Article IV: The Judicial Branch

Article IV: The Judicial Branch

Section 1 – Judicial Powers

1.1 Federal Courts. 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 Court and inferior courts, shall hold their offices during good behavior; and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office.[1] All federal judges appointed to office under the 1787 Constitution shall continue in office under this Constitution II.[2]

1.2 Composition of the Supreme Court. The Supreme Court shall consist of nine Justices, presided over by the Chief Justice of the United States.[3] If, when Constitution II comes into effect, the Supreme Court shall have more than nine Justices, then, as Justices leave office, seats in excess of nine shall not be replaced.[4]

Section 2 – Judicial Power, Original Jurisdiction, and Jury Trials

2.1 Judicial Review. The judicial power extends to judicial review of acts of the Legislative branch, in order to judge whether such acts are in conformance with this Constitution II, and the federal courts shall have the power to invalidate any law, or any part of any law, found by the courts not to be in compliance with this Constitution II. The judicial power also extends to judicial review of all acts of the Executive branch, in order to judge whether such acts are in conformance with this Constitution II and with laws duly enacted by Congress, and the federal courts shall have the power to invalidate any such acts, found by the courts not to be in compliance with this Constitution II or the laws of the United States. In conducting judicial reviews of both the Legislative and the Executive branches, federal courts may consider both the inscribed provisions of this Constitution II and laws enacted by Congress, as well as their intent.  [5]

2.2 Judicial Power. The judicial power shall extend to all cases, in law and equity, arising under this Constitution II, 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.[6]

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.[7]

2.3 Original Jurisdiction. 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.[8]

2.4 Jury Trials. 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.[9]

Section 3 – Treason[10]

Treason against the United States shall consist only in levying war against the United States or in adhering to the enemies of the United States, 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[11] or forfeiture except during the life of the person attainted.

[1] Copied from the 1787 Constitution, Article III Section 1.

[2] This sentence ensures continuity of the federal judiciary when this Constitution II goes into effect.

[3] This new provision fixes the size of the Supreme Court at nine justices.

[4] Future presidents will not be able to “pack the Supreme Court” in order to get a Supreme Court more favorable to the President, nor will Congress be able to prevent the President from filling vacancies on the Supreme Court. This particular check-and-balance is missing from the 1787 Constitution.

[5] This provision incorporates into this Constitution II the principle of judicial review, which has been practiced and followed under the 1787 Constitution ever since the Marbury v. Madison decision in 1803.

[6] Copied from the 1787 Constitution, Article III Section 2.

[7] Copied from the 1787 Constitution, Amendment 11.

[8] Copied from the 1787 Constitution, Article III Section 2.

[9] Copied from the 1787 Constitution, Article III Section 2.

[10] Copied from the 1787 Constitution, Article III Section 3.

[11] Corruption of blood, in British law, resulted from an act of attainder, and prevented the person attainted from inheriting, owning, or bequeathing any civil rights, property, rank, or titles. Typically, an attainted person was executed. If the bill of attainder also included corruption of blood, then the attainted person’s children could not inherit. This provision is copied directly from the 1787 Constitution, Article III Section 3. But the entire sentence appears to conflict directly with the prohibition on passing any bill of attainder, as provided by the 1787 Constitution, Article I Section 9 – Limits on Congress, and Article I Section 10 – Powers prohibited of States. All three of these clauses were accepted unaltered into Constitution II, without resolving this apparent inconsistency.

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