2010/12/11

Varieties of jurisdiction

Jurisdiction is authority to act, generally in some official capacity. It presumes constraints on such authority, so that some acts may be lawful, while others are not.

The traditional breakdown for judicial jurisdictions is into three:
  1. Subject matter. In Latin, subjectam. The kinds of issues one is authorized to decide.
  2. Location, or locum. Confined to a geographic territory.
  3. Personal, or personam. The individuals or legal roles subject to the decisions.
These are discussed in a classic treatise,  A Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States, Peter Stephen Du Ponceau (1824). It represents the understanding of jurisdiction in the Founding Era, although written later.

But a more complete analysis of the concept needs to expand on these.

First, different constitutions have their own jurisdictions. in Social Contract and Constitutional Republics I discuss the constitutions of nature, society, the state, and government. One does not usually think of at least the first two having "jurisdictions" because they don't have decisionmaking officials, but individuals and social groups make decisions, albeit informally, and the general concept needs to cover such situations.

Since each constitution of government has its own jurisdiction, then in a federal republic like the United States, we have political jurisdictions for the Union, for each state, and for each local polity, such as county, legislative district, school district, utility district, town, et.

Since each political jurisdiction generally divides into legislative, executive, and judicial branches, we have legislative, executive, and judicial jurisdictions. These may be tied together by our original breakdown into subject, location, and personal. Thus, a legislative body may have subject jurisdiction to adopt laws that are within the executive subject jurisdiction of some executives and not others, and within the judicial subject jurisdiction of some courts and not others. Similarly for territorial or personal jurisdiction.

But that three-part division doesn't really cover the concept. We need to extend it, and the obvious way to do that is to a seven-part scheme based on the basic interrogatives: who, what, where, when, how, why, and whither:
  1. Who. This further breaks down into two:  
    1. Personal, or personam, jurisdiction.Who is subject to the decisions made.
    2. Official. Who may make the decisions.
  2. What. This is subject matter.
  3. Where. This is territorial or locational.
  4. When. This is temporal jurisdiction. Authority may be constrained to certain periods of time, or certain conditions, such as during a declared state of war or emergency, during a certain fiscal period, or during certain hours or days of the week.
  5. How. This is procedural jurisdiction. Sometimes called due process. A power not exercised in the correct manner is not "due", and therefore the act is unlawful.
  6. Why. This is causative jurisdiction. It is a constraint on how action or decisionmaking may be motivated or initiated. It is sometimes combined with due process, but should be broken out for clarity.
  7. Whither. This is consequential jurisdiction. it is authority arising from the results or impacts expected from an exercise of authority. It is not a power to do whatever might produce a desired result, but a further constraint that the power encourage or discourage certain results.
Now we have a more comprehensive scheme, and can better understand the concept, and also the Principles of Constitutional Construction, in which we divide judicial decisionmaking into seven main methods: textual, historical, functional, doctrinal, prudential, equitable, and natural.

The temporal, procedural, causative, and consequential jurisdictions may seem unfamiliar to many readers, but a little reflection should show they are familiar, just not as "jurisdictions". This breakdown can help us understand the bounds on what is and is not constitutional.

For example, the Constitution delegates to Congress a pre-emptive power to regulate the time, manner, and place of congressional elections (except the place of senatorial elections). That is the temporal, procedural, and locational jurisdictions, but also the subject, congressional elections. It is not the power to regulate who may vote or conduct an election. It is unclear, but may include the power to call an election, which is causative. There is an implied consequential jurisdiction to regulate such elections in a way that serves a legitimate and reasonable public purpose, such as to make elections more convenient, fair, and accurate. A statute that required voting to take place within a 1 nanosecond timeframe, while standing on one's head, at a polling place on the moon, would obviously be an abuse of discretion on the part of Congress, but more than that, it would exceed its consequential jurisdiction. No power delegated is "plenary" within its "sphere", despite the opinion of Justice Marshall in Gibbons v. Ogden. Part of original understanding is that all delegations of power are constrained to be to make efforts in a reasonable manner for a legitimate purpose. To do otherwise is not just bad policy. It is unconstitutional.

