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To: aposiopetic
I read the Constitution to allow what it does not forbid and to forbid what it does not allow. If only people read the text as it was originally intended to be followed, this country would not be in the mess it is in today.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
12 posted on 03/19/2005 10:41:38 PM PST by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives On In My Heart Forever)
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To: goldstategop
I read the Constitution to allow what it does not forbid and to forbid what it does not allow. If only people read the text as it was originally intended to be followed, this country would not be in the mess it is in today.

I tend to agree, but I will explain below why I believe this means the problem will defy solution anytime soon.

There is nothing unconstitutional in the Senate's not voting on appointments of federal judges. Under Article III, Section 1, Congress is allowed to establish lower courts, and under Article II, Section 2, Congress is allowed to vest the appointment of inferior officers as Congress deems proper.

The current problem is that Congress has set up a system of lower courts that over time has become populated with judges that have distorted the view of the Constitution which you have expressed. That is, nowhere in the Constitution does it say that Article III courts may not, by order, practice each of the enumerated powers granted to Congress in Article I (although I would argue that each of us is denied due process when courts issue such orders affecting any of our liberties or property rights). However, it is my view that these powers were enumerated in Article I in order to make clear that these were the powers exclusively of Congress and not of the Executive or the Judiciary, and that Article III speaks of "cases" and "controversies" in order to limit the Judiciary to settling actual disputes that have already occurred and implicitly to forbid prospective rule-making (such as "evolving standards of decency dictate that it violates Amendment 5 or 8 to execute someone who was 17 years old when they murdered someone in cold blood" or some such nonsense).

In any event, I believe the blame lies with Congress for not reserving to itself the power to legislate -- Article I, Section 1 states that all such power is vested in Congress -- and, instead, delegating this power. Congress seems to have no problem exercising an oversight function over inferior officers within the Executive, but Congress leaves the Judiciary alone and seems to regulate it only by giving the Judiciary a very small budget (of which the Chief Justice has famously complained). The result is that judges make laws that Congress would never pass. By now, it seems, the electorate is too atomized or apathetic to do anything about the problem.

Certainly I hope I am wrong, so feel free to tell me where.

81 posted on 03/20/2005 8:26:46 AM PST by aposiopetic
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