Posted on 12/22/2004 2:45:35 PM PST by Ed Current
Suppose the California Court of Criminal Appeals opined that the California 'law' prohibiting assault weapons is Constitutional.
If SCOTUS were prohibited from reviewing such cases (H. R. 3893), the entire country would be affected as any State or local government could then safely ignore our 2nd Amendment.
jones:
Does that mean you believe Bush approves of -- "The Worst Constitutional Decision of All Time" -- ?
bttt
BTTT. Awesome.
October 4, 2004
Last week’s debate over the constitutional marriage amendment brought even greater attention to the issue of activist judges. From gay marriage to Boy Scouts to frivolous lawsuits to the Pledge of Allegiance, Americans have grown increasingly distrustful and suspicious of our federal courts- and rightfully so. Never in our history have unaccountable federal judges wielded more power over our lives.
Judicial activism, the practice of judges ignoring the law and deciding cases based on their personal political views, has intensified in the decades since Roe v. Wade. This practice is now standard for many federal judges. They dismiss the doctrine of strict construction as hopelessly outdated, instead treating the Constitution as fluid and malleable to create a desired outcome in any given case.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 laws they are sworn to interpret and uphold. With the federal judiciary focused more on promoting a social agenda than upholding the rule of law, Americans find themselves increasingly governed by men they did not elect and cannot remove from office.
But what is to be done? Since many citizens lack basic knowledge of our Constitution and federalist system, they are easily manipulated by media and academic elites who tell them that judges are the absolute and final arbiters of US law. But the Supreme Court is not supreme over the other branches of government; it is supreme only over lower federal courts. If Americans wish to be free of judicial tyranny, they must at least develop basic knowledge of the judicial role in our republican government. The present state of affairs is a direct result of our collective ignorance.
The ultimate solution to the problem of unbridled judicial activism at the federal level is clear: Congress must reassert its constitutional authority to define and restrict the jurisdiction of federal courts. This power is plainly granted in Article III, and no constitutional amendments are required. On the contrary, any constitutional amendment addressing judicial activism would only grant legitimacy to the dangerous idea that social issues are federal matters. Remember, when social issues are federalized, conservatives always lose. Giving more authority over social matters to any branch of the federal government is a mistake, because a centralized government is unlikely to reflect local sentiment for long. If anything, the marriage amendment would have given the secular left an excuse to impose gay marriage on all of us in future years, as the issue would have been irrefutably federalized.
Congressional cowardice enables judicial activism. Just as Congress ceded far too much legislative authority to presidents throughout the 20th century, it similarly has allowed federal judges to operate wildly beyond their constitutional role. In fact, many current members of Congress apparently accept the false notion that federal court judgments are superior to congressional statutes. Unless and until Congress asserts itself by limiting federal court jurisdiction, judges will continue to act as de facto lawmakers.
The political left increasingly uses the federal judiciary to do in court what it cannot do at the ballot box: advance an activist, secular, multicultural political agenda of which most Americans disapprove. As a society we should reconsider the wisdom of lifetime tenure for federal judges, and pay closer attention to the judicial nomination procedure. It’s time for the executive and legislative branches to show some backbone, appoint judges who follow the Constitution, and remove those who do not. It’s also time for Congress to start establishing clear limits on federal judicial power.
Yes, it would. However, what that does in practice is to punish the sons for the sins of the fathers. Remember that while the BSA is a corporation, and subject to certain laws, it is also much more than a corporation, and it would be preferable to use other means so as to not unnecessarily deprive Scouts anywhere in the Union of access to the BSA.
"Congress must reassert its constitutional authority to define and restrict the jurisdiction of federal courts. This power is plainly granted in Article III, and no constitutional amendments are required. On the contrary, any constitutional amendment addressing judicial activism would only grant legitimacy to the dangerous idea that social issues are federal matters. Remember, when social issues are federalized, conservatives always lose."
OUGHTA BE REQUIRED READING PRIOR TO SIGNING ON F.R.
Cheers.
"Hello Vicomte13,
Merry Christmas and Happy New Year to you and yours. I haven't seen you in a while, hope all is great.
