Posted on 07/07/2008 6:36:58 PM PDT by Interposition
The right to life. The Ten Commandments. Prayer in schools. Flag desecration. Same-sex marriage.
As the federal courts consider cases that involve the most deep-seated convictions of Americans and issues upon which Americans are sharply divided, they understandably strike raw nerves. Public frustration is redoubled because, of the three branches of government, the judiciary is the farthest removed from popular election and public influence. It seems to many that the nation is being governed by the “majority vote of a nine-person committee of lawyers, unelected and holding office for life,” as Professor Lino Graglia has said.
As the federal courts render decisions that usurp powers never delegated to them by the people through the Constitution, concerned citizens look for ways to curb the court’s power. Perhaps the most commonly promoted remedy is to amend the Constitution to end this or that judicial abuse. A basic problem with this approach is that the Constitution is very difficult to change. Both houses of Congress must pass a constitutional amendment by a two-thirds majority vote in order to submit the proposed amendment to the states for ratification, and three-fourths of the states must then ratify the amendment for it to become a part of the Constitution. Since the Constitution was adopted, it has been amended in this manner only 27 times, including the first 10 amendments (the Bill of Rights).*
But there are other concerns regarding the constitutional amendment approach besides the difficulty of amending the Constitution. Is it wise, we should ask ourselves, to call for a constitutional amendment every time the federal judiciary oversteps its constitutional authority? If the “remedy” is to change the Constitution, does that not imply that the judicial abuse may be constitutional? Does that not send a signal to the federal courts that they can impose whatever rulings they want, no matter how outrageous, until such time as they are stopped by a constitutional amendment?
Moreover, since much of the judicial activism has entailed usurping powers that have belonged to the states, we should be very wary of national “solutions” that end up transferring state powers to the federal government.
Fortunately, the Founding Fathers not only divided federal powers among three branches of government, they also embedded our Constitution with checks and balances to prevent any of the branches — including the judiciary — from usurping powers. One such check is that judges may be impeached. Another check — the focus of this article — is that Congress may limit the Supreme Court’s appellate jurisdiction (the court’s jurisdiction to hear appeals) pursuant to the “Exceptions Clause” in Article III, Section 2 of the Constitution. Congress could do so simply by passing legislation, without having to resort to the exceedingly more difficult constitutional-amendment approach!
In theory, this would be easy to execute. To effectively overturn the 1973 Roe v. Wade decision, which federalized the abortion issue and legalized abortion on demand, and to allow states to again determine their own abortion policies, the House and Senate merely need to tell the federal judiciary that it can no longer hear abortion cases.
Many judicial activists, who are accustomed to using the Judiciary as the primary avenue for social activism, claim that the use of the Exceptions Clause to curb their activism would be unconstitutional. But the judicial activists are wrong, as we shall see. Not only were the Founding Fathers clear in their intent regarding the Exceptions Clause, but Congress has applied it in the past to limit the Supreme Court’s appellate jurisdiction.
The relevant part of Article III, Section 2 of the Constitution reads:
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The words “with such Exceptions, and under such Regulations as the Congress shall make” constitute the Exceptions Clause. For a correct understanding of what these words mean, we need to examine the original intent.
On August 6, 1787, the Committee on Detail presented its proposed draft to the Constitutional Convention. Article XI of the proposed constitution read in part:
In cases of impeachment, cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be party, this jurisdiction shall be original. In all the other cases before mentioned, it shall be appellate, with such exceptions and under such regulations as the legislature shall make.
The Exceptions Clause appears above in much the same form as that finally adopted. On August 27, the Convention considered the proposed Article XI. According to Madison’s Notes:
Mr. Govr. MORRIS wished to know what was meant by the words “In all the cases before mentioned it [jurisdiction] shall be appellate with such exceptions &c,” whether it extended to matters of fact as well as law — and to cases of Common law as well as Civil law.
Mr. WILSON. The Committee he believed meant facts as well as law & Common as well as Civil law. The jurisdiction of the federal Court of Appeals had he said been so construed.
Mr. DICKINSON moved to add after the word “appellate” the words both as to law & fact which was agreed to.
James Wilson’s answer to Gouverneur Morris suggests that the delegates intended the Exceptions Clause to empower Congress to limit the Supreme Court’s appellate jurisdiction over substantive issues of law, common and civil, as well as to empower Congress to withdraw from the court the power to disturb jury verdicts.
After various amendments were proposed and defeated or withdrawn, the delegates turned their attention to other portions of the proposed draft. On September 8, they chose a Committee on Revision, sometimes called the Committee on Style, to prepare a final draft of the proposed constitution. On September 12 the committee presented its Revised Draft of the Constitution. No records of the committee’s deliberations are available; but the language of Article III (The Judiciary) was in almost exactly the form that was finally adopted.
