2302+Spring+2009+Week+Twelve


 * The Judiciary: Constitutional Design and Judicial Review**

This week we look at the articles in the U.S. and Texas Constitutions which establish the judicary powers, as well as the design on the local level. The readings include the articles in the U.S. and Texas Constitutions which create the judicial branches and grant them their powers. Pay special attention to the differences between the national and state courts, especially the fact that national judges and justices are appointed, while those on the state level are elected.

The readings also cover the power of judicial review, a power that was deemed both necessary and problematic by the authors of the Constitution. While doing your readings, I want you to be aware of this conflict, and come to an understanding of why the power was ultimately claimed by the courts in the case Marbury v. Madison.


 * Study Guide Questions**

- What does the Constitution say about the design and powers of the judiciary? - Why is the legislative branch given the power to design the judiciary? Why not the executive branch? - Why are federal judges and justices appointed? Why not elect them? - Why is judicial independence important and how does the Constitution establish an independent judiciary? - What does the Constitution say in terms of how judges and justices are to decide cases? What controversies have evolved concerning the role of judges and how they should interpret the Constitution? - The courts are able to rule on "cases and controversies." What does this term refer to? - What is the difference between original and appellate jurisdiction? How did this distinction factor in the case of Marbury v. Madison and the establishment of judicial review? - What is judicial review? - Why does the Constitution spend so much time defining treason?

Fall 2009**
 * Quiz Questions for Online Students

Answer each in at least 150 words.

1. Federal judges and justices are appointed for life. Why is this the case? What advantages and disadvantages with the appointment process as well as service for life? 2. Texas judges and justices are elected for six year terms. Explain why this is the case in Texas. Describe the problems associated with judicial elections. 3. The last part of Article 3 spends a lot of time defining treason. It seems a bit out of place. Try to figure out, and explain, why it's there. 4. Read Federalist #78 and outline the argument it makes. Pay special attention to how Hamilton argues that the power of judicial review ought to belong to the judiciary and why conflicts between statutory and constitutional law should be resolved in favor of the Constitution.

Write at least 150 words for each assignment. Due by date on syllabus


 * The Constitutional Design

Key Constitutional Features of the United States Judiciary**

Click below for the entire document: - [|Article Three from Findlaw.com]. - [|Full text from Avalon Project]. - [|Wikipedia entry]. - Wikipedia: [|Supreme Court of the United States].

//Section One:// - [|Annotations from Findlaw.com]. - The Founders' Constitution: [|Article Three, Section One].

//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.//

Again, this article -- like the previous two -- vests one of the three powers of government is vested in a separated institution, but with two significant differences. Not only is a superior institution established (the Supreme Court), but inferior courts are mentioned as well (the U.S. Federal Courts). A supreme court is mentioned, but not in fact established, and nothing is said about its size. This is all left to Congress. The size of the Supreme Court and the job description of members of the Supreme Court varied somewhat in the early years of the court ([|go here for historical information about the Supreme Court]). The early court had six members and justices were also lower courts officials who had to ride the circuit, meaning that they had to travel half the year to serve as trial court judges. This discouraged many people from wanting to serve on the early court.

The legislative branch is given the power to create the inferior courts. This is almost certainly a reaction to institutions like the Star Chamber which became abusive due to the control kings had over their activities. This design feature makes further sense the more you consider part of what courts do, namely, to reconcile disputes between government and individuals accused of violating its laws. Remember that it is the executive branch that brings cases before the courts, it is not a neutral participant in court activities and should not therefore have the ability to design court procedures, or control judges. Justice is supposed to be impartial (look for definitions of the concept [|here]and [|here]).

Impartiality is also the goal behind allowing judges to serve during good behavior (for life), to be paid for their services, and to not have their compensation diminished while they are in office. Recall that judges are appointed by the President and approved by the Senate. The purpose behind appointing judges is to ensure that they will be qualified (recall that no such concern is made for other positions), but a person appointed to a position should be expected to be controlled by the person who did the appointing, which would violate the requirement that they be impartial. Service for life removes the person appointed from any allegiance to those who did the appointing. Judges are then independent. This allows them to determine for themselves how to decide certain cases and not be held accountable to any outside interest, person or institution.

Some argue however that judges should be elected in order to ensure that the law stays closely bound to the will of the people. Texas elects its judges. But as we will discuss at a later date, that raises its own sets of concerns since candidates can only compete successfully in elections if they have sufficient funds to do so and a principle source of funds will come from individuals who have interests before the courts. The perception often exists that justice in such states is for sale.

