The Sovereignty Implications of Two Recent Supreme Court Decisions

The Supreme Court, in two recent cases (Lawrence v. Texas and Atkins v. Virginia) is continuing a trend of citations of foreign and international law, particularly European law, as supporting evidence for the validity of its decisions. This use of international sources in cases involving purely domestic concerns is alien to the American legal system, historically, and, if unchecked, will produce a further erosion of American sovereignty, in addition to the mischief already done by these cases.

Lawrence v. Texas, 02-102 (2003), is the recent case overturning a Texas statute barring same-sex sodomy. Justice Kennedy, writing for the majority, cites a decision by the European Court of Human Rights (ECHR) allowing homosexual conduct as evidence of a lack of consensus on such conduct's illegality. ² In particular, the ECHR decision is used as one of the Court's "authorities," and as a controlling interpreter of "values we share with a wider civilization." ³ The question immediately arises: Why use the ECHR in particular? What is special about the ECHR that its opinion is allowed to serve as evidence of "values we share"? Why is the ECHR case more representative of "values we share" than the Texas statute invalidated by the Court? No evidence is given. In some sense, the Court's opinion is a relief. At least any seeming veto right by the ECHR over the U. S. Supreme Court's definition of "values we share"( whatever that means) was not made explicit.

On the other hand, the Court would have been far better off, in terms of preserving American sovereignty, in just announcing that it had done all of the value-surveying it cared to, and that it had found a new civilizational value, which had appeared somehow in the last thirty years to guide the Court. In the past, the Court has not needed to use the ECHR to establish new principles it likes. So not using the ECHR as an authority would not have hindered the Court from striking down laws it considers backwards. Furthermore, using the ECHR allows a camel's nose under the tent of American constitutional jurisprudence, by allowing a foreign court to serve as an authority in American constitutional cases on domestic issues, in a process it is hard to see the end of.

Just a year ago, the same problem occurred in another relatively high-profile case. In Atkins v. Virginia, 536 U. S. 304 (2002), the Court struck down laws providing that the mentally retarded could be sentenced to death, using foreign authorities. This decision directly contradicted a case only 13 years old, providing that foreign authorities were not to be relied upon in determining sentencing practices. ⁴ Justice Stevens, in the majority opinion, found that "it is fair to say that a national consensus has developed against [execution of the mentally retarded]." ⁵ One could question why the Court assumes the commanding role in determining the existence and content of a "national consensus." One could even question how an existing national "consensus" could ever result in the overturning of the laws of a sizable number of states. But even granting these matters, it would still seem out of bounds to consider the disapproval of the "world community" as part of a finding of a "national" consensus. This, however, is what the Court did. In a footnote explaining the consensus-finding, the Court noted that it had found support for its view in, among other things, briefs filed by psychologists and religious communities, as well as polling data; however, it also cited an amicus brief filed by the European Union (EU), allowing that this brief proved that "within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved." ⁶ As in Lawrence, the Court found support from European sources asserting supra-national authority, and would not find an American consensus without finding affirmation in European views.

The Court did not just find support from the EU, but used it as a proxy for the world community, without ever explaining how the EU obtained that authority. As for the rest of the Atkins footnote, even though one may disapprove of the Court lending its ear to particular trade associations, religious groups or polling organizations, one could at least understand that the Court was deferring to experts in their chosen areas. The Court's members can legitimately concede that they are not psychologists, pollsters or theologians. But how can the Court cede even rhetorical authority to the EU as an arbiter of the views of the "world community" (whatever that is)? Is the Court not part of the world community? Does the U. S. concede that its principles are not entitled to respect from other nations? If so, this is a large concession, and the Court should rethink this, both on its own behalf and as part of the national government.

The Court has now used international opinion in two cases purely domestic (prosecution of American citizens by American states for crimes committed in America), without providing any guide for where the Court will not invoke foreign authorities. In other words, if the Court has conceded its conscience or its fact-finding to the EU or the ECHR on matters of international opinion, even on matters as purely domestic as described, we must know where the Court will stop relying on them. International norms, after all, by definition do not stop at borders, and all American domestic laws are potentially affected, if these laws are.

