdictional boundaries,
but they're still violating the law they've sworn an oath to protect.
Before I get too far off topic, let's quickly get this back on track.
The other thing that television often gets wrong is that jurisdiction isn't
just about physical location. It's also about bodies of law. I hesitate to delve
into this topic too deeply here, because these issues warrant chapters of their
own (even then, I'll only begin to scratch the surface). For now, let us understand
a few important principles.
All law is not created equal. Common Law is not the same as Statutory Law is
not the same as Equity Law is not the same as Admiralty Law.
If you're going to understand law, this is the first and by far most important
lesson you can learn: different bodies of law (different jurisdictions) apply
to different people, and not always equally.
Looking back at 3.2.1, we see that "The judicial Power shall extend to
all Cases, in Law and Equity…[and] to all Cases of admiralty and maritime
Jurisdiction." Note that the other powers extend only to foreign disputes
and disputes between multiple states, so we won't worry about them too much
here.
When you hear the words "admiralty" and "maritime" what
do you immediately think of? Ships, oceans, water. The rules are different on
the sea than they are on land. To make a simple example, if you're sailing and
come across an abandoned ship, you can claim that ship as your own. This is
called salvage rights. On land, we do things differently, because it's a different
jurisdiction.
One of the main differences between land and water is that land is (mostly)
stationary, while water moves. No one owns the ocean, but people can own land.
When you're out on the ocean on your own boat, you have a small floating country,
where you are a dictator ("The Captain's word is law").
The courts can decide cases regarding admiralty law, but they may only decide
cases in admiralty law when they are brought to land. If a crime is committed
on the ocean, there's little that can be done-unless the crime is connected
to a person or business which exists within the United States.
Most people don't like to worry about admiralty jurisdiction, unless they're
going out on the ocean. What most people don't realize, though, is that air
travel also falls under admiralty jurisdiction (just as no one owns the ocean,
no one owns the air). On an airplane, the captain (pilot) is essentially a dictator
from the time of take-off to the time of landing.
Since the federal government has the power to punish piracies, hijacking an
airplane is one of the few federally punishable crimes (it is considered "air
piracy").
But what of these other two jurisdictions ("in Law and Equity")?
To help us understand, let us fill in omitted words. "Law and Equity"
becomes "Common Law and Equity Law." Now that we've established just
what types of law we're talking about, we can determine what they mean.
Common law is an often misunderstood concept. In fact, most people only recognize
the phrase in terms of a "common law marriage." But I assure you,
common law covers a lot more than simply marriages.
Perhaps a definition is in order:
Common law: As distinguished from statutory law created by the enactment of legislatures, the common law comprises the body of those principles and rules of action, relating to the government and security of persons and property, which derive their authority solely from usage and customs of immemorial antiquity. (Black's Law Dictionary, 6th Edition, page 276)
So, common law is not the same as statutory law. That's the first important thing to understand. The second, and perhaps most important principle to understand is that common law is the law of property (surprise, surprise!). Throughout history, common law has been largely an unwritten body of law, because it is based on "common sense."
When talking about common law, all you need to remember is that there are only
two basic rules.
Don't violate another person's property-the basis of "criminal" law.
Do what you say you're going to do-the basis of "civil" law.
The first is the same principle we have been discussing, and will continue to
discuss throughout this book. As long as you don't damage another person or
his property, you can do whatever you want.
The second comes from our unlimited right to contract. If you sign a contract
agreeing to do something, you are obligated to do so, even if it turns out to
be a bad idea. Only under contract can one compel performance. So you better
read the contract. Today, people are so used to clicking "I Agree"
to the Terms of Service on a website without actually reading them, I wonder
how many people even bother to read other-presumably more important-contracts.
Personally, I read all of them, even if they're dry and boring and don't seem
to say anything out of the ordinary.
The Constitution (The Supreme Law of the Land) is based almost completely on
common law.
(Note for the website: Some of these concepts are explained further in other chapters of the book, so I feel I should clarify one thing here. Common law is the highest jurisdiction in America. Only certain circumstances warrant leaving common law and using a different body of law (such as admiralty law, when at sea). I highly suggest that if you want to continue studying the Constitution, you should get a book or two on common law.)
Equity law is similar to common law, but with a few key differences. It originated
in England because some people thought the common law was too "harsh."
Presumably, equity law is based on "fairness." Unfortunately, the
judge becomes the arbitrary decider of what is or is not "fair." Considering
the current state of our legal system, this could be dangerous. As Michael Badnarik
points out, "Our court system is filled with litigants accusing each other
of not playing fair."
The reason we need to have an equity law jurisdiction is for cases in which
property has been damaged, but it's not clear who violated whose rights. For
example, if Mike and John are driving across Tom's property and collide, who
violated whose property?
This is where equity law comes in. The judge, after hearing each of the three
men present their case, will decide what's "fair."
In any case in which the property distinction is clear, it belongs in common
law. When matters are less clear, it might belong in equity law.
3.2.3 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.
Trial by jury is most important. A jury may not always be right, but I would
much rather be tried by my peers than by judges. We'll discuss juries some more
when we get to the Bill of Rights, but I should make note of a few things here.
First, the trial must be held in the state wherein the crime was committed.
To understand the reason behind this, we need only to look at the Declaration
of Independence: "For transporting us beyond Seas to be tried for pretended
Offences."
If you can be pulled away from your home, your friends, your family, your property
in order to stand trial, it matters little whether you're innocent or guilty.
You'll have a very hard time defending yourself on alien soil. And indeed, even
if you're found to be innocent, the ordeal could be very traumatic.
When the Constitution was written, it was uncommon for a person to leave his
own area-except on diplomatic missions, perhaps-so there was little chance of
committing a crime in a state other than your own. Today, travel is easier,
so you might yet be caught away from your home, but only if you were already
there to commit a crime.
3.3.1 Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. 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.
There is a common misunderstanding that a government official violating the
Constitution is an act of treason. This is not necessarily true. Depending on
what the specific violation is, it may be an act of treason. It matters little,
because in violating the Constitution, they're already guilty of perjury.
However, I strongly believe a great number of government officials are guilty
of treason. That's a discussion for another time, though.
This clause also requires that no one can be convicted of treason unless on
the testimony of two witnesses or confession in open court.
Treason is punishable by life imprisonment or death. It's possibly the most
serious crime one could commit. The framers of the Constitution didn't want
someone to be convicted of treason unless we could be damned sure they did it.
So, while there are no explicit limitations on what's necessary to find someone
guilty in court of other crimes, a minimum of two witnesses or a full confession
are necessary for a jury to even consider convicting a person of treason.
Why does it have to be in "open court?" Because we don't want the
government to arrest someone and then take him behind closed doors for his trial.
In that scenario, it would be very easy for the government to come out and say
"Yeah, he was guilty. He confessed, so we executed him."
Well, it happened behind closed doors, and now he's dead. How can anyone know
whether he really confessed or not?
Today, the government-right here in America-is doing just that: taking people
away in the middle of the night, never to be heard from again.
You can see that Article III is fairly simple in and of itself. What becomes
very complex about it-complex to the point people spend entire lifetimes trying
to understand it all-are the actions of the judicial branch outside the Constitution.
But that's a topic for later in the book.
(Note for the website: Apologies for not getting into some of these related matters, but while these issues are important, I simply don't have the time to go into those details right now.)
We've now covered the first three articles, so you should have at least a passing
understanding of the three branches of government. There are still a few more
articles to discuss, however.