pitiful laymen of the wilderness, rejoice!
(response to stephan kinsella’s On Reducing the Supreme Court’s Jurisdiction)
stephan, i’m going to bypass honing your somewhat misleading handling of quotes from me, because those interested enough can read the original in context.
first, i want to address your new tone. anybody coming here from LRC should at least be made aware that the scholarly, detailed, measured consonance of your rebuttal is far from the disgruntled “i can’t be bothered with morons” approach you began in private email. he should also know that when i asked for your permission to blog our email exchanges, you replied with a distinct, “no.” it’s dishonest for you to pretend that our dialog began with me attacking you. if now you want to go scholarly, fine. but drop the tortured act. and consider giving permission to publish your emails (permission for which most people wouldn’t have bothered asking, btw). i’d love for curious parties to see what you really think about all these “details”! it illuminates your actual angle on this whole issue.
okay, i’ll rebut in sequence mostly:
And I commited the apparently unacceptable action of finding and quoting pertinent Supreme Court cases on point.
supreme court cases that are pertinent to the power assigned to the supreme court? that’s boneheaded — proof of why lawyers should sometimes get over their ingrained habit of reading opinions and nitpicking removed BS rather than using their brains directly against law. it doesn’t apply here. we’re basically talking about removing power from the supreme court, and you want their opinion on it? that didn’t make sense to thomas jefferson, nor does it to me.
I think the author is confused when he assume my, and Supreme Court jurisprudence, assumes “that the 11th amendment refers to citizens suing their own states.” We are not assuming that at all.
that’s a shocker, because here’s what you quoted…
(`The words in the constitution, `in all cases . . . in which a state shall be party, the supreme court shall have original jurisdiction’ . . . do not refer to suits brought against a state by its own citizens or by citizens of other states, or by citizens or subjects of foreign states, even where such suits arise under the constitution, laws, and treaties of the United States, because the judicial power of the United States does not extend to suits of individuals against states.’) (emphasis added). The Eleventh Amendment provides that `The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign state.’ U.S. Const. Amend. XI.
…followed immediately by, presumably, your words:
This is why a suit by a citizen against his own State based on a claim of violation of federal constitutional rights would not be a case where a “State is Party” and original jurisdiction.
and now i’m confused about you using the 11th amendment to justify your position above? that’s a strange way of ordering your statements if you weren’t trying to use the 11th amendment. i think you’ve drastically revised your approach since that post (after scurrying through more research), and want to pretend otherwise. but i’ll address the new method, whether it’s new or just uncovered in new clarity.
Let me try again. First, the Constitution, Art. III, Sec. 1, specifies that 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.”Accordingly, Congress did establish the inferior (federal appellate and trial) courts. But the Constitution itself creates the Supreme Court.
Art. III, Sec. 2 lists what its judicial Powers are–i.e., what types of cases it has jurisdiction over. This is the first paragraph.
The second paragraph says that the Supreme Court has “original jurisdiction” in some of these cases. In the other cases, the Supreme Court has appellate jurisdiction only; Congress can restrict this jurisdiction.
So in theory, Congress could abolish (or never have formed) any of the federal appellate or district (inferior) courts, and could remove from the Supreme Court all appellate jurisdiction and leave it only with original jurisdiction.
technically, i don’t agree that the constitution is clear on congress’s power to abolish extant inferior courts, though i’d concede it’s implied as a practical matter with the power to ordain and establish. not a huge point, i think, so moving on…
At first glance, the types of cases I noted above, where a citizen sues his own state, would seem to fall under original jurisdiction, since a State is a Party.But this analysis is mistaken. Para. 2 is simply dividing the cases where there is jurisdiction–as listed in paragraph 1–into either original, or appellate. It is not creating or granting more jurisdiction. And in paragraph 1, no jurisdiction is granted for suits of a citizen against his own state. It does grant jurisdiction for cases “between a State and Citizens of another State”–but that was later overturned by the 11th Amendment.
your claim that “in paragraph 1, no jurisdiction is granted for suits of a citizen against his own state” is incorrect. paragraph 1 states: “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; …” if the suit of a citizen against his own state arises “under this Constitution” or “the Laws of the United States”, there is federal judicial power over it. jurisdiction. i’m jumping around a bit, so don’t stop reading yet.
now the smoke and mirrors part of your argument:
But note that para. 1 also says that “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States…” This is how a citizen can sue his own state for violation of his Constitutional rights, since the claim arises under the Constitution. But this is not one of the types of Cases for which there is original jurisdiction; therefore, it is a case of appellate jurisdiction.
listen to that: “But this is not one of the types of Cases for which there is original jurisdiction…” that’s a disconnect (apparently a new one, since you admitted to not really having boned up on this stuff until after i emailed you with a correction). paragraph 2 states, “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.” so you’ve necessarily concluded, without justification, that a state isn’t party to a suit in which it’s the defendant. that’s a joke, right?
skipping back, here was your foundation…
Therefore, since there is no jurisdiction at all over these cases, it cannot be original jurisdiction. When the second para says there is original jurisdiction in cases “in which a State shall be Party”, that would have to refer to the Cases listed in paragraph 1, where a State would be a party, such as one state suing another State (or, before the 11th Amendment, to a case of a citizen suing another State).
