Posted on 08/14/2003 4:17:29 PM PDT by Vindiciae Contra TyrannoSCOTUS
Amendment would ban the use of federal money to remove Ten Commandments monument from Alabama judicial center.
The U.S. Congress might wind up having a say in how the case against Alabama Chief Justice Roy Moore is resolved.
An amendment to an appropriations bill already approved by the House and awaiting action in the Senate would prohibit the use of federal money to enforce a U.S. District Court order that Moore remove a 2 1/2-ton stone monument of the Commandments from the rotunda of the state judicial center by Wednesday. Moore has said he won't comply.
U.S. Rep. John Hostettler, R-Ind., sponsored the amendment, saying Congress has the authority to refuse payment for rulings against the Ten Commandments because the Constitution calls on lawmakers to both create the courts and fund them.
"The framers of the Constitution," he said, "wanted to make sure that the people's elected representatives would have the final word through the legislative process."
Hostettler has introduced a similar amendment to ban enforcement of the 9th U.S. Circuit Court of Appeals ruling that the Pledge of Allegiance is unconstitutional. He said the courts are overstepping their bounds, and that Americans need to know the foundation of our law.
"All individuals that come into that court that have any dealings with the law at all know that these are not arbitrary guidelines," Hostettler said of the Ten Commandments. "They are guidelines that have been revealed by God."
John Whitehead, president of the Rutherford Institute, said he thinks America's Founders couldn't have imagined what the courts are doing today:
"They were worried about the president becoming a king, they were worried about Congress becoming tyrants, but they never anticipated that the courts would become what they are today."
FOR MORE INFORMATION
To readers interested in learning more about our American heritage and the Ten Commandments, we recommend the following resources: "America's Godly Heritage" by David Barton or "10 Commandments" by Jim Weidmann, John Warner and Kurt Bruner.
SOME MOORE LEGISLATION
Ten Commandments Defense Act of 2003
(1) The Declaration of Independence declares that governments are instituted to secure certain unalienable rights, including life, liberty, and the pursuit of happiness, with which all human beings are endowed by their Creator and to which they are entitled by the laws of nature and of nature's God.
(2) The organic laws of the United States Code and the constitutions of every State, using various expressions, recognize God as the source of the blessings of liberty.
(3) The First Amendment to the Constitution of the United States secures rights against laws respecting an establishment of religion or prohibiting the free exercise thereof made by the United States Government.
(4) The rights secured under the first amendment have been interpreted by courts of the United States Government to be included among the provisions of the fourteenth amendment.
(5) The tenth amendment reserves to the States respectively the powers not delegated to the United States Government nor prohibited to the States.
(6) Disputes and doubts have arisen with respect to public displays of the Ten Commandments and to other public expression of religious faith.
(7) Section 5 of the fourteenth amendment grants the Congress power to enforce the provisions of the said amendment.
(8) Article I, section 8, grants the Congress power to constitute tribunals inferior to the Supreme Court, and article III, section 1, grants the Congress power to ordain and establish courts in which the judicial power of the United States Government shall be vested.
(a) DISPLAY OF TEN COMMANDMENTS- The power to display the Ten Commandments on or within property owned or administered by the several States or political subdivisions thereof is hereby declared to be among the powers reserved to the States respectively.
(b) EXPRESSION OF RELIGIOUS FAITH- The expression of religious faith by individual persons on or within property owned or administered by the several States or political subdivisions thereof is hereby--
(1) declared to be among the rights secured against laws respecting an establishment of religion or prohibiting the free exercise of religion made or enforced by the United States Government or by any department or executive or judicial officer thereof; and
(2) declared to be among the liberties of which no State shall deprive any person without due process of law made in pursuance of powers reserved to the States respectively.
(c) EXERCISE OF JUDICIAL POWER- The courts constituted, ordained, and established by the Congress shall exercise the judicial power in a manner consistent with the foregoing declarations.
