Posted on 03/28/2005 8:08:28 AM PST by CyberAnt
The biggest misconception about the federal judiciary is that it is an all-powerful entity unto itself that can only be reigned in by placing strict constructionists or constitutionalists onto the bench and hoping for the best. The truth of the matter is that it is the United States Congress as designated by Article III of the U.S. Constitution that created the lower courts of the federal judiciary.
This seems to be lost not only on the American people, but several members of Congress.
The critical line in Article III, Section 1, states: "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." The key word is "may." It does not say that Congress "must" or "shall" create these federal courts.
In other words, it is the Congress that may or may not create the lower courts of the federal judiciary. They pay for the buildings, confirm the judges, and pay their salaries. In addition, without a statute from Congress granting jurisdiction, the federal court quite simply has no jurisdiction whatsoever.
Congress is in the driver's seat and can expand or limit the scope of their jurisdiction as they see fit. Specifically, in Section 2 of Article III, judicial powers are enumerated in detail.
At the heart of the battle over the Terri Schiavo case is the epic struggle between the legislative and the judicial branches of government. The biggest myth of all in this battle is that Congress overstepped its bounds by allowing federal jurisdiction in the Schiavo case. It was certainly an extraordinary step to take, but it only seems extraordinary because the myth of the untouchable judiciary has not been debunked.
As a matter of law, Congress could convene today and abolish the entire federal judiciary, with the exception of the Supreme Court. It could also create a federal court to hear nothing but Terri Schiavo cases within the bounds of federal legal jurisdiction as enumerated in Article III, Section 2. The Congress has already created specific federal courts on tax law, national security and even maritime issues, so it has been done before.
In the past couple of years, we have seen examples of judicial tyranny in landmark cases about the Pledge of Allegiance, the Ten Commandments, and gay marriage, to name but a few. Judicial activism and judicial tyranny has expanded exponentially only because "we the people" and our elected Congressional representatives have allowed it to happen.
Congressman Robert Aderholt (R-AL) and Senator Richard Shelby (R-AL) have introduced bills, S-520 in the Senate and HR 1070 in the House entitled the "Constitution Restoration Act of 2005" that would limit the power of the federal judiciary specifically in religious liberty cases. These bills were also introduced in 2004, but languished in committee and were reintroduced at the beginning of this current congressional session.
This is not a new idea. In fact, in the 1980s, Senator Jesse Helms and Congressman Henry Hyde introduced bills repeatedly that would limit the federal courts jurisdiction over the specific issue of abortion. And it is not only the "hot button" social issues that bring into focus the power of the federal judiciary. Capping damages in class action cases also limits the federal courts overly broad discretion.
The main point here is that what Congress giveth, Congress can also taketh away. And quite frankly, it should. The grassroots efforts to confirm federal judges who will apply the Constitution as it is written should also include a strong push to limit judicial tyranny by demanding that our elected representatives, sworn to uphold the Constitution, to become cosponsors and move these bills to final passage.
In fact to fulfill the oath to uphold and defend the Constitution, our elected representatives have an absolute obligation to reign in our out-of-control activist judiciary. In the last fifty years, it has been activist judges who have single handedly done more damage to our Constitution than the liberal media, pop culture and leftist politicians combined.
Terri Schiavo's greatest final gift to us might just be the spotlight that she has put on our system of justice. With all the legal and moral arguments swirling around her tragic story, there is enough speculation and misinformation to feed the punditocracy and legal scholars for years to come.
For those of us in the grassroots, troubled by Terri Schiavo's impending demise and the courts' complicity in it, roll up your sleeves. The fight has only begun.
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Note -- The opinions expressed in this column are those of the author and do not necessarily reflect the opinions, views, and/or philosophy of GOPUSA.
You're very welcome.
Perhaps I do not know the proper protocol, but my habit has been to address general comments about postings to the poster, not necessarily expecting a reply. I do not want to start a new thread for this kind of comment.
Well .. you can just add the word "author" to your comment and then everyone understands what you're saying.
