Two Federal Appellate Courts Uphold Subpoenas for Trump Accounting Records  (Updated 11/22/19)   

Over the last two weeks two federal appellate courts have upheld different subpoenas to the Mazars USA accounting firm for records relating to Donald J. Trump.

D.C. Circuit Court of Appeals

As discussed in a prior post, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit on October 11, 2019, upheld (2-1) a subpoena by an U.S. House of Representatives committee to Mazars for certain Trump accounting records.

A month later, on November 13, that court denied, 8-3, Trump’s motion for the full (en banc) court to review that decision of the three-judge panel.[1] As is typical, there was no opinion by the eight judges denying the motion. However, two of the three dissenting judges, wrote opinions.

Judge Gregory Katsas joined by Judge Karen Henderson, said, “this case presents exceptionally important questions regarding the separation of powers among Congress, the Executive Branch, and the Judiciary. For the second time in American history, an Article III court has undertaken to enforce a congressional subpoena for the records of a sitting President. The first time this was attempted with then President Nixon, this court refused to enforce the subpoena, stressing “the availability of impeachment foreclosed any conclusion that the records at issue were ‘demonstrably critical to the responsible fulfillment’ of Congress’s legislative prerogatives, even when Congress was investigating significant allegations of presidential misconduct. Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731–33 (D.C. Cir. 1974) (en banc).”

The other dissenting opinion, by Judge Neomi Rao, who also was joined by Judge Henderson, emphasized that this subpoena was not really justifiable by the congressional power to enact new laws. It was really a subpoena looking for impeachable offenses, which is not part of the legislative power.

Afterwards an attorney for Trump said that he would now petition the U.S. Supreme Court to review the case.

And on November 15, his attorneys did just that by asking Chief Justice John Roberts, who is responsible for emergency requests from the D.C. Circuit, for a stay of proceedings while the Supreme Court considers his petition for review of the merits of the lower court’s decision. This request argued for such a stay for the following reasons: (I) “There is a reasonable probability that the Court will grant certiorari to determine whether the Committee’s subpoena is lawful.” (II) “There is a fair prospect that this Court will reverse the D.C. Circuit’s decision upholding the subpoena.” (III) “Applicants will suffer irreparable harm without a stay.” (IV) “The balance of equities and relative harms weigh strongly in favor of granting a stay.” [2]

On November 18, the attorneys for the House Committee filed a letter with the Supreme Court announcing that they planned to file an opposition to the requested stay on November 22, but that out of courtesy to the Court the Committee does not oppose “a short ten-day administrative stay, beginning on November 20, 2019, to enable the Court to receive an opposition by the Committee and then rule on the request for a stay. Thereafter the same day, Chief Justice Roberts ordered “that the mandate of . . . [the D.C. Circuit] is hereby stayed pending receipt of a response, due on or before Thursday, November 21, 2019, by 3 p.m. ET, and further order of the undersigned or of the Court.”[3]

One of Trump’s attorneys, William S. Consovoy, “said the Supreme Court’s intervention was imperative. Under the lower court’s decision, ‘any committee of Congress can subpoena any personal information from the President; all the committee needs to say is that it’s considering legislation that would force Presidents to disclose that same information. Given the temptation to dig up dirt on political rivals, intrusive subpoenas into personal lives of Presidents will become our new normal in times of divided government — no matter which party is in power. If every committee chairman is going to have this unbounded authority, this Court should be the one to say so.”

In accordance with that order, the House Committee on November 21 submitted its opposition to the Trump motion. It argued that the Court’s precedents involving Presidents Richard M. Nixon and Bill Clinton make clear that the chief executive enjoys no special privilege to be free from investigation or legal action and that a stay would cause irreparable harm to the Congress and the public, outweighing whatever harm enforcement of the subpoena would cause Trump and Mazars. The House Committee also argued that if the Court agrees to a stay of a lower court’s order, the Court should expedite a decision on whether to order a full briefing and a hearing on the case.[4]

Second Circuit Court of Appeals

Such a petition to the Supreme Court would join a similar one by Trump from a November 4 unanimous decision by a three-judge panel of the U.S. Court of Appeals for the Second Circuit in New York City upholding a state grand jury subpoena for accounting records from the Mazars firm relating to a probe into whether the accounting for payments Mr. Trump’s former lawyer, Michael Cohen, made to two women violated state laws against falsifying business documents. .[5]

During the oral appellate argument of this case, one of the judges asked the Trump attorney if local authorities could investigate President Trump if he shot someone on Fifth Avenue in New York City, and the attorney said the authorities could not so investigate.

After the Second Circuit’s decision, Jay Sekulow, an attorney for Trump, said that Trump would ask the U.S. Supreme Court to review the case because, he claimed, ““The issue raised in this case goes to the heart of our republic. The constitutional issues are significant.”

In fact, on November 14, Trump petitioned the Supreme Court for a review of the following issues in this case: (I) “Whether the President is absolutely immune is an important and unsettled issue of federal law that the Court should resolve” and (II)   “The Second Circuit incorrectly decided this important immunity question.” The petition also alleged, “For the first time in our nation’s history, a state or local prosecutor has launched a criminal investigation of the President of the United States and subjected him to coercive criminal process. . . . Politically motivated subpoenas like this one are a perfect illustration of why a sitting president should be categorically immune from state criminal process.”[6]

In a contemporaneous statement, Sekelow stated, “”The Second Circuit decision is wrong and should be reversed. In our petition, we assert that the subpoena violates the U.S. Constitution and therefore is unenforceable. We are hopeful that the Supreme Court will grant review in this significant constitutional case and reverse the dangerous and damaging decision of the appeals court.”

The Department of Justice also filed with the Supreme Court an amicus brief supporting Trump’s petition while saying that there are instances when a local prosecutor might legally seek a president’s documents — but that this was not one of them.[7]

Trump filed this petition so immediately because of his attorneys’ agreement with the New York prosecuting attorneys whereby the latter “agreed not to seek the tax returns until the case is resolved by the Supreme Court” so long as Trump agreed to “a very quick briefing schedule, one that would allow the Supreme Court to announce whether it will hear the case as soon as next month and to issue a decision by June, as the presidential election enters its final stages.”

Conclusion

Now the parties to these cases will be joined by all of us in the U.S. and elsewhere for the briefing on whether the Supreme Court should grant such review, the Court’s decision on these petitions and, if review is granted, the briefing and oral arguments in that court and its ultimate decision (in the midst of the 2020 presidential campaign).

