Posted on 07/28/2004 12:42:58 AM PDT by JohnHuang2
Has Congress, after 50 years of seeing its power seized by the Supreme Court, begun at long last to recapture its lost constitutional rights?
Don't laugh. It may just be about to happen.
A day before Congress left town for a six-week vacation, the House passed the Marriage Protection Act 233 to 194. This bill would deny "all federal courts, including the Supreme Court, jurisdiction to rule on the constitutionality of the Defense of Marriage Act."
So reports the Washington Post. DOMA is the 1996 law that says no state need recognize same-sex unions established by other states.
What the House is saying is this: Massachusetts may hand out marriage licenses to homosexuals – and these gay couples may sue, under the "full faith and credit" clause of the Constitution, to have their "marriages" recognized in other states. But no state has to recognize such "marriages," and no U.S. judge is permitted to take up these cases.
This law has explosive potential. The House brushed aside, said the Post, "warnings that the measure is unconstitutional and would open the floodgates for efforts to prevent judges from ruling on other issues, from gun-control to abortion." Exactly.
That is the idea. To recapture the lawmaking power from a black-robed judicial elite and restore it to elected legislators. The overthrow of what author-scholars William Quirk and R. Randall Bridwell call our "Judicial Dictatorship" may have just begun.
The significance of this bill in terms of the balance of power in government is hard to overstate. For years, Congress has been systematically stripped of its power to decide the issues of race, religion and morality by the courts, which have taken to making law by issuing edicts from the bench.
Congress is now dusting off a long-neglected weapon, put in Article III, to restrict the jurisdiction of the Supreme Court and, eventually, to tell it to keep its hands off such issues as abortion, flag-burning, school prayer and gay marriage.
The House is saying: These decisions should not be made dictatorially by judges, but constitutionally by the 50 states and democratically by legislators.
This is how it was before the court began to exploit its right of judicial review – first claimed by Chief Justice John Marshall in Marbury v. Madison – to impose a social revolution on America, a revolution rooted in the non-majority values of Warren, Blackmun, Brennan, Douglas, Thurgood Marshall and Ruth Bader Ginsburg.
If the Marriage Protection Act passes the Senate and is signed by Bush, a showdown will have been scheduled. Not just over gay marriage, but over whether the Supreme Court has the final say over whether a law conforms to the Constitution. The issue here is nothing less than, "Who says what the law is?" Unelected justices, or elected congressmen and presidents?
This will be a critical test of the GOP majority in the Senate. If it stands with the House and President Bush, the first and second branches of the U.S. government will be telling the third, the U.S. Supreme Court: Your right of review of all U.S. law is not absolute, but subject to our restrictions. You are hereby instructed to return to the stall into which the Founding Fathers placed you.
The House vote, on a bill sponsored by Rep. John Hostettler, could be the first shot in a counterrevolution that could ring down the curtain on the Supreme Court's 50-year role as battering ram of social revolution.
Democrats sense the stakes. Said Rep. Jim McGovern, "This bill is ... mean-spirited, unconstitutional, dangerous ... They couldn't amend the Constitution last week, so they're trying to desecrate and circumvent the Constitution this week."
But the desecrators and circumventers of the Constitution are not the congressmen empowered by that document to write our laws. The circumventers are the justices who have stolen that power.
If McGovern will take a look at Article III, Section II, he will see there a written right of Congress to put regulations on the appellate jurisdiction of the Supreme Court. He will search in vain to find any Supreme Court right to review and overturn U.S. laws.
"When legislators rail that unelected judges are finding legislative acts unconstitutional, they are attacking the very structure of our democracy," ranted Georgetown Law Professor Chai Feldblum, when Hostettler's bill passed.
The professor has it exactly wrong. The Founding Fathers created a republic where the majority rules through its elected representatives. They did not create this rule of judges we have today, and which Congress, hopefully, may be about to overthrow.
I don't think Pat is exaggerating how big a deal this is. If it passes in the Senate, we're talking -huge-. The only thing that dissuaded me in any way from supporting the Marriage Amendment was that it was just a band-aid, a stop gap measure that would only solve this one problem. It ignored the -real- problem.
THIS, I always thought, was the real solution. If it passes, it may well save the Republic.