The Court has also made no effort to delineate "good" and "bad" foreign authorities, to differentiate among the various sources it considers binding, or to define "domestic" or "international" law. For example, if the EU's opinion protected U. S. criminals from the full operation of U. S. laws, even indirectly, the EU has some practical authority in the U. S. But why was the EU in particular chosen as an authority? The U. S. is not a part of the EU, has no part in determining the EU's laws and is as much a part of the "world community" as the EU is. In addition, the use of the EU as a guide is curious because the EU is a supra-national European body, not another country, and not a democracy in any conventional sense. The EU also aims, as has been remarked by leading members of the EU, to serve as a foil to U. S. interests. ⁷ Acceptance of the EU's authority would seem to be at best carelessness, at worst a usurpation of the foreign relations powers belonging to the political branches.

Aside from one's personal views on the subject matter of these two cases, there is a systemic issue at stake, one which has constitutional implications far greater than the survival of state sodomy laws and the rights of mentally retarded death row inmates. The question is whether the Supreme Court is using its undoubted right to interpret the U. S. Constitution to subordinate the Constitution and the federal system to an international legal regime which is not answerable to American voters or the American system of checks and balances.

To answer this question, we can look at how our legal system has treated the authority of foreign authorities in the past. We find immediately that in one sense, citations to another country's jurisprudence are nothing new in the American legal system. When the Republic was founded, it inherited the British common law system, and did not re-create its legal system de novo. British cases were used largely, and were deemed to have precedential value. And although America had already produced some solid legal commentators, such as Chancellor Kent, and had obvious political and legal genius (the Constitution itself was proof of that), nevertheless the early Republic leaned on a vast body of British law in organizing itself legally.

Furthermore, under Article VI of the Constitution, federal courts are required to accept treaties as part of the "supreme Law of the Land." Does this mean that treaties or other international laws trump the rest of the Constitutional structure somehow? The Court has answered this question in the negative very forcefully. In Reid v. Covert, 354 U. S. 1 (1957), the Court held that "The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our Government. If our foreign commitments become of such nature that the Government can no longer satisfactorily operate within the bounds laid down by the Constitution, that instrument may be amended by the method it prescribes…" ⁸ and "[ N] o agreement with a foreign nation can confer power on the Congress, or any other branch of Government, which is free from the restraints of the Constitution." ⁹ (emphases added). This holding presumably applies to the Court itself, and means that protections against arbitrary government are binding on the Court. In this case, how could reliance by the Court on a foreign authority, not otherwise identified beforehand, be anything other than arbitrary? How does the Court square the randomness of its own foreign sourcing with its (self-imposed) duty to avoid arbitrary judgments? Without any explanation of why the Court pays heed to which foreign authorities, the process of judgment seems chaotic. If this random choosing is applicable to undoubtedly domestic laws (as is the case here), one wonders how the Court avoids accusing itself of arbitrary government in these cases.

It may also be argued that international law is fundamental to American jurisprudence. There is, indeed, old and often-cited precedent for interpreting domestic statutes in accord with international law. In Murray v. Charming Betsy, 6 U. S. (2 Cranch) 64 (1804), Justice Marshall and the Court decreed that "an act of congress ought never to be construed to violate the law of nations if any other possible construction remains." ¹⁰ This principle of harmonization, even if still valid today, does not allow the use of foreign authorities in cases such as Lawrence and Atkins. First, the domestic statutes in question were directly in contravention of European principles, as enunciated by the EU and the ECHR. There is no harmonization possible, and the Court did not attempt any such task. Instead, it simply struck the offending American laws down. Second, the Charming Betsy harmonization principle ought not to apply to states under the principles of federalism. Third, the EU and the ECHR are not authorities on the "law of nations." They are individual political and juridical entities, creating and interpreting their own laws. It might be said in the Court's defense that the Court did not call these foreign sources the "law of nations." Unfortunately, the Court did something worse: instead of using the "law of nations," it created a category of "world community" opinion and "values we share" which can support overriding American laws and decisions.