Appointment and service during good behavior is designed to prevent such outcomes, but this method has also proven controversial because some people would like to be able to control or remove judges or justices (if you are on the Supreme Court you are called a "justice") who make decisions that they argue fall beyond the range of what they are constitutionally mandated to do. This point needs to be clarified because there is no explicit language stating just what in fact a judge is to do, how they are to rule on cases, and how they are to interpret the Constitution. It has been suggested that the term "good behavior" carries an underlying meaning that includes deciding cases narrowly according to the strict letter of the law. Others argue that the vague terminology in the Constitution begs for reinterpretation in order to ensure that the document stays relevant.

Certain loaded terms have evolved as a consequence of this independence. The first two relate to how judges and justices interpret the constitution. These are "judicial activism" and judicial restraint." At its simplest, the activist judge sees him or herself in a position to weigh in on the political outcomes of a given case while the restrained judge does not. A decision based on judicial restraint might hold that a given problem is not one that the courts are empowered to address. The injured party should instead take their grievance to the legislative or executive branches, the branches that are elected and as a results are better able to make legitimate decisions based on popular consent. Thurgood Marshall, one of the Supreme Court's more liberal, activist members and was the man who argued Brown v. Board of Education before the Supreme Court as a private lawyer, argued that the courts had to intervene in areas where the elected institutions were prone to rule against the rights of minorities. But when it does so, the restrained judge might point out, it lacks the power or authority to mandate that its directives be carried out. It is best for decisions to be made legitimate by the elected branches if they are to be fulfilled appropriately.

A second set of loaded terms relates to how the judge or justice interprets the Constitution. Again this is a simple beakdown, but these are "strict construction" and "loose construction." Someone who interprets the document strictly, attempts to hone into the single core meaning of the document. They might choose to look at the actual text of the document, or attempt to determine what the original intent of the document's authors was at the time the document was written (there are many disputes regarding how the document should be strictly interpreted). One who has a loose interpretation of the Constitution does not feel tightly bound by the language of the Constitution. They tend to look at the broad purpose of the document and interpret statutes and constitutional language in a way that abides by that understanding. Take the case of personal freedom. Do we have a right to privacy? A judge who has a strict interpretation of the document woudl easily say no, because the relevant language does not appear in the Constitution. One who has a lose interpretation can. In Griswold v. Connecticut for example, the court ruled that a penumbra existed around the explicit rights written in the Constitution within which additional, related rights could be found. The fact that the Bill of Rights spells out a right against self incrimination and security against unreasonable search and seizures was taken to mean that there was also a right to privacy.

In each case the controversy concerns whether judges who are activists and/or have a loose interpretation of the Constitution are changing the role of the court and the meaning of the Constitution far beyond what is appropriate for the constitutional order. Are these individuals damaging the fundamental law of the country and thereby by weakening its foundation? On the other hand it could be also argued that those who believe in restraint and a strict interpretation of the document are similarly damaging the foundation of the country by not accepting the fact that times change and the document must be modified slightly over time, as determined by the various issues that perculate up to the court, in order to stay healthy. This is an ongoing, omnipresent -- and I argue healthy -- dispute in Amercan politics atht is facilitated by the fact that we elect federal judges. This debate does not occur where judges are elected, but more on them later.

//Section Two://

- The Founders' Constitution: [|Article Three, Section Two, Clause One]. //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;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.//

This may be the most tedious and boring part of the Constitution, even for people who like reading the document. It outlines the jurisdiction of the courts in general and the Supreme Court in particular. It begins by establishing that the judiciary has power over all cases in law and equity. The term "[|law]" is deceptively simple and can refer to all manner of law which is either established by a legislative body (statutory law) or by courts through centuries of precedence (common law). The later term, "[|equity]" is especially peculiar given that it refers to a court system within the Britain that allowed for decisions to go beyond the strict limits of the law and deal with broader issues related to the just outcomes of a particular case.

A major jurisdictional limitation is also established in the language of the section. Though the court can rule on all matters related to all laws arising under the Constitution, it can only do so in cases and controversies. This limits the decisions of the courts to actual violations of laws, meaning that the courts cannot rule on hypothetical questions presented by laws being considered by Congress, or executive actions being contemplated. In other words, the Supreme Court will not rule on whether a law being considered by Congress might be unconstitutional. The law must be passed, applied and challenged in order for it to be work its way up the courts and then be ruled on by the Supreme Court.

- The Founders' Constitution: [|Article Three, Section Two, Clause Two].

//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.//

The terms "original" and "appellate" jurisdiction are especially important here. Original jurisdiction refers to the trial court, where an individual is either charged with a crime or presented with a law suit, where evidence in presented and challenged by lawyers on either side of the case, where an impartial jury decides guilt, liability or acquital, and all of this is presided over by a judge whose job it is to ensure that the process adheres to constitutional guidelines. Trials are about facts. The appellate process simply focuses on disputes associated with the processes at the trial level.

