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Let's preserve the Constitution and start removing judges
Manchester Union Leader ^ | March 26, 2005 | Ed Mosca

Posted on 03/26/2005 5:06:00 AM PST by billorites

UNQUESTIONABLY, Alexander Hamilton was the most prescient of the Founding Fathers. While Adams mistrusted banks, and Jefferson and Madison conceptualized America as a nation of yeoman farmers, Hamilton embraced finance and industry. But Hamilton got it completely wrong when he predicted in Federalist No. 78 that the judiciary would be the “least dangerous” branch of government.

With every new decision it issues, the U.S. Supreme Court looks less and less like a court of law and more and more like a supreme legislature. Its recent decision declaring the death penalty for minors unconstitutional — like its decisions on abortion, race, religion, sex and speech — was based not on the constitution or precedent or even historical or contemporary practice, but on the personal views of a majority of the justices. Which makes us a nation not of laws, but of seven men and two women.

And many state courts are just as bad as their federal counterparts. Not content with having appointed themselves as their states’ supreme school boards, they are now undertaking the mission of redefining marriage. Hardly what Hamilton and the other Founders had in mind.

Writing in Federalist No. 81, Hamilton claimed that Congress’ power of impeachment would prevent the federal judiciary from overstepping its bounds: “There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations.”

Nowadays, howeer, there is little possibility that impeachment — or its first cousin in some state constitutions, a bill of address — will be used to remove judges who overstep their constitutional roles. This is due in part to the popular misconception that removing a judge on account of his decisions, even decisions plainly at odds with the constitution, would be a threat to “judicial independence.”

That this view is so commonly accepted shows how constitutionally ignorant we have become since Hamilton’s time. The reason our federal and state constitutions made the judiciary independent from the legislative and executive branches was to preserve the constitution. This independence was intended to allow courts to serve as an effective check on the other branches when they exceeded their constitutional limits. It is nonsensical to use judicial independence as a reason for not removing judges who rewrite the constitution, because that permits the very result that judicial independence was intended to prevent.

The Founders also failed to foresee that today’s politicians would care more about advancing their political agendas than upholding the constitution. The Democrat party is particularly to blame for the present state of affairs in the federal courts. Unable to win control of either Congress or the presidency in 2004, Democrats in Washington are reduced to running interference for activist judges. Hence, jurists such as Supreme Court Justices Antonin Scalia and Clarence Thomas, who believe the Constitution has a fixed and ascertainable meaning which should be applied to present circumstances, are branded extremists. While jurists who believe that the meaning of the Constitution evolves to reflect the policy positions of moveon.org are lauded as moderates.

Here in New Hampshire, both parties share the blame for failing to check an overreaching judiciary. Many, if not a majority of, Republicans like the outcome of the Claremont decisions — which drastically diminished local control over education in favor of control by state government — every bit as much as the Democrats. Hence, the Legislature’s repeated refusal to even let the voters consider a constitutional amendment.

Various commentators, such as rejected Supreme Court nominee Robert Bork, have suggested amending the Constitution to allow the representative branches some degree of review over court decisions. But amending the federal Constitution requires a super-majority of Congress and the states, which the success of the Democrat filibusters of President Bush’s federal appeals court nominees shows is impractical. The durability of Claremont and other state court education funding decisions shows this approach is also impractical at the state level.

It is clear that the only solution to a runaway judiciary is the principle declared in the Declaration of Independence that whenever any form of government becomes destructive of the ends for which government is intended, “it is the Right of the People to alter or to abolish it, and to institute new Government.” What is less clear is how many of us believe in this principle and are willing to act on it.

Ed Mosca is a Manchester attorney and former chairman of the city Republican Party.


TOPICS: Constitution/Conservatism; News/Current Events
KEYWORDS: judicialactivism; judiciary; manchester; scotus; unionleader
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To: billorites

<< .... whenever any form of government becomes destructive of the ends for which government is intended, "it is the Right of the People to alter or to abolish it, and to institute new Government." What is less clear is how many of us believe in this principle and are willing to act on it. >>

Count on me.


41 posted on 03/26/2005 10:02:57 AM PST by Brian Allen (I fly and can therefore be envious of no man -- Per Ardua ad Astra!)
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Comment #42 Removed by Moderator

To: Marauder

I agree. Congress could do something about the problem judges we have. They could impeach them, but we have very few with any guts to do so in Congress.


43 posted on 03/26/2005 10:39:41 AM PST by 2nd_Amendment_Defender ("It is when people forget God that tyrants forge their chains." -- Patrick Henry)
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To: Diva Betsy Ross
That is the real cause of the problems - weak thinking ignorant semi immoral sometimes even anti-american electorate.

You got it, bro.

44 posted on 03/26/2005 2:09:36 PM PST by Marauder (But your honor, the bed was already on fire when I crawled into it!)
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To: HuntsvilleTxVeteran
I do not think people on the public dole should be allowed to vote.

I like it, but it would never get past the SCOTUS even if it managed to get passed and signed.

45 posted on 03/26/2005 2:12:59 PM PST by Marauder (But your honor, the bed was already on fire when I crawled into it!)
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To: winner3000
Please tell me what laws the judges are protecting by removing this woman's feeding tube. The last time I checked hearsay evidence was not admissible against a serial murderer, and therefore could not condemn him to the death penalty. Please tell me why Terri has less rights than him?