It may also be argued that Atkins at least is part of a more recent use of international opinion in the Court's Eighth Amendment jurisprudence. It is tempting to see Atkins as the latest struggle in the Court over whether a punishment is "cruel and unusual" between one line of cases affirming the use of international opinion (Estelle v. Gamble, 429 U. S. 97 (1976); and Thompson v. Oklahoma, 487 U. S. 815 (1988), for example) and one line of cases ignoring or repudiating international opinion (Rhodes v. Chapman, 452 U. S. 337 (1981); and Stanford v. Kentucky, for example). The main problem with this analysis is that even the two cases cited above used international sources in a way distinguishably different than Atkins (or Lawrence, for that matter). In the first line of cases, Estelle cited to the United Nations' Standard Minimum Rules for the Treatment of Prisoners, but only as found in the U. S. Department of Justice's Compendium of Model Correctional Legislation and Standards. ¹¹ In Thompson, the use of the opinion of the world community ¹² was simply that to note that such opinion was "consistent" with the Court's finding that a juvenile execution "would offend civilized standards of decency." ¹³ The foreign sources were used only as incorporated into an American source or to show that they were consistent with the Court's already-determined finding. In neither case was the foreign source used to strike down part of a previous Court opinion (as the ECHR was used in Lawrence to strike down part of the Bowers ¹⁴ opinion), nor was a single entity's brief used as a source of world opinion (as the EU's brief was used in Atkins). ¹⁵

Some might say that objecting to citation of European authorities is alarmism, and that Atkins and Lawrence are unique and not to be repeated. Unfortunately, this area of the intersection of American and international law offers all of the elements of an ambush: opportunity, motive and surprise. There is a long line of American laws which could be struck down with the support of foreign authorities. U. S. laws are substantially out of step with the "development" of international norms. To cite only the most notable recent examples, we have refused to ratify the Kyoto Protocol, the Rome Statute of the International Criminal Court, the Convention on the Rights of the Child, the Mine Ban Treaty, the Convention on the Law of the Sea and the Convention on the Elimination of All Forms of Discrimination Against Women. If the opinions of the "world community" or the "international community" have weight in our constitutional system, the Court would seem churlish not to enforce these treaties or at least their substantive measures in the U. S.. After all, what could be more authoritative as world opinion than the endorsement of nearly every country except the U. S.? Of course this would violate the entire structure of the Constitution, but what seems very unlikely today may not be so unlikely tomorrow, unless the Court retreats on the issue of using foreign authority to interpret domestic laws.

In addition, there are powerful groups advocating for change, ready to push American jurisprudence down the slippery slope created by the courts. In particular, it must be noted that the generators of international norms in these areas are currently the United Nations (in its many agencies), the various Europe-based courts which in some cases claim global jurisdiction, such as the International Criminal Court, the international law professoriate, non-governmental organizations of many types and interests, the diplomatic corps of the several countries which are interested in establishing new international norms and various arms of the European Union.

None of these parties is generally committed to upholding the American constitutional regime. Some (like the EU) are actively committed to a rivalry with the U. S.

Furthermore, the Atkins case has already emboldened several actors. The International Justice Project, a non-governmental organization which " works towards the development, coordination and increased employment of international law and human rights standards as they pertain to capital punishment" ¹⁶ noted that the Atkins case "does indeed indirectly invite further arguments of international law and standards." ¹⁷ The ABA is preparing the case against the execution of juveniles following the Atkins standards closely, including preparing evidence of the views of the world community. ¹⁸ And on the Court itself, Justice Stevens has penned a dissent in a decision denying rehearing of a juvenile death penalty case, basing his plea for a rehearing partly upon the views of the "international community." ¹⁹Finally, there is a general failure to comprehend the nature of the threat. International law is widely derided as having no actual force, but only precatory power. One could produce examples of international agreements which were dead letters upon signing (such as the Kellogg-Briand pact, which outlawed war), agreements which prove to have little power when the signatories are determined to evade their restrictions (such as OPEC's limitations on oil production) or agreements rendered effectively null when one of the parties is determined to breach, and the counterparties will not enforce (Germany's disarmament under the Versailles treaty).

