Skip to comments.‘We the Judges’: How Judicial Activists Rewrite the Constitution
Posted on 01/02/2004 2:47:01 PM PST by Federalist 78
In a way, conservative scholars say this climate of judicial activism has been building for awhile.
WASHINGTON, D.C. In our society today, there is a real and tangible concern about what is being called "judicial activism." Many conservative legal scholars say judges today are making absurd rulings based more on their liberal thinking than what the Constitution actually says. So how did we get to this point and what can be done about it?
The beginning of the United States Constitution reads, "We the People." But the way the courts have been ruling recently, many legal scholars say it could very easily read "We the Judges."
"The problem is very grave because what you've done is take away democratic control of the culture," said former Reagan Supreme Court nominee Judge Robert Bork.
Bork is leading the campaign against judicial activism. He is convinced that too many judges are making laws instead of interpreting them, and that's not what the Founding Fathers had in mind. "They are steadily enacting what you might call the liberal cultural agenda," he explained.
That agenda is front and center at the U.S. Supreme Court where they recently ruled that Americans basically have a constitutional right to commit sodomy. Experts who believe in original intent say that is nowhere in the Constitution.
And coming soon is the whole Pledge of Allegiance case where the words "under God" may be ruled unconstitutional as well. But perhaps the one case that still has legal scholars scratching their heads is the decision 30 years ago to legalize abortion.
Bork said, "Fifty-eight pages, no legal argument in it. You learn all about the Egyptians practice with respect to abortion. You learn about the English common law with respect to abortion. You learn about what the opinions of the American Medical Association are and all of a sudden, bang, there's a right to abortion."
In a way, conservative scholars say this climate of judicial activism has been building for awhile. They say go back to the early 1800's. The big case then was Marbury v. Madison. The Supreme Court ruled for the first time that a law passed by Congress was unconstitutional. The chief justice said at the time that it was the duty of the judicial branch to determine what the law is.
Fast-forward 50 years later to the infamous Dred Scott decision where the Supreme Court actually legitimized the spread of slavery. But it really was not until the 1960's that liberal judicial activism began to reach new heights. The Supreme Court chief justice was Earl Warren and under his court, prayer in schools was deemed unconstitutional. A year later, reading the Bible in public schools was gone too. The justices apparently thought that they both violated the First Amendment by establishing a certain religion.
"It's a titanic battle about the meaning and the interpretation of the Constitution," said Ralph Neas, head of the liberal group People for the American Way. He thinks the Warren court got it right in the 60's. Its part of a philosophy that looks at the Constitution as a living, breathing document that needs to evolve with the times.
Neas said, "It's certainly not a stagnant document because the Founding Fathers could never have anticipated the changes in technology, the changes in the way of life and all the other things that have happened over our 200-plus years of history."
Bork said, "Well, that is one of the most preposterous tactics I've ever heard." Bork says you don't mess with the Constitution unless Congress and the American people want to change it.
"The only thing the court can point to is the actual principles in the Constitution. Now, if you say well, we'd like more Constitution principles added, we have the amendment process. You can add them by that means," Bork explained.
So what did the framers actually think? The answers are written down in history, in a collection of essays called "The Federalist Papers," where our Founding Fathers explained certain provisions in the Constitution.
Alexander Hamilton expressed his belief that the courts would have the least power of the three branches of government when he wrote that, "The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution." And in 1820, Thomas Jefferson agreed with Hamilton on the judiciary's role, warning that, "To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed."
Though they were political enemies, Hamilton and Jefferson agreed on this issue, and if they were alive today, they would probably call a press conference to clear all this up. Since that is not possible, CBN News went to a cemetery in Forest Glen, Maryland for answers. We found the gravesite of Daniel Carroll, one of the original signers of the Constitution. And two of his direct descendents were able to shed some light on what he might think of all this today.
"He would have been I think incensed that people's choices were not being respected," said Adam Carter. Adam and his dad Charles Caroll Carter are the 5th and 6th generation great grandsons of Daniel Caroll. The research they have done shows that he believed that the power rested with the people, not the judges. He also was instrumental in helping pass the First Amendment which allows for people to express their religion.
"The overriding principle clearly is freedom. That is the overriding American principle and that is what Daniel Carroll was striving for freedom to practice religion that they were not able to enjoy," the younger Carter said.
Conservatives say that the freedom, and other principles outlined in the Constitution are in jeopardy today. That is why the battle in the Senate over President Bush's judicial nominees has become such a big deal. The President nominates a conservative Christian, only to be held up, or filibustered by liberal Democrats. It is not something that the descendants of Daniel Caroll say he would have been a fan of.