- The Founders' Constitution: [|Article Three, Section Two, Clause Three].

//The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.//

In this section, the right to a [|trial by jury] is established. The right is also reiterated in the Bill of Rights' [|Sixth Amendment]. The amendment provides more guidance for trial procedures than does Article III. Jury trials were a device established in Twelfth Century Britain to replace [|trials by ordeal]. Jury trials are only held when the crimes are serious -- felonies for example.

There are three types of juries - grand juries - criminal petit - civil petit

(for further information see: [|The American Jury Bulwark of Democracy])

The section also states that trials be held in the state where the state where the crime was committed. In a practical sense this means that every state has to have a federal court system where trial can be held.

see: U.S. Courts: [|The Federal Judiciary].

//Section Three:// - The Founders' Constitution: [|Article Three, Section One, Clauses One and Two].

//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.//

//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.//

The definition of treason is limited. This is on order to ensure that accusations of treason be not used for political purposes. The punishment of treason is also limited. British kings were able to claim for themselves the lands of individuals convicted of treason, so they had incentives to do so.

- Wikipedia: [|High Treason in the U.K]. - Answers.com: [|Attainder of Treason]. - [|Corruption of Blood].


 * Judicial Review**

Little in the Constitution gives an indication about what direct checks the judiciary has on either of the other branches. The Chief Justice presides over the trial of presidential impeachments, but that's about it. Several clauses concern the factors which allow for the independence of the judiciary (appointment for service during good behavior, design by the legislature, guarantee of pay that cannot be reduced, etc...) but there are no clear guidelines about what this independence will be directed towards. Of course the idea that the judiciary is independent of the other branches establishes that it is in a position to make decisions that are unpopular with them. These might include decisions that they made decisions that went beyond what is permisible under the Constitution. But this is a problematic power because whichever institution is in a position to negate the power of the other two can easily become the dominant institution, which is another way of saying that it can become a tyrannical institution.

Many of the grievances against the King of England concerned his claim to be able to control governmental institutions in the colonies, including the ability to declare the acts of colonial legislatures null and void. A similar power placed in the hands of an individual or institution under the Constitution could easily lead to the development of a tyrannical system if it was not done properly. It was acknowledged that some mechanism was necessary to keep the powers within their proper boundaries, but again, how do you limit the power of an institution that is powerful enough to limit the power of other institutions? The means of preventing tyranny can turn tyrannical itself.

Hamilton addressed this concern in [|Federalist 78] ([|here's the wiki]). In it he makes a variety of arguments that state not only that the courts ought to have the power to negate the actions of the other branches, but that they can be trusted with this power because they are not in a position to do anything with it. They are the weakest branch of government.

Since this was stated in one of the Federalist Papers, and not written in the Constitution, the power had to wait to be established, and this was done in the case of [|Marbury v. Madison].


 * The Texas Judiciary**


 * Key Constitutional Features of the Texas Judiciary**

Click below for the entire document: - [|Article 5 of the Texas Constitution]. - [|Texas Courts Online]. - Wikipedia: [|Texas Judicial System]. - Texas Handbook Online: [|Texas Judiciary].

As with the legislative and executive branches, the Texas judiciary looks much like its national counterpart, but is designed to be limited. In the former two institutions limitation was established by short terms of office, and a plural design. For the judiciary, this is established by electing judges to limited terms of office. Specically, judges in Texas are elected to staggered six year terms in partisan elections.

This makes the Texas courts fundamentally different than the national judiciary. The independence of the national judiciary is established by lifetime tenure, but leads to the concerns that the decisions judges make are illegitimate and based on their whims. The Texas judiciary sidesteps this accusation by competitive elections. This is intended to make them more accountable to the general population. The lack of independence can lead to problems though. Judicial decisions pleasing to the majority can discriminate against minorities. Elections require contributions, so elections can also make judges dependent on campaign contributors. Concerted efforts can be made by organized interests to sway election results.

The decisions of the Texas Supreme Court in general (the institution which has the ability to overturn lawsuits) are often argued by opponents to be pre-determined by the interests involved in funding elections. Accusations are most often directed towards trial lawyers, who stand to benefit from the fees associated with sucessful lawsuits, and the businesses that benefit when a pro-business bench habitually throws out suits. This leads to the accusation that justice is for sale, not just in Texas, but in any state that elects judges.

see: - Brennan Center for Justice: [|State Judicial Elections].

