Justice Dept Files Suit Against Arizona.

[DuncanONeil]

After a careful reading of both the Constitution and Alexander Hamilton in Federalist No. 81 (13th para) I am forced to concluded differently than both you and Publius Huldah. Though the language seems clear the meaning is not. The "State" in question is not a subordinate member of the Union, but that of a Foreign State as is shown by Hamilton's repeated references to sovereigns and consuls.

I came across this article. If the author is correct, why hasn't this point been brought up previously? Also if the author is correct, this shows how the Constitution is no longer relevant.

ONLY the US Supreme Court has Constitutional Authority to Conduct the Trial

FTA (emphasis and formating lost in the cut and paste):

[chuck]

After a careful reading of both the Constitution and Alexander Hamilton in Federalist No. 81 (13th para) I am forced to concluded differently than both you and Publius Huldah. Though the language seems clear the meaning is not. The "State" in question is not a subordinate member of the Union, but that of a Foreign State as is shown by Hamilton's repeated references to sovereigns and consuls.

I don't claim to be an attorney or even a student of law, but as a layman, I don't see how you come to your conclusion. In the paragraph above the one in question (in Article III Section 2.) I find this list: "--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 that list, the wording uses the term "foreign states" to differentiate between states of the USA and other states. I don't see why you assume the usage of the word "state" would be different in the very next paragraph. (The Eleventh Amendment also is careful to include the descriptor "foreign" when referencing a foreign state.)

[DuncanONeil]

I explained in my original response. Since when is the Governor of a state referred to a soverign? Since when does a member state have a consulate with the national Government or vice versa. These references clear make "state" to have the meaning of "the body politic as organized for civil rule and government" as opposed to "any of the bodies politic which together make up a federal union, as in the United States of America."
Therefore the subordinate courts do have jurisdiction.

I don't claim to be an attorney or even a student of law, but as a layman, I don't see how you come to your conclusion. In the paragraph above the one in question (in Article III Section 2.) I find this list: "--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 that list, the wording uses the term "foreign states" to differentiate between states of the USA and other states. I don't see why you assume the usage of the word "state" would be different in the very next paragraph. (The Eleventh Amendment also is careful to include the descriptor "foreign" when referencing a foreign state.)

[chuck]

I can't disagree with you and I respect that you have more background and have done more research than I have. My original question reflected that I had doubts about the validity of the premise of an article from a source that is obviously biased. But my doubts are based on the fact that I have seen nothing in the way of that concept being raised by the parties involved... parties that have more incentive, background, and research capability than either of us. But other than that, I still have not heard anything that refutes the contention of the author. Frankly, your response confuses me more than it explains.

I explained in my original response. Since when is the Governor of a state referred to a soverign?

I did not find a reference to a governor of a state being referred to as a sovereign in your response or in the original article. However, I did find the State of Arizona named as a defendant in the article.

Since when does a member state have a consulate with the national Government or vice versa.

I'm not sure what you are getting at here.

These references clear make "state" to have the meaning of "the body politic as organized for civil rule and government" as opposed to "any of the bodies politic which together make up a federal union, as in the United States of America."
Therefore the subordinate courts do have jurisdiction.

"These references" I have to assume are the Constitution and The Federalist Papers yet I cannot find the quotes you provided in them. As mentioned before, the Constitution seems to contradict your concept that the word "state" excludes the states in the USA. I have not read the Federalist Papers as you have indicated that you have, but I did refer to the paragraphs preceding and following the paragraph that was referenced in the article. In both of those paragraphs, the word "state" was clearly used to address the states in the USA. In the paragraph following the paragraph under discussion, the word "nation" was used when a more general term was needed.

I appreciate your effort to explain why the contention of the article is wrong, but so far, you have only supplied references that support it.

[DuncanONeil]

I am sorry that it has become confusing but legal talk often seems to engineered to do just that.

The appropriate section of the 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. 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."
Note in the language -- "affecting Ambassadors, other public Ministers and Consuls," This clearly does not refer to any office holder of any state in the union. This is followed by "and those in which a State shall be a Party" First consideration; "and those". Would you agree that this refers to "In all Cases"? Therefore could also read "'and (In all Cases) in which a State shall be a Party'". To follow the situation that you have put forth, that "State" refers to a member state of the union, would be placing these state on par with the appointed representatives of foreign states and those foreign states themselves. It seems unlikely that the founders of a nation would be placing in law a factual standing that every subset of this new nation is equivalent to all nations without the borders of this newly formed nation.

I realize the fact that we as a nation refer to portions of our country as states and foreign nations also as States. This is some would say a weakness of the language. But it does make it incumbent upon us to read the use of various words with great care. The close proximity of the word "State" with other words that refer to appointed representatives of foeign nations gives weight to the fact that use of the word "State" in this context is meant to mean foreign country not a subset of the US.

