Posted on 06/29/2010 2:20:42 PM PDT by BradtotheBone
When a president and a Congress collude to pass and sign into law unconstitutional power grabs, bailouts and takeovers there is only one immediate backstop: the Supreme Court. Every branch of government has an obligation to preserve, defend and uphold the Constitution, and if the legislative and executive branches overstep their boundaries, the judicial branch can stop then.
On the other hand, if the Supreme Court doesn't say "no" when the other two branches go too far, there is no tax that can't be levied, no mandate that can't be imposed, no regulation that can't be instituted and no industry that can't be taken over. The only recourse Americans have is to slowly remove and replace members of Congress and the president through the election process. But when Supreme Court judges, who are unelected and given lifetime appointments, refuse to say "no" when the Constitution says they should, it can take much longer to undo the damage.
Judges who rely on flawed precedent or their own "judgment" instead of the Constitution to justify their rulings can say "yes" to anything. This is precisely how liberal judges have rubber-stamped tyrannical actions by the government in the past and how they will do it in the future.
On these grounds, I feel compelled to oppose Solicitor General Elena Kagan's nomination to the Supreme Court. During my private meeting with her, I asked Ms. Kagan questions about the limits of federal power. Her answers indicated her judicial philosophy is not grounded in the Constitution, and she would grant too much deference to precedent.
(Excerpt) Read more at washingtontimes.com ...
We will. And I won’t forgive anyone who puts the marxist on the court. Period
Remember how damn pissed we were in 2007/08 over the SOBs who were trying to force amnesty down our throats? I will NEVER give an amnesty queen a pass, EVER.
Yet lo and behold, dozens of Freepers and supposed conservatives are telling me that Hayworth is no better than McCain.
Remember how pissed we were here over TARP - the crap sandwich? I vowed never to support anyone who jump started our race to socialism with this POS, unconstitutional legislation.
Yet lo and behold, it doesn’t matter one bit to huge swaths of freepers and supposed conservatives at this point.
Remember how pissed we were about those pubbies voting for the dingbat moron Sotomayor? It goes on and on and on...
Trust me, if Jim can get a couple of people to help him he could care less what Hatch or anyone else says when it comes to the critical issues like this one. In fact, don't be surprised if he goes it alone on a filibuster if he has to.
Regards
As 7th grade social studies teacher Mr. Creedon used to repeatedly (and unprovoked) thunder to his class, "It's the SUPREME LAW OF THE LAND."
” Remember how damn pissed we were in 2007/08 over the SOBs who were trying to force amnesty down our throats? “
Oh YES!!
” Yet lo and behold, dozens of Freepers and supposed conservatives are telling me that Hayworth is no better than McCain.”
Most of them signed up within the past 8 months, with no homepage. They are trolls.
” Remember how pissed we were here over TARP - the crap sandwich? “
Once again, Oh YES!
” Remember how pissed we were about those pubbies voting for the dingbat moron Sotomayor? It goes on and on and on...”
And this bulldyke communist is the worst I’ve ever seen.
” Hatch has already said no filibuster.”
Hatch is an old woman RINO.
Screw what he wants!
DeMint can silence the little girl.
Actually, the Constitution allows for a second method as well, although it must remain the avenue of last resort.
Actually, the Constitution allows for a second method as well, although it must remain the avenue of last resort.
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Yes it does and Amen to that!
Thanks!
...here it is pasted for the pdf impaired...
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1
The Power of Congress to Curb the Courts
Original Intent Studies of Robert Welch University
By Don Fotheringham (7-17-09)
In recent decades there have been many proposals for amending the Constitution in an attempt to overturn federal and Supreme Court decisions. All of these efforts have failed to gain the necessary support. Moreover, the amendment process is not the proper route to correct a problem with perceived judicial abuse of interpretation when the Constitution itself is not at fault.
However, a much more effective, but little know process is immediately at hand. We are referring to the clause found in Article III, Section 2, providentially written as follows: “...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.”
It was never the intention of our founders to create an all-powerful, unaccountable Supreme Court. Each department of government has clearly defined bounds, but each also has oversight power that we call checks and balances. Most everyone is familiar with the president’s power to veto legislation, and the offsetting power of Congress to override it. Also well known are certain checks on power through the nomination and confirmation process, and the ultimate check of impeachment, or at least the threat thereof.
So it is with the Supreme Court. Congress has a way to prevent its perverse rulings on appellate cases. The history of our country, even before the Constitution was ratified, confirms that there never was any misunderstanding about the meaning and viability of the exceptions clause of Article III. In 1796 Oliver Ellsworth, Chief Justice of the United States recognized not merely the option, but the essence of congressional limits on the Court’s appellate jurisdiction. This view was confirmed again by Chief Justice John Marshall in 18052 and has been affirmed by all Supreme Court justices who have commented on the subject.