In the view of skeptics of the existence of international law, the fact that treaty enforcement is imperfect and somewhat contingent on national interest, means that international law has no power at all. This skeptical view, while attractive, is wrong, if for no other reason than because, as noted above, the Supreme Court has always used non-American and international law, which as a result has force in our constitutional jurisprudence. In light of the decisions in Lawrence and Atkins, skepticism and a "ho-hum" attitude towards international law and foreign authority must be re-examined.

However, none of the problems outlined above would arise if the Supreme Court were to avoid using international law or foreign authorities in its decisions, even in dicta or in support, in cases dealing with domestic concerns. It would then be in step with the political branches, neither of which has shown much appetite for adopting international norms on these types of issues. International law could continue on its own developmental path, and the federal government could adopt (or not) international norms by means of executive and legislative action.

One suspects that the Court sometimes forgets that our political and legal system can result in the eventual practical result the members of the Court desire, without the Court forcing its will on the country using the support of foreign authorities. First, the executive branch can take action respecting or ignoring an international norm. Presidents do this routinely in executive agreements with other countries. Second, the Congress and the President can adopt laws which respect international norms, but which can be repealed if the government so decides. Third, the President (with the advice and consent of the Senate) may make binding treaties. Fourth, the Court could overturn laws it considers backwards or otherwise not "up to snuff," using American (not European) principles of constitutional law, and without granting authority to foreign authorities.

Thus, our system has the flexibility and richness to allow for change without the need for more than a minimum of consultation with foreign sources, and such consultation need only occur in matters where there is a need for comity and reciprocity with foreign powers. If there is a need for change in domestic law, principles can be established, modified or removed by executive action, constitutional amendment, statutory modification or the overturning of prior case law. In each case, flexibility is maintained by using an existing process of modification of the existing order. Using European or other sources does not improve this flexibility, nor does it allow for some modification not otherwise available. Citation of foreign authorities does nothing except indicate that the Court is incapable of deciding something for itself, and this failure of nerve is an implicit concession of sovereignty.

Furthermore, the use of foreign authorities is directly against the American system of governance. The use of existing constitutional methods, principles and authorities reflects an implicit bargain in the American system: the current democracy respects a system of rights originally established by democratic means, no matter how remote in time, and treats such rights as consented to, even though no one alive today voted for these rights; in turn, the democratic system is deemed valid and allowed to exercise its powers to the extent that it acts consistently with that pre-existing set of rights. The Court's use of foreign authorities strikes at this bargain. The American people at no time subordinated themselves to an international sovereign and have fought wars to avoid being subordinated to European authorities. Thus, it is not just a violation of federalism principles when the Supreme Court does away with state laws using foreign authority. It is something more drastic: a break with longstanding treatment of foreign and international law, an erosion of America's national sovereignty and a breaking of the implicit bargain made between our current democracy and the constitutional principles it has agreed to respect.

Even if the Supreme Court were trying to import international norms into constitutional law (which it should not), the Court has not established principles for doing so, or any way to decide between "good" and "bad" international law, or between "domestic" and "international" law, above and beyond the justices' personal predilections. Lone citations to a European court (as in Lawrence) or to an EU opinion (as in Atkins) in purely domestic cases did all of the worst things the Court could have done: they strengthened the precedential value of particular foreign authorities, emboldened international actors who do not have our system's best interests at heart, limited America's effective sovereignty, may have reduced America's scope of action in the future, and created no rules or restrictions on what other types of non-U. S. cases, principles or sources the Court would use in the future as a guide for interpreting the U. S. Constitution.

Rather than strengthening foreign authorities at the expense of domestic law, the Supreme Court should turn its back now on any further attempts to subordinate American sovereignty to foreign authority, even if that means the Court cannot arrogate to itself relatively unlimited power, as arbiter of which international norms the U. S. must accept. The Court should limit its decision-making to the interpretation of the Constitution, and should not be in the business of the creation or enforcement of international norms in the United States.

The Courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequences would be the substitution of their pleasure for that of the legislative body." The Federalist No. 78

1 Partner, Winston & Strawn, Chicago. B. A. with honors, Harvard University; J. D., Columbia University School of Law. Certificate in International Law, Parker School of Foreign and Comparative Law, Columbia University.

2 The Court also cited materials from an amicus brief submitted by Mary Robinson, et al., showing to the Court's satisfaction that "other nations" have protected the same rights. This citation appears only once, and the Court does not elucidate which nations have made these protections and how this requires the Court to act. In addition, the Robinson brief is not used to directly contradict prior findings of the Court (the ECHR case is so used). Therefore, the use by the Court of this evidence is not considered here.

3 The Court refers to the ECHR as one of the "authorities" it relies on in criticizing Chief Justice Burger's claims in his opinion in Bowers (the other "authorities" cited are a 1963 committee report of the British Parliament, and a section of the U. K. Sexual Offenses Act). The ECHR's opinion with regard to the European Convention on Human Rights (to which the U. S. is not a signatory) is granted "importance" by the Court. The ECHR makes another appearance later in the opinion, being used by the Court to criticize the Bowers decision's findings on the aforementioned shared values. However, the Court cannot possibly mean that the decisions of any single foreign court (of whatever jurisdiction or nature) could overturn a U. S. Supreme Court's finding of such a broad concept as "values we share with a wider civilization" (as the Court interprets the Bowers finding). Yet the ECHR's decisions (along with such presumably lesser authorities as a 1963 U. K. report, one section of a British law and an undisclosed survey of nations submitted by Mary Robinson) are enough to support overturning one of the central supports of a previous Court opinion. The Court is therefore granting the ECHR a unique, strong status, yet it has provided little explanation of why the Court looks to the ECHR as an "authority" on any matter. The Court does indeed note that the ECHR's jurisdiction covers a large number of countries (45), but the ECHR is only one court, not forty-five, and it was deciding its cases under one statute. Even in its Eighth Amendment cases, the Court does not look at only one court in determining the climate of international opinion. So the Court cannot be using the "multi-jurisdictional" nature of the ECHR as a reason to rely on it as an authority. The Court's reasons to use the ECHR virtually alone are still inexplicable. 2

7 The Swedish prime minister and president of the EU at the time, Goran Persson, noted that the EU is "one of the few institutions [Europe] can develop as a balance to US world domination." Romano Prodi, the President of the European Commission, the EU's executive body, stated that one of the chief goals of the [EU] is to create "a superpower on the European continent that stands equal to the United States," Charles A. Kupchan, "The End of the West," The Atlantic Monthly (November 2002). These ambitions may be the freely-chosen goals of the EU, but they do serve as some evidence that the EU is not just another voice of the "world community." 4

12 Justice Brennan, writing for the Court, considered the views of "other nations that share our Anglo-American heritage, and… the leading members of the Western European community." Thompson at 830.

15 International opinion, characterized in a variety of ways, has been used in other Eighth Amendment cases as an "additional consideration," called "not irrelevant," and cited in a way that shows that the Justices did not just adopt an entity's views, but considered the facts presented to them in the material, along with other sources. Enmund v. Florida, 458 U. S. 782 (1982), at 796-797, n22; Coker v. Georgia, 433 U. S. 584 (1977), at 596, n. 10; Trop v. Dulles, 356 U. S. 86 (1958), at 102, and n. 35. In none of these cases were decisions by a single foreign court treated as though the previous Court and the foreign court were engaging in a circuit split (as in Lawrence). Nor was material submitted by a single foreign entity adduced as evidence of the climate of international opinion without any sign of further consideration or analysis by the Court (as in Atkins). 6

16 The International Justice Project, Project Overview (no date provided). The IJP's Project Overview goes on to state some further observations and goals (emphases added): "In the last year, the United States has witnessed increased public scrutiny surrounding the use of capital punishment. The result of such intense analysis has allowed capital punishment to develop into the ideal vehicle with which to advance the use of international law in the United States. The efforts of the project will help further the cause of abolition; the end result human rights instruments call for, whilst sensitizing the US to the world community, thus drawing the U. S. into the international human rights treaty regime. It is our belief that the project is perfectly positioned to assist and advance the application of human rights law within the American judicial system, whilst simultaneously working at the international level to encourage further debate and progress."

