No Constitutional Scholar

August 13th, 2010

By Brian Bagent

Judge Susan Bolton must be impeached and removed from the bench.  There is no other recourse for a federal judge who is so grossly ignorant of the Constitution.  And I’m not even referring to the idiocy of her decision against Arizona’s SB 1070, I’m talking about the fact that she even made a ruling at all because she has no constitutional authority to have even ruled on this case.  Certainly this ignorance/willful disregard  of the Constitution constitutes the “bad conduct” which the Constitution enumerates as a criterion for impeachment of a federal judge.

I know, I know…some of you must be thinking I’ve really gone around the bend this time.  Bear with me (it won’t hurt, and it won’t take very long – I promise).

From Art III Sec 2, United States Constitution:

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. (emphasis added)

Yes, this means exactly what you think it means.  Federal courts that are inferior to the Supreme Court (that should be understood as “every federal court that is not the Supreme Court is inferior to the Supreme Court” – I don’t mean to beat a dead horse, but it would seem that if federal judges do not grasp this concept, then we common folk probably don’t, either) do not have any lawful authority to hear cases involving states.  Period.  End of story.  The last time I looked, Bolton wasn’t a Supreme Court justice.

Now, I’m just a yokel from East Texas, but I do believe that Arizona is a State (since 1912 as I recall from high school history). Apparently, though, these two little nuggets (that Arizona is a state, and that the Supreme Court has Original Jurisdiction in cases involving states as parties) have escaped the notice of Judge Bolton. Whether by intent or ignorance, Judge Bolton has violated her oath of office. If she has any decency at all, she will resign her position, go home and burn her law school diploma, then file suit against the law school where she graduated.  If she doesn’t at least do the former, Congress must begin impeachment proceedings against her as soon as it reconvenes.

While we’re at it, we should insist that Attorney General Eric Holder resign as well. In an earlier essay, I asserted that I didn’t believe that Holder bothered to read either the Arizona law or the comparable federal law. Apparently, he hasn’t bothered to read the Constitution, either, at least not for a very long time.  Wasn’t it Holder who filed the suit in Bolton’s court to begin with?  Further still, the assistant US attorney who argued on behalf of Holder (and Holder’s ignoramus of a boss) and the attorney representing Arizona in Bolton’s court might want to seek employment in some capacity that doesn’t involve lawyering.

While certainly not grounds for impeaching the president, it is a clear demonstration of his lack of understanding of the document he swore an oath to protect and defend.  So much for that Harvard law degree, and so much for his oath.  I guess presiding over the Harvard Law Review doesn’t mean very much, either.  Northwestern should probably sue and demand Obama return every penny he took from them, because he is also quite obviously unqualified to teach anything that even resembles constitutional law.  Maybe he should just go back to ACORN and community organizing rabble-rousing because he’s quite obviously in way over his head as POTUS.

And if these arguments aren’t grounds for the dismissal of Bolton, there is another constitutional issue involved here as well.  Earlier I asserted Judge Bolton’s opinion idiotic.  Apart from the fact that she doesn’t have the constitutional authority to render a decision in this matter, her ruling demonstrates yet more profound ignorance of the Constitution.

From Art I Sec 10, United States Constitution:

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Does anyone actually doubt that Arizona (and California, New Mexico, and Texas) is being invaded? Has the United States government not dragged its feet on this issue? Has the United States government not fulfilled its duty as required by Article IV Sec 4

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.

for years? Can we delay any longer?

If my argument has any merit, I’d be perfectly content to let the clowns on the 9th Circuit Court of Appeals in San Francisco hear the appeal as well. We could impeach them, too.

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6 Responses to “No Constitutional Scholar”

  1. Dan Miller |


    The notion of “original jurisdiction” is somewhat confusing. It is not synonymous with “exclusive jurisdiction.” This article and this have reasonably good information on the types of cases (very few) over which the Supreme Court has original and exclusive jurisdiction and those (very many) over which it has original but not exclusive jurisdiction. The case which, as we agree, Judge Bolton decided poorly is in the latter category.

