Where is Pro-Life Constituency for Article 3 of the U.S. Constitution?

The lack of constituency for Article III in the U.S. Constitution among those so concerned about federal judicial tyranny is an ongoing mystery. Perhaps they have never read it, or having read it never understood the meaning or implications. Maybe they understood it as well as anyone, but rejected that approach in preference for more difficult Constitutional means of restoring the rule of law that federal courts routinely break.

The relevant portions of Article III involve only the first sentence of Section 1 and only the first two clauses of Section 2. The essence of those 200 words can be reduced to the following, which reveals the enormous power Congress has over the federal courts:

"The judicial power of the United States shall be vested…in such inferior courts as the Congress may from time to time ordain and establish."

"….the supreme Court shall have appellate Jurisdiction…with such Exceptions, and under such Regulations as the Congress shall make."

Congress has plenary authority to regulate and even abolish all jurisdiction of the lower federal courts and it has near plenary authority to restrict the jurisdiction of the United States Supreme Court.

If the federal courts only dealt with original jurisdiction cases, most voters wouldn’t even be aware of the federal courts. Cases involving abortion, sodomy, First Amendment issues and a host of others would be dealt with in State courts which are fully capable of deciding those cases.

An amendment requires 290 votes in the U.S. House, 67 votes in the U.S. Senate and 38 States and federal courts that will adhere to it.

Judicial appointment requires; 1) a vacancy; 2) a President who insists on an original textualist replacement; 3) an original textualist; 4) a U.S. Senate that will confirm an original textualist. The Supreme Court has only 3 of 9 who could be classified as original textualists. The six who aren’t could remain for another decade

Article 3 legislation requires the President, 51 votes in the U.S. Senate, and 218 votes in the U.S. House. The 107th Congress limited federal court jurisdiction on 12 occasions.

The pro-life constituency doesn't have the votes for impeachment and removal, but may enough votes for jurisdiction removal. It is far easier to remove the issue from the judge than the judge from the issue.

Michael J. New, Ph.D. analyzed the significant impact that state pro-life legislation had on the reductions of abortions during the 1990s.1 Mysteriously, the pro-life constituency hardly ever mentions We the People Act (HR 3893 IH) introduced in the U.S. House, even though "thirty states are poised to make abortion illegal within a year, if the Supreme Court reversed its 1973 ruling establishing a woman's legal right to an abortion…,"according to the pro-abortion Center for Reproductive Rights. 2 Section 7 of We the People Act states; "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."

Professor William J. Quirk at the University of South Carolina School of Law explains it as well as anyone:

"Constitutional litigation would still take place—but in the state courts. The state supreme courts would have the last word. The state courts naturally would consider any prior U.S. Supreme Court decisions with respect. But they would not, according to Article VI of the Constitution, be bound by them. They are bound by the Constitution, not by the decisions of the Supreme Court. Moreover, new cases would always present somewhat different facts and issues than those previously decided by the Supreme Court. Congress could always, if state-court decisions go off the tracks, restore federal court jurisdiction."3

We the People Act (HR 3893 IH) removes the abortion issue from all lower federal courts, and the U.S. Supreme Court. The bill unbinds each state from unconstitutional federal judicial precedent on abortion, sodomy and 'establishment' clause cases.

The U.S. Supreme Court has repeatedly violated the horizontal and vertical separation of powers and has transformed this Constitutional Republic established and ordained by "We the People" into a judicial oligarchy dictated by "We the Federal Judges."

We the People Act must be reintroduced in the 109th Congress and the pro-life constituency must demand that Congress pass it, or face the consequences in 2006.

#1 "Analyzing the Effects of State Legislation on the Incidence of Abortion During the 1990s. Center for Data Analysis Report #04-01 January 21, 2004 http://www.heritage.org/Research/Family/CDA04-01.cfm

CHRISTIAN PATRIOTS FOR LIFE

Destroying the Law Breaking Branch of the Federal Government with Article 3 of the U.S. Constitution.

The law-breaking branch of the federal government has become move powerful than the law making branch, the President and even the Constitution.

How did five out of nine judges on the U.S. Supreme Court become so infallible that no one questions anything they say? When the Most High Court speaks, the nation must prostrate fall. U.S. Attorney General John Ashcroft, during his confirmation hearings, said that he would not attempt to overturn Roe v.Wade and that he considered it the "settled law of the land." The abortion edicts from the Supreme Court aren't acts of Congress, nor a constitutional amendment, but a supposedly pro-life politician declares that those edicts are "settled law."

If the U.S. Supreme Court was intended to break as many laws as they have, why does the Constitution prohibit them from being involved in the law making process? Why did Marshall have to derive the doctrine of judicial review in Marbury v Madison? Why wasn't it explicitly stated in the Constitution?

If the U.S. Supreme Court was intended to amend the Constitution, why does the Constitution prohibit them from being involved in the amendment process? If the U.S. Supreme Court was intended to enforce their own opinion, why does the Constitution leave that option with the President?

If the U.S. Supreme Court was intended to be equal to, or above the written Constitution, why does the Constitution state, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land…. and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution."

US Constitution, Article 3 Constituency

Hearing Before The Subcommittee On The Constitution Of The Committee On The Judiciary

Notes on the Testimony Of Martin H. Redish, Louis And Harriet Ancel Professor Of Law And Public Policy, Northwestern Law School, June 24, 2004

Professor Redish is a nationally renowned authority on the subject of Federal jurisdiction. He received his A.B. With honors, with highest honors, in political science from the University of Pennsylvania and his J.D. Magna cum laude from Harvard law school. He has been described in a review of his book, The Federal Courts in the Political Order, as quote, ''without a doubt the foremost scholar on issues of Federal court jurisdiction in this generation,'' unquote.Professor Redish is the author or coauthor of 70 articles and 13 books, including Federal Jurisdiction: Tensions in the Allocation of Federal Power. He was recently included on a list of the 100 most cited legal scholars of all time.

