There is and has been perhaps a lot of confusion regarding what if anything
passing laws that would that might prohibit federal courts from hearing and
deciding religious cases would have.
In short can the radical religious right actually pull this off and it have
any real effect?
Recently I saw someone, in a thread here, suggest another read a certain
portion of a book. Highly interested I did a Google search for the book
and ended up buy said book for 1.57 (Shipping was more then the price of
the book hehehe )
I am in the process of slowly reading and studying the three chapters of
the book that apply to this matter.
I would like to share some of the things I have found so far
HERE IS THE FOUNDATION
Article III
Section 1. 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.
Section 2. 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.
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 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.
Section 3. 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.
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with the following being the real battle ground
.. . . 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.
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Let's begin
This much is clear
Section 1. 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.
(1) The US Supreme Court is established by the US Constitution. Thus
Congress cannot abolish that court.
(2) However, "inferior [federal] courts" are a different story
(From my recently purchased book)
§376. On the other hand, the National courts have no authority (in cases
not within the appellate jurisdiction of the United States) to issue
injunctions to judgements in the State courts; or in any other matter to
interfere with their jurisdiction or proceedings.
§377. Having disposed of these points, we may again recur to the language
of the Constitution, for the purpose of some further illustrations. The
language is, that "the Supreme Court shall have appellate jurisdiction,
both as to law and fact, with some exceptions, and under such regulations,
as the Congress shall make."
§378. In the first place, it may not be without use to ascertain, what is
here meant by an appellate jurisdiction; and what is the mode, in which it
may be exercised. The essential criterion of appellate jurisdiction is,
that it revises and corrects the proceedings in a cause already instituted,
and does not create that cause. In reference to judicial tribunals, an
appellate jurisdiction, therefore, necessarily implies, that the subject
matter has been already instituted in, and acted upon by, some other court,
whose judgement or proceedings are to be revised. This appellate
jurisdiction may be exercised in a variety of forms, and indeed any form,
which the Legislature may choose to prescribe; but, still, the substance
must exist, before the form can be applied to it. To operate at all, then,
under the Constitution of the United States, it is not sufficient, that
there has been a decision by some officer, or Department, of the United
States; but it must be by one clothed with judicial authority, and acting
in a judicial capacity. A power, therefore, conferred by Congress on the
Supreme Court, to issue a mandamus to public officers of the United States
generally, is not warranted by the Constitution; for it is, in effect,
under such circumstances, an exercise of original jurisdiction. But where
the object is to revise a judicial proceeding, the mode is wholly
immaterial; and a writ of habeas corpus, or of mandamus, a writ of error,
or an appeal, may be used, as the Legislature may prescribe.
§379. The most usual modes of exercising appellate jurisdiction, at least,
those, which are most known in the United States, are, by writ of error, or
by an appeal, or by some process of removal of a suit from an inferior
tribunal. An appeal is a process of civil law origin, and removes a cause
entirely, subjecting the fact, as well as the law, to a review and a
re-trial. A writ of error is a process of common law origin; and it removes
nothing for re-examination, but the law. The former mode is usually adopted
in cases of equity and admiralty jurisdiction; the latter, in suits at
common law tried by a jury.
§380. It is observable, that the language of the Constitution is, that "the
Supreme Court shall have appellate jurisdiction, both as to law and fact."
This provision was a subject of no small alarm and misconstruction at the
time of the adoption of the Constitution, as it was supposed to confer on
the Supreme Court, in the exercise of its appellate jurisdiction, the power
to review the decision of a jury in mere matters of fact; and thus, in
effect, to destroy the validity of their verdict, and to reduce to a mere
form, the right of a trial by jury in civil cases. The objection was at
once seized hold of by the enemies of the Constitution; and it was pressed
with an urgency and zeal, which were well nigh preventing its ambiguity of
the language, to justify an interpretation, that such a review might
constitutionally be within the reach of the appellate power, if Congress
should choose to carry it to that extreme latitude. But, practically
speaking, there was not the slightest danger, that Congress would ever
adopt such a course, even if it were within their constitutional authority;
since it would be at variance with all the habits, feelings, and
institutions, of the whole country. At least, it might be affirmed, that
Congress would scarcely take such a step, until the people were prepared to
surrender all the great securities of their civil, as well as of their
political rights and liberties; and in such an event, the retaining of the
trial by jury would be a mere mockery. The real object of the provision
was, to retain the power of reviewing the fact, as well as the law, in
cases of equity, and of admiralty, and maritime jurisdiction. And the
manner, in which it is expressed, was probably occasioned by the desire to
avoid the introduction of the subject of a trial by jury, in civil cases,
upon which the Convention were greatly divided in opinion.
