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For the future, barring changes in Court membership, other curtailing of habeas jurisdiction can be expected. Perhaps the Court will impose some form of showing of innocence as a predicate to obtaining a hearing. More far reaching would be, as the Court continues to emphasize broad federalism concerns, rather than simply comity and respect for state courts, an overturning of Brown v. Allen itself and the renunciation of any oversight, save for the ex[p.819]tremely limited direct review of state court convictions in the Supreme Court.

Removal.—In the Judiciary Act of 1789, Congress provided that civil actions commenced in the state courts which could have been brought in the original jurisdiction of the inferior federal courts could be removed by the defendant from the state court to the federal court.1271 Generally, as Congress expanded the original jurisdiction of the inferior federal courts, it similarly expanded removal jurisdiction.1272 Although there is potentiality for intra–court conflict here, of course, in the implied mistrust of state courts’ willingness or ability to protect federal interests, it is rather with regard to the limited areas of removal that do not correspond to federal court original jurisdiction that the greatest amount of conflict is likely to arise.

If a federal officer is sued or prosecuted in a state court for acts done under color of law1273 or if a federal employee is sued for a wrongful or negligent act that the Attorney General certifies was done while she was acting within the scope of her employment,1274 the actions may be removed. But the statute most open to federal–state court dispute is the civil rights removal law, which authorizes removal of any action, civil or criminal, which is commenced in a state court “[a]gainst any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof.”1275 In the years after[p.820]enactment of this statute, however, the court narrowly construed the removal privilege granted,1276 and recent decisions for the most part confirm this restrictive interpretation,1277 so that instances of successful resort to the statute are fairly rare.

Thus, the Court’s position holds, one may not obtain removal simply by an assertion that he is being denied equal rights or that he cannot enforce the law granting equal rights. Because the removal statute requires the denial to be “in the courts of such State,” the pretrial conduct of police and prosecutors was deemed irrelevant, because it afforded no basis for predicting that state courts would not vindicate the federal rights of defendants.1278 Moreover, in predicting a denial of rights, only an assertion founded on a facially unconstitutional state statute denying the right in question would suffice. From the existence of such a law, it could be predicted that defendant’s rights would be denied.1279 Furthermore, the removal statute’s reference to “any law providing for . . . equal rights” covered only laws “providing for specific civil rights[p.821]stated in terms of racial equality.”1280 Thus, apparently federal constitutional provisions and many general federal laws do not qualify as a basis for such removal.1281

Clause 3. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.1282

ARTICLE III
JUDICIAL DEPARTMENT

Section 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open court.

TREASON

The treason clause is a product of the awareness of the Framers of the “numerous and dangerous excrescences” which had disfigured the English law of treason and was therefore intended to put it beyond the power of Congress to “extend the crime and punishment of treason.”1283 The debate in the Convention, remarks in the ratifying conventions, and contemporaneous public comment make clear that a restrictive concept of the crime was imposed and that ordinary partisan divisions within political society were not to be escalated by the stronger into capital charges of treason, as so often had happened in England.1284

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Thus, the Framers adopted two of the three formulations and the phraseology of the English Statute of Treason enacted in 1350,1285 but they conspicuously omitted the phrase defining as treason the “compass[ing] or imagin[ing] the death of our lord the King,”1286 under which most of the English law of “constructive treason” had been developed.1287 Beyond limiting the power of Congress to define treason,1288 the clause also prescribes limitations upon Congress’ ability to make proof of the offense easy to establish1289 and its ability to define punishment.1290