"I can't disagree with that. The idea that Catholics and Christians need not apply for federal judiciary posts is something that I don't think he would have ever tolerated," Adam Carter said.
But that view won't stop the debate over activism. "If we were all honest, we would probably say that both the conservatives and the liberals and everything in between were judicial activists," Neas said.
Judge Bork does not see it that way. He says it is about constitutional law being reinterpreted. "It's not intellectual, it's not the study of history, it's not the study of logic. What it is is politics. It's a left liberal version of politics," he said.
And so will the future be more about "'We the people?" or "We the judges?" The answer to that question will very much define the moral direction of America.
The federal judicary has expanded their jurisdiction beyond the boundaries of the Constitution. Congress needs to deflate this expansion and the hyper inflated egos in that profession.
The Avalon Project : Federalist No 48 "It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it."
But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates.
...It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power1
The celebrated Montesquieu, speaking of them, says: "Of the three powers above mentioned, the judiciary is next to nothing.''
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Over the last 200 years, Congress has exercised this authority to except certain areas from the jurisdiction of the federal court system. In Turner vs. Bank of North America 4 Dall. (4 U.S.,8(1799)),the Supreme Court concluded that the federal courts derive their judicial power from Congress, not the Constitution.
In Cary vs. Curtis 3 How, (44 U.S.), 236 (1845), a statute made final the decision of the secretary of the Treasury in certain tax deductions. The statute was challenged as an unconstitutional deprivation of the judicial power of the courts. The Supreme Court concluded that the jurisdiction of the federal courts (inferior to the Supreme Court) was in the sole power of Congress.
In Sheldon vs. Sill 8 How (49 U.S. 441 (1850)), involved the validity of the assignee clause of the Judicial Act of 1789 restricting such action to establish federal court jurisdictions. The Supreme Court sustained the power of Congress to limit the jurisdiction of the inferior federal courts.
In Ex Parte McCardle 6 Wall. (73 U.S.) 318 (1868), the Supreme Court accepted review on certiorari of a denial of a petition for a writ of habeas corpus by the circuit court. Congress, fearful the Supreme Court would honor the writ, passed a law repealing the act which authorized the appeal. The Supreme Court dismissed the case for lack of jurisdiction.
In Lauf vs. E.G. Shinner & Co. 303 U.S. 323, 330 (1938), the Supreme Court upheld the power of Congress to define and limit the jurisdiction of the inferior courts of the United States in the form restrictions on the issuance of injunctions in labor disputes under the Norris-La Guardia Act of 1932.
In Lockerty v. Phillips 319 U.S. 182 (1943), Congress provided for a special court to appeal price control decisions under the Emergency Price Control Act of 1942. The Supreme Court sustained this restriction.
In the 107th Congress (2001-2002), Congress used the authority of Article III, Section 2, clause 2 on 12 occasions to limit the jurisdiction of the federal courts. Article III, Section 2 - The Washington Times: Editorials/OP-ED
GOPtoday.com - News Article
House Action Team To Hold Judges Accountable:
WASHINGTON - House Majority Leader Tom DeLay (R-Texas) today joined Representative Lamar Smith (R-Texas) and Rep. Steve Chabot (R-Ohio) in announcing the formation of the House Working Group On Judicial Accountability. The group will work to encourage responsible federal judiciary, and identify and prevent judicial activism.
"Co-chairs Lamar Smith and Steve Chabot have recruited a core of smart, tough and aggressive members, and based on the early meetings it's clear that when it comes to judicial abuses they're going to take no prisoners," DeLay said.
"We're going to address the problem of judicial activism at its roots and restore the U.S. Constitution as the North Star of the American judiciary," DeLay said.
This House working group will ensure that judges fulfill their duties without bias and without substituting their philosophy for the law. Some of their duties include:
Identify bad laws that invite judicial activism and hopefully recommend legislation that will prevent it in the future; Involve the House in more federal court nominations because we believe America deserves a United States Senate that will seriously consider this President's mainstream and qualified nominees and allow them a vote; Work with the Judiciary Committee on its vigorous oversight of the federal court system. In addition to Co-Chairs Smith and Chabot, working group members include Representative Todd Akin (R - Mo.), Rep. Marsha Blackburn (R - Tenn.), Rep. John Carter (R - Texas), Rep. John Culberson (R - Texas), Rep. Mario Diaz-Balart (R - Florida), Rep. Tom DeLay (R - Texas), Rep. Tom Feeney (R - Fla.), Rep. Walter Jones (R - N.C.), Rep. Steve King (R - Iowa), Rep. Marilyn Musgrave (R - Colo.) and Rep. Joe Wilson (R - S.C.).
wishes, our inclinations, or the dictates of our passions,
they cannot alter the state of facts and evidence."