Religious Freedom Restoration Act
Congress finds the following:
(1) The freedom to practice religion and to express religious thought is acknowledged to be one of the fundamental and unalienable rights belonging to all individuals.
(2) The Framers of the Constitution deliberately withheld, in the main body of that document, any authority for the Federal Government to meddle with the religious affairs or with the free speech of the people. Then, as further and more specific protection for the people, they added the first amendment, which includes the `establishment clause' and the `freedom of speech clause' which are as follows: `Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech . . .'. It is of utmost importance to note that the first amendment is not a grant of authority to the Federal Government. To the contrary, it is a specific restriction upon the exercise of power by the Federal Government.
(3) For over 150 years, the Court held to this historically correct position in interpreting the first amendment. During this period, scant mention was made to `The Separation of Church and State'.
(4) Then, beginning in 1947, and accelerating through the 60's, the Court abruptly reversed its position. This was done with no change in the law, either by statute or by amendment to the Constitution. The Court invented the distorted meaning of the first amendment utilizing the separation of `church and state' in 1947 in Everson v. Board of Education when it announced: The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. (Everson v. Board of Education; 330 U.S. 1, 18 [1947]). Over the past five decades, rulings of the United States Supreme Court have served to infringe upon the rights of Americans to enjoy freedom of speech relating to religious matters. Such infringements include the outlawing of prayer in schools and of the display of the Ten Commandments in public places. These rulings have not reflected a neutrality toward religious denominations but a hostility toward religious thought. They have served to undermine the foundation of not only our moral code but our system of law and justice.
(5) In making this abrupt change, the Court ignored all historical precedent established previously by the Court, the wording of the First Amendment, and the intent of its framers. The rulings are legally irrational and without foundation. Although the Court presumed to rely upon the First Amendment for its authority for these rulings, a review of that Amendment reveals that said rulings could not possibly have been based upon its original intent. Consequently, it is incumbent upon this Congress to review not only the rulings of the Court which are in question but the wording and history of the First Amendment to determine the intent of its framers. This abrupt change is found in the following court cases:
(A) `A verbal prayer offered in a school is unconstitutional, even if that prayer is both voluntary and denominationally neutral.' (Engel v. Vitale, 1962, Abington v. Schempp, 1963, Commissioner of Education v. School Committee of Leyden, 1971.)
(B) `Freedoms of speech and press are guaranteed to students and teachers unless the topic is religious, at which time such speech becomes unconstitutional.' (Stein v. Oshinsky, 1965, Collins v. Chandler Unified School District, 1981, Bishop v. Aronov, 1991, Duran v. Nitsche, 1991.)
(C) `It is unconstitutional for students to see the Ten Commandments since they might read, meditate upon, respect, or obey them.' (Stone v. Graham, 1980, Ring v. Grand Forks Public School District, 1980, Lanner v. Wimmer, 1981.)
(D) `If a student prays over his lunch, it is unconstitutional for him to pray aloud.' (Reed v. Van Hoven, 1965.)
(E) `The Ten Commandments , despite the fact that they are the basis of civil law and are depicted in engraved stone in the United States Supreme Court, may not be displayed at a public courthouse.' (Harvey v. Cobb County, 1993.)
(F) `When a student addresses an assembly of his peers, he effectively becomes a government representative; it is therefore unconstitutional for that student to engage in prayer.' (Harris v. Joint School District, 1994.)
(G) By interpreting the establishment clause to preclude prayer and other religious speech in any public place, the Supreme Court necessarily violates the free speech clause of the very same first amendment.
These rulings of the Court constitute de facto legislation or Constitution-amending. This is a serious violation of the doctrine of separation of powers, as all legislative authority bestowed by the people through the Constitution is bestowed upon the Congress and the Congress alone.
(6) A fundamental maxim of law is, whenever the intent of a statute or a constitution is in question, to refer to the words of its framers to determine their intent and use this intent as the true intent of the law.
