Hijackers in Black Robes

Special to FreeRepublic ^ | [March 8, 2004] | John Armor (Congressman Billybob

[Congressman Billybob]

This is embargoed until tomorrow but will run then on ChronWatch.com The following day I'll present this as a speech to some movers and shakers who have a chance to propose this to the Congress.

All of the subjects presented here are of obvious strong interest to FReepers, based on active interest in threads on these. I am especially grateful to the FReepers who assembled the information on the "ketchup money" connection to some of the 9/11 families. I put that in the post script to this column.

Let me know what y'all think of this.

John / Billybob

[Tahts-a-dats-ago]

Excellent as always. Your thoughts remind me of someone else:

"Whenever the words of a law will bear two meanings, one of which will give effect to the law, and the other will defeat it, the former must be supposed to have been intended by the Legislature, because they could not intend that meaning, which would defeat their intention, in passing that law; and in a statute, as in a will, the intention of the party is to be sought after." --Thomas Jefferson to Albert Gallatin, 1808. ME 12:110


"On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed." --Thomas Jefferson to William Johnson, 1823. ME 15:449

"Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction." --Thomas Jefferson to Wilson Nicholas, 1803. ME 10:419

[Jim Noble]

I think it's a start.

If the Constitution is to be amended, the Amendment should fix the problem permanently.

Your proposal is not self-interpreting. In most cases of judicial lawmaking, there is no record of original intent that is probative.

And if the judges ignore what you and I consider to be original intent, who or what can correct them?

I am inclined toward a fixed, non-renewable term for Federal judges and Justices of the USSC, and a supermajority Congressional veto for court decisions that have the effect of changing the law.

[JackOfVA]

It's time for more radical surgery. For a start, Federal judges should receive an initial appointment for 5 years. Thereafter, they should hold office only if they are reconfirmed in that office by a vote of citizens within their district, such vote to be held every five years.

If that doesn't do it, it's time for stronger measures.

I assume you've see the position of the Chief Justice in the UK when Parliament proposed to remove judicial review from the new immigration bill. His answer was that Parliament didn't have the authority to do that, and this in a system that I always thought had Parliament as the supreme authority.

Jack

[foreverfree]

bump

[Congressman Billybob]

Folks, just letting you know that the latest is up, in case you choose to ping it out.

John / Billybob

[Fun Bob]

Personally, I am against amending the constitution in such a way. Don't get me wrong. I am totally against gay marriage. But the fact of the matters are 1) I believe the constitution and amendments if anything should be to limit the powers of the government and I do not want to set a precedent of amending it to limit the people, even if for something I don't believe in 2) I think it will take too great of an expenditure of political capital that.

That being said, the packing of the bench with radical liberal politicized judges that are willing to rule as the party, special interest groups, and foreign nations want them to have left little to no choice in the matter. It is the only tool left to circumvent an activist judiciary waging culture warfare on us. It makes me sick that they have pushed us to this bring.

Never forget, it is not George Bush that is waging the culture war. It is a mayor in a medium California's city and 4 appointed judges in MA who are trying to modify US domestic policy and thousands of years of human tradition.

miserable failure miserable failure miserable failure miserable failure war criminal

[The Mayor]

Bump !

[Congressman Billybob]

There are instances of the Supreme Court being bound by interpretation rules, even in mere statutes. In the Black Lung Benefits Act, Congress specified that the responsibility for costs for a miner who developed that disease would be presumed by any court as being caused by his employment in the mines and would be proportional among the mine owners based on the number of years worked for each employer.

Mine owners challenged this law on the grounds that it invaded the province of the courts to determine the facts of a case and was therefore unconstitutional as a violation of separation of powers. The Court found that this was a reasonable conclusion given the problem of black lung disease, which builds up over the decades and becomes explicit only late in life.

So, if the Court was willing, in certain circumstances, to obey an interpretation rule in a mere law, all but the most blind and stubborn judges/Justices should obey one that is placed in the Constitution itself. (When I refer to blind and stubborn, why is it that the name Ruth Bader Ginsburg comes to mind?)

There is good reason to think that this would work, IF it was in the Constitution. I agree that judges/Justices would try to get out from under the provision IF it was only in a statute.

Congressman Billybob

Click here, then click the blue CFR button, to join the anti-CFR effort (or visit the "Hugh & Series, Critical & Pulled by JimRob" thread). Please do it now.

[Always Right]

I believe the constitution and amendments if anything should be to limit the powers of the government and I do not want to set a precedent of amending it to limit the people, even if for something I don't believe in

A Constitutional Amendment defining marriage doesn't stop anyone from doing anyting. If they want to play house fine, just don't expect everyone to play along.

[WillL]

But isn't the real problem the institution of judicial review itself?

