CRS Annotated Constitution
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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
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.
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[p.822]
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
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