One kind of jurisdiction often cited is in rem jurisdiction, used in asset forfeiture cases. However, the underlying principle is that only legal persons may be parties to a judicial action, so a case with an inanimate object as a "defendant" should be styled as "John Doe, unknown owner of [object]". In such a case there should always be due diligence to identify the owner, and the party in possession should be presumed to be the owner unless it can be proved otherwise.

One point sometimes overlooked is that not all collections of human beings may be treated as legal persons. In general, a deliberative assembly of an otherwise unincorporated group is not a legal person. That would include a court, a legislative assembly, a constitutional convention, a political campaign, a militia muster, or the whole people of a community. The use of the style "The People" or "The State" is really just a shorthand way of referring to the government officials representing those things. "The People" cannot appear as a legal person, except through their agents.

2010/12/08

Wikileaks constitutional issues

The Wikileaks saga raises a number of constitutional issues, which deserve to be discussed on this forum. Here are a few:

1. By original understanding and the law of nations as of 1787, an offense is "committed" at the point in space and time of concurrence of mens rea with actus reus, not where the causation and harm may occur. See Introduction to Edward S. Stimson's Conflict of Criminal Laws. Penal jurisdiction is limited to U.S. soil for all offenses based on where they are committed, except for piracy and felonies on the high seas, or treason by a U.S. citizen. Such extraterritorial jurisdiction does not extend into the territories of foreign states, although we might reasonably deem international commons like Antarctica, or the territory of failed states, to be "high seas" for constitutional purposes.

2. The 20th century saw the advent of "jurisdiction creep" and the doctrine of extraterritorial reach. However, I am unaware that other nations have authorized the United States Congress to make laws for their citizens and their territories. Absent the emergence of the government of the United States as the de facto or de jure world government, it would seem that the reach of U.S. laws to an Australian citizen operating entirely outside the United States is dubious.

3. The Constitution defines treason, but not lesser included offenses. It is either treason, for U.S. citizens, or piracy, for foreign nationals offending U.S. targets, or U.S. nationals offending foreign targets. There would seem not to be any other alternatives. Espionage only arises from the law of war, and for it to apply, there must be a declared state of war. Last I checked, the U.S. Congress had not declared war on Sweden.

4. Contrary to any alleged damage that might have resulted from the publication of information provided by parties unknown, which Wikileaks staff have apparently been diligent in redacting to protect innocent lives, we have some very heavy-handed responses, obviously instigated by the U.S. government, that raise serious civil libertarian concerns: freezing of bank accounts, deletion of the domain name, "arrest" for "questioning" on a alleged "rape by surprise". It would seem that not only do we need to improve information security, but we need to cut off the ability to make such interventions, without legal authority. That is a far greater scandal than anything Wikileaks may have done.

2010/12/07

Majority voting not in Constitution

Does the U.S. Constitution prescribe majority votes in Congress?

This question came up in the Volokh Conspiracy forum.

The answer is no. Here is my comment:


The Constitution nowhere provides that a simple majority, either of the body or those present, is sufficient to pass a bill. What it does provide:
  1. That the House have “Power of Impeachment”, but nothing on a voting rule.
  2. That that state legislatures “chuse” U.S. senators. No mention of by what vote.
  3. That the Vice President shall have a vote if the Senate is “equally divided”, but not when if ever they might be equally divided.
  4. That each house shall “chuse” their officers, but no mention of by what vote.
  5. Senate requires 2/3 of members present to remove on an impeachment.
  6. Majority of members of each House to be a quorum, but nothing about voting rules for business, except as provided for specific kinds of issue.
  7. Submajority may adjourn or compel attendance.
  8. Each House may determine its own rules of procedure, but does not specify by what vote rules are to be adopted, amended, etc.
  9. 2/3 of members of a House required to expel a member.
  10. 1/5 of members present may require a record vote in either House.
  11. 2/3 of members of each House required to pass bill over a veto.
  12. 2/3 of Senate members present required to consent to treaties.
  13. 2/3 of members of each House required to propose amendments.
  14. 2/3 of state legislatures required to propose amendments or call constitutional convention.
  15. 3/4 of state legislatures or conventions required to adopt amendments.
Congress and state legislatures used variants on the rules of procedure of the British House of Commons, which contained supermajority rules on some points. The rules were codified in Jefferson’s Manual of Parliamentary Procedure, which evolved into Robert’s Rules of Order, as adapted to Congress.

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