Footnotes

1271 Sec. 12, 1 Stat. 79 . The removal provision contained the same jurisdictional amount requirement as the original jurisdictional statute. It applied in the main to aliens and defendants not residents of the State in which suit was brought.
1272 Thus the Act of March 3, 1875, Sec. 2, 18 Stat. 470 , conferring federal question jurisdiction on the inferior federal courts, provided for removal of such actions. The constitutionality of congressional authorization for removal is well–established. Chicago & N.W. Ry. Co. v. Whitton’s Administrator, 13 Wall. (80 U.S.) 270 (1871); Tennessee v. Davis, 100 U.S. 257 (1879)); Ames v. Kansas ex rel. Johnston, 111 U.S. 449 (1884). See City of Greenwood v. Peacock, 384 U.S. 808, 833 (1966).
1273 See 28 U.S.C. Sec. 1442 . This statute had its origins in the Act of February 4, 1815, Sec. 8, 3 Stat. 198 (removal of civil and criminal actions against federal customs officers for official acts), and the Act of March 2, 1833, Sec. 3, 4 Stat. 633 (removal of civil and criminal actions against federal officers on account of acts done under the revenue laws), both of which grew out of disputes arising when certain States attempted to nullify federal laws, and the Act of March 3, 1863, Sec. 5, 12 Stat. 756 (removal of civil and criminal actions against federal officers for acts done during the existence of the Civil War under color of federal authority). In Mesa v. California, 489 U.S. 121 (1989), the Court held that the statute authorized federal officer removal only when the defendant avers a federal defense. See Willingham v. Morgan, 395 U.S. 402 (1969).
1274 28 U.S.C. Sec. 2679 (d), enacted after Westfall v. Erwin, 484 U.S. 292 (1988).
1275 28 U.S.C. Sec. 1443 (1). Subsection (2) provides for the removal of state court actions “[f]or any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.” This subsection “is available only to federal officers and to persons assisting such officers in the performance of their official duties.” City of Greenwood v. Peacock, 384 U.S. 808, 815 (1966).
1276 Strauder v. West Virginia, 100 U.S. 303 (1880); Virginia v. Rives, 100 U.S. 313 (1880); Neal v. Delaware, 103 U.S. 370 (1880); Bush v. Kentucky, 107 U.S. 110 (1883); Gibson v. Mississippi, 162 U.S. 565 (1896); Smith v. Mississippi, 162 U.S. 592 (1896); Murray v. Louisiana, 163 U.S. 101 (1896); Williams v. Mississippi, 170 U.S. 213 (1898); Kentucky v. Powers, 201 U.S. 1 (1906).
1277 Georgia v. Rachel, 384 U.S. 780 (1966); City of Greenwood v. Peacock, 384 U.S. 808 (1966). There was a hiatus of cases reviewing removal from 1906 to 1966 because from 1887 to 1964 there was no provision for an appeal of an order of a federal court remanding a removed case to the state courts. Sec. 901 of the Civil Rights Act of 1964, 78 Stat. 266 , 28 U.S.C. Sec. 1447 (d).
1278 Georgia v. Rachel, 384 U.S. 780, 803 (1966); City of Greenwood v. Peacock, 384 U.S. 808, 827 (1966). Justice Douglas in dissent, joined by Justices Black, Fortas, and Chief Justice Warren, argued that “in the courts of such State” modified only “cannot enforce,” so that one could be denied rights prior to as well as during a trial and police and prosecutorial conduct would be relevant. Alternately, he argued that state courts could be implicated in the denial prior to trial by certain actions. Id., 844–855.
1279 Georgia v. Rachel, 384 U.S. 780, 797–802 (1966). Thus, in Strauder v. West Virginia, 100 U.S. 303 (1880), African–Americans were excluded by statute from service on grand and petit juries, and it was held that a black defendant’s criminal indictment should have been removed because federal law secured nondiscriminatory jury service and it could be predicted that he would be denied his rights before a discriminatorily–selected state jury. In Virginia v. Rives, 100 U.S. 313 (1880), there was no state statute, but there was exclusion of Negroes from juries pursuant to custom and removal was denied. In Neal v. Delaware, 103 U.S. 370 (1880), the state provision authorizing discrimination in jury selection had been held invalid under federal law by a state court, and a similar situation existed in Bush v. Kentucky, 107 U.S. 110 (1882). Removal was denied in both cases. The dissenters in City of Greenwood v. Peacock, 384 U.S. 808, 848–852 (1966), argued that federal courts should consider facially valid statutes which might be applied unconstitutionally and state court enforcement of custom as well in evaluating whether a removal petitioner could enforce his federal rights in state court.
1280 Georgia v. Rachel, 384 U.S. 780, 788–794 (1966); City of Greenwood v. Peacock, 384 U.S. 808, 824–827 (1966), See also id., 847– 848 (Justice Douglas dissenting).
1281 Id., 824–827. See also Johnson v. Mississippi, 421 U.S. 213 (1975).
1282 See the Sixth Amendment.
1283 2 J. Elliot, Debates in the Several State Conventions on Adoption of the Constitution (Philadelphia: 1836), 469 (James Wilson). Wilson was apparently the author of the clause in the Committee of Detail and had some first hand knowledge of the abuse of treason charges. J. Hurst, The Law of Treason in the United States—Selected Essays (Westport, Conn.: 1971), 90–91, 129–136.
1284 2 M. Farrand, op. cit., n.1, 345–350; 2 J. Elliot, op. cit., n. 1283, 469, 487 (James Wilson); 3 id., 102–103, 447, 451, 466; 4 id., 209, 219, 220; The Federalist No. 43 (J. Cooke ed. 1961), 290 (Madison); id., No. 84, 576–577 (Hamilton); The Works of James Wilson, R. McCloskey ed. (Cambridge: 1967 ed), 663–669. The matter is comprehensively studied in J. Hurst, op. cit., n. 1283, chs. 3, 4.
1285 25 Edward III, Stat. 5, ch. 2, See J. Hurst, op. cit., n. 1283, ch 2.
1286 Id., 15, 31–37, 41–49, 51–55.
1287 Ibid. “[T]he record does suggest that the clause was intended to guarantee nonviolent political processes against prosecution under any theory or charge, the burden of which was the allegedly seditious character of the conduct in question. The most obviously restrictive feature of the constitutional definition is its omission of any provision analogous to that branch of the Statute of Edward III which punished treason by compassing the death of the king. In a narrow sense, this provision perhaps had no proper analogue in a republic. However, to interpret the silence of the treason clause in this way alone does justice neither to the technical proficiency of the Philadelphia draftsmen nor to the practical statecraft and knowledge of English political history among the Framers and proponents of the Constitution. The charge of compassing the king’s death had been the principal instrument by which ‘treason’ had been used to suppress a wide range of political opposition, from acts obviously dangerous to order and likely in fact to lead to the king’s death to the mere speaking or writing of views restrictive of the royal authority.” Id., 152–153.
1288 The clause does not, however, prevent Congress from specifying other crimes of a subversive nature and prescribing punishment, so long as Congress is not merely attempting to evade the restrictions of the treason clause. E.g., Ex parte Bollman, 4 Cr. (8 U.S.) 75, 126 (1807); Wimmer v. United States, 264 Fed. 11, 12–13 (6th Cir. 1920), cert den., 253 U.S. 494 (1920).
1289 By the requirement of two witnesses to the same overt act or a confession in open court.
1290 Cl. 2, infra, pp. 827–828.
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