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[1]  Order, Trump v. Mazars USA, LLP and Committee on Oversight and Reform of the U.S. House of Representatives, No. 19-5142 (D.C. Cir. Nov. 13, 2019); Savage, Court Rejects Trump’s Appeal in Fight to Keep Financial Records from Congress, N.Y. Times (Nov. 13, 2019); Reuters, U.S. Appeals Court Again Backs House Request for Trump Tax Documents, N.Y. Times (Nov. 14, 2019).

[2] Emergency Application for a Stay of Mandate Pending the Filing and Disposition of a Petition for a Writ of Certiorari, Trump v. Mazars USA, LLP, Committee on Oversight and Reform of the U.S. House of Representatives, No. 19A545 (Nov. 15, 2019); Liptak, Trump Again Asks Supreme Court to Block Release of His Financial Records, N.Y. Times (Nov. 15, 2019); Hurley & Freifeld, Trump asks Supreme Court to block disclosure of financial records to Congress, Reuters (Nov. 15, 2019); Barnes & Marimow, Trump appeals to Supreme Court again, this time to block House committee’s subpoena seeking his financial records, Wash. Post (Nov. 15, 2019).

[3] Letter, House Committee to Clerk of Supreme Court, Trump v. Mazars USA, No. 19A545 (Nov. 18, 2019); Order, Trump v. Mazars USA, No. 19A545 (Nov. 18, 2019) Trump v. Mazars USA, No. 19A545 (Nov. 18, 2019); Barnes, Supreme Court puts temporary hold on Trump financial records ruling, Wash. Post (Nov. 18, 2019); Liptak, Chief Justice Gives Trump Temporary Reprieve in Financial Records Case, N.Y. Times (Nov. 18, 2019).

[4] Barnes, Supreme court precedents do not shield Trump financial records, House, prosecutors argue, Wash. Post (Nov. 21, 2019); Reuters, Democrats Urge U.S. Supreme Court Not to Protect Trump Financial Records, N.Y. Times (Nov. 21, 2019); House Committee, Opposition to Emergency Application for a Stay of Mandate, No. 19A545 (Sup. Ct. Nov. 21, 2019).

[5] Opinion, Trump v. Vance, No. 19-3204 (2d Cir. Nov. 4, 2019); Weiser & Liptak, Trump Taxes: Appeals Court Rules President Must Turn Over 8 Years of Tax Returns, N.Y. Times (Nov. 14, 2019); Neumeister, Appeals court agrees Trump tax returns can be turned over, Wash. Post (Nov. 4, 2019).

[6] Petition for Writ of Certiorari, Trump v. Vance, No. —- (U.S. Sup Ct. Nov. 14, 2019); Liptak, Trump Asks Supreme Court to Bar Release of His Tax Returns, N.Y. Times (Nov. 14, 2019); Barnes & Marimow, Trump asks Supreme Court to shield his tax returns from prosecutors, setting up historic separation-of-powers showdown, Wash. Post (Nov. 14, 2019); Bravin, Kendall & Ramey, Trump Asks Supreme Court to Block New York Subpoena for Tax Records, W.S.J. (Nov. 14, 2019); Samuelson & Gerstein, Trump lawyers take fight over tax returns to Supreme Court, Politico (Nov. 14, 2019); deVogue, Trump asks Supreme Court to block subpoena for tax returns, CNN.com (Nov. 14, 2019).

[7] Barnes, Supreme court precedents do not shield Trump financial records, House, prosecutors argue, Wash. Post (Nov. 21, 2019); Reuters, Democrats Urge U.S. Supreme Court Not to Protect Trump Financial Records, N.Y. Times (Nov. 21, 2019); Liptak, Justice Dept. Urges Supreme Court to Back Trump in Tax Records Case, N.Y. Times (Nov. 22, 2019); Vance, Jr.,  Brief in Opposition, No. 19-635 (Sup. Ct. Nov. 21, 2019).

 

 

 

 

The Importance of the Universal Declaration of Human Rights

As has been noted in a post about the recent launching of the new U.S. Commission on Unalienable Rights, U.S. Secretary of State Mike Pompeo made the following favorable comments about the Universal Declaration of Human Rights (UDHR): “The Commission will focus on “human rights grounded in our nation’s founding principles and the principles of the 1948 Universal Declaration of Human Rights. An American commitment to uphold human rights played a major role in transforming the moral landscape of the international relations after World War II, something all Americans can rightly be proud of. Under the leadership of Eleanor Roosevelt, the 1948 Universal Declaration on Human Rights ended forever the notion that nations could abuse their citizens without attracting notice or repercussions.” [1] (Emphasis added.)

In addition, the Commission’s chair, Mary Ann Glendon, has written a marvelous book about the UDHR: A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (2001). [2] In her Preface, she says this Declaration “became a pillar of a new international system under which a nation’s treatment of its own citizens was no longer immune from outside scrutiny. . . . Today, the Declaration is the single most important reference point for cross-national discussions of how to order our future together on our increasingly conflict-ridden and interdependent planet.”  (Emphasis added.) Her book’s Epilogue emphatically states:

  • The Universal Declaration created a bold new course for human rights by presenting a vision of freedom as linked to social security, balanced by responsibilities, grounded in respect for equal human dignity, and grounded by the rule of law.”
  • The Declaration’s principles, moreover, have increasingly acquired legal force, mainly through their incorporation into national legal systems.”
  • One of the most basic assumptions of the founders of the UN and the framers of the Declaration was that the root causes of atrocities and armed conflict are frequently to be found in poverty and discrimination.” (Emphases added.)

Therefore, the following brief summary of the UDHR should assist in understanding the upcoming work of the Commission.

The History of the UDHR

The Charter of the United Nations entered into force on October 24, 1945. Its Preamble stated, in part, that the U.N. was created “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women” and “to promote social progress and better standards of life in larger freedom.” And one of its stated purposes was “To achieve international cooperation . . . in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.” (Art. 1(3)) The Charter also established the Economic and Social Council (Ch. X), which was to “make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all.” (Art. 62(2))

In June 1946, that  Economic and Social Council established the Commission on Human Rights, comprising 18 members from various nationalities and political backgrounds. The Commission then established a special Universal Declaration of Human Rights Drafting Committee, chaired by Eleanor Roosevelt, to write the Declaration. The Committee met in two sessions over the course of two years to consider that proposed instrument with Canadian John Peters Humphrey, Director of the Division of Human Rights within the U.N. United Nations Secretariat, as the principal drafter of the UDHR along with a committee that included René Cassin of France, Charles Malik of Lebanon, and P. C. Chang of the Republic of China. Once the Committee finished its drafting in May 1948, the draft was further discussed by the U.N. Commission on Human Rights, the U.N. Economic and Social Council, and the Third Committee of the General Assembly. During these discussions many amendments and propositions were made by UN Member States.