(7) The intent of the First Amendment was and is clear on these two points: The Federal Government was prohibited from enacting any laws which would favor one religious denomination over another and the Federal Government has no power to forbid or prohibit any mention of religion, the Ten Commandments or reference to God in civic dialog.
(8) In its rulings to prohibit Americans from saying prayers in school or from displaying the Ten Commandments in public places, the Court has relied heavily upon the metaphor, `Separation of Church and State'. Note that this phrase is nowhere to be found in the First Amendment or any other place in the Constitution.
(9) The metaphor, `Separation of Church and State', was extracted, out of context, from a letter from Thomas Jefferson to the Danbury Baptists in reply to a letter from them expressing concern that the Federal Government might intrude in religious matters by favoring one denomination over another. Jefferson's reply was that the First Amendment would preclude such intrusion.
(10) The Court, in its use of Separation of Church and State, has given to this phrase a meaning never intended by its author; it took it out of context and inverted its meaning and intent. The complete text of Jefferson's letter is found in Jefferson, Writings, Vol. XVI, pp. 281-282, to the Danbury Baptist Association on January 1, 1802.
(11) Justice William Rehnquist made an extensive study of the history of the First Amendment. In his dissent in Wallace v. Jaffree (472 U.S. 38, 48, n. 30 [1984],) he stated: `There is simply no historical foundation for the proposition that the Framers intended to build the `wall of separation' that was constitutionalized in Everson. . . . But the greatest injury of the `wall' notion is its mischievous diversion of judges from the actual intentions of the drafters of the Bill of Rights. . . . [N]o amount of repetition of historical errors in judicial opinions can make the errors true. The `wall of separation between church and state' is a metaphor based on bad history. . . . It should be frankly and explicitly abandoned. . . . Our perception has been clouded not by the Constitution but by the mists of an unnecessary metaphor. It would come as much of a shock to those who drafted the Bill of Rights, as it will to a large number of thoughtful Americans today, to learn that the Constitution, as construed by the majority, prohibits the Alabama Legislature from endorsing prayer. George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God. History must judge whether it was the Father of his Country in 1789, or a majority of the Court today, which has strayed from the meaning of the Establishment Clause.'
(12) As Justice Rehnquist states, the greatest injury of the `wall' notion is its `mischievous diversion of judges from the actual intentions of the drafters of the Bill of Rights. . . .' It is necessary to review not only Jefferson's intent in his use of this `wall', but his involvement or noninvolvement in the drafting of the First Amendment, and the intent of the framers of the First Amendment.
(13) Jefferson was neither the author of nor a coauthor of the First Amendment. He cannot be considered as a source of legal authority on this subject. The Court, if it had wished to rely upon Jefferson to determine the true and original intent of the First Amendment, could have served themselves and the American people well by referring to Jefferson's admonition to Judge William Johnson regarding the determination of the original intent of a statute or a constitution: `On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.' (Thomas Jefferson, Memoir, Correspondence, and Miscellanies, From the Papers of Thomas Jefferson, Thomas Jefferson Randolph, editor [Boston: Gray and Bowen, 1830, Vol. IV., p. 373,] to Judge William Johnson on June 12, 1823).
(14) The principal authors of the First Amendment, the record reveals, were Fisher Ames and Elbridge Gerry of Massachusetts, not Thomas Jefferson. Others who participated were John Vining of Delaware, Daniel Carroll and Charles Carroll of Maryland, Benjamin Huntington, Roger Sherman and Oliver Ellsworth of Connecticut, William Paterson of New Jersey, and James Madison and George Mason of Virginia. Thomas Jefferson is not found in the record as having participated. (The Debates and Proceedings in the Congress of the United States [Washington, D.C.; Gales and Seaton, 1834], Vol. I, pp. 440-948, June 8-September 24, 1789.)