18 "Evolving Standards of Decency," Criminal Justice Section, Juvenile Justice Center, American Bar Association (Spring 2003).

19 In re Patterson, 536 U. S. 984 (2002), Stevens, J., diss. (Ginsburg and Breyer, JJ., separately dissent) 7

HIGHLIGHTS

In Reid v. Covert, 354 U. S. 1 (1957), the Court held that "The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our Government. If our foreign commitments become of such nature that the Government can no longer satisfactorily operate within the bounds laid down by the Constitution, that instrument may be amended by the method it prescribes…" ⁸ and "[ N] o agreement with a foreign nation can confer power on the Congress, or any other branch of Government, which is free from the restraints of the Constitution." ⁹ (emphases added). This holding presumably applies to the Court itself, and means that protections against arbitrary government are binding on the Court.

First, the domestic statutes in question were directly in contravention of European principles, as enunciated by the EU and the ECHR. There is no harmonization possible, and the Court did not attempt any such task. Instead, it simply struck the offending American laws down. Second, the Charming Betsy harmonization principle ought not to apply to states under the principles of federalism. Third, the EU and the ECHR are not authorities on the "law of nations."

There is a long line of American laws which could be struck down with the support of foreign authorities. U. S. laws are substantially out of step with the "development" of international norms. To cite only the most notable recent examples, we have refused to ratify the Kyoto Protocol, the Rome Statute of the International Criminal Court, the Convention on the Rights of the Child, the Mine Ban Treaty, the Convention on the Law of the Sea and the Convention on the Elimination of All Forms of Discrimination Against Women.

Citation of foreign authorities does nothing except indicate that the Court is incapable of deciding something for itself, and this failure of nerve is an implicit concession of sovereignty.

Thus, it is not just a violation of federalism principles when the Supreme Court does away with state laws using foreign authority. It is something more drastic: a break with longstanding treatment of foreign and international law, an erosion of America's national sovereignty and a breaking of the implicit bargain made between our current democracy and the constitutional principles it has agreed to respect.

Americans have no regard for National Sovereignty

A significant portion of the people polled here are probably recent immigrants or the children of recent arrivals (recent being arbitrarily defined here as "post 1965").

In working with and knowing many of them (I live in California) I would have to say that NONE of them understand the concept of the independence of the country, or of the notion of American sovereignty. In fact, they are quite hostile to such a concept, especially when American laws and policies are inimical to their home country's interests, or culture. Many post-1970 Chinese immigrants that I have met become quite angry at any criticism of Communist courts and government in general.

Justice Breyer was recently quoted as saying things similar to the article here. He included the rationale that American law had to become more international in flavor because of "immigration to America", which is a bizarre allegation that the country should mutate itself according to the legal and cultural makeup of the country that the immigrants just left. But his bizarre assertion is shared by many of the "immigrants" that I have met.

So I would say that perhaps many of the "Americans" in the poll --- aren't Americans. And the people who should be staunch American independents have been intimidated into abandoning their national identity, which is the only glue that would provide a cohesive opinion on American sovereignty.

About a year ago, there was a feeble call for impeachment of Federal Appeals Court Judges Alfred T. Goodwin and Stephen Reinhardt, over the Pledge & Flag.

Late last year, Stephen Reinhardt found that individual citizens do not have a constitutional right to own a firearm. I have yet to read, even a feeble call for impeachment from any RKBA proponent.

