Articles of Confederation

Acknowledging that the court where the divorce was filed ahs original jurisdiction simply means that he filed the divorce in the proper court and does not have to wait for one court to refer it to another. The court with which the divorce was filed can determine all the facts in the case itself without having to ask another court to determine the facts first. For example, an appellate court is not a court of original jurisdiction and must rely on a trial court to determine the facts in evidence. The appellate court determines the matters of law, not the facts.

By saying that the court has subject matter jurisdiction, Peter is merely acknowledging that the court has the right to decide the case. In essence, he is saying that he filed the case in civil court and not criminal court. This is a procedural question, simply stating that he knew divorce was a civil matter and not a criminal matter.  By saying that the court had personal jurisdiction, Peter is acknowledging that he is subject to the laws as determined by that court. If, for example, Peter were a foreign national, he might not be subject to the personal jurisdiction of an American court. Assuming that he is an American citizen, almost any American court would have personal jurisdiction over Peter.

Finally, Peter tries to intimidate Betty by saying that he has a favorable venue. This may, in fact, be the only one of his statements that matters.  The venue is the location chosen for the trial and despite the perceived impartiality of the court system, the location of a trial can profoundly impact that outcome. This is why it is important in many criminal trials to request a change of venue, a new location, where perhaps the jury might be less prejudiced. If Peter was accurate in his assessment that he had discovered a favorable venue, it was the only thing that could be threatening to Betty’s position in the divorce case.

Despite his initial proclamations claiming his advantages in the divorce case, when Betty claims that Peter has undisclosed assets, the court ruled that Peter had to disclose them. When he refused, the judge found him in contempt of court. When sentencing Peter to remain in jail until he disclosed all his assets, the judge was citing him for indirect contempt. If Peter had been belligerent or rude to the judge he would have been cited for direct contempt. Indirect contempt is when the person being cited has violated a court order. Since Peter deliberately refused to obey a court order to disclose his assets, he was in indirect contempt of court.

The concepts of judicial restraint and judicial activism are huge issues when it comes to naming Supreme Court justices. The concept on many conservatives is that judicial restraint is a more conservative and that judicial activism is more liberal. In actuality, the concept is that judicial restraint is that the court rules only based on precedent and actual law.  A justice who believes in judicial restraint would not try to change society via the law nor use moral judgments to determine a case. He would simply look at the law as black and white and determine a case based on those facts. A justice who believes in judicial activism believes that the law is grey and should be molded by the will of the populace. Activist justices would determine the law based on what they believe to be right, not simply the precedents of time.

Among the most obvious decisions based on judicial activism are Brown v. the Board of Education and  Roe v. Wade. When justices were determining the fate of a nation in Brown, the law of the land was separate but equal. Generations of rulings, dating back to Plessey v. Ferguson and beyond had held that there was no reason that separate facilities could not be equal. Discrimination was the law of the land and was well accepted.  It was well-accepted that separate was not, in fact, equal and that there was a definitive two class society. In the end, the activist judges on the court decided that it was time to change the law. The law itself was flawed and the court decided to change it. Though this strays from what the intent of the court was, it is a method that American society has accepted as a manner to change the law when the law has not kept pace with societal changes.

Another case in which the justices of the Supreme Court acted with judicial activism was in Roe v. Wade. In this case, the medical technology had progressed faster than the law and we had the technology to terminate pregnancies, but not to determine where life began. The ruling in this case was that the court determined that rights beyond those specifically listed in the Bill of Rights existed, including a woman’s right to discretion over her own body. This is considered activism because the court went beyond the scope of what was written in the Constitution and the existing law to set an entirely new precedent.

The concept of state sovereign dates back to the Articles of Confederation and then was included in the Constitution. In the Constitution, the wording holds that all powers not specifically granted to the federal government were retained by the states. This was an attempt by the founders to keep the national government from becoming too powerful. Many, including James Madison and other founders, believed that democracy should be kept as local as possible and therefore wanted to retain as many rights for the states as possible. This argument over states’ rights would become one of the fundamental issues of the Civil War and a continuing debate for 230 years.

Preemption is the theory that when conflicting laws exist in the states and the federal government makes a law, the federal is presumed to have authority over the state law.  These concepts come into conflict when Congress attempts to make federal laws that overturn laws that had previously been instituted by the states.  Ultimately, if a state chooses to fight the concept of preemption, then the matter goes to the Supreme Court. Again, depending on whether the court is made up of strict constructionists or activists, the federal law may be upheld or the Court may determine that Congress did not have the right to make the law in the first place.

The true problems lie in that preemption is not a Constitutional idea. It is one that has been given much strength over the years, but in theory, matters not specifically spelled out as powers of the Congress are reserved to the state. This is why, for example, slavery was an issue left to the states until the Civil War. Nothing in the Constitution gave the federal government the right to make laws regarding slavery and therefore it was a right reserved to the states. At states began to split down largely geographical lines in determining the issue, the issue of states’ rights and slavery became hopelessly intertwined. This poor record of states’ rights overcoming the moral right has lead to many activist judges discounting the part of the constitution reserving rights for the states.

Describe the courts of your state. Information on the Illinois State court system can be found at http://www.state.il.us/court/ .

The highest court in Illinois is the Illinois Supreme Court, consisting of seven justices.  The state is then divided into five districts which each have an appellate court. Each of the five districts elects one justice to the Supreme Court except for the first district, which encompasses Cook County and the city of Chicago. The first district elects three justices to the court. Justices are elected for terms of 10 years.

The five appellate court districts are: Cook County/Chicago, Elgin, Ottawa, Springfield and Mount Vernon.  The state is also divided into 23 circuits with associate judges and circuit judges that serve in these circuits. Associate judges cannot preside over felony cases. A circuit usually covers several counties and judges there are elected as well. In Illinois, being a judge is considered a full-time job and judges may not practice law while on the bench or hold any job or position of power including elected office or position within a political party.

The court system is also overseen by the Illinois Court Commission, a group of a Supreme Court judge, two appellate court judges, two circuit court judges and two citizens appointed by the governor to oversee the court system. In the event of judicial misconduct, the commission has full authority to remove or suspend a judge or force a judge to retire should circumstances warrant it.

Current Justices of the Illinois Supreme Court are: Robert R. Thomas, Chief Justice; Charles E. Freeman, Thomas R. Fitzgerald, Thomas L. Kilbride, Rita B. Garman, Lloyd A. Karmeier and Anne M. Burke. Karmeier’s election as so contentious it led to a statewide call for judicial reform in Illinois. Thus far, it has not happened.