Qwinn
We need to get 60 votes in the Senate to get past the all but assured dem fillibuster, and then we have to corral all of our RINOs together to vote for it.
I don't know how good of a chance we have in this Congress.
Have we got any sort of measure as to the expected vote tally in the Senate?
"It is clear to me that Article III of the Constitution vests broad power in Congress to exclude the jurisdiction of both the Supreme Court and the lower federal courts. While externally derived constitutional doctrines impose distinct limits on that power, I can see absolutely no textual or structural basis for denying Congress power completely to exclude substantive categories of cases from the jurisdiction of the federal courts. This is true, even in cases in which constitutional rights are at stake, as long as an alternative adequate judicial forum has been made available."
He just didn't want Congress to use it:
"It does not follow, however, that Congress should choose to exercise this power. To the contrary, I firmly believe that Congress should choose to exercise this power virtually never. There has long existed a delicate balance between the authority of the federal judiciary and Congress, and the exclusion of substantively selective authority from all federal courts seriously threatens that balance. I firmly believe, therefore, that whatever the scope of its constitutional power, Congress should be extremely reluctant to exercise that power."
The Leftist Professor seems quite content with having unelected Federal Judges issue edicts from the bench, Several Libertines on this forum feel the same way. Problem is, the Founders were explicit that Judges were not to act in that manner.
All of the RATS are really backed into a corner here. They screamed about leaving the issue to the states, if they vote against a bill that does exactly that, they betray their true intentions of having unelected Judges redefine marriage.
This has been my point for 20 years now. The congress keeps trying to pass a law to circumvent rogue judges when they should be impeached for NOT interpreting law properly. There is NO precedent for Roe v Wade and we prayed in school for 170 years without a hitch. The Supreme Ct declared we were a Christian nation in the Trinity case and used references to prove it. You just can't make things up just to change them. The purpose of the Supreme CT was to keep the laws from changing, not the other way around.
No civilized nation has ever recognized homosexual marriage in 5000 years of written history, but now they think they have a loophole? If they can't interpret the laws as written, then impeach them for sedition. We had sodomy laws since the nation was founded. Do they believe Washington, Adams, and Jefferson somehow missed an opportunity to make things right? Do they believe men threw their bodies onto Omaha beach so two lezbo's could cohabitate? It has become a sick joke, and something better change soon. If their are no checks and balances for judges, the we are already under an oligarchy.
This I have to read!!
Don't think they've done a nose count yet.
BTTT
Is Pat trying to move back into the mainstream and sane conservative scene?
Declare a vote. Have a vote. If they insist on a filibuster, let them talk till they drop and then have a vote 0r after a decent period of debate, say a few weeks, bring the question and have a vote whether they like it or not. Then declare it passed.
The trouble is that we can't count on 50 votes from the Republican party. So, this year's election is another gunfight at the O.K. corral to see if we will hold our nominal control of the Senate or lose it or gain stronger control.
Rules changes in the Senate require a supermajority vote IIRC.
And you'll be mighty glad we didn't get rid of the fillibuster alltogether some time, hopefully many years from now, when the Democrats control the Whitehouse and the Senate.
When Pat is right on the money, he's right on the money. Always has been, always will be.
Unfortunately....the "Republic" has been dead since April 1861. An Empire took it's place.
Hmm, when was the last Republican filibuster?
There were Republican fillibusters on most pieces of Clinton's legislation. However the Republican majority and Democrat minority would usually invoke cloture.
We haven't been in the position to need to rely on it since 1994.
If you have a loophole against majority rule then you cause cynicism in the electorate that participation in their government is a joke -- as has happened here in California where people vote and some member of the elite oligarchy of liberal judges (ONE judge) rules that the Proposition is "unconstitutional" and can't become law despite the vote of the people.
So why bother to vote or participate if ONE judge has the power to negate a vote of the majority.
And we're not talking minority rights protected in the Bill of Rights here, BTW.
So, I suffered through 8 years of Clinton because that was the vote of the people. Yes, that is the way it works, and I am still against filibustering --- by ONE judge or by 9 Senators.
As I recall my great granddaddy shot some of your Texas boys who were blocking a bridge.
Maybe we need to go over to the cumbayah thread and discuss this old grudge.
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