An End to Judicial Tyranny?

Twice this year, the House has passed bills to curb judicial activism by limiting federal court jurisdiction.

The passage of the Pledge Protection Act of 2004 (H.R. 2028) by the U.S. House of Representatives on September 21 by a vote of 247-173 has highlighted some very encouraging signs in Congress. And I do not simply mean that the Pledge of Allegiance would be protected, though that is a good thing as well.

H.R. 2028 states: "No court created by Act of Congress shall have jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide" cases pertaining to the Pledge of Allegiance. This bill, along with a related, earlier House-passed measure known as the Marriage Protection Act of 2004 (H.R. 3313), has prompted a few congressmen to dust off and read their copy of the U.S. Constitution.

It’s always a good thing when you can get congressmen to look at the Constitution, especially when so many of them routinely vote for unconstitutional legislation.

The Pledge Protection Act was introduced after the U.S. Supreme Court struck down on a technicality the case of Newdow v. U.S. Congress, a suit charging that the phrase "under God" in the Pledge of Allegiance is unconstitutional. Like the Marriage Protection Act, which the House passed on July 22, the Pledge Protection Act would invoke the power of Congress to limit the appellate jurisdiction of the Supreme Court — and, by extension, the jurisdiction of all other federal courts — under Article III, Section 2 of the U.S. Constitution.

Ordinarily, congressional committee reports are the perfect antidote for insomnia. But in the case of the House Judiciary Committee Report on the Marriage Protection Act, the repartee recorded in the report is both instructive and encouraging.

Ranking Democrat of the House Judiciary Committee John Conyers (D-Mich.), a radical leftist fixture in Congress for dec-ades, railed against the legislation, claiming that "this statute is itself unconstitutional." Rep. John Hostettler (R-Ind.) countered that it "is obvious to anyone who actually reads the Constitution that Congress can do this." Article III, Section 2 of the U.S. Constitution reads, in part: "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."

Conyers asked if Hostettler had seen any "research brought to his attention that we would limit any application for appellate review." Hostettler’s reply was simple and direct: "The main body of research I have done is to read the Constitution of the United States."

Liberals are incensed over the prospect that they may no longer be able to legislate through the courts. During the debate on the Pledge Protection Act, Rep. Barney Frank (D-Mass.) complained, "Once my colleagues start down this road, this is the second time the majority has done this, telling us that the Supreme Court cannot decide, they are going to create a precedent, if this ever succeeds, that will be followed in other issues." What other issues? Over the years activist federal courts have issued rulings on a whole host of issues ranging from abortion to anti-sodomy laws to school prayer. By limiting the jurisdiction of the federal judiciary on these issues, they could be returned to the states — where they belong!

Liberal Democrats who worry about excessive use of this provision of the Constitution do have a point. A totally activist court could in theory be prohibited from deciding on all but a few matters that the Constitution guarantees to the Supreme Court.

But that’s not a reason to stop encouraging this form of legislation to limit the jurisdiction of activist judges. Invoking Article III, Section 2 is a relatively mild check on the federal judiciary provided to the legislature by the U.S. Constitution. Congress also possesses the power to impeach judges. In fact, Congress could even abolish any and all federal courts except for the Supreme Court.

And Congress does appear to be, finally, showing some vigilance. Rep. Lamar Smith (R-Texas) told his colleagues on the Judiciary Committee that judicial activism "seems to have reached a crisis. Judges routinely overrule the will of the people and invent new rights and ignore traditional morality. Judges have redefined marriage, deemed the pledge of allegiance unconstitutional, outlawed religious practices and imposed their personal views on Americans." Smith correctly observed: "They seem to be legislators, not judges, promoters of a partisan agenda, not wise teachers relying on established law."

In that, Smith sounded impressively like President Jefferson, whom Judiciary Committee members found had written the following to a friend in 1821: "You seem … to consider the [federal] judges as the ultimate arbiters of all constitutional questions, a very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy.... The constitution has erected no such single tribunal, knowing that, to whatever hands confided, with the corruptions of time and party its members would become despots."

Fortunately, the U.S. Congress appears to be awakening to the judicial oligarchy in America. Congressmen and their constituents need to unite under the Constitution to put activist judges in their place, or find new judges who will judge the law without trying to rewrite the law.

The federal courts, using an injudicious doctrine known as the 'Incorporation of the 14^th Amendment' (Gitlow v. New York (1925) [19] ) , have hyperinflated their jurisdiction beyond the confines of the U.S. Constitution to grotesque proportions. Rather than admit they have no jurisdiction, as Marshall did in Amendment V: Barron v. Baltimore and declare what the Constitution states with regard to a particular case over which they have jurisdicion - federal judges fabricate their own private interpretation from the hubris opined in novel dicta and deviant precedent, from which even greater deviation is justified in subsequent decisions.

