Congressional Power Grab

The Reality Check ^ | 03 March 2004 | Stephen Erwin

[Lando Lincoln]

The longstanding debate over the court invented legal doctrine of "separation of church and state" has led to the introduction in Congress of one of the most potentially dangerous bills that I have ever read.

Article III, Section 2 of the U.S. Constitution reads "In all 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." H.R. 3799 and S. 2082, titled "The Constitution Restoration Act of 2004", uses this clause to ban the Supreme Court from reviewing cases that involve "acknowledgment of God as the sovereign source of law, liberty, or government." It also denies district courts jurisdiction over any case the Supreme Court can’t review.

The very worthy intent of the legislation is to use the "Exceptions" clause to deny the federal courts jurisdiction over Ten Commandment or Christmas displays, prayer by City Councils or school children, and "under God" in the Pledge of Allegiance. If passed and declared legal by the courts it would give Congress unlimited power to ignore the Constitution by simply adding a line to every bill denying to the federal courts the right to review the issue. If it wanted Congress could ban all political speech but its own before an election, ban all firearms ownership, or actually establish a religion. It would be an even more dangerous assault on the separation of powers than unconstitutionally allowing judges to legislate from the bench has become.

Fortunately there is little chance of that happening. Article III, Section 2 also states that "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution." Obviously under the separation of powers all constitutional cases belong to the judicial branch. The "Exceptions" and "Regulations" granted Congress refer only to deciding appellate jurisdiction or which court can hear a case first, not if the case can be heard.

Article III, Section 2 further tells us that the Supreme Court has original jurisdiction in all cases in which a state is a party. Simply citing a state as one of the defendants would allow the Supreme Court to hear the case. And since state laws empower local governmental bodies the state could also be cited in any local lawsuit.

The Fifth and Fourteenth Amendments were written after Article III of the Constitution and they both require "due process of law". It would be hard to argue that denying individuals a hearing on Constitutional issues did not deny "due process". Imagine the result if Congress had denied the courts jurisdiction over civil rights cases back in the 1960’s.

Even an honest reading of the First Amendment would overturn this legislation. It reads "Congress shall make no law respecting (pertaining to) an establishment of religion". Since the courts have written laws declaring the objects of this legislation to be "establishments of religion" then it would clearly be unconstitutional for Congress to pass this law respecting them. Of course under an honest reading of the First Amendment it would also have been unconstitutional for the courts to write their own body of laws respecting an establishment of religion and creating the "separation of church and state" doctrine in the first place. And did I mention that under the separation of powers courts don’t even have the authority to write laws?

The real source of this controversy goes much deeper than the Court’s obvious distortions of the establishment clause. Under the official doctrine of "stare decisis" (let the decision stand) the courts have replaced the letter of the law with questionable and even blatantly unconstitutional precedents.

One bad decision becomes the precedent for ten more bad decisions that become the precedents for hundreds of bad decisions. And not a single court is supposed to look back at the actual letter of the law or the original meaning of the law because the unconstitutional precedent has totally replaced the letter of the law.

The unbelievably numbing number of unconstitutional decisions coming from our courts has left the average citizen with a total sense of disbelief about what is happening. It has virtually undermined the integrity of the entire judicial system.

We desperately need a Judicial Accountability Amendment to the U.S. Constitution that would ban legislation from the bench and require each and every judge in the nation to place the original letter of the law and the original meaning of that law before the unconstitutional decisions of any other court

[Lando Lincoln]

Reports on another thread of my FR demise are greatly exaggerated. Just another guy with a similar moniker.

Lando

[LiteKeeper]

INTREP - This would not be necessary if the justices would stick to the Constitution and stop making up law!

[writer33]

"Reports on another thread of my FR demise are greatly exaggerated. Just another guy with a similar moniker."


Well. One can always have hope. :) Just kidding!

And yes. These judges have begun to legislate right from the bench. A power that isn't given by the U.S. Consitution.

[o_zarkman44]

I thought that under the seperation of powers clause in the Constitution, that the Judicial has no authority to make laws or demand laws be made since that is the responsibility of the legislative branch. If the legislative branch decides to not make a law the court orders it to make, the court has no authority. The court cannot order a law be made.

The court only has authority to enforce the laws on the books. Much like the Executive branch cannot order congress to make laws, but can only propose the laws be made. So is the extent of the duty of the Court.

So why are the state legislators jumping when the courts say jump? They don't have to.

[foreverfree]

bump

[mrsmith]

"Article III, Section 2 further tells us that the Supreme Court has original jurisdiction in all cases in which a state is a party. Simply citing a state as one of the defendants would allow the Supreme Court to hear the case. And since state laws empower local governmental bodies the state could also be cited in any local lawsuit. "

No

It hasn't original jurisdiction to hear cases between a state and a citizen of that state:
"...between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."