I would very much like your take on this legislation, especially in regards to abortion.
Cheers."
Thank you.
I have been around and about on some of the religion threads, but on things political am in Watch Mode.
I am watching to see two things in Iraq: the election, and the airstrikes on Syria that will follow a few months afterwards if the Syrians don't knock off all support for terrorists NOW.
[And, by "knock off all support", I do not mean provide plausible deniability for continued terrorist support. The US is not playing games anymore. If the US says you support terrorists, you support terrorists even if you don't, and you get bombed. So Syria needs to be overt about NOT supporting terrorists. Otherwise the place will be wrecked in July. Air Force and Navy Air are currently underutilized, and the US need not invade Syria to topple it. Airstrikes will do there.)
On abortion, I am waiting to see Specter confirmed. Then waiting to see the second Supreme retire and to see if Specter turns out to be the treacherous fellow I expect. At that point, the Republicans will have to choose between supporting the strict constructionist judiciary which will give us an end to most of Roe v. Wade, by expelling Specter from his chairmanship, or supporting Specter.
I expect they will support Specter and then lie about not being able to do anything to try and keep the base together. In which case I will watch Hillary Clinton take the oath of office in 2008 as the pro-life tide runs out.
But I hope I am too pessimistic by half in that regard, and that the Devil is not so strong.
I will revise the legislation you have proposed I look at, and comment later.
Joyeux Noel et Bonne Annee,
V XIII.
I reviewed it, per your request.
I understand the frustration behind it.
However, the proposed bill is unconstitutional and will be struck down by a unanimous Supreme Court. Congress has the power to limit appellate jurisdiction, but to limit Supreme Court power to review acts for Constitutionality. (Sez who? The Supreme Court. Marbury v. Madison is not in the Constitution at all, but that cat ain't gettin' walked back, I guar-awn-teee!)
There are two direct ways to go about dealing with Imperial Judicial overreach. One is a flat refusal by the President to execute a decision that, in the opinion of the Executive Branch, is unconstitutional. The only recourse in such a case is to impeach the President. If his party controls Congress, that cannot be done.
This is the Jacksonian solution.
The other is for Congress to start impeaching Federal Judges for abuses of power. Judges have constitutional authority, but that authority does not extend to abuses of power. So, when Judges start issuing ridiculous decisions, prosecute them for those decisions. Remember, impeachment is a POLITICAL punishment, whose sole punitive result can be removal from office.
Some judge orders the Boy Scouts off of public land? The executive branch stays the order, and Congress impeaches the judge and removes him from office.
The difference between this approach, which is brutal, and the legislative approach proposed is that this approach is constitutional, but the legislative approach is not.
Anyway, the bill will die in a Senate filibuster if cooler heads don't prevail in the House and the Senate.
The only real solution is to pack the judiciary with strict constructionist judges who self-limit. The second-best solution is the precedent set by Jackson and Lincoln of simply disregarding Supreme Court decisions that the President thinks are unconstitutional.
For clarification, are you saying that YOU personally believe it is unconstitutional, or that SCOTUS would declare it unconstitutional based on THE IRREPRESSIBLE MYTH OF MARBURY?
Based on history it does seem likely to me that SCOTUS would declare it unconstitutional as they have become god's in their own minds. It is this very Constitutional crisis that is perpetuating the holocaust of abortion and so much other evil.
Impeachment is possible but VERY unlikely because conviction/removal from office requires 2/3 Senate Majority.
Packing the judiciary with strict constructionist judges who self-limit, is near impossible as 7 of the current 9 are GOP appointements and the Dems will prevent the confirmation of known strict constructionist.
And if SCOTUS were to declare it unconstitutional what's wrong with your own: "The second-best solution is the precedent set by Jackson and Lincoln of simply disregarding Supreme Court decisions that the President thinks are unconstitutional." since it would be THE PRESIDENT who would sign it into law, and his party who passes it?
Jurisdiction stripping is a rather common occurrence. 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 http://www.washtimes.com/op-ed/20031006-085845-5892r.htm. IMO it's time they use their authority where it REALLY matters most.
