Posted on 12/22/2004 2:45:35 PM PST by Ed Current
HR 3893 IH
2d Session
H. R. 3893
To limit the jurisdiction of the Federal courts, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
Mr. PAUL (for himself and Mr. BARTLETT of Maryland) introduced the following bill; which was referred to the Committee on the Judiciary
A BILL
To limit the jurisdiction of the Federal courts, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
This Act may be cited as `We the People Act'.
The Congress finds the following:
(1) Article III, section 1 of the Constitution of the United States vests the judicial power of the United States in `one Supreme Court, and in such inferior Courts as Congress may from time to time ordain and establish'.
(2) Article I, section 8 and article 3, section 1 of the Constitution of the United States give Congress the power to establish and limit the jurisdiction of the lower Federal courts.
(3) Article III, section 2 of the Constitution of the United States gives Congress the power to make `such exceptions, and under such regulations' as Congress finds necessary to Supreme Court jurisdiction.
(4) Congress has the authority to make exceptions to Supreme Court jurisdiction in the form of general rules and based upon policy and constitutional reasons other than the outcomes of a particular line of cases. (See Federalist No. 81; United States v. Klein, 80 U.S. (13 Wall.) 128 (1872)).
(5) Congress has constitutional authority to set broad limits on the jurisdiction of both the Supreme Court and the lower Federal courts in order to correct abuses of judicial power and continuing violations of the Constitution of the United States by Federal courts.
(6) Article IV, section 4 of the Constitution of the United States guarantees each State a republican form of government.
(7) Supreme Court and lower Federal court decisions striking down local laws on subjects such as religious liberty, sexual orientation, family relations, education, and abortion have wrested from State and local governments issues reserved to the States and the People by the Tenth Amendment to the Constitution of the United States.
(8) The Supreme Court and lower Federal courts threaten the republican government of the individual States by replacing elected government with rule by unelected judges.
(9) Even supporters of liberalized abortion laws have admitted that the Supreme Court's decisions overturning the abortion laws of all 50 States are constitutionally flawed (e.g. Ely, `The Wages of Crying Wolf: A Comment on Roe v. Wade' 82 Yale L.J. 920 (1973)).
(10) Several members of the Supreme Court have admitted that the Court's Establishment Clause jurisdiction is indefensible (e.g. Zelamn v. Simmons-Harris, 536 U.S. 639, 688 (2002) (Souter, J., dissenting); Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819, 861 (1995) (Thomas, J. concurring); Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 399, (1993) (Scalia, J. concurring); and Committee for Public Ed. And Religious Liberty v. Regan, 444 U.S. 646, 671 (1980) (Stevens, J., dissenting).
(11) Congress has the responsibility to protect the republican governments of the States and has the power to limit the jurisdiction of the Supreme Court and the lower Federal courts over matters that are reserved to the States and to the People by the Tenth Amendment to the Constitution of the United States.
The Supreme Court of the United States and each Federal court--
(1) shall not adjudicate--
(A) any claim involving the laws, regulations, or policies of any State or unit of local government relating to the free exercise or establishment of religion;
(B) any claim based upon the right of privacy, including any such claim related to any issue of sexual practices, orientation, or reproduction; or
(C) any claim based upon equal protection of the laws to the extent such claim is based upon the right to marry without regard to sex or sexual orientation; and
(2) shall not rely on any judicial decision involving any issue referred to in paragraph (1).
The Supreme Court of the United States and all other Federal courts--
(1) are not prevented from determining the constitutionality of any Federal statute or administrative rule or procedure in considering any case arising under the Constitution of the United States; and
(2) shall not issue any order, final judgment, or other ruling that appropriates or expends money, imposes taxes, or otherwise interferes with the legislative functions or administrative discretion of the several States and their subdivisions.
Any party or intervener in any matter before any Federal court, including the Supreme Court, may challenge the jurisdiction of the court under section 3 or 4 during any proceeding or appeal relating to that matter.
A violation by a justice or a judge of any of the provisions of section 3 or 4 shall be an impeachable offense, and a material breach of good behavior subject to removal by the President of the United States according to rules and procedures established by the Congress.
Any decision of a Federal court, to the extent that the decision relates to an issue removed from Federal jurisdiction under section 3, is not binding precedent on any State court.
END
No, 2/3 of both houses, and the President's signature, and the court is BOUND and FORCED to follow the Constitution or be overturned.
Excellent!
The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositaries, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern; some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them. If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield.
If Congress passes a particular law, and the USSC finds it outside their constitutional authority, and Congress may then simply override their objections, of what purpose is the process of amendment?
