The Constitution of the United States of America: Analysis and Interpretation Part 96

[450] 13 How. 115 (1852).

[451] 13 Wall. 623 (1872).

[452] 260 U.S. 327 (1922).

[453] 341 U.S. 114 (1949).

[454] 315 U.S. 203, 230 (1942).

[455] Federalist No. 64.

[456] _See also_ 40 Op. Atty. Gen. 250, 253 (1942).

[457] 343 U.S. 579, 639, 640.

[458] Ibid. 653, 654.

[459] 343 U.S. 579, 657.

[460] Ibid. 659.

[461] 2 Cr. 170 (1804).

[462] 343 U.S. 579, 662, 663.

[463] Ibid. 662.

[464] 343 U.S. 579, 678, 679.

[465] Ibid. 705.

[466] Ibid. 708-709.

[467] 4 Wall. 475 (1867).

[468] Ibid. 484.

[469] Ibid. 500-501.

[470] Kendall _v._ United States, 12 Pet. 524 (1838); United States _v._ Lee, 106 U.S. 196 (1882). It should be noted, however, that if the President fails to act, or if he adopts a narrow construction of a statute which he dislikes, and on this ground professes inability to act, the only remedy available against him is impeachment.

[471] n.o.ble _v._ Union River Logging R. Co., 147 U.S. 165 (1893); Philadelphia Co. _v._ Stimson, 223 U.S. 605 (1912).

[472] Kendall _v._ United States, above; [Transcriber's Note: Reference is to Footnote 470, above.] United States _v._ Schurz, 102 U.S. 378 (1880); United States ex rel. Dunlap _v._ Black, 128 U.S. 40 (1888).

_Cf._ Decatur _v._ Paulding, 14 Pet. 497 (1840); and Riverside Oil Co.

_v._ Hitchc.o.c.k, 190 U.S. 316 (1903), where the rule is reiterated that neither injunction nor mandamus will lie against an officer to control him in the exercise of an official duty which requires the exercise of his judgment and discretion.

[473] This was originally on the theory that the Supreme Court of the District had inherited, via the common law of Maryland, the jurisdiction of the King's Bench "over inferior jurisdictions and officers." 12 Pet.

at 614 and 620-621.

[474] Little _v._ Barreme, 2 Cr. 170 (1804); United States _v._ Lee, above; [Transcriber's Note: Reference is to Footnote 470, above.]

Spaulding _v._ Vilas, 161 U.S. 483 (1896).

[475] Bell _v._ Hood, 327 U.S. 678 (1946). The decision is based on an interpretation of 28 U.S.C. -- 41 (1).

[476] Mitch.e.l.l _v._ Clark, 110 U.S. 633 (1884). An official action is indemnifiable if Congress could have authorized it in the first place, or if it was done under "imperative orders which could not be resisted,"

or "under necessity or mistake." Ibid. 640-641.

[477] Tennessee _v._ Davis, 100 U.S. 257 (1880); In re Neagle, 135 U.S.

1 (1890). _Cf._ Maryland _v._ Soper, 270 U.S. 9 (1926).

[478] 17 Op. Atty. Gen. 419 (1882). _See also_ Hinds' Precedents, III, ---- 2315-2318 (1907).

[479] The Belknap Case, ibid. -- 2445.

[480] Elliot, Debates, V, 341, 528.

[481] Ibid. IV, 375.

[482] The Federalist No. 65. For the above _see_ William S. Carpenter, Judicial Tenure in the United States (Yale University Press, 1918), 105-106.

[483] John Quincy Adams, Memoirs, I, 321, 322 (1874).

[484] Trial of Andrew Johnson, I, (Government Printing Office, 1868), 147.

[485] Ibid. 409. Johnson and his Cabinet were much concerned over rumors that it was the intention of his enemies in the House, following impeachment and pending the trial, to put him under arrest and/or suspend him from office. Gideon Welles, Diary, III, 21, 27, 50, 57, 60, 62, 151, 200, 235, 237, 238, 291, 313. But no such step was attempted.

Several state const.i.tutions contain provisions authorizing suspension from office in such a case.

[486] Carpenter, Judicial Tenure, 145-153.