An oustanding response:

I emailed my Congressman asking that he support, or initiate an impeachment effort:

Dear Congressman Pitts:
That the Supreme Court's decision in Lawrence is unconstitutional is as plain as the language of the 10th Amendment, reserving powers to the states, and the litany of anti-sodomy laws on the books when the 10th Amendment (and the 14th Amendment, for that matter) were adopted. And if the vow in the oath of office to uphold the Constitution means anything at all, the justices of the Supreme Court who blatantly ignored the Constitution to usurp the authority of the states should be impeached. It's time to hold the Supreme Court accountable to the Constitution. You have a role in doing just that, if your oath to uphold the Constitution means anything:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.
Please defend the Constitution! It is under attack from within. Fidelity to the Constitution demands that Supreme Court justices who place their own ideologies before the Constitution should and must be impeached. If there are impeachment proceedings in the works for Justices Kennedy, Souter, O'Connor, Stevens, Breyer, and Ginsburg, then I ask you to wholeheartedly support and work for such efforts. If no impeachment proceedings are currently being undertaken, I would ask that you do so, for the sake of the Constitution and our future.
If I can be any assistance whatsoever in this effort, please do not hesitate to contact me:
Thank you.

I for one don't think it is a waste of energy to defend the Constitution. It's that kind of thinking that has given the Supreme Court the free reign it has enjoyed and which it has used to trample the Constitution underfoot. Enough is enough. 9 posted on 07/17/2003 5:14 PM CDT by Gee Wally

Impeaching Federal Judges: A Covenantal and Constitutional Response to Judicial Tyranny

It's Time to Hold Federal Judges Accountable

The House could well initiate the process, it would be ferocious, yet it would set a stage, and one from which the Constitution could be explained and the appointment of Judges truly upholding of it could be progressed. Not without a fight -- but a necessary fight.

Two sources who agree:

WallBuilders | Resources | Impeachment of Federal Judges (Sixty-one federal judges or Supreme Court Justices have been investigated for impeachment, of whom thirteen have been impeached and seven convicted.)

Congress, the Court, and the Constitution The basic question is this: can the decisions of a federal judge, arrived at without criminal corruption as that is ordinarily understood, be considered among those ''high Crimes and Misdemeanors'' for which he may be impeached, tried, convicted, and removed from office? The answer from the founding is a very clear ''yes.'' -- See Franck, Against the Imperial Judiciary, 45-51; and ''The Supreme Court and the Politics of Impeachment,'' On Principle (Ashbrook Center), vol. IV, no. 4 (August 1996): 3-5. See also McDowell, Curbing the Courts, 121.

Outstanding. Who's listening?

You read it and responded. I didn't think this article would get any response.

But I posted it anyway.

From the Net:

People are unreasonable, illogical and self-centered.

Love them anyway.

If you do good, people will accuse you of selfish, ulterior motives.

Do good anyway.

If you are successful, you will win false friends and true enemies.

Succeed anyway.

The good you do today will be forgotten tomorrow.

Do good anyway.

Honesty and frankness make you vulnerable.

Be honest and frank anyway.

The biggest people with the biggest ideas can be shot down by the smallest people with the smallest minds.

Think big anyway.

People favor underdogs but follow only top dogs.

Fight for the underdog anyway.

What you spend years building may be destroyed overnight.

Build anyway.

People really need help, but may attack you if you help them.

Help people anyway.

Give the world the best you've got and you'll get kicked in the teeth.

Give the world the best you've got anyway.

strictly limits SCOTUS's authority

Congress Must Curb the Imperial Judiciary

Article III, Section 1 of the Constitution provides that "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." Since Congress created the federal district and appellate courts, Congress can regulate, reorganize or even abolish them. As an example of proper regulation, Congress in the past has ordered that all cases of a certain kind must be heard by a three-judge district court, instead of by just one judge.

Although Congress's power over the Supreme Court is somewhat limited, the Constitution still gives Congress the power to define the boundaries of the Supreme Court "with such Exceptions, and under such Regulations as the Congress shall make." The Supreme Court upheld this limitation of its own authority in Ex parte McCardle (1868), stating, "the power to make exceptions to the appellate jurisdiction of this Court is given by express words."

