What Are The Enumerated Powers Of The Federal Courts?

1. "Judicial Power" refers to a court's power to hear and decide cases. Art. III §2, U.S. Constitution, lists the cases which federal courts are permitted to hear. They may hear only cases:

a) Arising under the Constitution, or the Laws of the United States, or Treaties made under the Authority of the United States 1 ["federal question" jurisdiction];

b) Affecting Ambassadors, other public Ministers & Consuls; cases of admiralty & maritime Jurisdiction; or cases in which the U.S. is a Party ["status of the parties" jurisdiction];

c) Between two or more States; between a State & Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States;2 or between a State (or Citizens thereof) & foreign States, Citizens or Subjects;3 ["diversity" jurisdiction].

These are the ONLY cases which federal courts have constitutional authority to hear! Alexander Hamilton wrote in Federalist No. 83, 8th para:

…the judicial authority of the federal judicatures is declared by the Constitution to comprehend certain cases particularly specified. The expression of those cases marks the precise limits beyond which the federal courts cannot extend their jurisdiction, because the objects of their cognizance being enumerated, the specification would be nugatory if it did not exclude all ideas of more extensive authority. [emphasis added]

In Federalist No. 80, Hamilton commented on each of these itemized "proper objects" of judicial authority. But here, we will consider only cases "arising under the Constitution", which concern "the execution of the provisions expressly contained in the articles of Union" (2nd para).4

2. Consider State laws criminalizing abortion or homosexual conduct.  Are these "proper objects" of the judicial power of the federal courts?  Do these laws fit within any of the categories of cases which federal courts are authorized to hear?  No, they don't!

Nothing in the Constitution forbids States from criminalizing abortion or homosexual conduct!  The federal courts have no "federal question jurisdiction", no jurisdiction based on status of the parties, and no "diversity jurisdiction" to hear such cases!

But the federal courts have evaded the constitutional limits on their power to hear cases by fabricating individual "constitutional rights" so that they can then pretend that the cases "arise under the Constitution"!

Thus, in Roe v. Wade (1973) seven judges on the U.S. Supreme Court said a

right of privacy…founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action (p. 153)

makes unconstitutional State laws making abortion a criminal offense! These seven judges just made up a "constitutional privacy right" which they said prohibits States from outlawing abortion!

In Lawrence v. Texas (2003) six judges on the U.S. Supreme Court said a Texas Law criminalizing homosexual conduct was unconstitutional because it violated practitioners'

…right to liberty under the Due Process Clause (p.578)…of the Fourteenth Amendment (pp. 564, 579).

But nothing in our Constitution prohibits the States from making laws declaring abortion or homosexual conduct to be crimes!  Nothing in our Constitution grants "rights" to individuals to engage in these practices!

3. But federal judges used the 14th Amendment as a blank check to prevent the States from outlawing conduct which the federal judges want to legalize.  They simply make up a "constitutional right" to do those things.  Under their view, there is no limit to their powers! States criminalize child rape, but 5 judges on the Supreme Court can fabricate a "constitutional right" to have sex with children – a "liberty & privacy right" in the 14th Amendment to have sex with children!  If these "liberty & privacy rights" mean that women can abort babies & homosexual conduct is fine; why can't they also mean that adults can have sex with children?  Why can't they mean that people have "liberty & privacy rights" to use crack cocaine & heroin?  What's the limit?  There IS no limit! Anthony Kennedy, who wrote the majority opinion in Lawrence v. Texas,  said:

…As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. (p. 579)

Kennedy just tossed Art. III §2 out the door!  He and his ideological allies recognize no limits on their power!  Just name an act you want legalized and if 5 of them agree, Voila! A new "liberty" "right"!  And a State law prohibiting that act
bites the dust.  And since federal judges also claim the right to "set policy" for all of these United States, and we have let them do it, State laws throughout the land prohibiting that act bite the dust.  And that is how we got a handful of un-elected judges setting "policy" for everyone in the country.

4. Abortion, homosexual conduct, prostitution, child sex, drugs, etc. are issues for The People of the several States to decide (subject to any restrictions imposed by their respective State Constitutions).  Congress is not authorized to make laws on these subjects, and these are not listed as "rights" in the U.S. Constitution.

5. What does the due process clause of the 14th Amendment really mean?  Professor Raoul Berger's meticulously researched book, Government by Judiciary: The Transformation of the Fourteenth Amendment5 proves that the purpose of the 14th Amendment was to protect freed slaves from southern Black Codes which denied them basic rights of citizenship.  In Ch. 116 , Berger discussed the meaning of the "due process" clause of the 14th Amendment:

…nor shall any State deprive any person of life, liberty, or property, without due process of law…

The clause, "due process of law" is a term of art with a well-known & narrow meaning7 going back to the Magna Charta!  It means that a person's Life, Liberty or Property can't be taken away from him except by the judgment of his peers pursuant to a fair trial! Specifically, that freed slaves could not be punished except pursuant to the judgment of their peers after a fair trial where they could appear, cross-examine witnesses and put on a defense! "Life" meant "life" as opposed to being lynched; "liberty" meant being out of prison
instead of in prison;
and "property" meant the person's possessions.

