World Net Daily debunks latest extreme right legal meme

by: Daniel De Groot

Fri Aug 06, 2010 at 17:00

The origin is this piece in an obscure Canadian wingnut outlet:

ONLY the US Supreme Court has Constitutional Authority to Conduct the Trial
By Publius Huldah  Thursday, July 29, 2010

Does anyone read the U.S. Constitution these days? American lawyers don't read it. Federal Judge Susan R. Bolton apparently has never read it. Same goes for our illustrious Attorney General Eric Holder. But this lawyer has read it and she is going to show you something in Our Constitution which is as plain as the nose on your face.

See, she's a lawyer, and she's read the US Constitution and knows it better than some silly Federal Judge, State Attorney-General or just about anyone else who observed or commented on the Arizona case.  The Supreme Court is required to hear every case launched by anyone against any State.  Clearly that makes a lot of sense.  Take it away Ms. Publius!

Article III, Sec. 2, clause 2 says:

   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...

"Original" jurisdiction means the power to conduct the "trial" of the case (as opposed to hearing an appeal from the judgment of a lower court). [...]

I've grown to be very suspicious every time a conservative publication uses elipses in quoting anything authoritative or significant.  But rather than debunk this myself, I'll turn to the liberal media and its mainstay paper of record, the World Net Daily:

But constitutional expert Herb Titus, who is affiliated with the William J. Olson law firm, said the full text of the constitutional provision needs to be noted, because it does not provide the Supreme Court with "exclusive" original jurisdiction.

He noted the constitutional text: "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."

It is that provision that allows Congress to make exceptions and regulations that provides the authority for Bolton's court to hear the case, he noted.

"Could you imagine every case that involves a state as a party being before the Supreme Court? The court would be so loaded with those kinds of cases," he said.

Emphasis added to show the portion of the article Publius left out (and she didn't link to a copy of the Constitution either while citing it selectively).  They even go on to cite a second right wing legal expert who agrees this is nonsense.  Amazing.

So, as I said, one for the history books.  At the moment this isn't huge news but aside from being an amusing example of the kind of absurd nonsense that so easily catches fire in the very gassy fever swamps of the right, it is the kind of thing that unfortunately has a habit of very quickly becoming first a zombie lie, and then an accepted fact on the right.  Don't be shocked if it shows up in the email forwards you get from that right wing friend or relative shortly, and in a couple years, in the judicial nominee questioning and talking points of Republican members of Congress.

For a deeper debunking, try here.  They even do fancy lawyering stuff like citing precedents and applicable Federal law.  As for Publius, she's a rising legal star on the right:

I don't cite SCOTUS opinions as authority, because they have become nothing more than judges' personal opinions on the cases before them. We have well over 100 years accumulation of such opinionated precedent!

You'd think the markets that conservative lawyers worship so much would punish a lawyer who refuses to cite Supreme Court precedents in the cases she argues.