On December 10, 1948, the U.N. General Assembly at a meeting in Paris, France adopted the Universal Declaration of Human Rights (UDHR) by a vote of 48-0. Eight other countries abstained: the Soviet Union, five members of the Soviet bloc (Byelorussia, Czechoslovakia, Poland, Ukraine and Yugoslavia), South Africa and Saudi Arabia. The other two U.N. members at the time were absent and not voting (Honduras and Yemen).[3]

Selected Provisions of the UDHR

Many of this Declaration’s words in its Preamble and 30 Articles are reminiscent of the language of the U.S. Declaration of Independence of July 4, 1776. Here are some of those words in the U.N. document:

  • “[R]ecognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” (Preamble)
  • “[H]uman rights should be protected by the rule of law.” (Preamble)
  • The “peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women.” (Preamble)
  • N. “Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms.” (Preamble)
  • All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” (Art. 1)
  • Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other s” (Art. 2)
  • Everyone has the right to life, liberty and security of person.” (Art.3)
  • All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.” (Art. 7)
  • Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.” (Art. 18) (Emphases added.)

Legal Status of the UDHR

As a resolution of the U.N. General Assembly, the UDHR is not legally binding on U.N. members. As Mr. Justice Souter stated in an opinion for the U.S. Supreme Court, “the [Universal] Declaration does not of its own force impose obligations as a matter of international law.”[4] Instead, like the U.S. Declaration of Independence, the UDHR was an inspiration and prelude to the subsequent preparation and adoption of various multilateral human rights treaties as well as national constitutions and laws.

Conclusion

 On December 10, 1978, the 30th anniversary of the UDHR’s adoption, President Jimmy Carter said this Declaration “and the human rights conventions [treaties] that derive from it . . . are a beacon, a guide to a future of personal security, political freedom, and social justice. . . . The Universal Declaration means that no nation can draw the cloak of sovereignty over torture, disappearances, officially sanctioned bigotry, or the destruction of freedom within its own borders. . . . Our pursuit of human rights is part of a broad effort to use our great power and our tremendous influence in the service of creating a better world, a world in which human beings can live in peace, in freedom, and with their basic needs adequately met.”[5]

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[1] Here are other posts about the Commission:  Is Trump Administration Attempting To Redefine International Human Rights? (June 15, 2019); Other Reactions to State Department’s Commission on Unalienable Rights (June 17, 2019); More Thoughts on Commission on Unalienable Rights (June 18, 2019); U.S. Commission on Unalienable Rights: Developments (July 4, 2019); More Comments About the Commission on Unalienable Rights (July 9, 2019).

[2] The Glendon book discusses the history of the drafting of the Declaration and includes copies of the various drafts.

[3] U.N., Universal Declaration of Human Rights (Dec. 10, 1948), UN Gen. Assembly Res. 217A, Doc A/810 at 71;Universal Declaration of Human Rights, Wikipedia; Kentonspecial, Human Rights Declaration Adopted by U.N. General Assembly; U.N. VOTES ACCORD ON HUMAN RIGHTS, N.Y. Times (Dec. 11, 1948).

[4] Sosa v. Alvarez-Machain,  542 U.S. 692 (2004); Sosa v. Alvarez-Machain, Wikipedia.

[5] Excerpts From Carter’s Speech on Anniversary of Human Rights Declaration, N.Y. Times (Dec. 10, 1978).

 

Important Questions for Judge Kavanaugh’s Confirmation Hearing 

                                                                                                                                        Judge Brett Kavanaugh, President Trump’s nominee for the U.S. Supreme Court, is supposed to be an “originalist” or someone who bases judicial decisions on the “original” meaning of the U.S. Constitution and statutes. The logic of this philosophy is impeccable. The framers of the Constitution and its amendments and the Congress in statutes make the law and judges seek to ascertain their original intent and then apply the original intent to decide cases.

Thus, some of the important questions for his confirmation hearing revolve around this question: how do you attempt to determine what the original intent of constitutional words or phrases is?

Important guidance on this problem is provided by a recent decision by the U.S. District Court for the District of Maryland regarding the original meaning of the constitutional word “emolument” and by new searchable databases of various writings from the era of the framers of the Constitution.

The Meaning of the Constitutional Word “Emolument”[1]

On July 25, 2018, the U.S. District Court for the District of Maryland denied President Trump’s motion to dismiss the Amended Complaint alleging that his “actual or potential receipt, directly or indirectly, of payments by foreign, the federal, and state governments  (or any of their instrumentalities) in connection with his and the Trump Organization’s ownership of the Trump International Hotel in Washington, D.C.” violates the Foreign and Domestic Emoluments Clauses of the U.S. Constitution.

The key issue for the court in its 52-page well-reasoned and well-written opinion denying the dismissal motion was the original meaning of the world “emolument” in these two constitutional clauses::

  • The Foreign Emoluments Clause. “And no Person holding any Office of Profit or Trust under them [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” (U.S. Const., Art I, sec. 9, cl. 8 (emphasis added).)
  • The Domestic Emolument Clause. “The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.” (U.S. Const., Art II, sec. 1, cl. 7 (emphasis added).)

After first reviewing the parties’ different interpretations of the text of these clauses, the court’s opinion began “with a strong presumption that the term ‘emolument’ should be interpreted broadly to mean ‘profit,’ ‘gain,’ or ‘advantage,’ essentially covering anything of value.” (P. 22.)