§381. These views, however reasonable they may seem to considerate minds,
did not wholly satisfy the popular opinion; and as the objection had a vast
influence under public opinion, and amendments were proposed by various
State conventions on the subject, Congress, at its first session, under the
amendment, which was ratified by the people, and is now incorporated into
the Constitution. It is in these words: "In suits at common law, where the
value in controversy shall exceed twenty dollars, the right of a trial by
jury shall be preserved. And no fact, tried by jury, shall be otherwise
re-examined in any court of the United States, than according to the rules
of the common law." This amendment completely struck down the objection;
and has secured the right of a trial by jury, in civil cases, in the
fullest latitude of the common law. It is a most important and valuable
amendment; and places upon the high ground of constitutional right, the
inestimable privilege of a trial by jury in civil cases, a privilege
scarcely inferior to that in criminal cases, which is conceded by all
persons to be essential to political and civil liberty.
§382. The appellate jurisdiction is to be, "with such exceptions, and under
such regulations, as the Congress shall prescribe." But, here, a question
is presented upon the construction of the Constitution, whether the
appellate jurisdiction attaches to the Supreme Court, subject to be
withdrawn and modified by Congress; or, whether an act of Congress is
necessary to confer the jurisdiction upon the court. If the former be the
true construction, then the entire appellate jurisdiction, if Congress
should make no exceptions or regulations, would attach, by force of the
terms, to the Supreme Court. If the latter, then, notwithstanding the
imperative language of the Constitution, the Supreme Court is lifeless,
until Congress has conferred power on it. And if Congress may confer power,
they may repeal it. So that the whole efficiency of the judicial power is
left by the Constitution wholly unprotected and inert, if Congress shall
refrain to act. There is certainly very strong ground to maintain, that the
language of the Constitution meant to confer the appellate jurisdiction
absolutely on the Supreme Court, independent of any action by Congress; and
to require this action to divest or regulate it. The language, as to the
original jurisdiction of the Supreme Court, admits of no doubt. It confers
it without any action of Congress. Why should not the same language, as to
the appellate jurisdiction, have the same interpretation? It leaves the
power of Congress complete, to make exceptions and regulations; but it
leaves nothing to their inaction. This construction was asserted in
argument at an early period of the Constitution, and it has since been
deliberately confirmed by the Supreme Court.
§383. The functions of the judges of the courts of the United States are
strictly and exclusively judicial. They cannot, therefore, be called upon
to advise the President in any Executive measures; or to give extra
judicial interpretations of law; or to act as commissioners in cases of
pensions, or other like proceedings.
SOURCE: A Familiar Expositon of The Constitution Of The United States,
Joseph Story Justice of U S Supreme Court (1811-1843) (1840)
Reprint Originally published Harper & Bros NY (1859)
Regnery Gateway Inc. (1986) Chapter XXX pp 271-75
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more in subsequent seperate threads as in
Congressional attempts to remove religion cases from federal courts #3
Congressional attempts to remove religion cases from federal courts #4
and so on
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You are invited to check out the following:
The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm
American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm
The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html
[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]
HRSepCnS · Hampton Roads [Virginia] SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
[Its not just Hampton Roads folks who are members, there are members from
all over the US and a couple from overseas as well]
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.. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
.. . .
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USAF LT. COL (Ret) Buffman (Glen P. Goffin) wrote
"You pilot always into an unknown future;
facts are your only clue. Get the facts!"
That philosophy 'snipit' helped to get me, and my crew, through a good
many combat missions and far too many scary, inflight, emergencies.
It has also played a significant role in helping me to expose the
plethora of radical Christian propaganda and lies that we find at
almost every media turn.
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THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE
http://members.tripod.com/~candst/index.html
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