One of the tragedies of history is that the effort led by Senator Robert Griffin (R-MI) to withdraw jurisdiction from the federal courts over forced busing failed in the Senate by only one vote on February 29, 1972. In 1980, Senator Jesse Helms' (R-NC) amendment to withdraw jurisdiction over prayer in public schools passed the Senate, but failed to come to a vote in the House because of Speaker Tip O'Neill's legislative chicanery. And in 1969 after the Supreme Court had shocked America with a series of 22 pro-obscenity decisions, Senator Everett Dirksen (R-IL) made a valiant, but unsuccessful, effort to withdraw jurisdiction from the federal courts to overturn a jury's finding that something is obscene.

Congress should take away all jurisdiction from the federal courts to issue injunctions to overturn referenda and to prevent enforcement of the voters' wishes during the years that a case winds its way through the court system. It is outrageous that a single federal judge can nullify initiatives passed by a majority of the voters, as has happened in a half dozen states.

Congress should also take away any power of the federal courts to invent new rights, such as the so-called "rights" to same-sex marriage or to assisted suicide. Congress should stop the courts' arrogant micromanagement of schools and prisons.

How Congress Can Rein in the Courts by Edwin Meese Congress should exercise its power to limit the jurisdiction of the courts. The Constitution provides that Congress is authorized to establish those federal courts subordinate to the Supreme Court and set forth their jurisdiction. Congress also has the power to limit the jurisdiction of the Supreme Court and regulate its activities. Accordingly, Congress should exercise this authority to restrain an activist judiciary.

Congress, the Court, and the Constitution

A broad approach to this problem would be for Congress to avail itself of its seldom-used power under Article III to regulate and make exceptions to the appellate jurisdiction-as well as its complete authority over the jurisdiction of the lower federal courts. It would take careful draftsmanship to close all the loopholes to judicial creativity, but Congress ought to take up legislation declaring all questions regarding the application of the Bill of Rights to states and local governments off limits for the federal courts at every level. Where the ''extra-constitutional'' rights currently packed into the due process clause are concerned-such as the ''right of privacy'' at the heart of the abortion decisions-even more care would need to be taken in drafting appropriate jurisdictional legislation. For how does one describe a protean legal fiction with sufficient precision so as to exorcise it from the law of the land? The problem is rather like legislating that the courts shall no longer hear cases concerning dragons only to learn that they are hearing cases concerning unicorns instead. But I am convinced it is worth the effort.

For some, the option of ''jurisdiction-stripping'' by statute poses a potential difficulty, inasmuch as the legislation could itself be subject to judicial review, and the Court could conceivably declare it unconstitutional.(see footnote 149) But the leading precedents suggest otherwise: if Congress cleanly removes certain types of cases from the Court's jurisdiction, the justices will not dare to act on such cases. Only if the Congress attempts to interfere in how the Court decides the cases it does hear, by predetermining their outcome or by fixing the probative value of evidence in a constitutional case, will the justices strike down purported efforts to regulate their jurisdiction-and rightly so.(see footnote 150) Avoid that sort of problem, and this congressional power can be a potent check on the Court.

Thanks, I needed that.

Welcome to FR. I read your homepage. I hope that you are young, and I hope you are carried forth by your convictions for a long time.

"You will cite the words of the Federalist and Anti-Federalist Papers and no one will read or listen; cite them anyway."

I fed the wisdom contained therein to my progeny...cursed them with the burden? But I tire, now. For persons accustomed to servilety, those ideas have no meaning. From the police chiefs' offices to the governor's mansions to the halls of the Federal Government, there is simply the custom of acknowledgement that the SCOTUS's pronouncment on this or that thing is the Law of the Land.

And the customs of the people--bad habits-- as you have probably read in some of the Dead White Guys' works, are an insurmountable obstacle to reasoned libertarian thought. Things ain't getting better, either. Socialism has achieved critical mass. We go foreward into the past.

While there's a lot of encouraging noise to be heard in defense of liberty, lately, the shouting seems, mostly, only primal scream therapy for the mugged: deep-rooted conviction, based upon knowledge, is dear among the fans. The movement's energy is as fleeting as it is loud.

I'm going sailing.....Godspeed, sir.

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Get a clue. The law is whatever the justices say it is. If they can't use foreign law as an excuse they will find authority in the penumbra.

The remedy for people who won't obey the law, is not to pass a new law, it is to get new people!