…and it’s wrong. you’ve circled into a loop, using a misreading of paragraph 1 to falsely disable paragraph 2. at what point do you give the torture a break? this is so obviously an attempt to justify what is now being done by blowing off the clear direction of the document. the document couldn’t be plainer: cases of a citizen suing a state, arising from constitutional/US law, are under federal judicial power. and because a state is a party, the supreme court shall have original jurisdiction.
you don’t agree, and you point to a supreme court opinion, rather than the constitution, for backup. why, stephan? surely you’re aware of the supreme court’s tyranny and destruction of liberty. you must know that it was predicted in the 1700s by some of the founders. so why do you care what the supreme court says about the power granted it, except as a curiosity? it sure as hell can’t be authoritative. if we are to use the constitution, we must always return to it, especially with regard to power granted any branch. if it was misread in the past, it should now be read correctly, not further bastardized in the interest of “stability”. that is a point you probably don’t agree with, but the results of not following it are dire.
Now I know we don’t always agree with the Court, but they do sometimes have a decent analysis of the Constitution. This is one of those cases.
you should prove that it’s decent by referring primarily to the constitution, not the opinion. it’s far from a chicken/egg problem. you have not outlined a first principles foundation for your conclusion that cases where states are a party are subject to “strip power” by congress.
Further, since this is a case where this interpretation would promote liberty, by restraining the Court’s ability to invent new, unlibertarian, positive rights and/or to further erode federalism, I fail to see why libertarians would be aghast by it.
in your comment at this blog you asked, “Why are you against acknowledging Congress’ power to limit the Court’s jurisdiction?” i’m not. in fact, there’s a chance i’ve written about it, and cheered even its illegal attempt, more than you have, though i’m not as sanguine as you about the outcome. there are competing, and significant, tyrannies in the mix. regardless, how you conclude that i’m against acknowledging congress’s constitutional power to limit the supreme court’s jurisdiction is a mystery to me. i am against your specious and inaccurate analysis, and against interpreting the constitution into something it doesn’t say just because i think the result would be nifty.
if you don’t like what the constitution says, screw it! what do i care? what would i know? i’m just a guy who thinks that if laws are to be made and adjudicated, it should be done accurately. go outside the constitution enough and you don’t make it back. and that’s fine, but don’t pretend it’s the constitution that you’re following when you do it.
because something has been done a certain way does not mean that it’s the way the constitution says it should be done. i hope that’s not impossible to understand, even for a lawyer.
September 17th, 2004 at 11:18
Salty, post whatever you want, I don’t give a rat’s ass. I think it’s silly and stupid for you to do so, since I have been kind of brainstorming and finding my way around this, so my earlier posts were more disorganized. Further, they were not neat or very clear, since it was just email to you and not meant for publication. But whatever man. If you want to go backwards for some reason, feel free.
You also seem to assume I care deeply about this issue or am passionate about it or have an investment in it. I dont. Either the Constitution says what I said it did, or it doesn’t.
I think it’s crankish to dismiss all Supreme Court opinions as no more authoritative or scholarly or knowledgeable of the Constitution than any random opinion. Just b/c they are wrong sometimes and biased does not mean there is nothing of value in what they wrote.
I could very well be wrong in my analysis. I am trying to figure this out and have not yet found a decisive view on this, though I would be confident there is one.
For example, I am not sure but it could be that even under the “arising under federal law” clause of para 1, citizens could not sue their own state until the 14th Amendment. I don’t know. There is a way to find out, it’s called legal research and legal reasoning. I have done a bit of it but not a conclusive analysis.
September 17th, 2004 at 11:27
I just saw your comment on the other post–”i do not consider you to be a good lawyer, nor a good person.”
You have to be kidding. This post truly belongs on a blog called the IDIOT. Anyone who knows me knows you are wrong on both points. I am not a constitutonal law expert and if I were writing a more scholarly piece or pretending to have the final, authoritative answer, I’d have to do tons more research first.