The court then turned to the “Original Public Meaning”  of the word since the Supreme Court has held that as the Constitution was “written to be understood by the voters at the time,” it is important to consider “the meaning of the term ‘emolument’ against the backdrop of what ordinary citizens at the time of the Nation’s founding would have understood it to mean.” (Id.) This analysis reinforced the court’s strong presumption from the text that the term had a broad meaning. Important in this regard for the court were the broad use of that term in the following (id. at 22-30):

  • An “article by Professor John Mikhail of Georgetown University Law Center in which, following exhaustive research, he concluded that “every English dictionary definition of ‘emolument’ from 1604 to 1806” includes Plaintiffs’ broader definition.”[2]
  • Drafters of state constitutions;
  • Blackstone’s Commentaries on the Laws of England; and
  • The Framers themselves.

Further support for the court’s conclusion was found in Interpretations of the term by the U.S. Office of Legal Counsel  and Comptroller of the United States.

 The Meaning of the Second Amendment’s Right To “Bear Arms”

The Second Amendment to the U.S. Constitution states the following: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” (Emphasis added.)

The U.S. Supreme Court in  District of Colombia v. Heller, 554 U.S. 570, 576-626 (2008) held, 5-4, that the Second Amendment to the U.S. Constitution protected “an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” The majority opinion in Heller by Associate Justice Antonin Scalia concluded that the phrase “bear arms” in that amendment “was not limited to the carrying of arms in a militia.” (Id. at 586.)

Disagreement with that conclusion has been voiced by Dennis Baron, Professor of English and Linguistics at the University of Illinois at Urbana-Champaign. The basis for this conclusion is the result of a search for the term “bear arms” in the following two new databases compiled by the Brigham Young University College of Law:[3]

  • The Corpus of Founding Era American English is composed of 96,615 texts with nearly 144 million words (as of 07/29/18) in documents used, 1760-1799, by ordinary people of the day, the Founders, and legal sources, including letters, diaries, newspapers, non-fiction books, fiction, sermons, speeches, debates, legal cases, and other legal materials.
  • The Corpus of Early Modern English, which is composed of 40,300 texts with nearly 1.3 billion words from 1475-1800.

The search of the first database yielded 281 instances of the phrase “bear arms” while the second search produced 1,572 instances. After eliminating about 350 duplicates, there were about 1,500 separate occurrences of “bear arms” in the 17th and 18th centuries, and only a handful did not refer to “war, soldiering or organized, armed action.” Therefore, Baron concludes, these databases confirm that the natural meaning of “bear arms” in the framers’ day was connected with militias or the military.

According to Baron, further support for this conclusion is found in the fact that the phrase “bear arms” “has never worked comfortably with the language of personal self-defense, hunting or target practice.” Here, Baron referred to this 1995 comment by historian Garry Wills: “One does not bear arms against a rabbit.”

And in 1840, said Baron, in an early right-to-bear-arms case, the Tennessee Supreme Court stated: “A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane.”

Moreover, Baron pointed out that in the oral arguments  in the Heller case itself, U.S. Solicitor General Paul D. Clement, who was advocating for the invalidity of the District of Colombia gun law, initially said that “bear arms” was meant to carry them outside the home. But he was interrupted by Associate Justice David Souter, who said, “But wait a minute. You’re not saying that if somebody goes hunting deer he is bearing arms, or are you?” Clement responded, “I would say that and so would [James] Madison and so would [Thomas] Jefferson.” But Souter was not persuaded and asked, “In the 18th century, someone going out to hunt a deer would have thought of themselves as bearing arms? I mean, is that the way they talk?” Clement finally retreated with this statement: “Well, I will grant you this, that ‘bear arms’ in its unmodified form is most naturally understood to have a military context.” Obviously the phrase is not modified in the Second Amendment.

New Databases of Written Materials from Framers’ Era

In addition to the previously mentioned databases compiled by the Brigham Young University College of Law, a similar project is being undertaken by a legal historian at the University of Chicago Law School, Alison LaCroix , and a linguist, Jason Merchant, the Lorna Puttkammer Straus Professor, Department of Linguistics and Humanities at the University of Chicago. Their project seeks to utilize the vast collection of historical texts available through Google Books to enable users to study in a more rigorous and sophisticated way how language and meaning have changed. This project, Professor LaCroix, said, “meets originalism on its own terms.”[4]

Questions for Judge Kavanaugh

Therefore, this blogger suggests that at the confirmation hearing, Judge Kavanaugh be asked at least the following questions:

  1. How do you attempt to determine the original meaning or intent of a word or phrase in the U.S. Constitution?
  2. What sources do you use in such attempts?
  3. Do you use computer databases of written materials from the framers’ era?
  4. If so, which ones? Why those? How many texts are in those databases?
  5. If not, why not?
  6. Have you ever used the BYU Law School’s Corpus of Founding Era American English?
  7. If not, why not?
  8. If yes, for what issue? Result?
  9. Have you ever used BYU Law School’s Corpus of Early Modern English?
  10. If not , why not?
  11. If yes, for what issue? Result?
  12. If you were confirmed to be an Associate Justice of the Supreme Court, would you be reluctant to overrule one of its own precedents that, in your judgment, erroneously interpreted the original intent or meaning of a constitutional word or phrase?
  13. If you had been on the Court in the 1950’s, for example, would you have been reluctant to overrule Plessy v. Ferguson?
  14. If you are confirmed, would you be reluctant to overrule the Supreme Court’s interpretation of the Second Amendment’s “bear arms” phrase in District of Columbia v. Heller?

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[1] Order, District of Columbia v. Trump, Case No. 8:17-cv-01596-PJM (D. Md. July 25, 2018); Opinion, District of Columbia v. Trump, Case No. 8:17-cv-01596-PJM (D. Md. July 25, 2018);  LaFraniere, In ruling against Trump, Judge Defines Anticorruption Clauses in Constitution for First Time, N.Y. Times (July 25, 2018); Racine, Frosh & Eisen, Trump’s Emoluments Trap, N.Y. Times (July 26, 2018); Marimow, O’Connell & Fahrenthold, Federal judge allows emoluments case against Trump to proceed, Wash. Post (July 25, 2018); Barbash, Trump’s ‘emoluments’ battle: How a scholar’s search of 200 years of dictionaries helped win a historic ruling, Wash. Post (July 27, 2018); Editorial, The framers worried about corruption. Their words may now haunt the president, Wash. Post (July 27, 2018). The judge in this case, Senior District Judge, Peter J. Messitte, holds a B.A. degree from Amherst College (1963) and a J.D. degree from the University of Chicago Law School (1966), where he was a classmate of this blogger. He was appointed to the District Court by President Clinton in 1993. In 2008 he took senior status, but carried a full caseload through 2011.

