Those of you with amazingly long attention spans will recollection that it was glorious yesterday that we examined in these here electronified pages the majesty and confusion of the second article to the Constitution of the United States. Those with less stellar faculties may recharge their collective batteries here.
And sure enough, as promised, today we put an unwavering eyeball to Article III, the one addressing itself to the judiciary branch of government, with an eventual aim toward mayhaps revising said document, just the way Thomas Jefferson himself said we should do every nineteen years so as to avoid being slaves to previous generations.
Section 1 reads this-away. 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.
This sounds pretty clear. We have one office called the Supreme Court and the members of that court cannot have their salaries or wages reduced once they get the job.
We will get into Section 2 of Article III when we get to the Amendments, specifically the Eleventh. IN the meantime, let's look at Section 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.
2: 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.
In other words, you are not guilty of the crime of treason unless at least two people say you are or unless you confess. But what is all this talk of "corruption of blood"? Corruption of Blood was part of ancient English penalty for treason. It was usually part of a Bill of Attainder, which normally sentenced the accused to death. The corruption of blood would forbid the accused's family from inheriting his property. Such bills and punishments were often inflicted upon Tories by colonial governments immediately following independence. What the founders are saying is that you cannot be put to death and pass on the responsibility of dying to the person's heirs. Killing the traitor is enough; you don't have to kill his kids.
One does not get the sense from a reading of Article III that Jefferson and the boys thought all that much of the Supreme Court. We note that the description is listed third, which is significant when dealing with the logic of eighteenth century writers. We further see that nowhere in the Article does it say that the Supreme Court is imbued with the power to make laws that affect the way the laws work in this country. However, insomuch as the then-new Constitution declared itself to be the supreme law of the land, the Supreme Court, after putting out one or two hesitant feelers, declared in 1803 in the case of Marbury v. Madison that it was the organ of government to maintain the supremacy of the Constitution and that in the exercise of its judicial work of applying the law in cases brought before it, it would invalidate acts of Congress which were in conflict with the Constitution. Since the Constitution itself declared its supremacy over conflicting state legislation, the power of the Supreme Court to invalidate state law deemed to violate that Constitution were even easier to defend. Whether the framers of the Constitution intended the Supreme Court to exercise this power of judicial review in enforcing the supremacy of the Constitution, or whether the Court usurped it, has evoked bitter argument which we need not enter into here. Whether usurped or not, and the weight of historical argument is against the charge of usurpation, the Supreme Court has exercised this important power of declaring statutes unconstitutional ever since Marshall established the precedent in 1803, and it is now as much a part of the working American Constitution as the provision that Senators shall be chosen for six years or that the President may veto bills sent to him or her by Congress.
What are some of the most important cases to be raised to the Supreme Court?
There have been more than a few. We're going to look at the text of some of the more significant ones now.
In the case of Roe v. Wade, it is the third item which most readers will find fascinating.
Roe v. Wade
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
A pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws, which proscribe procuring or attempting an abortion except on medical advice for the purpose of saving the mother's life. A licensed physician (Hallford), who had two state abortion prosecutions pending against him, was permitted to intervene. A childless married couple (the Does), the wife not being pregnant, separately attacked the laws, basing alleged injury on the future possibilities of contraceptive failure, pregnancy, unpreparedness for parenthood, and impairment of the wife's health. A three-judge District Court, which consolidated the actions, held that Roe and Hallford, and members of their classes, had standing to sue and presented justiciable controversies. Ruling that declaratory, though not injunctive, relief was warranted, the court declared the abortion statutes void as vague and overbroadly infringing those plaintiffs' Ninth and Fourteenth Amendment rights. The court ruled the Does' complaint not justiciable. Appellants directly appealed to this Court on the injunctive rulings, and appellee cross-appealed from the District Court's grant of declaratory relief to Roe and Hallford.
Held:
1. While 28 U.S.C. § 1253 authorizes no direct appeal to this Court from the grant or denial of declaratory relief alone, review is not foreclosed when the case is properly before the Court on appeal from specific denial of injunctive relief and the arguments as to both injunctive and declaratory relief are necessarily identical.