You are strangely obsessing over our original email correspondence. I used “what the fuck are you talking about” because I didn’t know what you were rambling about, or maybe I didn’t have time to read you closely. Further, it was influenced by correspondence we’ve had in the past.
I edited my original post–big secret! Wow! call Dan Rather!–so the fuck what? I was trying to clarify, in part based on your comments after I re-read them later in the day after I had time.
I was almost thinking out loud on this. So yes, I was refining my view. SO THE FUCK WHAT? I am still trying to figure all this out. Who gives a flying fuck that I edited my post and am not omniscient? Jesus Christ.
September 17th, 2004 at 12:01
“neat and clear” are not usually to be expected in email exchanges. honesty, however, is.
your clinging to supreme court opinion rather than the constitution is hardly a libertarian position. it’s a lawyer position. you also cling to the terms “legal research and legal reasoning” as if a license is required to employ them, or at least a special hat. your position as outlined in your recent posts and comments is doomed, except as you can use the fallacy of authority in gobs. if you don’t care about the issue, then you should have shut up about it. i notice that you don’t rebut my legal research and reasoning which, crazily enough, refers directly to the constitution.
if one is to honor the constitution (a debatable prospect, but one which is usually claimed in intent), there can be no tolerance for leaving it. ever. your complete lack of caution or skepticism when running to the supreme court for guidance is indefensible, and the pretense that you know more than i do about this subject is a joke. you’re just getting your feet wet, and have acknowledged that explicitly, while at the same time acting as though you know more because you’re a “lawyer”. if that doesn’t hip you to one of the core suck qualities of lawyers, nothing will.
your most recent post at LRC confirms what i knew already: i’m right. did you really read the alden v maine opinion? it may be a hobby of some to respect what the supreme court says; i believe they tossed the merit for such respect in the 1800s. the only way for the court to get it back is to go back — undo the travesty of cobwebs they’ve allowed deficient thinkers to erect, all the while destroying liberty while posing as its greatest protector, and rewriting the constitution while pretending to honor it. where is the acknowledgement of that obvious state, stephan? your solution is what? to corrupt the constitution further because the supreme court gave you a foothold? there’s no end to it, nor any good result.
if the court jurists don’t like the constitution, let them suggest that it be altered. however, despite being legally prevented (if not actually) from altering it themselves, they have altered it nonetheless through the devious removal of argument from the constitution to all things external, with the foremost external authority being themselves. it is human weakness, power grabbing, and stupidity rolled into one bomb. if congress can legally stomp on them, it’s probably a good thing. however, “legally” requires looking first to the constitution, not to what some hallowed whore with a JD allowed himself to spout on the record.
September 17th, 2004 at 12:36
if it makes you feel better to use the straw man that i was criticizing the editing of posts, fine. that i was not is obvious to anybody not arguing as a child or a politician.
“Who gives a flying fuck that I edited my post and am not omniscient?” only somebody who watched you being a prick behind the scenes. and no, that’s not ad hominem fallacy in this context, though most people are too stupid to understand why.
i’m not at home right now, but i hope to remember to check our prior emails when i get back, so i can see what you’re talking about. if i did something to warrant you being a jackass, i want to know about it. and feel free to publish it if you have old emails — here or wherever. the latest relevant email exchange i recall is when you emailed me about one of my LRC blog posts, but there must be something in between.
September 17th, 2004 at 16:03
Charley, I really dont give a flying peanut-riddled crap about any of the history of this, who was mean in email, boo fucking hoo.
And, sorry, but unfortunately I am not even offended by your insults. Stupidity and ignorance harm the possessor.
I think it’s a neat idea to strip away the Supreme Court’s appellate jurisdiction in cases where they abuse it and invent new rights and use this to weaken federalism.
Do you? Simple question.
I think the Constitution permits them to do this. Do you?
The only question is whether the typical cases we want to prevent going to the Court are cases of appellate, or original, jurisdiction. Don’t you agree?
This is addressed by Art. III, Sec. 2. My reading of it combined with history, likely original intent, and the guiding writings of very smart judges who’ve researched the fuck out of it, is that the cases are not original jursidiction but appellate. I may be wrong, but that’s my view and I get the impression it is the dominant one.
If I’m wrong, so what? The post was not about the fucking historico-technical difference between original and appellate jurisdiction.
My latest view after getting some enlightened email comments and reading a bit more is this: until the 14th Amendment there was no right for individuals to sue states in federal courts without the state’s consent.
