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Varieties of jurisdiction

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  • Jon Roland
    Varieties of jurisdiction Jurisdiction is authority to act, generally in some official capacity. It presumes constraints on such authority, so that some acts
    Message 1 of 1 , Dec 11, 2010
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      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.
      -- Jon
      
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