2. Roe has standing to sue; the Does and Hallford do not.
(a) Contrary to appellee's contention, the natural termination of Roe's pregnancy did not moot her suit. Litigation involving pregnancy, which is "capable of repetition, yet evading review," is an exception to the usual federal rule that an actual controversy must exist at review stages, and not simply when the action is initiated.
(b) The District Court correctly refused injunctive, but erred in granting declaratory, relief to Hallford, who alleged no federally protected right not assertable as a defense against the good faith state prosecutions pending against him.
(c) The Does' complaint, based as it is on contingencies, any one or more of which may not occur, is too speculative to present an actual case or controversy.
3. State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a "compelling" point at various stages of the woman's approach to term.
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
4. The State may define the term "physician" to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined. P. 165.
5. It is unnecessary to decide the injunctive relief issue, since the Texas authorities will doubtless fully recognize the Court's ruling [p115] that the Texas criminal abortion statutes are unconstitutional. P. 166.
BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and DOUGLAS, BRENNAN, STEWART, MARSHALL, and POWELL, JJ., joined. BURGER, C.J., post, p. 207, DOUGLAS, J., post, p. 209, and STEWART, J., post, p. 167, filed concurring opinions. WHITE, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 221. REHNQUIST, J., filed a dissenting opinion,post, p. 171.
Dred Scott v. Sandford
Born a slave in Virginia, Dred Scott had lived in both slave states and free states before appealing to the Supreme Court to grant him his freedom. The Court, in an opinion written by pro-slavery Chief Justice Roger Taney, denied Scott his request, declaring that all blacks, slaves as well as free, were not and never could be citizens of the United States.
Taney wrote that blacks "had no rights which the white man was bound to respect." As such, neither Dred Scott nor any other black person could sue in federal court.
The decision was a prime factor leading to the Civil War. It was eventually rendered moot by the 14th Amendment, which provides that anyone born or naturalized in the United States is a citizen of the nation and of his or her state.
Dred Scott v. Sandford
60 U.S. (19 How.) 393 (1856)
1. Upon a writ of error to a Circuit Court of the United States, the transcript of the record of all the proceedings in the case is brought before the court, and is open to inspection and revision.
2. When a plea to the jurisdiction, in abatement, is overruled by the court upon demurrer, and the defendant pleads in bar, and upon these pleas the final judgment of the court is in his favor -- if the plaintiff brings a writ of error, the judgment of the court upon the plea in abatement is before this court, although it was in favor of the plaintiff -- and if the court erred in overruling it, the judgment must be reversed, and a mandate issued to the Circuit Court to dismiss the case for want of jurisdiction.
3. In the Circuit Courts of the United States, the record must show that the case is one in which, by the Constitution and laws of the United States, the court had jurisdiction -- and if this does not appear, and the judgment must be reversed by this court -- and the parties cannot be consent waive the objection to the jurisdiction of the Circuit Court.
4. A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a "citizen" within the meaning of the Constitution of the United States.
5. When the Constitution was adopted, they were not regarded in any of the States as members of the community which constituted the State, and were not numbered among its "people or citizens." Consequently, the special rights and immunities guarantied to citizens do not apply to them. And not being "citizens" within the meaning of the Constitution, they are not entitled to sue in that character in a court of the United States, and the Circuit Court has not jurisdiction in such a suit.
6. The only two clauses in the Constitution which point to this race treat them as persons whom it was morally lawfully to deal in as articles of property and to hold as slaves.
7. Since the adoption of the Constitution of the United States, no State can by any subsequent law make a foreigner or any other description of persons citizens of the United States, nor entitle them to the rights and privileges secured to citizens by that instrument.
8. A State, by its laws passed since the adoption of the Constitution, may put a foreigner or any other description of persons upon a footing with its own citizens as to all the rights and privileges enjoyed by them within its dominion and by its laws. But that will not make him a citizen of the United States, nor entitle him to sue in its courts, nor to any of the privileges and immunities of a citizen in another State.
9. The change in public opinion and feeling in relation to the African race which has taken place since the adoption of the Constitution cannot change its construction and meaning, and it must be construed and administered now according to its true meaning and intention when it was formed and adopted.