Chisholm v. Georgia in 1793 said a citizen could sue another State based on some federal law. The 11th Amendment was passed to overturn this result, to prevent suits against States by citizens of other States or by citizens or subjects of foreign jurisdictions. Note that it didn’t altogether bar suits against States in the federal courts; rather, it barred suits against States based on the status of the party plaintiff and did not address the instance of suits based on the nature of the subject matter.
In other word, 11th Amendment overturned Chisholm’s ruling that that non-resident individuals could sue states; it clarified that a non-resident has no more right to sue a state than a resident. The state did not surrender its immunity to non-residents. It was already clear that a resident could not sue his own state without the state’s consent — the 11th amendment did not need to address this point.
Therefore, before the 14th Amendment in 1860-something, I think this was the situation: a state could be sued by an individual in the Supreme court only if the state consented.
And given the text of the 14th: the only suits allowed against a state would entail violations of the privileges and immunities clause. In other words, the rights of national citizenship such as the right to travel from state to state could not be infringed.
The state could also not form a non-”republican” form of government, i.e. a monarchy; this is prohibited by the Constitution. However, even here, I think the national government would have to sue the state, rather than an individual as plaintiff (unless the state consented to the suit).
So, it seems to me, that suits against Texas on grounds that its law is unconstitutional is usually based on the 14th Amendment. So the question is: are these grants of jurisdiction that came after the constitution, cases or original, or appellate, jurisdiction? I’d say appellate. I could be wrong. I suspect federal litigators and con law experts know the answer but here is my take. If you sue a state based on a violation of 14th amendment rights, you are suing NOT based on your status as a party plaintiff, but based on the nature of the subject matter.
This is the only question. It’s a legal question. I think more information about the intent and cases interpreting all this would be needed to definitely decide it, and I have just about sucked the marrow out of this one. I would bet good money I’m right, since I don’t think there would be all these futile attempt to do this if it was original jurisdiction. These activists would not be wasting their time, b/c all they’d accomplish is they get a law passed, and the Supreme Court ignores it saying that the cases at issue are cases of original jurisdiction anyway.
September 18th, 2004 at 22:20
An attorney colleage (Clay Rossi) writes me this view:
“The way I understand the agument is a follows. The sovereign right of immunity from suit is a basic principle which predates the Constitution. The language of Art. III sec 2 is said to have been drafted with the presumption that jurisdiction where the state was a party against the claim of a person was only found where the state had consented to the suit. The 11th Amendment clarified this position, however, the sovereign right of immunity of the state against one of its own citizens is still implicit, not explicit in the 11th amendment.
“The 14th Amend., through the ratification process by the states, is said to act as an explicit waiver of a state’s sovereign immunity against suit by its own citizens. However, this waiver is only triggered by 14th Amend. sec 5′s appropriate legislation clause. It may then be deduced that if the waiver may only be triggered in legislation where Congress manifests its intention to trigger the waiver “clearly and unambigiously” in the legislation, then the waiver is limited to those things which Congress may rightfully legislate upon. Congress may rightfully legislate the parameters of federal appellate jurisdiction, but Congress is not given the power to legislate the areas of original jurisdiciton. Since the Congress has no ability to legislate on original jurisdiction, the 14 sec 5 waiver trigger is only applied to appellate jurisdiction matters.”
This is interesting and kind of persuasive. Original jursidiction by definition is that which the Supreme Court has automatically; not only if Congress doesn’t limit it. Appellate jurisdiction, by contrast, is that which Congress can limit. Since the 14th Amendment specically allows Congress to provide, or not provide, jurisdiction to hear certain cases under the 14th, it’s appellate by definition. In any event it can clearly be restricted, under the 14th Amendment even if not under Art. III.
Further–see this definition. Let’s take the case where, say, Lawrence sues Texas. He sues in state courts. Then it’s appealed to the Supreme Court. This alone seems show that it’s not original jurisdiction. It’s appealed from state court. So it has to be appellate jursidction.
September 18th, 2004 at 23:07
and here i thought this was put to rest in private email yesterday. i even told you that you had the last word, and honored it. for a guy who’s claimed many times that he doesn’t give a shit about all these details, you sure spend a lot of time typing. if you don’t care, then don’t care. but it wasn’t you caring this time, it was clay rossi, right? and he’s an… “attorney colleague”, right? passed a bar, or just sprang for the magic hat?
get stuffed, stephan. how many last words are you supposed to get? don’t bother answering; your last word privileges have been revoked on this blog. but i’m sure LRC blog readers are eager to hear more on this subject that you couldn’t care less about.
September 5th, 2010 at 22:47
[...] here you can watch steffy P cantsellya step on his dick all over that one. the citations given by wikipedia: these tyrants and this jackass (.PDF), whose false assumptions are refuted in my posts against steffy P. [...]