6. So! We see that the federal judges have redefined "Liberty".
To them, "liberty" is freedom from moral restraints; they do not see "liberty" as freedom from coercive civil government. They have no problem with making us objects to be plundered & controlled by the federal government!  They have no problem with suppressing our religion & silencing our speech.  They have no problem with imposing their values & radical conception of "liberty" on us.

But Professor Berger proves that the framers of the 14th Amendment did not understand "Liberty" as freedom from moral restraints.  The purpose of the due process clause of the 14th Amendment was to protect freed slaves from being put to death, imprisoned, or having their stuff taken away except pursuant to the judgment of their peers after a fair trial!

7. When federal judges redefine terms in the Constitution, they "amend" the Constitution in violation of Art. V.  Article V. sets forth the two lawful methods of amending the Constitution, neither of which is "redefinition by judges".

8. Are there remedies for this judicial lawlessness?  YES! Congress should use its Impeachment Power to remove the usurping judges.  How many times have you heard they have "lifetime appointments"?  They don't!  The only reason it ends up that way is because our representatives in Congress are ignorant & lack the Will to do the right thing.  Alexander Hamilton addressed judicial usurpations & the judiciary's "total incapacity to support its usurpations by force" in The Federalist No. 81, 9th para:

the important constitutional check which the power of instituting impeachments
in one part of the legislative body [House], and of determining upon them in the other [Senate], would give to that body [Congress] upon the members of the judicial department.  This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it [the impeachment power], while this body [Congress] was possessed of the means of punishing their presumption by degrading them from their stations. While this ought to remove all apprehension on the subject it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments [some had said impeachments should be tried in the Supreme Court]. [italics added]

Folks, ignorance & misinformation will do us in if we don't learn the Truth pretty soon. "Everybody" says judges have "lifetime appointments", & we believe it.  Well, now YOU know that federal judges can be impeached, convicted & kicked off the bench for usurping power!  We hear that "The Rule of Law" requires us to go along with all court decisions.  That is a Lie!  If the decision is based on an usurpation, the Rule of Law requires us to spit on the decision and demand that the judges be impeached & removed from the bench.

9. Finally, a word about our Rights:  The Constitution is about the Powers which We the People delegated to the 3 Branches of the Federal Government. It is NOT about Our Rights, which come from God, are unalienable, & predate the Constitution!
We created the Constitution & the federal government!  Why would the Creator (that's us) grant to our "creature" (the federal courts), the power to determine & define OUR Rights?

Alexander Hamilton opposed adding a Bill of Rights to the Constitution. He said they were unnecessary & dangerous because they contain exceptions to powers which are not granted.  Thus, they afford a pretext to regulate those Rights (The Federalist No. 84, 10th Para).  Hamilton was a prophet as well as a genius in political philosophy.

Today, we have been conditioned to believe that the source of our "Rights" is the Constitution, as defined & "discovered", from time to time, by unelected federal judges.  But D.C. v. Heller (2008) which upheld private ownership of guns, was a 5 to 4 decision!  One vote switched to the other side, and the Supreme Court will rule that we have no right to bear arms.

THIS is what happens when we substitute the Constitution for God as the Source of our Rights.  You must always insist that your Rights to Bear Arms – to defend yourself – are unalienable and come from God, not the Second Amendment!  Don't forget that We had that Right before the Constitution was ratified.  The same principle applies to all of our Rights.  If, like the Declaration of Independence, we insist that they come from God and are unalienable, no human court or legislative body can take them away from us.

1 Since ours is a Constitution of delegated & enumerated Powers, the U.S. must be authorized by the Constitution to act on a subject before any Treaty on that subject qualifies as part of the "supreme Law of the Land" (Art. VI, cl.2).

2 Hamilton said this is the only instance in which the Constitution contemplates the federal courts hearing cases between citizens of the same State. The Federalist No. 80 (3rd Para from end).

3 The 11th Amendment (ratified 1795) withdrew from the federal courts the power to hear cases filed against one of the States by Citizens of another State or by Citizens or Subjects of any foreign State.

4 Hamilton gave examples: If a State violates the constitutional provisions which prohibit States from imposing duties on imported articles, or from issuing paper money [Art. I, §10], the federal courts are in the best position to overrule infractions which are "in manifest contravention of the articles of Union. [i.e., Constitution]" (3rd Para).

5 Prof. Berger retired in 1976 as Senior Fellow in American Legal History, Harvard University. His book is at http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php%3Ftitle=675&Itemid=28 It is fascinating!

