J.A.I.L. News Journal
Los Angeles - April 9,
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(A Study On The
The Capacity of Article III
BY: Dan Meador (Jan. 20, 2000)
McCrory recently sent Ralph Winterrowd and I hunting for a case
allegedly claims there are no longer any Article III judges of the
United States. The case in question is Hatter v. United States, which was
decided in the Court of Claims (#705-89, decided Nov. 9, 1990), then was
reviewed by the Federal Circuit Court of Appeals (185 F.3r 1356 (Fed.Cir.
1999)). Ralph downloaded the Court of Claims decision from his Internet law
service, then forwarded it to me.
The matter is important to the
constitutionalist/patriot community for
several reasons. One in particular is
that one and possibly more patriot
researchers use the "no Article III judge"
defense at length, and whether or not that is the case, it usually doesn't even
illicit a response. The defense relies on the fact that Federal judges pay
income taxes and therefore don't qualify under the prohibition against reduction
in compensation of judges of the United States found in Article III, Sec. 1 of
As it turns out, the Hatter case is of no value here as
one of the fact
stipulations agreed to by judges who initiated litigation,
and the defense, is that the judges are Article III judges. Their status under
Article III, Sec. 1 was conceded, not contested. The Court of Claims decision,
which covers the history of the issue, is interesting and informative as it
accounts for evolution in thinking on the subject.
The first time tax on
the judiciary came up was during the Civil War. Former Chief Justice Tanny
handled the matter with a letter. His argument was subsequently reinforced by an
Attorney General opinion. The subject didn't come up again until Congress
imposed an income tax on judges via the revenue act of 1918. The matter was
litigated, and the Supreme Court found in favor of judges who alleged that
the compensation clause prohibits the other two branches from taxing
judges. However, Justice Holmes wrote a dissenting opinion that was to
prevail in the 1930s: A tax imposed uniformly on the population at large
does not diminish compensation of judges. As citizens, judges are obliged
to support government via the tax system to the same extent anyone else
Through the years, the compensation clause was
put in perspective: It is
intended to protect the people, not judges.
Therefore, a uniform tax which does not reduce the base salary, but merely
reduces take-home pay at rates the same as those imposed on everyone else, does
not have intimidation purpose or effect.
Judges appointed prior to
Congress bringing Federal employees, including
judges, into the Social
Security system initiated the Hatter case. This had been the position in the
1930s: Judges appointed prior to the Federal income tax being extended to the
judiciary were excluded from the tax. However, that position was later trashed,
too, and the Hatter court rejected both constitutional and contractual
In the course of the decision, the Hatter court equated Social
deductions to an income tax. Following cites in the opinion should
enlightening to those who believe the Social Security system operates
a trust with individual trust accounts.
Clearly, judges and the
Department of Justice consider current Federal
judges as being properly
appointed within the framework of Article II, Sec. 1 of the Constitution.
However, to accept that as the final word on the subject misses the core issue.
The question should be "In what capacity is a judge operating in at any given
This matter has been at issue since the Canter
case (356 Bales of Cotton) in the early part of the last century. The issue was
salvaged cotton retrieved from a shipwreck off the coast of Florida. Florida was
at the time a territory, not one of the several States. A Florida territorial
tribunal disposed of the salvaged cotton. The disposal was challenged in Federal
district court as Article III, Sec. 2 vests exclusive admiralty and maritime
jurisdiction in courts of the United States, exclusive of courts of the several
In the decision, former Chief Justice John Marshall set down
precedents. First, since Florida was a territory rather than a
State of the Union, Congress was not limited by the Constitution, and Article
III of the Constitution did not apply. Therefore, the Florida court could in
fact exercise whatever powers Congress vested within the territory
territorial waters. In almost the same breath, Marshall said that
territorial courts are not Article III courts, and cannot be clothed with
Article III judicial power of the United States.
The problem which has
never been clearly resolved is this: How is it that courts of the United States,
including the Supreme Court, review and/or rule on territorial court decisions?
If territorial courts are not technically constitutional courts, and cannot be
vested with Article III authority, what authority does an Article III judge or
court have over decisions relating to judicial affairs in territories and
insular possessions of the United States? The question has never been
A curious situation along this line developed in
the first half of the Twentieth Century: Citizens and corporate entities
in the District of
Columbia do not fall within the framework of the
"diversity of citizenship" provision that accommodates litigation between two or
more States of the Union. Since that avenue was blocked, Congress authorized
convening the United States District Court of the District of Columbia
(construed as a territorial court) in district courts of the United States
located in the several States. Article III judges appointed to the various
districts were authorized to accommodate, or to preside in, these surrogate
Again, it required considerable rationalization to justify
Article III judges presiding in divisions of a territorial court, and to the
best of my knowledge, there has never been a definitive judicial statement on
the subject. However, it follows that if the court is territorial, and cannot be
cloaked with Article III character, the Article III judge steps out of Article
III character when and if he presides in a territorial court. In a manner of
speaking, it is extra-judicial duty beyond the outer limits of Article III
judicial authority and immunity.
The Hatter decision goes to original,
not functional capacity, so it is of no value in determining if a judge is
functioning as an Article III judge in any given setting.
This is where
two elements must be considered: First, the "United States
District Court" is
a territorial court (Balzac v. Puerto Rico (1922)), where the "District Court of
the United States" is the first-level Article III court of the United States
(Mookini v. United States (1938)). Second, the "United States" is the proper
principal of interest in courts of the United States other than territorial
courts, where the "United States of America, ss, President of the United States"
is the principal of interest in insular possession territorial courts (see
judicial provisions for Puerto Rico & the Virgin Islands in Title 48 of the
United States Code). The "United States of America" first appeared as a
principal of interest via 1918 legislation (see notes following the current 18
U.S.C. § 1001).
Finally, the "United States of America" currently
identified as principal in Federal civil and criminal prosecution is a political
coalition or compact of insular possessions of the United States. Distinction
between the two court systems can be verified by comparing 26 U.S.C. §§ 7323
& 7402, with the "United States" named as principal of interest in § 7402,
as is the case for 18 U.S.C. § 3121.
Our two factors, then, are (1) the
territorial court (actually, a private court), and (2) a foreign
Analogously, a major league baseball umpire might occasionally
Babe Ruth League ball game. Where the baseball commissioner
penalize a professional player for kicking dirt or spitting on an
umpire, he would probably be amused if one of his umpires complained about a
14-year-old boy tromping on his toes. In other words, if an Article III judge
presides in a territorial court, Article III affords him no privilege or
protection as his presence does not clothe the territorial court with an Article
III character. When the game is played in an unauthorized ballpark, and the
players aren't part of the designated league, the commissioner of baseball
cannot discipline the players or protect his umpires.
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