[2] Mikhail, Abstract: The Definition of ‘Emolument” in English Language and Legal Dictionaries, 1523-1806 (June 30, 2017).

[3] Baron, Antonin Scalia was wrong about the meaning of ‘bear arms,’  Wash. Post (May 21, 2018); Brigham Young University Law School, Corpus of Founding Era American English; Brigham Young University Law School, Corpus of Early Modern English; Baron, Guns and Grammar: the Linguistics of the Second Amendment.

[4]  Allen, Alison LaCroix Leads New Law and Linguistics Project, Univ. Chicago Law School News (Feb. 2, 2015).

 

 

Spain Ready to Proceed with Case Over the 1989 Killing of Jesuit Priests in El Salvador

For the last nine years, a court in Spain has been trying to obtain the presence of 20 former Salvadoran military officers to face trial on their alleged involvement in the 1989 murders of six Jesuit priests and their housekeeper and her daughter in El Salvador. Recently one of them—Inocente Orlando Montano Morales (“Montano”)—Is about to be sent to Spain for trial.[1]

 Montano

Former Colonel Montano was the deputy minister of Salvadoran Public Security from 1989 to 1992 and since April 2015 has been the subject of a judicial request by the U.S. Department of Justice for his extradition from the U.S. to Spain to face these charges.

On February 4, 2016, a Magistrate Judge in the U.S. District Court for the District Court of the Eastern District of North Carolina, after an evidentiary hearing, granted this request for extradition based upon the following conclusions: the court had personal jurisdiction over Montano; the U.S. and Spain had an extradition treaty; Montano had been charged with extraditable offenses under that treaty (the terrorist murder of five Jesuit priests of Spanish original nationality); and there was probable cause the Montano committed these offenses.[2]

Montano then exercised his only means of appealing that order by filing in April 2016 an application for a writ of habeas corpus in the same court. After briefing and a hearing, a district judge of that court in August 2017, granted the U.S. government’s motion to dismiss the application and dismissed the application.  This was based on the court’s conclusion that this extradition followed accepted practice and did not appear to be infirm; the treaty “provides for the extradition of a defendant charged with murder when committed outside the territory of the requesting nation {Spain]; . . . [its] laws allow for such a prosecution; and the laws of the requested nation [the U.S.] would allow for a prosecution in similar circumstances.”[3]

Montano then appealed this order to the U.S. Court of Appeals for the Fourth Circuit and simultaneously asked the district court for a stay or postponement of his extradition. This was denied by the district court on September 6 after concluding that he has “failed to make a strong showing that he is likely to succeed on the merits [of his appeal]” and “cannot demonstrate that he will suffer irreparable injury in the absence of a stay.” Thereafter simple denials of the request for a stay were entered on September 28 by the Fourth Circuit and on November 15 by U.S. Supreme Court Chief Justice John Roberts.[4]

Undoubtedly important in Chief Justice Roberts’ denial of a stay was the brief in opposition to such a stay that was submitted by the U.S. Solicitor General, the principal attorney for the U.S. in the U.S. Supreme Court. In its first three of 29 pages, before setting forth a detailed review and approval of the lower courts’ actions, that brief set forth the following facts from the record: “Toward the end of that war [between the military –led government and a leftist guerrilla group]– on November 16, 1989—members of the El Salvador Armed Forces . . . murdered six Jesuit priests, their housekeeper, and the housekeeper’s daughter at the Universidad Centroamerica (UCA) in El Salvador. . . . Five of them were Spanish nationals.” Moreover, evidence submitted by the Spanish authorities showed that “in the days leading up to the murders, the . . .  radio station that [Montano] oversaw made threats against the Jesuit priests; that on the day before the murders, [Montano] participated in a meeting at which one of this fellow officers gave the order to kill the priests; that [Montano] provided ‘necessary information’—namely, the location of one of the priests—to those who carried out the murders; and that following the murders, [Montano] attempted to conceal [the Armed Forces] involvement by threatening the wife of a witness.”[5]

The Solicitor General concluded his brief with these comments: “the [U.S.] has a strong interest in having extradition requests resolved without undue delay, both to comply with its treaty obligations and to further its reciprocal interest in having other Nations cooperate swiftly with its own extradition requests and other law enforcement objectives.” Moreover, “Spain is an important partner of the [U.S.] in terrorism and other cases of national importance, and timely compliance with its extradition requests advances the [U.S.’] foreign policy and law enforcement interests.” (Pp. 27-28.)

As a result, Montano is now headed for imminent extradition to Spain. Almudena Bernabéu, an expert from the Center for Justice and Accountability (CJA) and a private prosecutor of the Jesuits case in Spain with her organization Guernica 37, said about four weeks ago the State Department determined that extradition was appropriate. “From that moment, the two countries are ready for delivery and reception of Montano, but they did not want to do it” until he had exhausted all of his U.S. remedies.

Other Former Salvadoran Military Officers

Of the other 19 former Salvadoran military officers charged with this horrible crime, one was convicted of the crime in El Salvador and was re-imprisoned after its Supreme Court invalidated its Amnesty law, one (former Defense Minister Emilio Ponce) is deceased and two others are cooperating with the Spanish prosecutors (Yussy Mendoza and Camilo Hernandez).

These other 15 still live in their home country, but its Supreme Court twice (2012 and 2016) has denied their extradition to Spain.

Manuel Escalante, a human rights lawyer at Jose Simeon Canas Central American University, where the murdered priests lived and worked and were murdered, after learning of the imminent extradition of Montano, called for prosecution of the 14 in El Salvador. He said that a conviction in Spain would be a big step toward “eliminating historical impunity” and that Salvadoran prosecutors must also act to advance the case in the Central American nation. The victims and their defenders “are going to seek justice. We are going to ask for the reopening of the trial.”[6]

The university, however, previously had said it considers the case closed against those who carried out the killings and even has called for clemency for former Col. Guillermo Benavides, who has served four years of a 30-year sentence as the only military official in prison for his role in the crime.

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[1] The charges subsequently were reduced to terrorist murder of the five priests of original Spanish nationality as a result of an amendment to Spain’s statute on universal jurisdiction. The priests, their murders, judicial proceedings about this crime, including the Spanish case, and these extradition proceeding have been discussed in the posts listed in “The Jesuit Priests” section in List of Posts to dwkcommentaries—Topical: EL SALVADOR.

