Try Reading the Constitution, Part IV

This is the fourth, and probably final, part in our series celebrating the US Constitution. We started this on Constitution Day, our intro celebration in Part I. Then we’re going through the first three articles of the Constitution, covering Article I, the legislative branch, in Part II; and Article II, the executive branch, in Part III.

Pull our your pocket Constitution and join us today, when we’re covering Article III, pertaining to the judicial branch, laying out the powers vested in the Supreme Court and lower federal courts. It’s a brief three sections. Afterward we’ll cover some of what’s not in there that maybe you thought was there. And we’ll talk about the current Supreme Court nomination, providing us a live history lesson.

Article III, on the Judicial Branch

Article III

Section 1 covers judicial service. It says judges serve “during good Behaviour,” meaning they can be removed if they do illegal or unethical acts. It also says they get paid for their service—an amount that won’t be diminished during their service. That is, they can base their decision on whether to accept an appointment to be a judge knowing what the pay will be, and not worry that they’ll have to later adjust to a lower amount—a worry that might influence judgment.

Section 2 covers which cases are handled by the federal judiciary. It says these will include cases relating to laws under the Constitution, which includes US laws and treaties. Also, they handle cases related to maritime law, and cases in which the United States is one of the parties. They’ll handle disputes between two or more states, disputes between a state and a citizen of another state, disputes between citizens of different states, disputes between citizens of the same state who claim lands under grants of different states, and disputes between a state or its citizens and foreign nations or their citizens.

For ambassador cases (including public ministers and consuls) and also cases in which a state is one of the parties, the Supreme Court is the court of original jurisdiction. For all other cases, it is considered an appellate court. And it is the highest court of appeal. Once they rule, that case is over.

Criminal trials require a jury, and they will be held in the state in which the crime was committed. In cases where the crime wasn’t committed within any state (e.g., in another country, on the seas), the trial takes place where Congress directs by law.

Section 3 defines treason against the United States. It “shall consist only in levying War against them [the United States], or in adhering to their Enemies, giving them Aid and Comfort.” This is the only definition of a particular crime given in the Constitution. That phrase “giving them Aid and Comfort” means it doesn’t have to require actually picking up a weapon of war to use against the US; it can include passing along secret information or supplying weapons, or in some other way helping the enemy in its goal of overpowering the United States. It doesn’t include speaking out in opposition to US policies, however, even when speaking that opinion helps the enemy; that is a freedom of speech right.

There’s a high bar for convicting a person of treason, requiring two witnesses to the same overt act, or an open confession in Court.

Congress gets to determine punishment. But, unlike tyrannies of the past, it cannot allow punishment of family or friends who weren’t involved in the crime; only the actual traitor can be punished.

 

What Else

That covers the entirety of Article III. It doesn’t say that the court gets to determine whether there are hidden meanings, or penumbras of meaning, in the Constitution. It doesn’t say it’s up to the courts to determine when life begins. It doesn’t say the courts get to determine policy surrounding abortion—or policy surrounding any other issue for that matter. It doesn’t say it’s up to the courts to change the definition of marriage from what it’s been for several thousand years. It doesn’t say the courts have the right to re-write a badly written law to make it better, or better able to accomplish a desired outcome.

What else doesn’t it say? Surprisingly, it doesn’t even say it is up to the Supreme Court to determine whether a law is constitutional. That didn’t become a thing until Marbury v. Madison.

It is emphatically the province and duty of the Judicial Department to say what the law is.— Marbury, 5 U.S. at 177.

This happened even though Thomas Jefferson warned against it:

[T]he opinion which gives to the judges the right to decide what laws are constitutional and what not... would make the judiciary a despotic branch.... [T]he germ of dissolution of our federal government is... the federal Judiciary... working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.—Thomas Jefferson

The Marbury case was good in that it declared that the Constitution had the force of law, not just a nice set of principles to set on a shelf and refer to as desired. But, the downside was that it gave the Supreme Court powers beyond just settling judicial cases; it empowered the Supreme Court to essentially judge the work of the legislature. As the saying goes, with great power comes great responsibility. The founders (was it Hamilton? Yes, in Federalist #78) assured us that the judicial branch was the weakest branch, and we should not worry about it becoming too powerful.