(15) George Mason, a member of the Constitutional Convention and recognized as `The Father of the Bill of Rights', submitted this proposal for the wording of the First Amendment: `All men have an equal, natural and unalienable right to the free exercise of religion, according to the dictates of conscience; and that no particular sect or society of Christians ought to be favored or established by law in preference to others.' (Kate Mason Rowland, The Life of George Mason [New York: G.P. Putnam's Sons, 1892,] Vol I, p. 244.)
(16) The Father of the Constitution, James Madison, submitted the following wording for the First Amendment: `The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established.' (The Debates and Proceedings in the Congress of the United States [Washington, D.C.; Gales and Season, 1834,] Vol. I, p. 451, James Madison, June 8, 1789.)
(17) The true intent of the First Amendment is reflected by the proposals submitted by Fisher Ames, George Mason and James Madison and the wording finally adopted.
(18) Justice Joseph Story, considered the Father of American Jurisprudence, stated in his Commentaries on the Constitution: `The real object of the [First A]mendment was not to countenance, much less to advance Mohometanism [sp], or Judaism, or infidelity by prostrating Christianity; but to exclude all rivalry among Christian sects and to prevent any national ecclesiastical establishment which should give to a hierarchy [a denominational council] the exclusive patronage of the national government. (Joseph Story, Commentaries on the Constitution of the United States [Boston; Hilliard, Gray and Company, 1833], p. 728, par. 1871.)
(19) Proof that the intent of the framers of the First Amendment did not intend for the Federal Government to restrict the exercise of free speech in religious matters in civic dialog is found in various statements by George Washington, who was President when the Congress adopted the First Amendment. The following is found in his `Farewell Address': ` . . . of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness.' (George Washington, Address of George Washington, President of the United States. . . . Preparatory to his Declination [Baltimore: George and Henry S. Keatinge, 1796], pp. 22-23.
(20) James Wilson was a very active member of the Convention and was later appointed by President George Washington as an original Justice on the United States Supreme Court where he coauthored America's first legal text on the Constitution. Wilson never mentioned a `separation of church and state'. To the contrary, he declared the correlation between religion and civil laws: Far from being rivals or enemies, religion and law are twin sisters, friends, and mutual assistants. (James Wilson, The Works of James Wilson, Bird Wilson, editor. Philadelphia; Bronson and Chauncey, 1804. Vol. I, pp. 104-106.)
(21) It was Fisher Ames of Massachusetts who provided, on the 20th of August, 1789, the final wording for the First Amendment as passed by the House of Representatives. Fisher Ames, who should be considered the foremost authority on the intent of the First Amendment, never spoke of a separation of church and state. (Fisher Ames, Works of Fisher Ames, Boston; T.B. Wait & Co. 1809, p. 134, 135.)
(22) Because the Court does not seem to be disposed to correct this egregious error, it is incumbent upon the Congress of the United States to perform its duty to support and defend the Constitution of the United States, by the use of its authority to apply checks and balances to other branches of the government, when usurpations and the exercise of excesses of power are evident. The Congress must, then, take the appropriate steps to correct egregious problem.
(a) IN GENERAL- Chapter 85 of title 28, United States Code, is amended by adding at the end the following new section:
`(a) IN GENERAL- The district courts of the United States, the District Court of Guam, the District Court of the Virgin Islands, and the District Court for the Northern Mariana Islands shall not have jurisdiction to hear or determine any religious freedom-related case.
`(b) DEFINITION- For purposes of this section, the term `religious freedom-related case' means any action in which any requirement, prohibition, or other provision relating to religious freedom that is contained in a State or Federal statute is at issue.'.
(b) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 85 of title 28, United States Code, is amended by adding at the end the following new item:
`1369. Exclusion of jurisdiction over religious freedom-related cases.'.
(a) IN GENERAL- Chapter 91 of title 28, United States Code, is amended by adding at the end the following new section:
`(a) IN GENERAL- The United States Court of Federal Claims shall not have jurisdiction to hear or determine any religious freedom-related case.