[2]  Certification of Extraditability & Order of Commitment, In re Request by Spain for the Extradition of Montano, Montano v. Elks. No. 2:15-MJ-1021-KS (E.D.N.C. Feb. 5, 2016).

[3] Order, Montano v.  Elks, No. 5-16-HC-2066-BO (E.D.N.C. Aug. 21, 2017).

[4] Order, Montano v.  Elks, No. 5-16-HC-2066-BO (E.D.N.C.. Sept. 6, 2017); Order, Montano v.  Elks, N0. 17-7091 (4th Cir. Sept. 28, 2017); Order, Montano v.  Elks, No. 17A445 (U.S. Sup. Ct. Nov. 15, 2017); Drew, Last hurdle cleared for ex-Salvadoran official’s extradition, Assoc. Press (Nov. 15, 2017); Labrador & Rauda, Colonel Montano to Spain for the  murder of the Jesuits, El Faro (Nov. 15, 2017); Progress in Jesuit murder case on 28th anniversary, El Salvador Perspectives (Nov. 16, 2017); Alonso, The Supreme Court of the United States approves extraditing a Salvadoran ex-military man to Spain for the killing of the six Jesuits, El Pais (Nov. 15, 2017).

[5] Memorandum for the Federal Respondents in Opposition, Montano v. Elks, No. 17A445 (U.S. Sup. Ct. Nov. 8, 2017).

[6] Assoc. Press, El Salvador Jesuits Seek Reopening of Case in 1989 Massacre, N.Y. Times (Nov. 16, 2017); Lafuente, A halo of justice in the killing of the Jesuits in El Salvador, El Pais (Nov. 17, 2017.

Judge Gorsuch Might Be a Liberal Originalist on the Supreme Court

Akhil Reed Amar, a Yale Law School professor and the author of “The Constitution Today: Timeless Lessons for the Issues of Our Era,” argues that not all devotees of “originalism” in interpreting the Constitution and statutes are what are ordinarily called conservatives and that Judge Neil Gorsuch might be a liberal member of this group.[1]

Originalists, the professor says, “believe that faithful constitutional interpreters must build on the solid bedrock of the Constitution’s text, as that text was originally understood when drafted and ratified.” However, he adds, “not all conservatives are originalists, nor are all originalists conservative. Most jurists, most of the time, follow modern judicial precedents rather than pondering first principles of constitutional text and history. Practical considerations also factor into most jurists’ decision making. Originalists are no different in this regard, but they are more apt to dwell on first principles of text and original meaning and to discard precedents violating these first principles.”

A group of “liberal originalist lawyers, the Constitutional Accountability Center, where I serve on the board of directors, has been particularly effective in bringing liberal originalist scholarship to judicial attention. This month, Justice Anthony M. Kennedy and four liberal colleagues [in Pena-Rodriguez v. Colorado.] strengthened rules against racial animus in jury deliberations” in reliance . . . on the Center’s amicus brief and the historical scholarship it showcased” by another Yale Law School professor.

This case demonstrated that “originalists must honor not just the original understanding of words ratified in 1787-88, but also the letter and spirit of language added by later generations of amenders.”

Amar also noted “the extraordinary body of work of Steven G. Calabresi, who co-founded the conservative Federalist Society in the early 1980s and then clerked for Judge Bork and Justice Scalia. As “perhaps America’s pre-eminent conservative originalist,” [he] has shown that the 14th Amendment was plainly intended to apply the Bill of Rights to the states; that women’s equality was a central theme of that amendment, as originally understood; and that originalism in fact supports a right of same-sex marriage.”

Gorsuch, Amar asserts, “is a brainy and principled jurist” and his “embrace of originalism is honorable and admirable” and, if confirmed as seems likely, “may one day [be regarded] . . . as among the best of the century.”

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[1] Amar, What Gorsuch Has in Common with Liberals, N.Y. Times (Mar. 18, 2017).

 

 

 

 

George Will’s Embrace of Natural Law

Recently concepts of natural law have re-emerged as relevant to interpretations of the U.S. Constitution. George Will, the prominent political and legal commentator, has done so in at least three Washington Post columns and in a speech at the John C. Danforth Center for Religion and Politics. This post will discuss his views on this subject. A subsequent post will explore those of Judge Neil Gorsuch, the current nominee for Associate Justice of the U.S. Supreme Court, whose confirmation hearing starts tomorrow.

Background

Two important instruments of U.S. history are the U.S. Declaration of Independence and the Ninth Amendment to the Constitution. The Declaration states, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights; that among these, are life, liberty, and the pursuit of happiness.” The Ninth Amendment, which is part of our Bill of Rights, states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”[1]

Although I am a retired attorney, I have not attempted to make my own analysis of how the U.S. Supreme Court has interpreted the Ninth Amendment. Instead I rely on my recollection that the Declaration and this Amendment have not been major authorities in the U.S. Supreme Court’s decisions and Wikipedia’s conclusion that the Court has not used them to further limit government power.

Wikipedia also cites this statement by Justice Scalia in Troxel v. Granville, 530 U.S. 57 (2000): “The Declaration of Independence is not a legal prescription conferring powers upon the courts, and [the Ninth Amendment’s] . . . refusal to ‘deny or disparage’ other rights is far removed from affirming any of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.”

George Will’s Discussion of Natural Law

In a Washington Post column{2} Will argued that the Ninth Amendment’s protection of other rights “retained by the people” encompasses “natural law” rights, which are affirmed by these words of the Declaration of Independence:

  • “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness—that to secure these rights, Governments are instituted among Men, deriving their just powered front he consent of the governed.”

Therefore, Will argues, “the Founders’ philosophy is infused into . . . [the Constitution] by construing . . . [the Constitution] as a charter of government that is, in Lincoln’s formulation, dedicated to [the above proposition in that Declaration].” As a result, says Will, “The drama of American democracy derives from the tension between the natural rights of the individual and the constructed right of the majority to make such laws as the majority desires. Natural rights are affirmed by the Declaration and a properly engaged judiciary is duty-bound to declare majority acts invalid when they abridge natural rights.”

“With the Declaration, Americans . . . began asserting rights that are universal because they are natural, meaning necessary for the flourishing of human nature.”