It's obvious that there aren't enough votes in the Senate to remove, but the House probably could impeach:
There is evidence that the mere threat of impeachment will have a salutary effect on the federal judiciary. As noted in the Introduction, the law school deans found this aspect of the impeachment movement especially troubling. Yet, the historical data clearly reflect that the Framers intended the threat of impeachment to have exactly this effect. Impeachment is a multi-step process. Resolutions can be introduced, authorizing impeachment directly or authorizing an investigation into possible impeachment proceedings. Assuming that an investigation occurs first, the steps leading to conviction would include investigation, debate on whether or not to draft articles of impeachment, a vote on passage of the articles, a trial in the Senate, and conviction. The farther the process goes, the greater the salutary impact will likely be. Those who are persuaded that impeaching judicial tyrants is correct should not give up before they start simply because they don’t think they can obtain the final goal of conviction.
Joseph Story understood that the threat of impeachment must be real in order to serve as an effective check. He wrote that on the one hand, impeachment should not "be a power so operative and instant that it may intimidate a modest and conscientious statesman or other functionary from accepting office," but that on the other hand, it must not be "so weak and torpid as to be capable of lulling offenders into a general security and indifference."156
There is some evidence to support the thesis that impeachment investigations also serve the function Story anticipated. Steven W. Fitschen, Impeaching Federal Judges: A Covenantal And Constitutional Response To Judicial Tyranny, Regent University Law Review, Volume 10, SPRING 1998
In the cases I cited (the Gun Free Schools Act and the VAWA), it was Congress that was outside it's constitutional boundaries.
Sounds good. Is this still just sitting in Committee?
From George Washington's Farewell Address:
The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositaries, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern; some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them. If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield.
If Congress passes a particular law, and the USSC finds it outside their constitutional authority, and Congress may then simply override their objections, of what purpose is the process of amendment?
Gun Free Schools Act was passed and then struck down by SCOTUS 5/4.
Those who signed the bill didn't have the benefit of judicial review prior to passing it. After SCOTUS opined against the law, the President and Congress could review all the opinions in that case and decide on a course of action.
Suppose H. R. 3920 had been in effect. The President could refuse to enforce SCOTUS opinion without fear of impeachment/removal, since 2/3 of Congress agreed with him. H.R. 3920 is an insurance policy for the President.
OTOH- Suppose after reviewing SCOTUS opinions, some in Congress reconsidered, and the President didn’t have 34 Senators with him to reject majority opinion in SCOTUS. The majority opinion stands.
BTTT
In this case, it would have been an insurance policy for Bill Clinton, and a victory for a liberal agenda. This is a two-edged sword, and I find the idea that "political conservatives" are so quick to alter a fundamental balance of power for some short term objectives rather odd.
I don't see anything there that addresses the salient point. If Congress can override the Supreme Court, why do we need amendments? Beyond that, what happens if the Supreme Court finds HR 3920 unconstitutional?
This is a two-edged sword, and I find the idea that "political conservatives" are so quick to alter a fundamental balance of power for some short term objectives rather odd.
As explained in post #1, there isn't any balance of power. SCOTUS has assumed it all.
AEI - Publications Beneath the Supreme Court's many astounding decisions in its 2002-2003 term, and the shifting judicial coalitions that produced those results, runs a unifying basso continuo: Constitutional law, in the sense of judicial decisions that are guided--at least in aspiration--by the text, structure, and logic of the written Constitution, is dead. It has been replaced, often as a matter of explicit doctrine, with subjective judicial impressions of popular sentiment or political utility. Federalist Outlook, The Term the Constitution Died, Michael S. Greve,Friday, July 25, 2003
Show me any instance of the USSC striking down a Constitutional Amendment, and I'll buy that.
They strike the ninth and tenth down all the time.
"In his speech to the Federalist Society, Scalia offered a detailed description of his approach to constitutional interpretation. In his view, Supreme Court justices overstep not only their authority but also their expertise when they try to answer some of society's most divisive moral questions in legal cases such as abortion. He says moral issues should be resolved by elected political leaders, not unelected judges."
"Other than offering the anecdote of the fundraising letter, Scalia did not mention the chief-justice issue during his lecture. Instead, he focused on what he sees as the problem of judges becoming involved in issues that he believes have no place in a court of law."
"He offered examples from the US Supreme Court - abortion, gay rights, the death penalty, gender equality at military schools, and assisted suicide."
"Under a regime of static law, it was not difficult to decide whether under the American Constitution there was a right to abortion or to homosexual conduct or to assisted suicide," he said. "When the Constitution was decided, all those acts were criminal throughout the United States and remained so for several centuries. There was no credible argument that the Constitution made those laws invalid."
"Of course, society remained free to decriminalize those acts [through legislation], as many states have," he added. "But under a static Constitution, judges could not do so." One justice's vision of role of the courts, November 16, 2004 edition Warren Richey Staff writer of The Christian Science Monitor
As for the rest of it, I see a lot of question begging, and no direct answers to the questions I've asked. What is it you're after that can't be had by amendment, and why is it there seems to be absolutely no consideration being given to that option?
Ed Current
As explained in post #1, there isn't any balance of power. SCOTUS has assumed it all.
Granted. And I don't see shifting the balance from one abusing entity to another to be particularly helpful.
There are many copies of the Constitution on the net. You need to find one and read it. Read the Fed Papers too.
Post #1 and the answers will make sense to you then.
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