But of course it could probably use an interpretation of the 14th to give itself "original" jurisdiction. Which is why an amendment is needed if we won't impeach the faithless judges.

[tuckrdout]

They jump because they have been reeducated by the liberals. They do not protect the Constitutions as they vowed to do. They vote as the wind blows. Whoever protests the loudest and gets on the tv news the most, have the most power. Forget the Constitution, and the will of the majority of the people. The lib media run this country.

The biggest abuse of the Constitution is the case of Judge Roy Moore. A circuit court judge crossed the line of "state's rights" and interfered with a state matter. This is wholely illegal. The Alabama Constitution says that "God must be acknowledged"; yet the state proceeded to fire Moore on the basis that he refused to give up his acknowledgement of God! Then, the AG that prosecuted Moore, was appointed to the Circuit court....why would Bush reward this man with a recess appointment, when he refused to use that option for 3 years? Seems Bush wanted Moore fired. But why?

[SAJ]

''... If it wanted Congress could ban all political speech but its own before an election, ban all firearms ownership, or actually establish a religion. ...''

Sorry, Lando, this is the ultimate red herring. Article III, Sec 2 grants to the Regress the power to regulate Federal courts.

True, being the corrupt b*st*rds that they are, they might try to extend this, via the 14th, to expand this power in order to regulate state courts, but who cares? In that case, we -- meaning you and I -- have a winner. We will have in this case, essentially, a permanent war between the Regress and every court in the land.

I can think of nothing offhand (bar, of course, the exceptionally unlikely notion that, at some point, elected and appointed officials actually decide to OBEY the Constitution as written) that would be more conducive to the general liberty of citizens.

Sadly, m'friend, we're down to short strokes here. Like it or not, the concept of a legislative tyranny has many miles to run before accomplished, whereas we have judicial tyranny right this very minute.

FReegards!

[WOSG]

The bizarre and scary thing is that the courts would actually over turn this Congressional bill as unconstitutional.

I believe what we need is a constitutional amendment that outlaws judicial imperialism. here is what it might look like:


I. Interpretation
1. The judicial power of the Federal courts are restricted to the interpretation of the laws
and the settling of cases and controversies within the context of the laws and the Constution.


1.1 Judicial restraint:
1.1.1 Text and original intent as a guide:
Federal courts shall not have the power to create or construct new laws, rights and
privileges that are neither written in the text nor contemplated by the authors of the
laws and of the Constitution.
Recognition of similar rights and similar decisions does not give weight to extensions
in the law when such extensions are constructed only from previous court decisions.

1.1.1 Narrowness of legal conclusions:
THE Federal courts should never "formulate a rule of constitutional law broader than is
required by the precise facts to which it is to be applied."
[see liverpool, new york & philadelphia s.s. co. v. commissioners of emigration, 113 u.s.
33, 39 (1885). see also ashwander v. tva, 297 u.s. 288, 345 (1936)
(brandeis, j., concurring)]

1.1.2 .Any statute found to be invalid as applied to a particular plaintiff,
but not unconstitutional as a whole, is not to be declared wholly invalid,
but is to be declared unconstitutional as applied to the fact situation before the court.
[YICK WO V. HOPKINS, 118 U.S. 356 (1886); STREET V. NEW YORK, 394 U.S. 576
(1969).]


1.2 Precedence in US law only:
The Federal courts may not give legal standing, precedence or consideration to laws, decisions, and rulings made outside the United States and its predecessors and common law as either precedent or influence.

1.3 Rule of law:
Federal courts must give due consideration in all rulings and decisions to the effect
of their rulings on the rule of law, but in no case should preserve precedents
at various with the text and original intent of the laws in question.

1.4 Proscribing activist Constitutional theories:
Federal courts and their officers may not invoke legal theories such
as a "living constitution"; a Constitution is alive only if the rule of law is kept
alive by adherence to the supremacy of law over interpretation; our Constitution derives its strength from the certainty that its text and meaning can be preserved and maintained in a court of law.

1.5 Separation of powers:
No federal court has the power to tax or to demand or require any
other branch or body of Government to enact a tax.
No federal court has the power to demand a specific regulatory action by the executive branch,
or a specific legislative results by the legislative branch as a legal remedy in the courts,
nor may the courts demand or specify a range of such actions,
nor may any Federal court set such timetables for such action.


II. Federalism

2. The powers of Federal courts are to be used with restraint and respect for the
Federal scheme of Government, respecting the powers of the states and local
governments as established in Amendment X.

2.1 The powers not delegated to the judicial branch of the Federal Government are
reserved for the States and the people and branches of Government therein.
Jurisprudence of rights of the people under state laws and regulations
shall not be construed to unlawfully restrict or distort the Federal scheme,
especially with regards to rights not explicitly enumerated in the Constitution.
The protectors of the unenumerated rights of citizens within each state
include the Republican form of Government of each state, the rights of redress
of the citizens, and the Constitution of each of the states.