Will in this article does not go on to identify specific natural rights that are so encompassed by the Declaration. Presumably Will would not limit the protections of these words of the Declaration to those who were covered at the time of its proclamation in 1766: white men of property. In any event, his suggestion provides another “originalist” approach to interpreting the Constitution, an approach that is more open-ended than that promulgated by Justice Scalia.

George Will’s Speech at John C. Danforth Center for Religion and Politics

Additional light on George Will’s thoughts about natural law is shed by an adaption of his December 2012 speech at the John C. Danforth Center on Religion and Politics, University of Washington at St. Louis.[3]

He asserts that although he himself is non-religious, he believes that “religion has been, and can still be, supremely important and helpful to the flourishing of our democracy” and that “the idea of natural rights [does not] require a religious foundation, or even that the founders uniformly thought it did. It is, however, indubitably the case that natural rights are especially firmly grounded when they are grounded in religious doctrine.” Moreover, Will believes that the founders, who were not particularly religious themselves, “understood that Christianity, particularly in its post-Reformation ferments, fostered attitudes and aptitudes associated with, and useful to, popular government. Protestantism’s emphasis on the individual’s direct, unmediated relationship with God and the primacy of individual conscience and choice subverted conventions of hierarchical societies in which deference was expected from the many toward the few.”

According to Will, the founders “understood that natural rights could not be asserted, celebrated, and defended unless nature, including human nature, was regarded as a normative rather than a merely contingent fact. This was a view buttressed by the teaching of Biblical religion that nature is not chaos but rather is the replacement of chaos by an order reflecting the mind and will of the Creator. This is the Creator who endows us with natural rights that are inevitable, inalienable, and universal — and hence the foundation of democratic equality. And these rights are the foundation of limited government — government defined by the limited goal of securing those rights so that individuals may flourish in their free and responsible exercise of those rights.”

The U.S. Declaration of Independence asserts that “important political truths are not merely knowable, they are self-evident, meaning they can be known by any mind not clouded by ignorance or superstition. [As it states, “it is self-evidently true that ‘all men are created equal.’ Equal not only in their access to the important political truths, but also in being endowed by their Creator with certain unalienable rights, including life, liberty, and the pursuit of happiness.” [The Declaration goes on to state], ‘[T]o secure these rights, governments are instituted among men.’ Government’s primary purpose is to secure pre-existing rights. Government does not create rights; it does not dispense them.”

“Biblical religion is concerned with asserting and defending the dignity of the individual. Biblical religion teaches that individual dignity is linked to individual responsibility and moral agency. Therefore, Biblical religion should be wary of the consequences of government untethered from the limited (and limiting) purpose of securing natural rights.”

Will’s Obituary for Antonin Scalia

In the obituary Will praised the late Associate Justice Antonin Scalia for his championing the principles of judicial modesty: “textualism and originalism: A justice’s job is to construe the text of the Constitution or of statutes by discerning and accepting the original meaning the words had to those who ratified or wrote them.” Moreover, said Will, Scalia “was a Roman candle of sparkling jurisprudential theories leavened by acerbic witticisms.”[4]

In Will’s opinion, “Democracy’s drama derives from the tension between the natural rights of individuals and the constructed right of the majority to have its way. Natural rights are affirmed by the Declaration of Independence; majority rule, circumscribed and modulated, is constructed by the Constitution.” Moreover, “as the Goldwater Institute’s Timothy Sandefur argues, the Declaration is logically as well as chronologically prior to the Constitution. The latter enables majority rule. It is, however, the judiciary’s duty to prevent majorities from abridging natural rights. After all, it is for the securing of such rights, the Declaration declares, that ‘governments are instituted among men.’”[5]

Will, however, does not attempt to reconcile his praise for Scalia with the Justice’s rejection of the Declaration as important for constitutional analysis.

Will’s Questions for Judge Gorsuch

In another Washington Post column, Will suggested questions to be asked Judge Gorsuch at his confirmation hearings.[6] Here are some of those questions:

  • Is popular sovereignty (majorities rights) or liberty the essence of the American project?
  • Was the purpose of the 14th Amendment’s “privilege and immunities” clause to place certain subjects beyond the reach of majorities?
  • Was the 14th Amendment’s “privilege and immunities” clause’s purpose to ensure that the natural rights of all citizens would be protected from abridgment by their states?
  • Was the Supreme Court wrong in the 1873 Slaughter-House Cases that essentially erased the privileges and immunities clause, holding that it did not secure natural rights (e.g., the right to enter contracts and earn a living)? If so, should it be overruled?
  • Do you agree with Chief Justice John G. Roberts Jr. who has said the doctrine ofstare decisis — previous court decisions are owed respect — is not an “inexorable command”?
  • Do you agree with the Supreme Court’s division of liberties between those deemed to be fundamental and thus subjecting any restrictions on them to strict scrutiny and all others whose restrictions are subjected only to “rational basis” scrutiny?
  • What, in your opinion, is the role of the Ninth Amendment in constitutional law?
  • Are there limits to Congress’ power over interstate commerce other than those enumerated in the Bill of Rights (the first 10 amendments to the Constitution)?
  • Was the Supreme Court correct in the 2005 Kelo v. City of New London case upholding a city’s seizure of private property not to facilitate construction of a public structure or to cure blight, but for the “public use” of transferring it to a wealthier private interest that would pay more taxes?
  • What limits, if any, are imposed upon Congress’ delegation of powers to administrative agencies by Article I of the Constitution’s provision: “All legislative powers herein granted shall be vested in a Congress”?
  • Was the Supreme Court correct in Citizens United that Americans do not forfeit their First Amendment rights when they come together in incorporated entities to speak collectively?
  • Is it constitutional for Congress, by regulating political spending, to control the quantity and timing of political speech?
  • Would you feel bound to follow a previous Supreme Court decision that did not evaluate evidence of the original meaning of the Constitution and was, in your view, in conflict with it?

Conclusion

Although I do not generally agree with many of George Will’s political opinions, I think that the linkage of the Ninth Amendment and the Declaration of Independence makes sense and should be explored more fully in future constitutional litigation. However, it is not so easy to make the next step of identifying additional principles of natural law that could impose limits on the federal and state governments.

The Declaration’s statement that human beings are endowed by their Creator with certain inalienable rights is part of that difficulty. First the First Amendment to the Constitution bans the federal government’s establishment of a religion. Second, there are now so many different religions in the world and in the U.S. Although as a Christian I believe that at least all of the major world religions honor peace and hospitality and that they all agree on the Golden Rule: do unto others as you would have them do unto you, I find it difficult see how that leads to principles of natural law that are useful. For example, I find it difficult to see how this linkage leads to the conclusion that the Citizens United case was correctly decided, as Will suggests.