`(b) DEFINITION- For purposes of this section, the term `religious freedom-related case' means any action in which any requirement, prohibition, or other provision relating to religious freedom that is contained in a State or Federal statute is at issue.'.
(b) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 91 of title 28, United States Code, is amended by adding at the end the following new item:
`1510. Removal of jurisdiction over religious freedom-related cases.'.
The amendments made by this Act shall apply to cases filed on or after the date of the enactment of this Act.
Congress, the Court, and the Constitution
PREPARED STATEMENT OF MATTHEW J. FRANCK, CHAIRMAN AND ASSOCIATE PROFESSOR OF POLITICAL SCIENCE, RADFORD UNIVERSITY . Congress assumed that the Court is properly the enforcer of the First Amendment. This is by now a very old error Now obviously, the terms of the First Amendment address themselves to the Congress and not to the judiciary
[T]o the extent that these principles of free government [in the Bill of Rights] have become a part of our ''national sentiment,'' they do, indeed, often enable us, the majority, to restrain ourselves, the majority, from oppressive actions. That is the import of the first five words of the Bill of Rights: ''Congress shall make no law'' that attempts to accomplish certain prohibited things. It means that even if a majority in Congress, representing a majority of us, the people, wants to make a law that the Constitution forbids it to make, we, all of us, superior to any majority, say it must not be done, because the Constitution is the will of all of us, not just a majority of us.(see footnote 133)
So as not to be misunderstood, I should add that certain provisions in the Bill of Rights do address themselves to the courts, and so are fit subjects for judicial review-obviously amendments five through seven, arguably four through eight-but the First Amendment is not one of them. It is only in this century, with the expansion of judicial authority in every direction, that we have come to think otherwise. And RFRA played right into that modern myth, insisting that a clause of the First Amendment be enforced by courts in a certain way when, at the very least, clear doubt exists that it was meant to be judicially enforced at all. 2. Congress assumed the validity of the ''incorporation'' doctrine.
Whatever uncertainty there might be about whether the First Amendment is gathered into the scope of judicial review, there is none whatever about the proposition that, along with the rest of the Bill of Rights, it was intended to restrain only the national government and not the states or their subdivisions. And, among scholars who do not hold a prior commitment to judicial activism, a second proposition is virtually settled as well: that the Fourteenth Amendment changed nothing about that fact.(see footnote 134) 1. Challenge judicial supremacy directly.
Over eleven years ago, then-Attorney General Meese got a lot of attention for saying, in an address at Tulane University, that ''the Constitution cannot be reduced to constitutional law,'' and that in its notorious dicta in Cooper v. Aaron in 1958,(see footnote 141) the Supreme Court had misread both the Constitution and Marbury v. Madison in describing its own authority to determine the content of the supreme law of the land.(see footnote 142) He was much excoriated on op-ed pages and by many legal scholars, but he was absolutely right.
It is time to translate words into action, to move from rhetoric to a more concrete approach. If we are serious about the proposition that all the branches of the national government share a coordinate authority to interpret the Constitution, with none of them commanding the obedience of the others as to every sort of constitutional question, then it is past time the Congress began to assert its co-equal authority in practical ways. This reassertion of congressional responsibility can begin with the breaking of some comfortable habits.
First, during Senate confirmation hearings on nominations to the federal bench at all levels, senators should cease requiring nominees to declare their allegiance to the ''Marbury myth'' that the Supreme Court has the last word on constitutional questions. The Senate should instead demand just the opposite-a clear statement from every nominee that he or she recognizes the difference between judicial review (properly understood) and judicial supremacy. Other matters of what is infelicitously called ''judicial philosophy'' should also be central to confirmation hearings, but this is a good place to start.