Section 1.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

There are absolutely no federal cases constitutionally excluded from state court jurisdictional authority. The State courts provide an adequate forum to interpret and enforce Federal law, including the Federal Constitution. State courts are empowered and obligated under article VI, clause 2, the supremacy clause, to interpret and enforce the Constitution. The Constitution didn't require Congress to create the lower federal courts (Madisonian Compromise). Congress did create the lower Federal courts immediately, but it is well established in the case law that that power to, from time to time, ordain and establish the lower Federal courts includes the power to abolish the lower Federal courts, and the greater power to abolish the lower Federal courts logically subsumes within it the power to leave the courts in existence, but limit their jurisdictions. The Supreme Court has proceeded on the logical assumption that if Congress possessed discretion not to create lower federal courts in the first place, it also has the power to abolish the lower federal courts. See, e.g., Lockerty v. Phillips, 319 U.S. 182 (1943); Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850). Since it has been assumed that Congress possesses the authority to abolish the lower federal courts completely, the Court has assumed that it has the logically lesser power to ''abolish'' them as to only certain cases by limiting their jurisdiction.

Section 2.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

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.

In Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868), the Supreme Court recognized the unlimited authority explicitly authorized in the text. There are no internal constitutional limits, no limits in article III on Congress' power. Its power is plenary. There are external constitutional limits on this power; the Due Process Clause, and the equal protection directive in the fifth amendment apply, but are satisfied by state courts which Congress can't affect. The text, and internal logic of the Constitution allows Congress to combine its power over the article III lower courts and the Supreme Court under the exceptions clause, the end result is that it can completely exclude Federal judicial power over pretty much any issue, as long as the State courts remain available. The case law agrees with the Constitution in this respect.

The text and internal logic of the Constitution are the antidote for deceptive arguments claiming Congress hasn't the power which is explicitly stated, and which has been used with no objections of any U.S. Supreme Court. Congress' Article 3 power dosen't violate separation of powers, since the Constitution dosen't provide for Congress to adjucate a case, or dictatate a case, or enforce a decision, or overturn a decision. The states are bound by the Constitution, and not unconstitutional/extraconstitional federal judicial majority opinion.

The Avalon Project : Federalist No 81

"The judicial power of the United States is'' (by the plan of the convention) "to be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish.''1

The arguments, or rather suggestions, upon which this charge is founded, are to this effect: "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.... 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.

In the first place, there is not a syllable in the plan under consideration which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of the convention, but from the general theory of a limited Constitution; and as far as it is true, is equally applicable to most, if not to all the State governments. There can be no objection, therefore, on this account, to the federal judicature which will not lie against the local judicatures in general, and which will not serve to condemn every constitution that attempts to set bounds to legislative discretion.

To avoid all inconveniencies, 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 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. 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 Worst Constitutional Decision of All Time

"As noted before, the Supreme Court did not invent abortion. There might be plenty of abortion, perhaps authorized or permitted by state laws, even without Roe and Casey. Moreover, the Court is, arguably, not directly responsible for the wrong moral choices of individuals that the Court's decisions permit. Finally, the Court is not responsible - cannot be responsible, consistent with its constitutional role - for correcting all injustices, even grave ones. But the Court is responsible for the injustices that it inflicts on society that are not consistent with, but in fact betray, its constitutional responsibilities. To the extent that the Court has invalidated essentially all legal restriction of abortion, it has authorized private violence on a scale, and of a kind, that unavoidably evokes the memories of American slavery and of the Nazi Holocaust. And by cloaking that authorization in the forms of the law - in the name of the Supreme Law of the Land - the Court has taught the American people that such private violence is a right and, by clear implication, that it is alright. Go ahead. The Constitution is on your side. This is among your most cherished constitutional freedoms. Nobody ought to oppose you in your action. We have said so.

The decision in Casey, reaffirming Roe and itself reaffirmed and extended in Carhart, in my view exposes the Supreme Court, as currently constituted, as a lawless, rogue institution capable of the most monstrous of injustices in the name of law, with a smugness and arrogance worthy of the worst totalitarian dictatorships of all time. The Court, as it stands today, has, with its abortion decisions, forfeited its legal and moral legitimacy as an institution. It has forfeited its claimed authority to speak for the Constitution. It has forfeited its entitlement to have its decisions respected, and followed, by the other branches of government, by the states, and by the People. The enthusiasm of liberal intelligentsia for the Court's abortion decisions, the sycophancy of the law professorate, of the legal profession, and of our elected officials, and the docility of the American people with respect to our lawless, authoritarian Court rivals the pliancy of the most cowardly, servile peoples toward ruinous, brutal, anti-democratic regimes throughout world history. We suffer people to commit despicable acts of private violence and we welcome - some of us revere - a regime that destroys popular government for the sake of perverted, Orwellian notions of "liberty." After a twentieth century that saw some of the worst barbarisms and atrocities ever committed by humankind, at a time when humankind supposedly had progressed to more enlightened states, we still have not learned. The lesson of the Holocaust - "Never Forget" - is lost. We fail to recognize the amazing capacity of human beings to commit unthinkable, barbaric evil, and of others to tolerate it. We remember and are aghast at the atrocities of others, committed in the past, or in distant lands today. But we do not even recognize the similar atrocities that we ourselves commit, and tolerate, today."^{Michael Stokes Paulsen, The Worst Constitutional Decision of All Time, 78 Notre Dame L. Rev. 995, 1003-1007 (2003).}

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