[487] Senate proceedings in Cong. Record, vol. 80, pp. 5558-5559, (April 16, 1936).

[488] On this account, as well as because of the c.u.mbersomeness of the impeachment process and the amount of time it is apt to consume, it has been suggested that a special court could, and should, be created to try cases of alleged misbehavior in office of inferior judges of the United States, this type of officer having furnished the great majority of cases of impeachment under the Const.i.tution. _See_ Memorandum on Removal Power of Congress with Respect to the Supreme Court, Senate Judiciary Committee, 80th Cong., 1st sess.; _also_ Burke Shartel, Federal Judges--Appointment, Supervision, and Removal--Some Possibilities under the Const.i.tution, 28 Mich. L. Rev., 870-907 (May 1930). Is impeachment the only way in which Congress, or either house thereof, is const.i.tutionally ent.i.tled to call the President to account for his conduct in office? _Cf._ George Wharton Pepper, Family Quarrels, The President, the Senate, and the House (New York, 1931), 138 ff.; and Corwin, The President, Office and Powers (3d ed.), 411-413.

ARTICLE III

THE JUDICIAL DEPARTMENT

Section 1. The judicial power, courts, judges: Page Characteristics and attributes of judicial power 511 "Judicial power" 511 "Shall be vested" 512 Finality of judgment 512 Taney doctrine 513 Award of execution 514 Ancillary powers 515 Contempt power; the act of 1789 515 An inherent power 515 Contempt power exalted 516 Recession of the doctrine 517 Bridges _v._ California 517 Summary punishment of contempt; misbehavior of counsel 517 Punishment of counsel; The Sacher Case 519 Contempt by disobedience of orders 520 Criminal versus civil contempts 521 Judicial power aids administrative power 521 Power to issue writs; the act of 1789 522 Common law powers of the District of Columbia Courts 522 Habeas corpus 523 Congress limits the inquisition power 523 Injunctions under the Emergency Price Control Act of 1942 525 Rule-making power and powers over process 525 Limits to the power 526 Appointment of referees, masters, and special aids 527 Power to admit and disbar attorneys 527 Organization of courts; compensation of judges 528 "One supreme court" 528 Inferior courts made and abolished 528 Abolition of the commerce court 529 Compensation 530 Diminution of salaries 530 Courts of specialized jurisdiction 531 Emergency Court of Appeals of 1942 531 Judicial review restrained 532 Legislative courts; Canter case 533 Other legislative courts 534 Powers of Congress over legislative courts 534 Status of the Court of Claims 535 A judicial paradox 536 Status of the courts of the District of Columbia.' 536 Section 2. Jurisdiction 538 Clause 1. Scope of jurisdiction 538 "Cases and controversies" 538 Two cla.s.ses of "cases and controversies" 538 Adverse litigants 539 Stockholders' suits 541 Substantial interest doctrine 542 Substantial interest in suits by States 543 Abstract, contingent, and hypothetical questions 544 Political questions 546 Origin of the concept 546 Exemplifications of the doctrine 547 Recent cases 548 Advisory opinions 549 Declaratory judgments 551 Declaratory Judgment Act of 1934 551 "Case or controversy" test in declaratory judgment proceedings 552 Cases arising under the Const.i.tution, laws, and treaties of the United States 553 Definition 553 Judicial review 554 Judicial review and national supremacy 554 Judicial review of acts of Congress 556 Hamilton's argument 558 Marbury _v._ Madison 559 Marshall's argument 559 Importance of Marbury _v._ Madison 560 Limits to the exercise of judicial review 561 The doctrine of "strict necessity" 562 The doctrine of political questions 562 The "reasonable doubt" doctrine 563 Exclusion of extra-const.i.tutional tests 564 Disallowance by statutory interpretation 565 Stare decisis in const.i.tutional law 565 Allegations of federal question 566 Corporations chartered by Congress 568 Removal from State courts of suits against federal officials 568 Tennessee _v._ Davis 569 Supreme Court review of State court decisions 570 Suits affecting amba.s.sadors, other public ministers, and consuls 571 When amba.s.sadors, etc., are affected 571 Cases of admiralty and maritime