When first activist judge -- John Marshall -- fashioned the concept of judicial review from whole cloth, wasn't it inevitable that the judicial branch would eventually reach its current state: an unelected body of elitists reading their capricious notions of justice into our constitutions, both federal and state?

I believe Marbury v. Madison effectively stole the Constitution from the American people. Fast-forward to today, and we see widespread apathy toward the Constitution, simple because the average person views the Consitution as the property of elite lawyers and the judiciary, not of the American people.

I believe the constitutional amendment we truly require is one that will put an end to judicial review.

[blam]

CBB bump.

[expatpat]

It's time for Legislatures to stamp out the Judiciary Branch's infringement on their authority and responsiblity as law-makers, and for the Executive Branches to refuse to act on infringing 'decisions'.

[mhking]

An advance look at Congressman Billybob's latest...

[Fedora]

All provisions of the US Constitution and of the various state constitutions shall be interpreted as meaning what the drafters and ratifiers of those provisions intended, whether in 1789, 1992, or any other time.

This is a good idea. A problem that will be encountered in trying to implement it is that activist judges are drawing from a school of legal philosophy ("legal realism", popularized at Yale by followers of Justice William O. Douglas) which relativizes the historical meaning of legal documents (for some good info on this see David Brock, The Seduction of Hillary Rodham, Chapter 2, which discusses how Hillary was exposed to legal realism at Yale); and to support their position on this in recent years they have drawn from deconstruction, a French theory of literature which similarly tries to strip written documents of any historically-fixed meaning. To counter the tendency towards judicial activism I suspect there will also have to be academic resistance to the legal realism and deconstruction which are used to rationalize the judicial activists' legal philosophy.

[Congressman Billybob]

There were six STATE court decisions prior to the writing of the Constitution that ruled that state laws in violation of state constitutions could and should be voided by the courts. One of those decisions, Caton v. Commonwealth was written by Judge George Wythe.

Who was George Wythe, I here you cry. He was none less than the first Professor of Law in the history of the United States. Among his students were Thomas Jefferson, George Mason, James Madison, Patrick Henry, you get the idea. In short, the Framers were well aware of this concept when they sat down to write the Constitution, and especially the phrase "supreme Law" as the Constitution calls itself in its text.

I could describe some of the other cases, but I won't bore you with details. Bottom line, there is no problem with judicial review, as long as the judges who use it feel bound at all times by the text of the Constitution, and so they did for 140 years, give or take a few.

The intent of this addition to the Marriage Amendment is to deal with the Justices and judges in Jefferson's words from the Kentucky Resolutions, "to bind them down with the chains of the Constitution." That's the plan.

John / Billybob

[PGalt]

Which is more dangerous: an outlaw who wears a mask and carries a nickel-plated revolver, or an outlaw who wears a black robe and carries a gold-filled pen?

Most criminals never stop until they are incarcerated or killed.

America's mullahs have no qualms about flying their opinions into our Constitution

[Congressman Billybob]

I am richly aware of, and thoroughly disgusted by, the literary/judicial philosophy that you refer to. A fringe benefit of this amendment clause would be to tell the Larry Tribes of this world to seek another form of employment since they are no longer needed as molders of the Constitution in their positions as Professors of Constitutional Law (tenured and in a named chair, or otherwise).

In any war, the goal is always to shoot all of the enemy, until the survivors decide to surrender. I am hoping that the enemy in this case are sufficiently cowardly that the killing will be minimal and the surrendering will be wholesale. But that can't occur until we begin to fight.

John / Billybob

[Congressman Billybob]

You honor me, my friend, by comparing my words to those of Jefferson. Yes, I am aware of those statements by Jefferson, and the one in which he calls the federal judiciary, "the most dangerous branch."

It was not that way in Jefferson's time. But as with many things, his vision reached across the cneturies. He saw what the federal judiciary could degenerate into. And as usual, he was right.

John / Billybob

[WillL]

Fine. I acknowledge your comments about JR, and we could (and probably will at some point) have a great discussion about its historical origins in this country.

But I want to talk about your amendment...

" as long as the judges who use it feel bound at all times by the text of the Constitution, and so they did for 140 years, give or take a few. "

They no longer do. So what is the value of creating another amendment that leftist judges will either completely circumvent, or othwerwise twist for their own purposes?

And when they ignore the new amendment, what price will they pay? Will the leftist media call them on it? No. Will the American people stand up and hold judges accountable for subverting the Constitution, when they haven't for fifty years? Forget it.

You are a Consitution-loving Quixote tilting at judicial windmills. Any amendment taking a conservative position in the culture wars is dead on arrival.

The issue is the corrupt judiciary, and since mass ipeachment is not politically viable, the next best thing is to eliminate the power of judicial review.