10. The plaintiff having admitted, by his demurrer to the plea in abatement, that his ancestors were imported from Africa and sold as slaves, he is not a citizen of the State of Missouri according to the Constitution of the United States, and was not entitled to sue in that character in the Circuit Court.
11. This being the case, the judgment of the court below in favor of the plaintiff on the plea in abatement was erroneous.
Santa Clara v Southern Pacific Railroad
What makes the case significant is an offhand remark from Justice Morrison Remick Waite, made from the bench before the beginning of oral argument:"The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does."
And thus a two-sentence comment by a single Justice elevated corporations to the status of people under the law and created the doctrine of legal personhood and opened wide the door through which the doctrine of corporatism could reign in the United States.
Korematsu v. United States
Fred Korematsu was an American citizen who grew up in the San Francisco Bay Area. In May 1942, the federal government began interning Japanese Americans in camps because of security fears during World War II. (This was authorized by Executive Order 9066.) Korematsu refused to follow the orders. Instead, he moved to a nearby town, had facial surgery to hide his Japanese features, and changed his name. He was eventually found and convicted.The majority of the Court upheld the conviction and said that the government had a right to force Japanese Americans into these camps during the current circumstances of emergency and peril. The dissenters vehemently rejected the national security claim, asserting that the internment was really based on racial prejudice.
323 U.S. 214 (1944)
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT
1. Civilian Exclusion Order No. 34 which, during a state of war with Japan and as a protection against espionage and sabotage, was promulgated by the Commanding General of the Western Defense Command under authority of Executive Order No. 9066 and the Act of March 21, 1942, and which directed the exclusion after May 9, 1942, from a described West Coast military area of all persons of Japanese ancestry, held constitutional as of the time it was made and when the petitioner -- an American citizen of Japanese descent whose home was in the described area -- violated it. P. 323 U. S. 219.
2. The provisions of other orders requiring persons of Japanese ancestry to report to assembly centers and providing for the detention of such persons in assembly and relocation centers were separate, and their validity is not in issue in this proceeding. P. 323 U. S. 222.
3. Even though evacuation and detention in the assembly center were inseparable, the order under which the petitioner was convicted was nevertheless valid. P. 323 U. S. 223.
140 F.2d 289, affirmed.
CERTIORARI, 321 U.S. 760, to review the affirmance of a judgment of conviction.
MR. JUSTICE BLACK delivered the opinion of the Court.
The petitioner, an American citizen of Japanese descent, was convicted in a federal district court for remaining in San Leandro, California, a "Military Area," contrary to Civilian Exclusion Order No. 34 of the Commanding General of the Western Command, U.S. Army, which directed that, after May 9, 1942, all persons of Japanese ancestry should be excluded from that area. No question was raised as to petitioner's loyalty to the United States. The Circuit Court of Appeals affirmed, and the importance of the constitutional question involved caused us to grant certiorari.
New York Times v Sullivan
This one is fascinating in that it rebuffed the notion that the truth is a defense against libel, or vice versa. In one of the most important freedom of press decisions in the Courts history, the case began when the New York Times ran an advertisement that contained several factual errors about the conduct of the Montgomery, Alabama police department in dealing with the civil rights movement. Although L.B. Sullivan was not mentioned, the advertisement reflected poorly on him as an elected commissioner in Montgomery. Sullivan sued in state court and won, but the Supreme Court ruled against him.
Asserting that the nation is committed to the idea that political debate should be uninhibited, robust, and wide open, the Court held that public officials can recover damages for libel only if they can prove both that the information was wrong and that the news organization published it with knowledge that it was false or with reckless disregard for whether it was true or false. This raises the time-honored debate about who was more correct, Orwell or Dostoevsky, the former saying that freedom is the freedom to argue that 2 + 2 = 4 and the latter claiming it is the freedom to say that 2 + 2 = 5.