    Nearly all of the cases considered by the U.S. Supreme Court come to it from other courts (Federal or state) on appeal — or more accurately via petitions for a “writ of certiorari.” However, under the U.S. Constitution (Article III, Section 2), the Supreme Court has “original jurisdiction” over several small but important categories of cases. That means, quite literally, that the parties can bring such disputes directly to the Supreme Court. The categories are defined in terms of who the parties are.

    The article seems in that paragraph to confuse original jurisdiction with exclusive jurisdiction. However, it continues,

    The original jurisdiction of the Court is laid out by statute in 28 U.S.C. § 1251. Section 1251(a) provides that with one variety of disputes, between states, the Court’s jurisdiction is not only “original,” it is exclusive. In other words, if the parties cannot settle the matter, no other court but the Supreme Court has authority, under the Constitution, to take jurisdiction.(emphasis added)

    The cited statute provides

    (a) The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States.

    (b) The Supreme Court shall have original but not exclusive jurisdiction of:

    (1) All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties;

    (2) All controversies between the United States and a State;

    (3) All actions or proceedings by a State against the citizens of another State or against aliens.

    There are only a couple of cases per year in which the Court has and is called upon to exercise exclusive or non-exclusive original jurisdiction. Imagine, if you will, a situation in which all cases involving a state could be heard only by the Supreme Court; there are thousands of such cases each year. True, the Supreme Court could appoint special masters to conduct trial-like proceedings and make recommendations; that’s the way cases involving the Supreme Court’s exclusive jurisdiction are normally handled. I don’t think that having special masters, appointed by the Court but not confirmed (as all federal judges are) by the Senate, would be much of an improvement.

    The confirmation process is far from perfect. Federal judges, once confirmed, have life tenure under the Constitution; Even though many some of them are neither the best nor the brightest, it’s probably a good thing on balance; life tenure probably insulates them to some extent from political pressure except to the extent that they aspire to higher office. Unfortunately, the confirmation process tends to be a poor model for intelligent and rational behavior. Is there a solution? If so, I haven’t thought of one.

  2. Brianna |

    Errr… you meant to address that to Brian, right?

  3. Dan Miller |

    Err . . . you are right. My face is appropriately red and I apologize. Sorry ’bout that.

  4. Brian Bagent |

    Brianna, between what is written in the constitution and what Hamilton wrote in Federalist 81, there is little doubt that this belongs only in the Supreme court.

    Legislation does not supercede the constitution, especially when original intent is as clear as it is in this case. I know that the fedgov has played fast and loose with this concept since 1933, but this is simply a continued erosion of the idea of federalism.

    Hamilton wrote in #81 in part:

    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…

    Remember, this was an action brought by the federal government against the SOVEREIGN state of AZ.

    Frankly, I don’t think a writ of mandamus would be out of line here.

  5. Brian Bagent |

    Brianna, everybody is dinging you today. Meant the last to be addressed to Dan.

  6. Dan Miller |

    Brian, let’s assume that you are correct in your interpretation of Art III Sec 2 and that

    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. (emphasis added)

    refers to exclusive as well as to original jurisdiction of the Supreme Court. N.B.– under the Eleventh Amendment,

    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.

    Let’s further assume that a clarifying amendment to the Constitution were to be passed reflecting your arguments. Currently, the Supreme Court deals fully with only about one hundred cases per year. What would be the consequences?

    1. Hundreds of additional Supreme Court justices would have to be nominated by the President and confirmed by the Senate to handle the tremendously increased case load, or

    2. The Supreme Court would, as it now does in cases of exclusive jurisdiction, appoint hundreds of special masters to try such cases — hear evidence etc. and find facts based on them — and then recommend a result to the Supreme Court justices.

    Would either of these be a good thing?

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