I discussed this with a separate set of "grey matter" and his opinion in regards to the paragraph is similar to yours. However he refers to paragraph one and concludes that since this is a state law and not a case, "in Law and Equity, arising under this Constitution, the Laws of the United States" but that of a state the Supreme Court does not then have original jurisdiction.

So I have again laid out my thoughts and consulted to verify them. I still think I am correct but the alternative case has merit as well.

I can't disagree with you and I respect that you have more background and have done more research than I have. My original question reflected that I had doubts about the validity of the premise of an article from a source that is obviously biased. But my doubts are based on the fact that I have seen nothing in the way of that concept being raised by the parties involved... parties that have more incentive, background, and research capability than either of us. But other than that, I still have not heard anything that refutes the contention of the author. Frankly, your response confuses me more than it explains.I did not find a reference to a governor of a state being referred to as a sovereign in your response or in the original article. However, I did find the State of Arizona named as a defendant in the article.

I'm not sure what you are getting at here.

"These references" I have to assume are the Constitution and The Federalist Papers yet I cannot find the quotes you provided in them. As mentioned before, the Constitution seems to contradict your concept that the word "state" excludes the states in the USA. I have not read the Federalist Papers as you have indicated that you have, but I did refer to the paragraphs preceding and following the paragraph that was referenced in the article. In both of those paragraphs, the word "state" was clearly used to address the states in the USA. In the paragraph following the paragraph under discussion, the word "nation" was used when a more general term was needed.

I appreciate your effort to explain why the contention of the article is wrong, but so far, you have only supplied references that support it.

[chuck]

Duncan,
Thanks for the thoughtful reply. Sorry for the delay in responding.

I am sorry that it has become confusing but legal talk often seems to engineered to do just that.

That's the truth. I'm tempted to post a recent negative article about lawyers in politics.

As to the exclusion of states in the union in the intent, I'm inclined to agree with you not because of the wording, but more on the basis of my original observation; no one with knowledge and vested interest has brought the issue up.

Of your reasoning, the following has the most impact.

It seems unlikely that the founders of a nation would be placing in law a factual standing that every subset of this new nation is equivalent to all nations without the borders of this newly formed nation.
[...and...]
The close proximity of the word "State" with other words that refer to appointed representatives of foeign nations gives weight to the fact that use of the word "State" in this context is meant to mean foreign country not a subset of the US.

I appreciate your attention to detail, your logic, your knowledge, and especially your effort. On a different topic, sometime I would like your opinion on the effect of punctuation in the fifth amendment (http://www.ccel.us/Fifth.html)

[DuncanONeil]

Duncan,
On a different topic, sometime I would like your opinion on the effect of punctuation in the fifth amendment (http://www.ccel.us/Fifth.html)

First a little pedagogy.

• Use a semicolon [ ; ] to separate closely related independent clauses: It is rare, but certainly possible, that you will want a semicolon to separate two independent clauses even when those two independent clauses are connected by a coordinating conjunction. This is especially true when the independent clauses are complex or lengthy and when there are commas within those independent clauses.
• Rules for Comma Usage Use a comma to separate the elements in a series (three or more things), including the last two.

On to the article. The writer is attempting to combine a list of items within a single clause of the sentence. In the process he refers to two semicolons in the Amendment. There are three but the first does not seem to bother him.

• Clause 1 of the Amendment deals with the necessity of an indictment and exceptions thereto.
• Clause 2 deals with the issue of double jeopardy.
• Clause 3 deals with a list of things:
  
  • First not compelled to testify against oneself in a criminal trial.
  • Second not to be deprived of life without due process.
  • Third not be deprived of liberty without due process.
  • Fourth not be deprived of property without due process.
• Clause 4 Private property may not be taken for public use without just compensation.

Now if these clauses were contingent on each other or part of another clause they would make little to no sense standing alone.

Further his argument falls apart in and of itself. He claims a requirement to testify against self interest. "(T)he amendment ... assumes that people will be compelled to testify against themselves." Further; "(a)s long as the witness is apprised of any charges against him, as long as he or she is provided legal counsel, as long as all facets of due process are afforded him". How are the officers of the court to know these things when it is the persons own testimony that provides the grounds for legal action?
I was going to go into Due Process" but that would take some time. What I found was making MY head spin. In that process I did run across a related matter. If Mr. Gwinn is correct in his analysis then there is an inherent discrepancy between the Fifth & Fourteenth Amendments. Gwinn says all of the material between "limb" and "law" are inextricably linked, yet the Fourteenth shows that not to be the case.

That is what I have on the issue now. How say you?