In addition, although I have not studied the underlying sources, I am intrigued by the notion that the privileges and immunities clause of the Fourteenth Amendment was intended to encompass all natural law rights of U.S. citizens and that the Slaughter-House Cases were wrongly decided.

In any event, we all should thank George Will for proposing interesting questions for Judge Gorsuch in his confirmation hearing. I am reasonably confident that most, if not all, of them will be asked and answered.

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[1] United States Declaration of Independence, Wikipedia;  Ninth Amendment to the United States Constitution, Wikipedia. A prior post discussed the First Congress’ adoption of the Bill of Rights after ratification by the requisite number of states.

[2] Will, Maybe Gorsuch will fill in blanks left by Scalia, Wash. Post (Feb. 1, 2017).

[3] Will, Religion and the American Republic, Nat’l Affairs (Summer 2013). John C. Danforth, an ordained Episcopal priest, was Attorney General of Missouri, 1969-1976, and U.S. Senator for that state, 1976-1995.

[4] Will, In Memoriam: Supreme Court Justice Antonin Scalia 1936-2016, Wash. Post (Feb. 14, 2016).

[5]  Timothy Sandefur  is Vice President for Litigation at the Goldwater Institute and Adjunct Scholar with the Cato Institute. He also is the author of The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty (2013),  which is a more extensive exposition of Will’s argument that the Declaration and the Ninth Amendment need to be important markers in constitutional analysis and litigation. Moreover, Sandefur argues that the privileges and immunities clause of the Fourteenth Amendment of 1868 recommitted the U.S. to the primacy of liberty and defined the terms of U.S. citizenship that unfortunately was demolished by the U.S. Supreme Court’s 1873 decision in the Slaughter-House Cases, 83 U.S. 36 (1873).

[6] Will, Questions for Judge Gorsuch, Wash. Post (Mar. 17, 2017).

U.S. First Congress: Creation of Federal Judiciary, 1789

As previously discussed, the First Congress of the United States of America began on March 4, 1789, and ended on March 4, 1791. We now look at its creation of the federal court system in the Judiciary Act of 1789, which was adopted on September 24, 1789.[1]

The Constitution

The backdrop for this legislation was Article III of the Constitution of the U.S.A., which provided the following:

  • 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 Behaviour, 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.”

Judiciary Act of 1789

The previously mentioned Judiciary Act of 1789 had the following key provisions:

  • Section 1. The “supreme court of the United States shall consist of a chief justice and five associate justices . . . .” [The Supreme Court’s cognizance or jurisdiction was established in Section 13.][2]
  • Section 2. The U.S. “shall be, and they hereby are divided into thirteen districts [as defined in that section].[3]
  • Section 3. There shall be “a court called a District Court, in each of the aforesaid districts, to consist of one judge, who shall reside in the district for which he is appointed, and shall be called a District Judge. . . .” [The cognizance or jurisdiction of each of the District Courts was specified in Sections 9 and 10.][4]
  • Section 4. These thirteen districts, except those of Maine and Kentucky, “shall be divided into three circuits, and be called the eastern, the middle and the southern circuit. . . . and that there shall be held annually in each district of said circuits, two courts, which shall be called Circuit Courts, and shall consist of any two justices of the Supreme Court and the district judge of such districts . . . .’ [The cognizance or jurisdiction of the Circuit Courts was specified in Section 11, and certain of their procedures were contained in Section 5.] [5]
  • Section 12 [Procedure for removal of certain cases from state court to federal court.]
  • Sections 6, 8, 14-26, 29-35. [Established rules of procedure for the federal courts.]
  • Section 7 [Supreme Court and District Courts have power to appoint clerks with specification of their duties.]
  • Sections 27-28. [District courts have power to appoint marshals with specification of their duties.]

According to Fergus Bordewich, the author of a leading book about the First Congress, the bill’s primary author was Senator Oliver Ellsworth, a staunch Federalist from Connecticut and an experienced litigator and state court judge. Ellsworth was especially concerned about maritime issues because virtually all of the federal government’s revenues would derive from import duties. Another maritime issue was regulating privately owned raiders by validating captured prizes and ensuring that they did not commit outright piracy. [6]

There was “vigorous debate” about the bill. Some believed that having only six Supreme Court justices was insufficient to combat the state courts; that it would be wrong to allow state courts to have jurisdiction over some federal cases; that there was insufficient federal revenue to support the federal courts; that this judiciary was intended to enrich lawyers; that the federal judges would have too much “inquisitorial power;” that the federal courts should not have the power to invalidate state laws that were believed to conflict with the Constitution or federal laws or treaties. James Madison in the House of Representatives thought the bill was too complicated and too expensive. Some even thought that having two overlapping judicial systems (state and federal) was totally unnecessary.

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[1] U.S. First Congress, 1789-1791: Overview, dwkcommentaries.com (Feb. 15, 2017); Judiciary Act of 1789, http://avalon.law.yale.edu/18th_century/judiciary_act.asp.

[2] Over the years Congress has passed various acts to change the number of Supreme Court justices from six to a low of five and a high of ten. The Judiciary Act of 1869 fixed the number of Justices at nine and no subsequent change to the number of Justices has occurred. (U.S. Sup. Ct., Frequently Asked Questions (FAQ). https://www.supremecourt.gov/faq.aspx#faqgi

[3] There now are 94 U.S. district courts as some states like New York have more than one such district and as some non-states (e.g., Puerto Rico) have such courts. (U.S. Courts, Court Role and Structure.) http://www.uscourts.gov/about-federal-courts/court-role-and-structure

[4] Most, if not all, of today’s U.S. district courts have more than one judge. Thus, as of May 2012 there were 2,758 such judges.

[5] The U.S. circuit courts have been replaced by 13 U.S. courts of appeal, and as of May 2012 there were 714 judges on these courts. (U.S. Courts, Court Role and Structure.) http://www.uscourts.gov/about-federal-courts/court-role-and-structure

[6] Bordewich, The First Congress at 105-12, 141-43, 159-60 (Simon & Schuster, New York, 2016). http://www.simonandschuster.com/books/The-First-Congress/Fergus-M-Bordewich/9781451691931