The recently decided case of [|Caperton] hinged on the question whether a judge on the West Virginia court should have recussed himself from deciding on a case that involved a major contributor to his canpaign.

A quick glance at Article 5 of the Texas Constitution shows that it is far longer and more detailed the the U.S. Constitution. Consequently it contains more clarity regarding the design of the Texas court system. It specifically vests the judicial power "in one Supreme Court, in one Court of Criminal Appeals, in Courts of Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justices of the Peace, and in such other courts as may be provided by law." The first two institutions refer to the split nature of the highest level of the appellate court. The [|Texas Supreme Court] ([|Wikipedia]) has jurisdiction over civil matter, while the [|Court of Criminal Appeals] ([|Wikipedia]) has jurisdiction over criminal matters. Each is a single court composed of nine justices.

Beneath these courts is a [|court of appeals system] composed of fourteen courts with 80 judges. There are 14 appelate courts in total. ACC is located within the jurisdiction of the [|14th Court of Appeals].

The appealate court has jurisdiction over appeals from civil and criminal cases from the 449 [|district courts] througout the state presided over by one of the 449 district judges throughout the state. They also hear appeals from the 499 [|county level courts], which are county trial courts of limited jurisdiction. There are three types of county level courts: constitutional county courts, county courts at law, and statutory probate courts. At the bottom are two types of local courts of limited jurisdiction: justics courts and municipal courts.


 * Federalist and Anti Federalist Papers about the Judiciary**

[|Federalist 78] - [|Anti Federalist 78]: The manner of constituting it seems to embrace these several objects: 1st. The mode of appointing the judges. 2d. The tenure by which they are to hold their places. 3d. The partition of the judiciary authority between different courts, and their relations to each other.

[|Federalist 79] - [|Anti Federalist 79]: NEXT to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support. The remark made in relation to the President is equally applicable here. In the general course of human nature, A POWER OVER A MAN's SUBSISTENCE AMOUNTS TO A POWER OVER HIS WILL.

[|Federalist 80] - [|Anti Federalist 80]: To JUDGE with accuracy of the proper extent of the federal judicature, it will be necessary to consider, in the first place, what are its proper objects.

[|Federalist 81] - [|Anti Federalist 81]: LET US now return to the partition of the judiciary authority between different courts, and their relations to each other, "The judicial power of the United States is'' (by the plan of the convention) "to be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish.'

[|Federalist 82] - [|Anti Federalist 82]: The principal of these respect the situation of the State courts in regard to those causes which are to be submitted to federal jurisdiction. Is this to be exclusive, or are those courts to possess a concurrent jurisdiction? If the latter, in what relation will they stand to the national tribunals? These are inquiries which we meet with in the mouths of men of sense, and which are certainly entitled to attention.

[|Federalist 83] - [|Anti Federalist 83]: THE objection to the plan of the convention, which has met with most success in this State, and perhaps in several of the other States, is THAT RELATIVE TO THE WANT OF A CONSTITUTIONAL PROVISION for the trial by jury in civil cases.


 * Local Courts**

- Brazoria County: [|District Clerk]. - Alvin: [|Municipal Court].


 * Sources:**

- [|Article 3 of the U.S. Constitution] - [|Article 5 of the Texas Constitution] - [|Federalist 78]. - [|Marbury v. Madison]. - [|cases and controversies.] - [|writ of mandamus.] - [|Judicial Review]- From "Exploring Constitutional Conflicts" - From USAID: [|Guidance for Promiting Judicial Independence and Impartiality]. - Texas Handbook Online: [|The Texas Judiciary]. - [|Is Texas Justice for Sale]? - Outline of issues presented in the Federalist Papers 78 - 83 (see below) - [|Brazoria County Courts]. - [|Alvin Municipal Courts].

Spring 2009**
 * Assignments

Internet Students:

1. Read the articles of the U.S. and Texas Constitutions and describe their similarities and differences. 2. Describe the conflict surrounding judicial review. Why did Hamilton suggest, in Federalist 78, that judicial review ought to rest with the courts? WHat argument did he make? How was the power in fact aquired for the court in the case Marbury v. Madison? 3. Should judges be appointed or elected? What are the pros and cons of each? Why do some argue that elections for judges in Texas mean that justice is "for sale" in Texas? Is this true?

Summer 2009 1. Federal Justice are appointed for service during good behavior, which means life. This gives them independence, meaning that they can interpret the law as they see fit. This has led to the argument that some interpret it incorrectly. Weigh in on the consequences of a judicary appointed for lifetime service. Should Federal judges be elected instead, as in Texas? 2. Federalist #78 outlines the argument in favor of judicial review. Read and summarize it.