6 Here is the link to Ch. 11.  Read it!  You will then know more about "due process" than most federal judges! http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=675&chapter=106938&layout=html&Itemid=27

7 http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=675&chapter=106887&layout=html&Itemid=27

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About Publius Huldah
Lawyer, philosopher & logician. Strict constructionist of the U.S. Constitution. Passionate about The Federalist Papers (Alexander Hamilton, James Madison & John Jay), restoring constitutional government, The Bible, the writings of Ayn Rand, & the following: There is no such thing as Jew & Greek, slave & freeman, male & female, black person & white person; for we are all one person in Christ Jesus. She also writes legal and Constitutional commentary at her site: Publius-Huldah
  • http://twitter.com/pookieamos Julie Amos

    Wow , I love this , what an educational study, thanks.

  • http://www.facebook.com/rumsower Montie Rumsower

    People need to understand the government has for many years MISLEAD the people of America about their supposed authority. Their authority is STRICTLY limited by the enumerated powers in the constitution.

  • drbhelthi

    A marvelous extrapolation by Publius Huldah.

    As to the movement to propagandize the U.S. citizenry to believe that the U. S. Constitution is outdated - - . Regarding the Republic of the United States of America, the U.S. Constitution cannot be outdated. All citizens who do not know where the movement originated, need to update their information. The Dodd Report of the Reece Commtitee, 1954, provides basic information. (http://www.youtube.com/watch?v=YUYCBfmIcHM). Of course, propagandists of the New World Order, the "illuminati," "the queen," to include the GHWBushSr enclave in Texas, try to suppress the information. See "Extreme Prejudice," by the American heroine, Susan Lindauer.

    • drbhelthi

      I will try again to provide the link. If it does not make it, search on Norman Dodd Report of the Reece Committee. An accompanying link is Charlotte Iserbyt: http://www.youtube.com/watch?v=J6X8YgCBV8o." She was 10 in Austria, .when Hitler took over. The Norman Dodd video is at:www.youtube.com/watch?v=YUYCBfmIcHM. Here´s wishing you an expanded insight into the attempt to destroy the U.S.A.

  • danman1213

    How do we take control of the courts?? They have a Hold on the power . Most citizen were brain washed including my self thing they had all this authority . So what is next.


    The sheeple and most of Congress have no idea what the Constitution says or means. Recently Pelosi spoke about our right to fireams under the first ammendment.Congress is pitiful and we have allowed it.

  • 2War Abn Vet

    "The more rules and regulations, the more thieves and robbers there will be." --Father of Taoism Lao-Tzu (570-490 BC)

  • R.Young

    All Loyal SUBJECTS of the Regime will willingly give all the necessary powers of governing to the Regime no matter what the old out dated piece of paper (the Constitution) says!

    • drbhelthi

      Regarding the Republic of the United States of America, the U.S. Constitution cannot be outdated. There is only the movement to propagandize the U.S. citizenry to believe that it is outdated. All citizens who do not know where the movement originated, need to update their information. The Dodd Report of the Reece Commtitee, 1954, provides basic information.

    • R.Young

      You and I and others like us know the TRUTH, it is the Generations that have come after us (the Loayal Subjects) who have either been taught or have not bothered to LEARN, they are the ones who will willingly give all RIGHTS fo POWER to the REGIME!

  • Spenserr

    Publius, thanks for the education.......

  • Knife10

    The federal system isn't working. It isn't working because people have to run it, and the worst possible people manage to lie and cheat their way into office. Apparently there is no way to stop that from happening.


    Law Enforcement is just that, to enforce the law. Police are not lawyers, constitutional scholars, just enforcers of laws that are written and passed by city, county officals, state legislature and federal legislators. They do not interpret, just enforce. If you have a problem look to the judges that use the parts of the constitution for their own agenda, regardless of the original internt.

    • matism

      Their oath of office is to the Constitution, not their Masters. The Constitution is written in English, not legalese. It says what it means, and it means what it says.

      I vus chust doink mein chob!

      May they burn in hell for what they have done to this country.

  • jsmithcsa

    Unfortunately, Lincoln broke the power of the states, and the 20th century presidents killed it off by controlling the purse-strings. I wish it were different but it's not. The feds do what they want and shoot/arrest you if you stand up for your rights (which is NOT to say we shouldn't stand up anyway, but it takes a bold citizen to do it).

    • matism

      And preferably a citizen who knows where the "Law Enforcement" live in his neighborhood, and who is willing to deliver a free cocktail to them through their bedroom window at 2 AM, in accordance with their very own Rules of Engagement, instead of waiting for them to show up on the citizen's doorstep with body armor and automatic weapons...

  • matism

    Nothing will change for the better until there are enough dead pig corpses stacked in the streets, for it is this country's "Law Enforcement" who enable these bastards to usurp this power. In direct violation of the very oath of office of every "Law Enforcement" officer in this country.