In my professional opinion the Supreme Court would declare it unconstitutional, because jurisdiction stripping cannot extend to the point of preventing constitutional review at every level of government.
That would seriously change the system of checks and balances, and the Supremes will reject it 9-0.
Anyway, it won't get past the Senate filibuster.
The Republicans have the power, if they want to use it, to make a strict constructionist judiciary that will strike down Roe.
They can change the filibuster rule, guaranteeing Bush's nominees a straight up or down vote, which the Republicans will always win if they want to. And they can block Arlen Specter taking the Senate Judiciary Chair. All they have to do is use the power they already have.
If they do, I'll be first in line with my contributions and support.
If they don't, I've been a roped dope, a member of the Republicans' "black bloc" of gullible manipulated voters.
I hope they do the right thing here.
But Specter's comments this week criticizing the President for re-nominating his slate of 20 rejected judges inspires no confidence.
Think about it: the Republicans are talking about overruling Marbury v. Madison by a dubious legislative trick of jurisdiction removal which won't get past the Senate, and which will be rejected by every court that looks at it, when they COULD just simply win by changing the filibuster rule and borking Specter.
They're grandstanding when they could guarantee the win.
I watched Democrats like Kweize Mfume do this to the blacks for 30 years, and I always wondered how blacks could be so gullible. Now I'm looking in the mirror.
And watching the Specter nomination like a hawk.
And watching like a hawk to see what the Republicans do about the filibuster.
And watching like a hawk to see how Specter handles the judicial nominations, and what the Republicans do to him when he protects Roe, as he certainly will.
If they don't do the right thing, it will be because they CHOOSE not to. And if they choose not to and parallel track this unconstitutional flypaper, it is intended as a decoy to get folks like me excited that they are "trying".
Don't "try".
You have the power.
JUST DO IT.
"In my professional opinion the Supreme Court would declare it unconstitutional, because jurisdiction stripping cannot extend to the point of preventing constitutional review at every level of government.
That would seriously change the system of checks and balances, and the Supremes will reject it 9-0."
That is NOT what history proves:
Thomas Jefferson is generally recognized by most historians as the principle author of the Declaration of Independence. Our Founding Fathers created a federal system of three branches, Executive, Legislative and Judicial.
On Aug. 18, 1821, Jefferson wrote to Charles Hammond and expressed his fear that, of the three branches of government which were created, the one he feared the most was the federal judiciary in these words:
"The federal judiciary is ?working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the States, and the government of all be consolidated into one (i.e., federalization)."
Decisions of the federal judiciary over the last half century have resulted in the theft of our Judeo-Christian heritage, a brief sampling is as follows:
• Enacting "a wall of separation between church and state"
• Banning nondenominational prayer from public schools
• Removing the Ten Commandments from public school walls
• Removing God from the Pledge of Allegiance
Congress should use Article III, Section 2, clause 2 of the U.S. Constitution to recover what has been stolen. Under the heading "Jurisdiction of Supreme and Appellate Courts," the clause says:
"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.
One of the outstanding Constitutional scholars in the Senate is Robert Byrd, West Virginia Democrat. In 1979, in order to once again allow voluntary prayer in public schools, he introduced a law to except this subject from the federal court system under Article III, 2.2. Unfortunately, it was not enacted into law.
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.
Sen. Thomas A. Daschle, South Dakota Democrat, used the exception authority of Article III, 2.2 in order to cut some timber in South Dakota.
Congress responds to pressure from the public. Call, write, e-mail or fax your senator or member of the House to enact S1558 by Sen. Allard, Colorado Republcican, and HR 3190 by Rep. Pickering Mississippi Republican. These bills allow the Ten Commandments to be displayed and retain God in the Pledge of Allegiance and use Article III, Sec. 2.2.
Former Rep. William E. Dannemeyer is co-chairman of Americans For Voluntary School Prayer.
Article III, Section 2
By William E. Dannemeyer
Published October 7, 2003
http://www.washingtontimes.com/functions/print.php?StoryID=20031006-085845-5892r
What a great link!
Thanks.
Bump for "We the People"!
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