Skip to comments.Texas Republicans Gain Supermajority in House
Posted on 12/11/2010 3:48:56 PM PST by Sic Parvis Magna
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So does this mean that the few remaining Democrats can’t excape to New (Mexico/Orleans/Whatever) to keep them from geting a quorum?
Yes Camp Robinson outside N. Little Rock.
I was there 2001-2003. Heckuva sweet range complex they have there. They run a lot of Reserve and NG sniper schools. I retired in 2008.
While the 10th Amendment should be enough, the courts have long refused to enforce it. While I agree that the proposed 28th Amendment is weak, it is still something the States, which before could only act by calling a constitutional convention, could finally do themselves, without relying on the federal government to protect their rights from the federal government. Which, let’s face it, is not going to happen.
Yet I think that the 28th Amendment would open the door to a 29th Amendment, creating the Second Court of the United States, which would be a continual check on federal power, as well as a standing “trimming” mechanism to reduce federal overreach.
The Second Court of the United States is *not* a federal court. It is a convention of State courts, 100 State judges appointed by State legislatures, that decides *not* constitutionality, which is a function of the federal courts, but *jurisdiction*, whether a case should be in the federal court system in the first place.
It addresses the 8,000 or so cases appealed from the federal District Courts to the Supreme Court every year, so it can determine that many of those are not federal issues, and should be returned to the States. And this takes advantage of the situation that the SCOTUS cannot possibly hear 8,000 cases every year.
Right now, the overwhelming majority of these cases are rejected by the SCOTUS, which means they are stuck with the decision of the federal District Courts, for better or worse, often worse.
But this *also* means that the federal taking of these cases was right in the first place. A huge expansion of federal power, because any federal judge, on the flimsiest of reasons, can take over a State case and make it a federal case.
But if those cases go through the Second Court of the United States, three things might happen.
Either they will agree that it is a federal issue worthy of the SCOTUS, which would probably reduce the 8,000 to just a few hundred cases, a much more manageable load for the SCOTUS; or they will say that it is a case for State, not federal jurisdiction, and return it to the State court.
If it is then not appealed, it is taken out of the federal courts entirely. If it *is* appealed, even with a few hundred cases, it will likely *not* be heard by the SCOTUS.
But the default in this case is *not* to uphold the decision of the District Courts, or that it is a federal decision, but to uphold the decision of the Second Court.
That is, taking the case out of federal jurisdiction and returning it to the State of origin. If it is a federal issue, only then will it be given back to the federal District Courts, for their default decision.
You see the slam dunk, here? Vast amounts of State authority returned to the States, taken from the grasp of federal judicial activists.
But it gets even better, because the Second Court of the United States would have *original* jurisdiction of lawsuits between the States and the federal government.
Right now, if a State sues the federal government, or the feds sue a State, the case has to go through a long and expensive process, taking years, and will likely have to be heard by the District Courts or the SCOTUS anyway, unless one side or the other quits.
But with the Second Court, a State could confront an onerous federal law, bureaucratic regulation, executive order, unfunded mandates, etc., by suing the federal government, and the case would go directly to this convention of State judges, giving all the other States the opportunity to join with this rejection of federal oppression, so it doesn’t have years to oppress them before being overturned.
Now granted, such suits could still be appealed to the SCOTUS, but this is good, as it would prevent anti-federalism from running wild, either.
The end result would be an institution whose very purpose is both to question, and trim, the growth of the federal government, in an active way. Not just cutting back on the rate of growth, but of existing growth as well.
A slow and methodical erosion of unauthorized federal power grabs over the last 150+ years. Unlike a static rule that everyone tries to evade, an active body that will fight for States rights.
I’ll also add that Justice Thomas just wrote a brilliant resurrection of the 14th Amendment, and how it authorizes the federal government to protect the people from abusive States. This Second Court of the United States would be the flip side to that, authorizing the States to protect the people from an abusive federal government.
Thus fitting in with the philosophy of constitutional balance of power.
Nope, missed that one. FReepmail it to me if you still have it available.
“Im still leery of any D that switches to R”
Ya, me too. He may use that “R” just as a beard because he sees his district looking a little more conservative.
Gotta watch him close.
>>the GOP a 100-member supermajority in the Legislature’s lower chamber <<
I want you to watch. See if just one Bill that the Democrats passed against the will of the Reps is reversed or removed. I’ll bet you a dinner that NOTHING changes. These guys are all the same Party.
“Very soon, the Republicans in the US congress will be trying to pass the 28th Amendment to the US constitution. This would give the States the ability, with resolutions of 2/3rds of the States, to overturn onerous and improper federal law.”
I didn’t know such an ammendment was being considered. I would also word it to give the states a similiar ability to overturn Federal court rulings.
Another southern conservative Democrat leaves the party.
That’s a problem. It is extremely hard for the States to reach a 2/3rds consensus on *anything*. Oddly enough, this will make it much easier to pass a 28th Amendment, because there will be far less concern that it could be used for radical ends.