Secondly, the Congress should stop bowing in the direction of the Court's presumed final authority when it legislates, and should instead consider repealing, or at least exempting some legislation from, the standard mechanisms by which it currently does so-such as the remedial-power and class-action provisions of the 1938 Rules of Civil Procedure (as amended in 1966).
This method of broadly striking down laws by injunction short-circuits the kind of response to judicial error that Lincoln exemplified. In criticizing the Dred Scott ruling, Lincoln insisted that the Missouri Compromise was not to be considered unconstitutional just because the Court had held it so in one case concerning individual parties. The statute had already been repealed three years earlier by the Kansas-Nebraska Act of 1854-but if the other branches of the government did not agree with the Dred Scott ruling, the law could, in Lincoln's view, be revived by the Congress and enforced by the executive. (This is exactly what happened in 1862, when Congress forbade slavery in all federal territories.) And had the Missouri Compromise not already been repealed, it is more than likely that Lincoln would have argued for its continued enforcement after Dred Scott, bolstered by supplementary legislation if need be. It would have been a different matter for Lincoln and for the fate of self-government if an injunction extending to the whole of the government had accompanied the Court's pronouncement on the law's constitutionality. 2. Start defending the states instead of undermining them.
In recent cases such as U.S. v. Lopez and Printz v. U.S.,(see footnote 145) some see a trend toward the defense of federalism on the Supreme Court. One may see this trend at work in the Boerne case as well; certainly RFRA, whatever one thinks of its solicitude toward religious liberty, was an assault on the authority of states and localities.(see footnote 146) Even if we do not agree with all of these decisions-and I do not-we can be happy with the results in them if we care for local self-government. But the question remains: why must the Court rather than the Congress be the states' defender? The Court is a fickle defender in any event, as recent cases on abortion, gay rights, and single-sex public higher education clearly show.
And has the Congress mended its ways since the Republicans became the majority party? It doesn't seem so. Last October the House passed H.R. 1534, the ''Private Property Rights Implementation Act of 1997,'' which would permit property owners to hurry straight into federal court with claims that a local or state regulation has resulted in a ''taking'' under the Fifth Amendment. Senator Hatch introduced similar legislation in the Senate (S. 1256, the ''Citizens Access to Justice Act of 1997''). These bills are merely RFRA all over again, albeit on a smaller scale-and as the least of their sins, would merely add to the workload of our strained federal courts, a problem recently noted by Chief Justice Rehnquist.(see footnote 147) Such efforts should be abandoned by members of Congress who value the Constitution and reject the ''incorporation'' doctrine. It is not really a matter of having to make a hard choice between federalism and property rights; in this case the Constitution has already chosen for us.
Instead of such measures that add to their miseries, the Congress should take steps to shield state and local governments from the depredations of the Court. Where the danger comes from judicial interpretation of federal statutes, Congress can (and sometimes does) easily forestall the danger by including language about non-preemption of state laws, or declaratory clauses on the rules by which a statute is to be construed. But the greatest blows to federalism in this century have come from the Supreme Court working quite on its own with no other weapon than what it purports to be the Constitution. To begin to reverse that damage, more imaginative approaches are needed. One scholar, for instance, has recently suggested that the enforcement power given to Congress in section 5 of the Fourteenth Amendment can be turned to good use here, to limit rather than expand the reach of judicial power over the states.(see footnote 148) The Fourteenth Amendment is certainly the major ''culprit'' if we are concerned about reining in the Court
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. 3. Keep examining the impeachment option.
The good news on Capitol Hill in the last session was that members of Congress (such as Reps. Tom DeLay and Charles Canady) began to talk of impeaching federal judges for their usurpations of political power. Rep. Howard Coble (chairman of the House Judiciary subcommittee on Courts and Intellectual Property) conducted hearings on judicial activism last spring that raised this possibility. This exploration should be encouraged. At the same time, however, hasty calls for impeachment on the basis of a single wrongheaded ruling by a judge somewhere should be discouraged. For impeachment talk to be taken seriously and not dismissed as simply red meat for one's partisans, the exploration must proceed with restraint and prudence, and a proper marshaling of arguments.
