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.
But your statement is an insinuation that even though they're republican they are as dirty as the democrats - and I'll fight anybody anyday anywhere about the fallacy of that statement.
Did you get a court order to post this? How dare you question our judicial overlords? You will be reported for committing a thought crime.
It wasn't sarcasm.
I'm not insinuating that the Bible is your only reading material any more than you insinuated that I never read it.
OH GOOD ! I needed some excitement in my life!!!
If I'm lucky maybe I'll wind up in Greer's court (except that I live in CA.
No, it's not an insinuation. It's an outright statement of fact that both parties have self-serving members.
Um, yes, it was. Trust me. I wrote it. I know.
I never insinuated anything of the kind - you chose to be insulted - which tells me maybe it bothered you that I said, "people who read the Bible".
Well .. I'm glad you think your opinion is so important.
WTF is wrong with you? I never said my opinion was important either. It's just that.
Why are you giving me so much credence?
Well, if he can issue orders to every police officer in Florida, why not one in California?
What branch of our government is empowered with deciding the Constitutionality of a law?
True that. While I agree the federal judiciary needs to be reined in, even if there were no federal judiciary it wouldn't have made a difference in the Schindler/Shiavo litigation. An out of control state judge was the sole finder of fact and the Schindlers appeals to the USSC were all denied. Result would've been the same.
the supreme court. as created by the constitution.
the lower courts -- every federal court except for the supreme court was created by CONGRESS.
every constitutional question of law is supposed to be decided by the supreme court. that does not include emanating or penumbras. read article III. it really is quite limiting. if only congress would read it too.
Congress
I think the court's wilingness to flout the rule of law and rule along liberal ideological lines in the Schiavo case will galvanize the GOP to finally get serious about the judiciary.
very true. but the point was that congress had every right to go in and deal with the question of whether or not terri's case could be heard in federal court. and THAT was the point. what the lawyers did with that opportunity was another question entirely.
Well .. since courts are trying to use international law - he might be able to make it happen .. after all there is no CALIFORNIA CONSTITUTIONAL LAW in effect in this state.
The foul language is way out of line.
Our conversation is over because I refuse to discuss anything with anyone who spews that kind of language at me. And .. if you continue - I will report you - count on it.
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