- John Adams -
We tried the "some Judges need to be appointed because they will make legally correct, but unpopular decisions, and they need the isolation from voters."
It has proven to be a failure in practice, IMO.
What I note is that the local judges who have to run for office are a lot more polite to citizens than the appointed ones.
Until it is safe for an attorney to run against a sitting judge, elected judges are no better than appointed ones.
STOP BAD JUSTICE PETITION UPDATE and some questions answered
Fri, 2 Jan 2004 15:23:22 -0500
From: "Joe Norman"
There have been more petition signatures collected in the last 4 days on the STOP BAD JUSTICE PETITION than any other 4 day period of time, thanks to the many of you that have spread the word.
Phase 1 of the petition signing will close on January 8th 2004, the petitions will then be copied and sent to the JUDICIAL ABUSE TASK FORCE in Washington, D.C.
Petition signatures collected after January 8th will be forwarded to the task force each month, if needed.
The TASK FORCE will meet, after the return from Christmas recess in mid-January, to set the calendar for the next session of Congress.
The Stop Bad Justice Project will be considered for the calendar and it is hoped there will be sufficient project support to encourage Judicial Abuse Hearings.
This is the first time in American history a U.S. House Judiciary Committee has indicated a willingness to take a look at "judicial abuse".
The announcement of the formation of the committee can be found on the web site of Congressman Lamar Smith ( R-TX) then select NEWS CENTER, then NEWS RELEASES, then ARCHIVES 7-23-2003.
There has never been a better opportunity for Judicial Reform than the opportunity that now exists. Please continue to spread the word about his project.
The success of this project is good for all Americans both present and future--except inept judges and lawyers that get special treatment.
The intent of this project is to focus attention on ALL judicial misconduct not just the Federal Judiciary.
Change at the top rolls quickly down hill and should cause change in all court rooms
e mail email@example.com
Please continue to spread the word
Either put the judicary back into its place or just let 'em run the place in toto.
Until it is safe for
an attorney connectthedots to run against a sitting judge, elected judges are no better than appointed ones.
If the Constitutional remedies are either of no interest, or considered impractical and the federal judicary is going to continue to toss the Constitution, except when it suits their purposes, then election or elimination of federal judges could be considered.
Restoring Vitality to State and Local Politics by Correcting the Excessive Independence of the Supreme Court
This Article endorses the view of such political "conservatives" as Robert Bork, Pat Buchanan, Orrin Hatch, and Ed Meese that the Constitution of the United States is deeply flawed in conferring too large a political role on life-tenured Supreme Court Justices. It argues that a constitutional amendment to correct excessive judicial independence is long overdue, a conclusion, it contends, that ought be shared by all who believe, as the author does, that the right to self-government is the parent right on which our civil liberties and the market economy ultimately depend and that healthy institutions of self-government require substantial devolution of political power. The Article departs from the more radical remedies being suggested by the named "conservatives" to propose term limits for Supreme Court Justices and an empowerment of Congress in Section 5 of the Fourteenth Amendment to restore as well as limit some powers of state and local governments. The latter proposal may be likened to the Home Rule provisions commonly found in state constitutions.
Nominees to the Supreme Court have all been lawyers, although there is no constitutional or legal requirement to that effect.
If the great bulk of law schools continue to mass-produce lawyers who defer to constitutional law and dicta instead of the constitution, then you would be better off with non-lawyers on the federal courts.
Hamilton's comments on the qualification, and election of judges.
That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws.
There is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity. In the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear; but it must be confessed, that they are far inferior to those which present themselves under the other aspects of the subject.
You have a problem with private citizens exposing judicial corruption?
You also presume that judges are not or cannot be corrupted. If so, you are wrong. I, and others, can prove that the judiciary in the state of Washington is hopelessly corrupt, and it goes all the way to the chief justice of the statre supreme court, who will likely be indicted by a federal grand jury before the end of the year.
Woe unto you, lawyers! For ye have taken away the Key of knowledge: ye entered not in yourselves, and them that were entering in ye hindered. -- St. Luke 11:52
The comment from post #10:
Until it is safe for connectthedots to run against a sitting judge, elected judges are no better than appointed ones.
I see nothing wrong with non-lawyer judges. The ABA even admits them as associates.
The problem is with a federal judiciary that has convinced itself and some of the gullible populace that they are a co-equal branch of Fed Gov. They became co-equal via encroachment and not by design. As a result, they are more corruptible than any in the fed gov, as anyone would be who is not held accountable for their actions.
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