The constitutional power of Congress to check the Court is alive today and remains one of the most timely and compelling mechanisms available to the American people through Congress. Lower court cases find their way to the Supreme Court by the appeal process. Cases generating objectionable decisions — either individually or as a group — can be singled out by Congress and excluded from review by the Supreme Court. Among landmark cases presumably corrupted by the Supreme Court are the denial of Bible reading in public schools, prohibition of school prayer, the legalizing of abortion, banning religious displays in public places, legalizing sodomy, and defending pornography. Congress clearly has the power to make exceptions to those kinds of cases and block their review by the higher court.
2
A good question arises: If Congress acts to restrain the Supreme Court, what can it do to restrain the federal district courts? For certain, many of the lower courts have exceeded their authority to interpret the law. But control of the two court systems entails two different legal routes:
The Supreme Court and the inferior federal courts cannot be limited by Congress in the same way because the two levels of the federal judiciary came into being through different levels of power. The power creating the Supreme Court was structural. It was created by the Convention of 1787, along with the mode of controlling it. On this constitutional basis, Congress may limit the Supreme Court without asking permission and without passing a pertaining law. The lower courts, on the other hand, are an entirely different breed. These district courts were created by Congress, and their jurisdiction can thus be limited only by enacting a law for doing so.
Notice that no new laws are needed to execute the work of a department when its operations and options are established by the Constitution. The president, for example, may propose a budget, nominate ambassadors, or grant pardons without asking permission or without any new laws.
Congress can make its own rules without any new laws, and the Supreme Court can try its original jurisdiction cases without asking permission. Similarly, Congress may exercise its constitutional power over the appellate jurisdiction of the High Court without asking permission or without any new laws. Exceptions to this rule are constitutional provisions that require implementing legislation. But otherwise, no department of government need hesitate or ask permission to act within its established bounds. Thus Congress may limit the kinds of cases to be heard by the Supreme Court without any new laws or supplemental authority. Obviously, the exercise of an original structural power by any branch of government is not subject to a veto by the president. This is the avenue we propose for controlling the Supreme Court.
How then, if not by passing a bill, does Congress notify the Supreme Court of new limits on its jurisdiction? This may be done by issuing a Concurrent Resolution, approved by a simple majority of the House and the Senate. That’s all. It is not a law, it is a statement through which Congress may assert a pre-existing constitutional authority, and by which the other departments of government are bound. A recent example of the use of such a resolution is H.Con.Res.5, which affirms the pre-existing constitutional power of Congress to declare war. It was introduced in the House of Representatives in the 1st Session of the 111th Congress (with the Senate concurring) expressing that, according to Section 8 of Article I of the Constitution of the United States, Congress has the sole and exclusive power to declare war. Under this heading the “Whereas” clauses state the reasons and applications of the resolution.
A Concurrent Resolution to limit the Supreme Court would follow the same form, expressing that, “Pursuant to Section 2 of Article III of the Constitution of the United States, Congress has the sole and exclusive power to make regulations and exceptions to the appellate jurisdiction of the Supreme Court. Accordingly, effective this date, the Congress of the United States denies the Supreme Court appellate jurisdiction over cases relating to public or private religious expression, definitions of marriage, sexual practice, and abortion.”
3
Significantly, this Concurrent Resolution would accomplish the intended purpose while safely circumventing the desk of the president. The simplicity of this route, and the independence of Congress in following it, should be a great advantage over previously defeated efforts. All such attempts have failed to get through the Senate, where reticence to face a veto by the president — any president — is most common. The Concurrent Resolution process bypasses that particular obstacle.
Okay, that should curb the Court’s passion for new decisions that distort the Constitution, but what about its past decisions? How can Congress nullify the existing immoral burdens imposed by former Supreme Courts? How for example does Congress, if so inclined, reverse Roe v. Wade and Lawrence v. Texas?
There is no instant route. The Constitution does not provide Congress the means for nullifying past Court decisions. Therefore, each overturned case will have to be taken back to the court of its origin and re-tried. Unfair? Yes, but the second time around the lawyers fighting the abuse of original intent will have a slight advantage, which will include the same files, proven arguments, decent-thinking judges, and local juries. Under these circumstances, and knowing their work will not be overturned, the lawyers can move their cases quickly through the lower courts.
“Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.”
Kagan and the rest of her soon-to-be rat compatriots on Scotus happily exercise both judicial and legislative powers, for the common good and social justice, right?
bump
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