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.
--------------------
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.
That doesn't make sense from a separation-of-powers point of view. If Congress passes a law, then Congress considers that law to be Constitutional. So, following your logic, if Congress passed a law banning private ownership of firearms, such a law would automatically be considered Constitutional.
Time to get back to the way things were meant to be.
You consider the initials "WTF" to be foul language?
WTF?
And with that point I do agree. They had an absolute right. Unfortunately, congress passed legislation that said the federal court may conduct a de novo review of Terri's case. Had the legislation said federal court shall conduct a de novo review, Terri's feeding tube would most likely have been reinserted. IMHO congress knew the likely outcome of their watered down legislation. They only provided theatrics for their constituents.
This is getting funny.
"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."
I totally agree. Most people may not agree - but Rush has been talking this morning about some Repub senators who have already written legislation to stop some of this over the top stuff by the federal courts.
So it's up to US - THE PEOPLE - to get behind our representatives and PUSH them in the right direction. The only way we can do that is by getting involved and sending emails, letters, faxes, phone calls - and if WE the people do not do this - we have no one to blame but ourselves.
If you think the right wing is going to shut up and get in line, you haven't been on this side of the fight very long.
I have been in too many court rooms lately, and while justice has been served occaisionally, it is the exception rather than the rule!!!! I don't trust any judges any farther than I can throw their courtrooms (and those are really heavy rooms!!!)
The fact that we the people were lazy and allowed our government to get out of hand is the root of the problem, but it has gone too far out of hand, it would take a large majority to revolt to take it back now...
Sure. That's how our system is set up. Congress has the ability to overturn such a decisions through a Constitutional amendment.
Congress is elected by the people and thus the people either through their elected representatives or through their own actions when necessary are the final arbiters over what is and is not constitutional.
They do have that power. They can always change the Constitution. However, the Judicial branch is the final arbiter of the Constitution as it is currently written.
"Reigning" is what federal judges have been doing far too long (with Congress's tacit approval).
You make an excellent point.
They THINK they're "all-powerful" gods who sit on thrones and reign over the country.
I just wonder how long the people of this country will sit back and do nothing.
In my state, liberals have gone so far as to include felons and dead people to get their candidate elected governor...it only took three re-counts to declare victory. You can bet that one county is being forced to change its laws to come in line with the rest of the state.
voters can only vote for who's running, and way too many are completely un-informed (a coworker touts that she voted for gore in 2000 because he 'looked' better than bush) The large majority of the population knows what they believe in and want and they are split so close to 50/50 that it's left to the completely un-informed and un-interested to cast the tie breaking vote. instead of get out the vote drives the republicans shoud sponsor educate the vote drives and maybe things would change....
bttt
No. The Supreme Court is the final arbiter of those things that are or are not constitutional. And, as Article III pretty clearly explains, it is a very limited jurisdiction. But Congress has expanded the jurisdiction of the lower courts and judicial activists on the Supreme Court have expanded what they think are Article III questions.
Lower courts only have what jurisdiction Congress gives them. The Supreme Court only has what jurisdiction the Constitution gives it. And there is even a remedy in Article III for those judges (Supreme or otherwise) who step outside of that jurisdiction.) Not that it will ever happen, but thems da facts.
Well .. it was power by majority rule in Congress - which was the democrats. They hated the war and wanted to end it - and end it with America in disgrace. Plus they had Kerry's minions out there raising a ruckus and the democrats were too unwilling to act against them.
So the power of the Congress depends largely on who is in the majority in Congress. People should be terrified of democrats ever being in power in Congress anytime soon.
I don't agree that the founders wanted Congress to have more power than the other two. The founders clearly said that the POWER SHOULD BE EQUAL. Right now - the judicial branch is more powerful than the other 2 and it needs to change. As for the Executive becoming too powerful - I don't see it. And .. after all - he is ELECTED BY THE PEOPLE - so they have the right to vote him out of office if they are unhappy with his performance.
There is no such provision for JUDICIAL appointees. They are not accountable to the people and that's why their authority should be severely LIMITED IN SCOPE .. and I think we need to get rid of "lifetime" appointments.
Amen, Cyber. And thank you.
"... it has gone too far out of hand, it would take a large majority to revolt to take it back now."
I don't know what you mean by revolt .. but 2006 is coming up and we need to give the repubs a chance to have a clear majority - THE SAME MAJORITY THAT WAS ENJOYED BY THE DEMOCRATS FOR OVER 40 YEARS.
With that majority - and our constant prodding - we can get some things changed back to conform with the Constitution - instead of a judge's personal policy preferences.
It's already infringed to near death in most states....
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.