Asserting that the nation is committed to the idea that political debate should be uninhibited, robust, and wide open, the Court held that public officials can recover damages for libel only if they can prove both that the information was wrong and that the news organization published it with knowledge that it was false or with reckless disregard for whether it was true or false. This raises the time-honored debate about who was more correct, Orwell or Dostoevsky, the former saying that freedom is the freedom to argue that 2 + 2 = 4 and the latter claiming it is the freedom to say that 2 + 2 = 5.
376 U.S. 254 (1964)
CERTIORARI TO THE SUPREME COURT OF ALABAMA
Respondent, an elected official in Montgomery, Alabama, brought suit in a state court alleging that he had been libeled by an advertisement in corporate petitioner's newspaper, the text of which appeared over the names of the four individual petitioners and many others. The advertisement included statements, some of which were false, about police action allegedly directed against students who participated in a civil rights demonstration and against a leader of the civil rights movement; respondent claimed the statements referred to him because his duties included supervision of the police department. The trial judge instructed the jury that such statements were "libelous per se," legal injury being implied without proof of actual damages, and that, for the purpose of compensatory damages, malice was presumed, so that such damages could be awarded against petitioners if the statements were found to have been published by them and to have related to respondent. As to punitive damages, the judge instructed that mere negligence was not evidence of actual malice, and would not justify an award of punitive damages; he refused to instruct that actual intent to harm or recklessness had to be found before punitive damages could be awarded, or that a verdict for respondent should differentiate between compensatory and punitive damages. The jury found for respondent, and the State Supreme Court affirmed.
Held: A State cannot, under the First and Fourteenth Amendments, award damages to a public official for defamatory falsehood relating to his official conduct unless he proves "actual malice" -- that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false. Pp. 376 U. S. 265-292.
(a) Application by state courts of a rule of law, whether statutory or not, to award a judgment in a civil action, is "state action" under the Fourteenth Amendment. P. 376 U. S. 265.
(b) Expression does not lose constitutional protection to which it would otherwise be entitled because it appears in the form of a paid advertisement. Pp. 376 U. S. 265-266.
(c) Factual error, content defamatory of official reputation, or both, are insufficient to warrant an award of damages for false statements unless "actual malice" -- knowledge that statements are false or in reckless disregard of the truth -- is alleged and proved. Pp. 376 U. S. 279-283.
(d) State court judgment entered upon a general verdict which does not differentiate between punitive damages, as to which, under state law, actual malice must be proved, and general damages, as to which it is "presumed," precludes any determination as to the basis of the verdict, and requires reversal, where presumption of malice is inconsistent with federal constitutional requirements. P. 376 U. S. 284.
(e) The evidence was constitutionally insufficient to support the judgment for respondent, since it failed to support a finding that the statements were made with actual malice or that they related to respondent. Pp. 376 U. S. 285-292.
273 Ala. 656, 144 So.2d 25, reversed and remanded.
Each of these cases and many, many others could have been cited to indicate the immense power of the Supreme Court. Perhaps two final ones will make the point indelible.
Bush v. Gore
No presidential election in recent memory was as close as the 2000 race between Vice President Al Gore and then-Governor George W. Bush. After all the other states were decided, Florida was still in play the morning after Election Day, with Bush leading Gore by only 1,800 votes. With the race so tight, Gore initiated the process of recounting the ballots in four Florida counties. With each recount, the gap between the two men got smaller.Before the recounts could be completed, however, the Supreme Court, in a bitterly divided five to four unsigned decision, declared that the recount procedures were unconstitutional and must stop. The Florida Secretary of States certification of the results prior to the recount was allowed to stand, and George W. Bush became president.
Citizens United v Federal Elections Commission
At the dawn of 2010, concerns over the influence of big money on politics were reaching a frenzy. Into this climate stepped the Supreme Court with its Citizens United decision, which opened the door for yet more money to flood into political coffers. The Court ruled that limits on political and campaign spending by corporations and labor unions infringe on the First Amendment rights of those organizations.The ruling overturned prior Supreme Court case law, and it invalidated portions of the McCain-Feingold law, which banned unions and corporations from paying for political ads in the waning days of campaigns. Criticism of the decision was swift, and President Barack Obama took the unusual step of lambasting the ruling in his State of the Union address while the justices looked on.
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