I didn't take it personally, but some people do and we should make ourselves clear.
We must realize that the nine-robed lawyers: Supreme Court, has stolen our Constitution. They've now become omnipotent with no control over them by the Legislature. If their decisions ignore the U S Constitution, which we modify to
reign them in, then there's no balance of powers. The Supremes become dictators, making up law out of the air.
Demand a return to constitutional basis for decisions!
Not instant and, ANY.
bump
"with no control over them by the Legislature"
The controls are there - they just have to be implemented.
Have read it - it affirms some of my already known ideas-
i.e those about Everson and Romer v.Evans -over all it was a good read-- I would have included Rhenquist in his rogues
gallery of Justices that have stayed beyond their time.
when Clinton announced his "don'task DOn't tell policy I quit being a democrat--when Lott interfered on behalf of an
unrepentant adultress (Kelly Flynn) an dI got no satifactory response I quit the Republican Party I voted
for GW twice -but when he is WRONG I will speak up.
And you-or I -the Voter can't do squat to have an unjust Judge like Greer removed from office. I didn't vote for either of th eSalazar brothers but the mexcian mafia in this State cancelled my vote.
Good points an dI agree Greer is Floridas' problem -and probably will retire to a grand estate with private
security and all the pampering stature tha tgoes with a
position he defiled.Wm.Pryor, and Ed Carnes of the 11th Circuit who refused to defend Roy S.Moore-and the US
Constitution are a national problem as are the senile old
globalists and godless multiculturalist in the US SupremeCourt majority.
"the Voter can't do squat to have an unjust Judge like Greer removed from office"
You better check - because Greer was just re-elected - which means the voters elected him and can therefore - UNELECT HIM.
Probably by RECALL. Find a local champion - and get at it, instead of whining that your vote doesn't count.
Democrats in California laughed in our face when we said we were going to recall Davis - but hey - we had a champion who put in a huge sum of money and we RECALLED him. Nobody can ever tell me this cannot be done. People just have to have the will to do it.
Agreed -but I fear most Americans are like the President
afraid to interpret the Constitution according to it's clear language. Afraid to use it as a measure for the
Court decisions.
That's not exactly true. While Congress couldn't impeach and remove Greer, the could cite him for contempt of Congress for his defiance of the supoena they issued and order his arrest by the Federal Marshals. Further since the resolution specifically instructed that the case be heard de novo, and the Federal district, appeals, and Supreme courts ignored this instruction (to try the case anew), they could be cited for contempt and impeached.
Needless to say, most of us around here aren't going to hold our breath.
Oh Really? I was under the impression that Congress was granted power by the Constitution, that they only had powers granted therein, and no others. (See 10th amendment).
That's the "insurrectionist" model of the second amendment, as termed by the gun grabbers, but the fact remains that "insurrection" was exactly what the founders had in mind. Not long ago I posted a bunch of quotes from Thomas Jefferson, available to all at the University of Virgina website, to the effect that a little revolution now and again (he thought maybe every 20 years or so) would be a good thing for freedom.)
Do you think the founders saw a need to protect hunting and sporting tools? Or even tools for individual self defense against criminals. Every other guarantee of the Bill of Rights is directed at keeping the government in check. The second amendment was put in to support the others.
NO, but I can read and comprehend. The original poster wrote:
" Who will rein in the Executive Branch when the wrong people are in power?"
I merely supplied "Hillary" as one example of "the wrong people". Kerry would have been other. Who did you think was meant, Ronald Reagan? Condi Rice? Who?
Lawyers are merely Champions. They can be champions of a good cause, or a bad one. I suspect you would only champion good causes. We need more of those. However I suspect law school might "rub you the wrong way" and you might revert to your "Xena" persona and lop off the professor's head or something.
Well .. since you went 100 miles around the name of BUSH - then I guess I was right after all.
Well .. they'll be a little short of power if they don't get elected to office.
The real problem is electing people who understand what their obligations and responsibilities are - and stop paying attention to what the the party of dying dems are saying.
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