2.2 Equal protection under the law shall not be abridged;
no Federal or State law may discriminate on the basis of race or ethnic origin.

2.3 In all matters of equal protection excepting race,
a rational basis for distinctions made in the law to regulate behavior that
is applied to all citizens or persons shall be considered presumptive;

2.3 No State or Federal agency may deprive a citizen of rights of life,
liberty or property without due process of law; the rights of due process under the law
as enumerated in the 14th amendment and herein are strictly those relating to the
proper process of proceedings at law; those rights of persons to due process
under amendments 4,5,6,and 8 shall not be infringed by Federal Government or the States.
Appellate jurisdiction under due process may extend only to that extent,
and not beyond this to the review of laws that are legally and Constitutionally
passed and enforced in manners consistent with the due procedural rights of accused.

2.4 States and the Congress shall have the power to define the
extent of Human Life and may take measures to protect the human right to life.
The protection of human life is a rational basis for regulation in law.
These provisions shall be deemed an enforcement of the XIV Amendment
as given in section V of that amendment.

2.6 The Forteenth amendment nor the Constitution as a whole
shall not be construed in a manner to disturb the Federal
nature of the United States Government.


III. Religious and Expression Rights

3. The Federal judicial powers may not be used to infringe on the rights
of free expression of religious sentiment, either public or private.

3.1 The voluntary free expressions of religion or belief, public or private,
by State officials and by the citizens of the states, and upon seals,
signs, coinage, displays, monuments, markers, property and buildings of the states
and Federal government, and during oaths, pledges, ceremonies and
testimonies, are not deemed contrary to restrictions in the Constitution
that forbid the establishment of a religion and shall not be subject to
contrary judicial review of the Federal courts.

3.2 The protection of national symbols:
The power by Congress and the states to prohibit the physical desecration of the flag of the United States
is not considered an infringment of the First Amendment rights of free speech, and such specific legislation
shall not be deemed contrary to the Constituion of the United States by any contrary judicial
review by the Federal courts and Supreme Court.

IV. Enforcement

4.1 Impeachment:
Justices may be impeached for bad behavior.
Bad behavior shall be deemed to include wilful abrogation of this act, or usupration of powers not lawfully within the realm of the judicial power.

4.2 No immunity shielding a judge shall be construed to extend to any
deliberate violation of law,
fraud or conspiracy, intentional violation of due process of law, deliberate disregard of material facts,
judicial acts without jurisdiction, blocking of a lawful conclusion of a case, or any deliberate
violation of the Constitutions or laws of the United States.

4.3 Disregard for the provisions of this statute or of the Constitution of
the United States in the rendering of any court decision or action shall
be deemed 'bad behavior', and may be adjudged as impeachable offenses.

[ancient_geezer]

2.6 The Forteenth amendment nor the Constitution as a whole
shall not be construed in a manner to disturb the Federal
nature of the United States Government.

What Federal Nature? Except for certain very narrow powers, Any Federal nature went bye-bye when the Articles of Confederation were put aside with the ratification of the Constitution.

James Madison, Federalist #39:

• "The difference between a federal and national government, as it relates to the OPERATION OF THE GOVERNMENT, is supposed to consist in this, that in the former the powers operate on the political bodies composing the Confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities. On trying the Constitution by this criterion, it falls under the NATIONAL, not the FEDERAL character;"

 

Anti-Federalist Papers #3 NEW CONSTITUTION CREATES A NATIONAL GOVERNMENT;

There are but two modes by which men are connected in society, the one which operates on individuals, this always has been, and ought still to be called, national government; the other which binds States and governments together (not corporations, for there is no considerable nation on earth, despotic, monarchical, or republican, that does not contain many subordinate corporations with various constitutions) this last has heretofore been denominated a league or confederacy. The term federalists is therefore improperly applied to themselves, by the friends and supporters of the proposed constitution.

[inquest]

Under the official doctrine of "stare decisis" (let the decision stand) the courts have replaced the letter of the law with questionable and even blatantly unconstitutional precedents. One bad decision becomes the precedent for ten more bad decisions that become the precedents for hundreds of bad decisions. And not a single court is supposed to look back at the actual letter of the law or the original meaning of the law because the unconstitutional precedent has totally replaced the letter of the law.

That is indeed the problem. Stare decesis is supposed to serve only as a guide, not a straightjacket. And that guide is needed only when an honest reading of the Constitution fails to give an answer.

We don't need an amendment to solve that problem, since there's nothing in the Constitution requiring slavish devotion to precedent, and common sense dictates that unconstitutional precedents should be disregarded. If the judges don't want to follow the Constitution, then Congress needs to step to the plate and demand that they do - first by passing a resolution insisting that precedents are merely evidence of law, not law itself. If that doesn't have the desired effect, then it's time to start in with the impeachments.