These three sentences sound like you obtained your understanding of the law by opening a dictionary and randomly pointing. "Serial murderer"? "Less rights than him"?

46 posted on 03/26/2005 3:58:48 PM PST by SedVictaCatoni (<><)
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To: Regulator
Oh, I agree with that. The unelected brotherhood is closing ranks, seeing the crack of daylight coming into their little clubhouse where they rule unchallenged.

Judge Greer was first elected to his seat by Florida voters in 1992. In what way was he "unelected"?

47 posted on 03/26/2005 4:00:14 PM PST by SedVictaCatoni (<><)
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To: HuntsvilleTxVeteran; Marauder

You'd need to amend the Constitution for that.


48 posted on 03/26/2005 5:03:17 PM PST by Borges
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To: MisterRepublican

"At some point we will be forced to take action against our Black Robed Emperors."

Yes we will, and the Schiavo case may have been the perfect point.


49 posted on 03/26/2005 5:07:07 PM PST by SeaBiscuit (God Bless all who defend America and the rest can go to hell.)
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To: Borges

Why?


50 posted on 03/26/2005 5:08:34 PM PST by HuntsvilleTxVeteran (When you compromise with evil, evil wins. AYN RAND)
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To: ARCADIA
At this point I am all for abolishing/de-funding the present judiciary entirely. We should replace it with a new judicial system mandated to apply a strict constructionist interpretation of the constitution, and our legislative law. The present system is creating such a mockery of the law, that it has led to the sort of unintended consequence that mandates a state to kill an innocent woman. It is time to pull the plug on the entire hopeless mess.

Nearly everyone on this forum would agree with you. The problem is that as soon as we did that, the judges would declare it null and void, and we'd be right back where we were.

51 posted on 03/26/2005 5:16:38 PM PST by Hardastarboard
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To: HuntsvilleTxVeteran

Wouldn't that be a 14th Amendment issue? And a lenient interpreation would stretch it to violate the 24th as well. Laywers?


52 posted on 03/26/2005 5:16:57 PM PST by Borges
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To: GadareneDemoniac

Clinton sent Janet Reno out to do his dirty work Waco and Eilan Gonzales


53 posted on 03/26/2005 6:50:23 PM PST by JoanneSD
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To: billorites
It is clear that the only solution to a runaway judiciary is the principle declared in the Declaration of Independence that whenever any form of government becomes destructive of the ends for which government is intended, “it is the Right of the People to alter or to abolish it, and to institute new Government.” What is less clear is how many of us believe in this principle and are willing to act on it.

It seems pretty clear to me. We are screwed. This politically correct, celebrity worshiping, shallow, consumerist, values neutral, morally equivocating cult of multiculturalism population will never muster the will to loose the chains of judicial tyranny because they don't see any chains.

And anyone that tries to "alter or to abolish" or "to institute new Government" will be branded as terrorists and pursued under the Patriot Act, while the "News" organizations and enlightened "progressive" liberals brand them derisively as "constimuhtooshunalist militia wackos".

Enjoy the freedom you have right now, because it is the most freedom you will ever have. Besides, we will get a new government soon enough, courtesy of the bureaucrats at the UN.

54 posted on 03/26/2005 7:08:08 PM PST by spodefly (This is my tag line. There are many like it, but this one is mine.)
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To: SedVictaCatoni
Judge Greer was first elected to his seat by Florida voters in 1992. In what way was he "unelected"?

He wasn't. Like most low level judges, such as JP's, they are either a) elected initially (typically only JP's), or b) Retained by affirmative vote after an initial appointment.

As for the people I was referring to, virtually every Appellate Court judge and all the Federal Judges (Circuit Courts, Appellate courts, Supreme Court) are appointed for life and can only be impeached, a punishment which did not happen for 40 years or so until Alcee Hastings in the early 1980s (now a Congressman from Florida, of course).

But impeachment by the legislatures used to be quite common, and should make a rousing comeback, starting with Greer, before he has to stand for retention again.

55 posted on 03/26/2005 7:34:39 PM PST by Regulator
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To: Fishrrman

You might fell differently under President Hillary Clinton and a Democrat controlled Congress. The problem isn't so much the procedure as it is the cowards and RINOs among the Republicans.


56 posted on 03/26/2005 8:42:20 PM PST by Bogolyubski
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To: winner3000

The law is whatever the Mullahs say it is - don't you know that yet? We have an "evolving" constitution, you see, with its many "penumbras" and "emanations", only some of which have been discovered - not to mention the latest in advanced legal scholarship form places like Zimbabwe. Better assume the position, and repeat after me: There is no god but the law, and its prophet is Greer.


57 posted on 03/26/2005 8:52:25 PM PST by Bogolyubski
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To: SedVictaCatoni

huh?


58 posted on 03/26/2005 10:04:08 PM PST by winner3000
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To: Joe Republc
Removing judges would require courage and resolve.

We can't even save a starving woman how do you think we can remove a judge

59 posted on 03/27/2005 1:10:22 AM PST by expatguy (http://laotze.blogspot.com/)
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