For the history and thorough refutation of the Incorporation Doctrine, see the following: The Ten Commandments and the Ten Amendments: A Case Study in Religious Freedom in Alabama, 49 Ala. L. Rev.434-754 (1998)., Jaffree v. Bd of School Comm., 554 F. Supp. 1104 (1983) Government by Judiciary: The Transformation of the Fourteenth Amendment, Second Edition, Raoul Berger, Forrest McDonald , Liberty Fund, Inc.; 2nd edition (June 1997) The Fourteenth Amendment and the Bill of Rights; The Incorporation Theory, Charles Fairman, Stanley Morrison, Leonard Williams Levy, Da Capo Press , January 1970

James Madison stated in The Federalist #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." H.R. 2028/S. 1297 and H.R. 3313 restrain the rogue federal courts and empower judicial tyrants to keep their bogus opinions to themsleves.

The federal branches of government are coordinate, NOT coequal and they are all subordinate to the U.S. Constitution which is the supreme law, NOT the Supreme Court:

The Avalon Project : Federalist No 78 It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power 1 The celebrated Montesquieu, speaking of them, says: "Of the three powers above mentioned, the judiciary is next to nothing.'' "Montesquieu: The Spirit of Laws.'' vol. i., page 186.

The Avalon Project : Federalist No 51 But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates

The unconvinced should meditate day and night till you get it RIGHT on the following, or expatriate to the Democratic Party, or favorite European socialist enclave:

Article 3, Section 2, Clause 2

Federalist No. 81

" The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the SPIRIT of the Constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous....But the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless.'' This, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact.

The Supreme Court is to be invested with original jurisdiction, only ``in cases affecting ambassadors, other public ministers, and consuls, and those in which A STATE shall be a party.''

We have seen that the original jurisdiction of the Supreme Court would be confined to two classes of causes, and those of a nature rarely to occur. In all other cases of federal cognizance, the original jurisdiction would appertain to the inferior tribunals; and the Supreme Court would have nothing more than an appellate jurisdiction, ``with such EXCEPTIONS and under such REGULATIONS as the Congress shall make.''

To avoid all inconveniences, it will be safest to declare generally, that the Supreme Court shall possess appellate jurisdiction both as to law and FACT, and that this jurisdiction shall be subject to such EXCEPTIONS and regulations as the national legislature may prescribe. This will enable the government to modify it in such a manner as will best answer the ends of public justice and security.

The amount of the observations hitherto made on the authority of the judicial department is this: that it has been carefully restricted to those causes which are manifestly proper for the cognizance of the national judicature; that in the partition of this authority a very small portion of original jurisdiction has been preserved to the Supreme Court, and the rest consigned to the subordinate tribunals; that the Supreme Court will possess an appellate jurisdiction, both as to law and fact, in all the cases referred to them, both subject to any EXCEPTIONS and REGULATIONS which may be thought advisable; PUBLIUS.

Article 6, Clause 2

Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

The Avalon Project : Federalist No 45

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.

The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States. If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS.

Federal Courts and the Pledge of Allegiance by Ron Paul

Since government by the federal judiciary undermines the states’ republican governments, Congress has a duty to rein in rogue federal judges. I am pleased to see Congress exercise its authority to protect the states from an out-of-control judiciary.

Many of my colleagues base their votes on issues regarding federalism on whether or not they agree with the particular state policy at issue. However, under the federalist system as protected by the Tenth Amendment to the United States Constitution, states have the authority to legislate in ways that most members of Congress, and even the majority of the citizens of other states, disapprove. Consistently upholding state autonomy does not mean approving of all actions taken by state governments; it simply means acknowledging that the constitutional limits on federal power require Congress to respect the wishes of the states even when the states act unwisely. I would remind my colleagues that an unwise state law, by definition, only affects the people of one state. Therefore, it does far less damage than a national law that affects all Americans.

Protecting Marriage From Judicial Tyranny by Ron Paul

Mr. Speaker, as an original cosponsor of the Marriage Protection Act (HR 3313), I strongly urge my colleagues to support this bill. HR 3313 ensures federal courts will not undermine any state laws regulating marriage by forcing a state to recognize same-sex marriage licenses issued in another state. The Marriage Protection Act thus ensures that the authority to regulate marriage remains with individual states and communities, as the drafters of the Constitution intended.

The practice of judicial activism – legislating from the bench – is now standard procedure for many federal judges. They dismiss the doctrine of strict construction as outdated, instead treating the Constitution as fluid and malleable to create a desired outcome in any given case. For judges who see themselves as social activists, their vision of justice is more important than the letter of the law they are sworn to interpret and uphold. With the federal judiciary focused more on promoting a social agenda than on upholding the rule of law, Americans find themselves increasingly governed by judges they did not elect and cannot remove from office.

Finally, what are the implications of the for the extra-constitutional majority opinion of Roe v Wade?

In the January 2003 edition of First Things, Robert H. Bork made the following comments about Roe v. Wade:

"Blackmun invented a right to abortion....Roe had nothing whatever to do with constitutional interpretation. The utter emptiness of the opinion has been demonstrated time and again, but that, too, is irrelevant. The decision and its later reaffirmations simply enforce the cultural prejudices of a particular class in American society, nothing more and nothing less. For that reason, Roe is impervious to logical or historical argument; it is what some people, including a majority of the Justices, want, and that is that....Science and rational demonstration prove that a human exists from the moment of conception....Scalia is quite right that the Constitution has nothing to say about abortion."

Life-Protecting Judicial Limitation Act of 2003 To provide that the inferior courts of the United States do not have jurisdiction to hear abortion-related cases.

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