Constitutional sovereignty: Will states use it or lose it?

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. (U.S. Constitution, Article III, Section 2)

In a post published earlier this week at my website, I draw attention to and argue in support of the observation made in an article at Canada Free Press regarding the case challenging Arizona's immigration law. Bylined Publius Huldah, the article cites part of the above quoted language of the U.S. Constitution to make the point that the case must be heard and decided in the first instance by the Supreme Court of the United States. On Wednesday, I read a WND article reporting the views of two experts who disagree, asserting that "the full text of the constitutional provision needs to be noted, because it does not provide the Supreme Court with 'exclusive' original jurisdiction."

This assertion is demonstrably incorrect. Article III, Section 2, begins with a sentence that lists all the categories of cases subject to the judicial power of the United States. Its second sentence segregates three of those categories into a separate group, and imperatively places this separate group under the original jurisdiction of the Supreme Court. The third sentence takes the residue of cases on the list of those subject to the judicial power of the United States and places them under the appellate jurisdiction of the Supreme Court, "with such exceptions, and under such regulations as the Congress shall make." In a grammatical diagram of the sentence, this prepositional phrase must be shown under and in relation to the appellate jurisdiction of the Court. Nothing in the third sentence in any way allows its subject matter to be connected to the allocation of original jurisdiction made in the second sentence. In fact, no direct or indirect reference is made to the subject matter of the second sentence unless it be the reference to the entire list of federally justiciable cases implied in the words "in all other cases before mentioned." But even those words sever the subject matter of the third sentence from that dealt with in the second.

Obviously, one cannot pretend that the Constitution directly gives Congress the power to regulate the original jurisdiction of the Supreme Court without doing violence to the most elementary rules of grammatical construction. Of course, contemporary lawyers and judges appear to exempt themselves from the rule of reason. Why should the rules of grammar be any different?

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However, the grammatical cavil isn't the only reason to reject this "expert" opinion. Where concurrent judicial power exists (as in the exercise of jurisdiction by state courts) the idea of concurrent original jurisdiction is not an absurdity. But the same power cannot be used for the first time by two entities. Therefore, if Congress purports to use its power to create and regulate inferior federal courts to allow them to try in the first instance cases involving the parties the Constitution imperatively assigns to the Supreme Court's original jurisdiction, any subsequent appeal to the Supreme Court would violate the Constitution's provision, unless the case is tried de novo and without any reference to the record and action of the inferior court.

Construing the words of the Constitution is not just a matter of language. It is a matter of statecraft. The Constitution's provisions reflect an understanding of what is required to maintain the form of government it establishes. Its provisions include the instrumentalities needed to do so, while implying and recommending the strategy of action that best serves the purpose.

The three categories of cases placed under the original jurisdiction of the Supreme Court have something in common that makes clear the statecraft involved in thus distinguishing them from the other cases made subject to the judicial power of the U.S. government. All three involve parties that must be treated with respect for the attributes of sovereignty they represent. Ambassadors, public ministers and consuls represent in their different ways the attributes of a foreign sovereign. Owing to the republican form of government the Constitution requires them to maintain, the state governments represent the sovereignty of the people of the states, respectively.

In Federalist 81, Alexander Hamilton discusses these representatives of sovereignty:

All questions in which they are concerned are so directly connected with the public peace, that, as well for the preservation of this, as out of respect to the sovereignties they represent, it is both expedient and proper that such questions should be submitted in the first instance to the highest judicatory of the nation. Though consuls have not in strictness a diplomatic character, yet as they are the public agents of the nations to which they belong, the same observation is in a great measure applicable to them. In cases in which a State might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal.

Why must sovereign entities be dealt with only at the highest level of government? When dealing with foreign entities, such careful courtesy is intended to guard against misunderstandings or insults that, however slight in themselves, can be magnified by passion or calculation into costly confrontations, international incidents or war. Though the relatively permanent civil peace of the United States tempts us to forget it, the same threat lurks beneath the formal arrangements of civil government. In addition to respecting true principles of justice, the whole purpose of the statesmanship involved in the Constitution of the United States is to extenuate this threat by providing a framework for government that anticipates its usual causes and deals with them by peaceful means.

The sustained abuse of government power is chief among the causes that justifiably give rise to the most serious threat to civil peace. The federal character of the U.S. Constitution aims to pre-empt this threat by establishing a balance of power between the national government and the states. The national government must be powerful enough to challenge abuses in one state or a small combination of states; but the states must have the opportunity and incentive to combine effectively against sustained abuse of national government power.

By requiring that all disputes to which a state is party be immediately raised to the highest tribunal, the Constitution makes sure that any action that may affect the sovereignty of the people in the states invites the attention of the whole union. This militates against piecemeal erosion and usurpation of the sovereign powers left to the states. If the people of a sufficient number of states see their interests threatened by U.S. government action against any one of them, the spectacle will encourage them to mobilize. In sufficient combination, this could lead to a political reaction that curtails the abuse (using the legislative role of the states in the U.S. Senate, for example) or even a constitutional amendment.

The tacit and unconstitutional amendment of the Supreme Court's jurisdiction that forces the states to accept judgments by inferior federal courts facilitates the expansion of abusive U.S. government power. It allows U.S. government "legal" actions to move forward in a manner that isolates individual states in a divide-and-conquer strategy that diminishes both the incentive and the opportunity for people in other states to appreciate the common threat, or the need to take common action against it.

Now is the time for Arizona and all the states to take action against the ongoing dismantlement of the sovereignty of their people. An inferior federal court judge thwarts the legislatively expressed will of the people of Arizona. Another thwarts the directly expressed will of the people of California. Another is positioned to thwart the people of Virginia as they resist abusive U.S. government mandates in the so-called "Obamacare" legislation. Every one of these cases directly involves the sovereignty of the people represented in their state governments, which the U.S. Constitution recognizes and respects in Article III, Section 2.

The 10th Amendment movement testifies to the resurgent understanding that state sovereignty is explicitly left intact and protected by the U.S. Constitution. To defend themselves, legally and politically, all the states now under assault must reassert their sovereignty in a practical way (for example, by such steps as the Canada Free Press article suggests). They must stand on their constitutional dignity, reject the jurisdiction of the inferior courts and insist that the Supreme Court carry out its constitutionally mandated, direct responsibility to adjudicate the cases in which they are involved.

Then they must implement the political strategy this constitutional requirement implies. States that share a common will on issues such as immigration or the defense of marriage must join together to defend their interest as a class. By doing so, they can use the legal battle to involve and educate people in a number of states at once. They will also encourage people throughout the union to organize their political will in support of an effective constitutional response should the Supreme Court lend itself to the final destruction of federalism, which the forces of elite tyranny are clearly trying to achieve.