And what else doesn’t Article III say? How many justices there should be. We’ve traditionally had nine. It started in 1789 with 6. The court can function with fewer; for example, when a judge must recuse him/herself, or when one has died or stepped down and has yet to be replaced. When the court ends up with an even number, that does make it feel less settled, although in practice such an even split decision would sustain the lower court’s ruling, going against whichever side appealed.

Back in FDR’s day, he wanted the Supreme Court to rule a certain way on an issue, which they had pointed out was not something the Constitution gave the president the right to do. So he threatened to “pack the court,” which meant to add to its numbers, putting multiple people on the Court that he could count on to rule his way. It would have undermined the separation of powers and made the Court seem illegitimate. In order to prevent that, the Court cowed and ruled his way, favoring big government power (this included upholding the internment of Japanese citizens in Korematsu v. United States). I always think it’s unfortunate when decisions are made out of expediency, rather than truth and law (heads up to Chief Justice Roberts). I wonder what would have happened if everyone had acted with integrity.

What if the Court had ruled according to the Constitution? Then FDR follows through on his threat, but the Senate does its actual job of not consenting to any appointment determined to rule against the Constitution? Then FDR does not get to continue his social experiments, which kept the US in the Great Depression an unnecessary extra decade. Plus, we would have had a pattern for standing up to tyranny within the government, rather than acquiescing to it. Wouldn’t that have been better all along?

We’ve had a court packing threat come up again recently. Again by Democrats.

We have a current vacancy. The timing is unfortunate. Eighty-seven-year-old Justice Ruth Bader Ginsburg passed away September 18, within a couple of months of the presidential election. The Democrats insist that it’s wrong, and against the law, and disrespectful of the justice’s dying wish, to appoint a replacement to the Court before the election. And they threaten that, if the Republicans go ahead and do that, they will grant statehood to Washington, DC, and to Guam and Puerto Rico, with the intention of adding Democrat senators, and then they will add numbers to the Supreme Court, and they will prevent Republicans from ever gaining power again. In other words, they are threatening tyranny—because they say the Republicans are wielding their power in a less than courteous way. Hmm.

Is it wrong for a president to make an appointment to the Supreme Court in an election year? What has been done historically?

The SCOTUS Blog identifies all appointments arising in presidential election years since 1900. Each time the president made an appointment to fill the opening. 

Senator Ted Cruz on his podcast
screenshot from here

Senator Ted Cruz, on his podcast, says out of 27 times (or 29—he says 29 in a recording Ben Shapiro uses, and the math adds up to 29, so he may have misspoken in his podcast) that it has happened, each and every time the president has made an appointment. Here’s what he says: 

Ted Cruz: What does the Senate typically do? What does the President typically do? It turns out there’s an answer. This is not the first time this has happened. In our nation’s history… 27 times there has been a Supreme Court vacancy that has occurred during a presidential year. And presidents have nominated a justice to fill that vacancy 27 times. It’s what presidents do. It’s actually an easy decision for President Trump’s decision.

By the way, a total of 44 people have been presidents of the United States; half of them have faced this decision. Twenty-two. Half of the people who have served as President have faced this decision, and every single one has nominated.

Now, what has the Senate done? And this is where it’s important to understand why 2016 and 2020 are very different. What the Senate has done is very very different, depending on whether the Senate is of the same party as the President or a different party from the President. Those are radically different. So, of the 27 times there have been vacancies, 19 of them have occurred when the Senate is the same party as the President. Of those 19, the Senate has confirmed 17…. When the President and the Senate are of the same party, the Senate confirms them. On the other hand, what about when they’re different parties? That has happened 10 times in our nation’s history. That happened with Merrick Garland. Barack Obama was a Democrat. There was a Republican Senate. Of the 10 times that has happened, the Senate has confirmed the nominee only twice. 

So there’s a pattern that goes back two centuries.