Unfortunately, though, it means that the States, to cut back the federal government, would have to each pass identical resolutions on tens of thousands of federal trespasses, while at the same time, the congress and president, and federal judges, would continue to create tens of thousands of new trespasses.
That is why a standing body, a Second Court of the United States, is what is truly needed. Not just to prevent future trespasses, but to trim the federal government down to size in a continual and ongoing process.
Originally, the US senate was selected by the States, which gave the States the ability to limit the federal government. But with the 17th Amendment, the direct election of senators, the States were stripped of this power. This meant as well that the people lost the protection of the States—from that point, the federal government could intervene directly in the lives of the citizenry. A terrible loss, especially because the first tool to control our lives directly, the 16th Amendment, the federal income tax, was already in place.
From that moment, we stopped being citizens of our State, and were ruled directly by the federal government. Federalism ended.
This is why a Second Court of the United States becomes an essential part of returning the federal government to order. It has a double jurisdiction which puts it in the ideal place to make orderly change.
First, as often happens, some minor federal judge decides to take an appeal of a State case, making it a federal matter, no longer a State matter. This is a normal process, and it is needed, to discover whether a State law or practice is constitutional or not.
But this process has run “hog wild”, because federal judges will take on *any* case that interests them, on the flimsiest of excuses, not just cases involving constitutional questions. So every year the *same* type local and State cases percolate up through the federal courts. Petty, mindless cases like schools not permitting students to publish grotesque and perverted essays in the school newspaper.
And there is no end to the same type cases happening over and over again, clogging the federal court system and interfering with important cases dealing with important constitutional questions.
In any event, at the federal district court level, about 8,000 cases, some legitimate, most not, eventually are appealed to the SCOTUS. And the SCOTUS can only hear a fraction of these cases, whether or not they are important, or even critical, to constitutional law.
Those that do not make the cut revert to the decision of the district courts, resulting in a disagreeable patchwork of legal precedent.
But, importantly, at the same time *legitimizing* the idea that these cases should have entered the federal court system in the first place.
The first task of the Second Court of the United States is to listen to the arguments of cases appealed from the district courts, to determine if there is a real constitutional question in the arguments, or not. Since the case already has a district court decision as to its constitutionality, they can see the arguments made. If there is a legitimate constitutional question, then the case continues directly to the SCOTUS.
But if there is no legitimate constitutional question, then the case can be taken away from the federal courts and returned to the State of origin, for them to reach a final decision on its merits. In the example, this would likely be that “The school is in loco parentis (foster parent) to students, and is and should be in complete authority over what is published in the school newspaper. This is not a free speech issue.”
Importantly, if a case was appealed from the Second Court to the SCOTUS, if the SCOTUS turned it down, it would revert to the decision of the Second Court *first* (which would return it to the States if that was what they wanted). And only if they had found that it had a legitimate constitutional question would it be returned to the federal district court for *their* decision.
That is, the Second Court of the United States does not determine whether an issue is constitutional or not, just whether it is appropriate for that issue to be decided in federal court, or State courts.
By putting the Second Court in this bottleneck, a multitude of problems are solved, including returning to the States the power to protect itself and its people from runaway federal judges.
But this is not all. The second jurisdiction of the Second Court is just as important. This being that it has original jurisdiction in lawsuits between the federal and State governments. And this is where it is a much more powerful tool than the 28th Amendment.
Two examples. First is Arizona’s anti illegal alien law, SB 1070. The federal government is suing AZ to block it. This process involves several federal courts, and can only be really determined by the SCOTUS. This means about 4 or more years delay for AZ to be able to put into practice its law, even if every federal court agrees with it.
But if this law went directly to the Second Court, it would be up to the 50 States to determine if Arizona had a right to make this law. And while its decision might still be appealed to the SCOTUS, if enough of a majority of the State judges decided in one way, the SCOTUS would be strongly inclined, perhaps as part of the Amendment creating the Second Court, to uphold its decision.
As another example, say a State decided to sue the federal government because the EPA, or the ATF, or the DOE, or whoever, was infringing on the State. (A few of the worst of these infringements are being highlighted right now in the 10th Amendment movement.)
This would give all the States their say in whether to overturn federal law, bureaucratic regulations, executive orders, etc. that *they* thought infringed on their rights, with a quick and to the point lawsuit brought directly to the Second Court.
This would mean that the States could trim more than a century of excessive federal growth that oppressed them. Likely reducing the size of the federal government by half.
And while such things could be appealed to the SCOTUS, the Amendment might be written so that the SCOTUS could overturn a simple majority, if it chose to do so, but that a 2/3rds majority, such as the 28th Amendment, would take it out of the hands of the SCOTUS entirely, and that part of the federal government would be dissolved.
The queston is, of course, “to what effect?”
Which requires two-thirds majorities. It will fail.
Nice, early in the cycle we had legitimate fears about actually losing the Texas House.
you will almost always need some support from dems to offset liberal repubs.
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