jurisdiction 572 Origin and characteristics 572 Congressional interpretation of the admiralty clause 572 Judicial approval of congressional interpretation 573 Two types of cases 573 Maritime torts 574 Prize cases, forfeitures, etc. 575 Proceedings in rem 575 Absence of a jury 576 Territorial extent of admiralty and maritime jurisdiction 576 Admiralty jurisdiction versus State power 578 Exclusive of admiralty jurisdiction 578 Concessions to State power 579 The Jensen case and its sequelae 580 Power of Congress to modify maritime law; the "Lottawanna" 582 Cases to which the United States is a party; right of United States to sue 584 Suits against States 584 Immunity of United States from suit 585 Waiver of immunity by Congress 586 United States _v._ Lee 587 Difficulties created by the Lee case 588 Official immunity today 589 Cla.s.sification of suits against officers 590 Suits against government corporations 590 Suits between two or more States 591 Boundary disputes; the law applied 591 Modern types of suits between States 592 Cases in which the Court has declined jurisdiction 594 Problem of enforcement; Virginia _v._ West Virginia 595 Controversies between a State and citizens of another State 596 Nonjusticiable controversies 596 Jurisdiction confined to civil cases 597 Suits by a State as parens patriae; jurisdiction declined 597 Suits by a State as parens patriae; jurisdiction accepted 598 Georgia _v._ Pennsylvania Railroad 598 Controversies between citizens of different States 599 The meaning of "State," Hepburn _v._ Ellzey 599 Extension of jurisdiction by act of 1940 600 Citizens.h.i.+p, natural persons 600 Citizens.h.i.+p, corporations 601 Black and White Taxicab case 603 The law applied in diversity cases; Swift _v._ Tyson 603 Extension of the Tyson case 604 The Tyson rule protested 604 Erie Railroad _v._ Tompkins; Tyson case overruled 605 Extension of the Tompkins rule 607 Controversies between citizens of the same State claiming lands under grants of different States 608 Controversies between a State, or the citizens thereof, and foreign States, citizens, or subjects 609 Suits by foreign States 609 Indian tribes 610 Narrow construction of the jurisdiction 610 Clause 2. Original and appellate jurisdiction of the Supreme Court 611 Original jurisdiction of the Supreme Court 611 An autonomous jurisdiction 611 Cannot be enlarged; Marbury _v._ Madison 612 Concurrent jurisdiction of the lower federal courts 613 Appellate jurisdiction of the Supreme Court 614 Subject to limitation by Congress 614 McCardle case 614 Power of Congress to regulate the jurisdiction of lower federal courts 616 Martin _v._ Hunter's lessee 616 Plenary power of Congress over jurisdiction 616 Judicial power under the Emergency Price Control Act 620 Legislative control over writs 621 Injunctions in labor disputes; Norris-LaGuardia Act 621 Judicial power equated with due process of law 622 Judicial versus nonjudicial functions 623 Federal-State court relations 624 Problems raised by concurrency 624 Disobedience of Supreme Court orders by State courts 625 Worcester _v._ Georgia 625 Conflicts of jurisdiction; comity 626 Jurisdiction of the _res_ 626 State interference by injunction with federal jurisdiction 627 Federal interference by injunction with State jurisdiction 628 Federal injunctions against State official action 629 Ex parte Young 630 State interference by habeas corpus proceedings with federal jurisdiction 631 Federal interference, by removal and habeas corpus 632 Comity as a principle of statutory construction 633 Comity as cooperation 634 Early use of State courts in enforcement of federal law 635 Retreat from this practice 636 Resumption of this practice 636 State obligation to enforce federal law 637 Right of foreign corporations to resort to federal courts 638 Clause 3. Trial by jury. [_See_ pp. 878-880 under Amendment VI] 638 Section 3. Treason 638 Clause 1. Treason defined 638 Definition 638 Levying war 639 The Burr trial 640 Aid and comfort to the enemy; the Cramer Case 640 The Haupt Case 641 The Kawakita Case 643 Doubtful State of the law of Treason today 644 Clause 2. Punishment of Treason 645 Corruption of blood and forfeiture 645

JUDICIAL DEPARTMENT