So, the parties were different in 2016, when Barack Obama appointed Merrick Garland to replace Antonin Scalia after his death, about half a year ahead of the presidential election. In that year, there were two significant differences from this year’s situation: 1) Obama was not running; it was the end of his second term, so he was a “lame-duck” president at that point. 2) The Senate had a Republican majority; Obama did not have the votes to push through that appointment.

So, since it has been traditional and common, even expected that the President will appoint a replacement Supreme Court Justice, why are the Democrats this time claiming the Republicans are breaking the rules? Because they’re partisan, is the short answer. Add to that the rationale given by Senate Majority Leader Mitch McConnell at that time, saying it ought to be up to the voters to decide, by way of the election, since neither candidate was the one making the appointment. He may have meant it was because the parties were different, but it was interpreted as some new rule—a rule proposed, incidentally, by Joe Biden some decades earlier.

I thought that line of rationale was unfortunate in 2016. I was glad they didn’t actually confirm Garland; that would have added tragedy to the loss of Antonin Scalia. But Republicans should have been more honest about it. I would even have been OK with holding hearings and rejecting the nominee, although that wasn’t realistic, considering Kagan and Sotomayor had been accepted almost without opposition.

I believe a justice should only be allowed onto the Court if he/she understands the Constitution and abides by the actual law. We don’t live in an ideal world, however, so we have to use whatever power we have in order to preserve our Constitution and our constitutional republic form of government.

It would make absolutely no sense for a President who has a Senate in his favor to fail in his required duty to appoint just because the opposition says he’s disrespectful to do so. That’s ridiculous. It would be equally ridiculous for a Senate of the same party as the President to hobble themselves because the other side is calling them names—including hypocrite, because of the Garland situation and what was said then.

Can you imagine for a moment that a Democrat president, in his first term’s presidential election year, with a Democrat-led Senate, faces a SCOTUS opening and holds off on making an appointment because he/she might not be reelected? I can’t either. That would never happen. So they’re being disingenuous, at best. Remember, these are the people who called Kavenaugh a serial rapist, not to mention the pain they put Clarence Thomas through, and Robert Bork. These people have no right to determine etiquette among actual civilized people.

Funny thing about the threats to pack the court and expand the Senate: they made those threats months ago. They’re not the result of President Trump's appointing a justice at this time. That is their plan if they win the election, regardless of any action by Trump or other Republicans.

I don’t know much about the actual appointment, Amy Coney Barrett. Almost everything I’ve heard by conservatives is that she’s exceptional, bright, and a textualist (one who reads the actual meaning of the text of the law, rather than making up or construing its meaning), which was Scalia’s philosophy. One exception to that is Robert Barnes, who does a joint livestream with law vlogger Viva Frei on Sunday evenings; he sees her as less exceptional and more attached to stare decisis than constitutional conservatives would hope for. He thinks she’s a plant by the status quo types. I hope he’s wrong. Many people whose judgment I trust (Ted Cruz, Mike Lee, Ben Shapiro) say she is an excellent pick. I think she’s worth praying for, since she does appear to be religious and intending to live a life guided by God.

The Supreme Court should not be this crucial to our freedoms. A particular appointment to the Court should not feel like a matter of life and death for our constitutional republic. Something has gone very wrong that things are the way they are. But it’s one of those messes you just have to go through; keep appointing better judges who actually read and abide by the law, so that they will by definition limit their power.

 

May We Long Celebrate Our Constitution

There’s more to the Constitution. There are four more Articles. But they are brief and procedural. Then there are the Amendments; there are 27. The first 10 are considered the Bill of Rights—not rights granted by the Constitution, but rights spelled out so that, if the people ever forget what is self-evident, they are written in law. (Hint: You can take away our right to self-defense by “repealing” the Second Amendment.) We may talk about those things another day. Our four-part series has been a good celebration of our Constitution for now.

As other nations may say, “Long live the king!” we should be saying, “Long live our constitutional republic!” If we just keep reading our Constitution, to make sure at least some of us understand it, it may yet survive.