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 footnote 151)
In the Federalist, Hamilton describes the impeachment process as ''a method of NATIONAL INQUEST'' into ''the abuse or violation of some public trust,'' aimed at discovering political offenses that result in ''injuries done immediately to the society itself.'' And he explicitly extends this interpretation of Congress's power to the judiciary, writing that the threat of impeachment is ''a complete security'' against ''a series of deliberate usurpations on the authority of the legislature.''(see footnote 152) Almost half a century later, Justice Joseph Story agreed with Hamilton's reasoning on impeachment's political character, and its application to judges, in his Commentaries on the Constitution.(see footnote 153)
What seems to stand in the way of this method of controlling the judiciary is not the Constitution or the framers' intent but history. A handful of lower federal judges have been removed who were not found guilty of any criminal offense in the narrow sense, but only one Supreme Court justice has ever been impeached, and he was acquitted: Justice Samuel Chase in 1805. A common misconception, however, is that the Chase trial settled the issue whether ''political'' impeachments may be pursued against judges with a firm ''no.'' Our present chief justice has so concluded, in a book and in a well-publicized 1996 speech. But more careful scholars than Chief Justice Rehnquist (who can hardly be considered disinterested in this question) have concluded that the Chase trial was inconclusive on the constitutional issues-that it settled nothing regarding the breadth of Congress's power to impeach judges.(see footnote 154)
Should impeachment proceedings be launched regarding any federal judge, most particularly against any Supreme Court justice, the greatest care must be taken to pitch the issues at the highest possible level. Beginning in the House Judiciary Committee, and continuing on the floor of the House and in the Senate, members of Congress must reeducate themselves about the separation of powers and judicial review-about their own role and that of the judges under the Constitution. The focus must be, not one or two unpopular rulings, but (in Hamilton's words again) a ''series of deliberate usurpations'' of authority not belonging properly to the judiciary. The cause being defended by congressional removal efforts must be, and be seen to be, not a narrowly partisan one, but the integrity of the Constitution. It will be impossible to convince everyone of this. But with adequate preparation of the public mind to receive the idea that self-government itself is at stake, and with the freest possible opportunity for open and fair-minded colloquy with any judge placed on trial in the Senate, an impeachment proceeding can become a great seminar for the whole nation regarding the political arrangements under which we choose to live. It is possible that even a trial resulting in acquittal could be instructive for the polity and chastening for the judiciary. But prosecutors do not like to take cases to trial that they think they will lose; hence the first defendant judge in particular must be one against whom an impeachment case can be made absolutely compelling. And remember that a two-thirds majority is necessary to convict in the Senate. The framers set the bar high with good reason, and under present circumstances in the Senate, the politics of impeachment will have to be clearly distinguished from the politics of partisan ideology and scorekeeping.
"Conservatives and libertarians who once viewed the judiciary as the final bulwark against government tyranny must now accept that no branch of government even remotely performs its constitutional role. ...It's time for the executive and legislative branches to show some backbone, appoint judges who follow the Constitution, and remove those who do not." --Ron Paul 13 August 2003, Federalist No. 03-33, Wednesday Chronicle
The following explains why judge Myron Thompson is wrong:
The electorate must demand that Congress act in accordance with the testimony presented in Congress, the Court, and the Constitution
...the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.... The judiciary...has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
...It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power1; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. ... from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.
1 The celebrated Montesquieu, speaking of them, says: "Of the three powers above mentioned, the judiciary is next to nothing.'' "Montesquieu: The Spirit of Laws.'' vol. i., page 186. The Avalon Project : Federalist No 78
Why bother voting when the judiciary can knock down laws like so many bowling pins? The Case for Impeaching Rogue Judges & A Republic, If You Can Keep It
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.