After the Constitution was signed on September 17, “in the Year of Our Lord” 1787, it was sent to the states for ratification. The ratification debates provide further helpful insights into the meaning of the Exceptions Clause.
The Federalist Papers, a series of 85 essays written in 1787 and 1788 by John Jay, Alexander Hamilton, and James Madison, were published in newspapers to explain the proposed Constitution and persuade people to support its adoption. In The Federalist, No. 80, Hamilton set forth the various aspects of Supreme Court jurisdiction, and then concluded that essay by saying, “From this review of the particular powers of the federal judiciary … it appears, that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconveniences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected, that the national legislature will have ample authority to make such exceptions, and to provide such regulations, as will be calculated to obviate or remove these inconveniences.”
In Essay No. 81, Hamilton described the Exceptions Clause as a protection against judicial abuse: “A very small portion of original jurisdiction has been reserved to the supreme court, and the rest consigned to the subordinate tribunals; that the supreme court will possess an appellate jurisdiction, both as to law and fact, in all the cases referred to them, but subject to any exceptions and regulations which may be thought advisable; that this appellate jurisdiction does, in no case, abolish the trial by jury.”
In Essay No. 80, Hamilton said the Exceptions Clause empowers Congress to limit the court’s appellate jurisdiction over substantive matters of common and civil law, and in No. 81 he said the Exceptions Clause empowers Congress to limit the court’s authority to review jury determinations. This is consistent with the explanation James Wilson gave to Gouverneur Morris at the Convention: that the Exceptions Clause includes the power to limit the court’s appellate jurisdiction over civil and common law, and also includes the power to limit the court’s appellate jurisdiction over jury determinations.
The Anti-Federalists (those who opposed ratifying the Constitution, fearing that it would create too strong a federal government), agreed with the Federalists (those who supported ratification) that the Exceptions Clause provided an answer to judicial abuse, though they expressed reservations about how well it would function. “Brutus” (probably Robert Yates of New York), an Anti-Federalist writer, addressed the Exceptions Clause in a March 6, 1788 letter: “The natural meaning of this paragraph seems to be no more than this, that Congress may declare, that certain cases shall not be subject to the appellate jurisdiction, and they may point out the mode in which the court shall proceed in bringing up the causes before them, the manner of their taking evidence to establish the facts, and the method of the courts proceeding.”
At Virginia’s ratifying convention, anti-Federalist Patrick Henry agreed with Federalist (and convention president) Edmund Pendleton that Congress could limit the court’s appellate jurisdiction and that this is a substantial power. Henry said it could be used to prevent sheriffs from engaging in unlawful searches and seizures. But they disagreed as to whether this was an adequate check upon judicial abuse. Pendleton said that because congressmen represent the states and the people, they could be trusted to protect their constituents from judicial abuses. Henry said it is naïve to rest our liberties on the assumption that our leaders will be virtuous.
George Mason, one of the Constitutional Convention delegates who had refused to sign the Constitution, argued that the appellate jurisdiction of the Supreme Court could be abused by appeals that would be vexatious to people who could not afford the costs of litigation. James Madison answered the objection with the Exceptions Clause: “As to vexatious appeals, they can be remedied by Congress.”
On June 20 Mason again objected to the powers of the judiciary. John Marshall, later to become Chief Justice of the Supreme Court, answered, “What is the meaning of the term exception? Does it not mean an alteration and diminution? Congress is empowered to make exceptions to the appellate jurisdiction, as to law and fact, of the Supreme Court. These exceptions certainly go as far as the legislature may think proper for the interest and liberty of the people.”
During the ratification process, supporters and opponents generally agreed that Congress could use the Exceptions Clause to limit the court’s authority to overturn jury verdicts (although Brutus and Patrick Henry questioned that), and even seemed to agree that this congressional check on the court went beyond the questions of jury verdicts. But they disagreed as to whether the Exceptions Clause provided an adequate remedy. Hamilton and Madison viewed the clause as a general power to limit appellate jurisdiction, and Marshall believed Congress’ authority to limit appellate jurisdiction extends as far as Congress shall determine that the interest of the people requires.
The best-known case involving the Exceptions Clause is Ex parte McCardle, an 1868 Supreme Court case involving a Mississippi newspaper editor who was detained by occupying federal military authorities for writing and publishing “incendiary and libelous” articles critical of Reconstruction and military rule of the South following the War Between the States. McCardle filed a petition for a writ of habeas corpus, claiming that his imprisonment was unconstitutional and that an 1867 statute authorized the Supreme Court to hear appeals from denials of writs of habeas corpus. The United States argued that the 1867 act applied only to state prisoners, not federal prisoners. The Supreme Court rejected this proposition and set the case for argument.
The McCardle case was argued March 9, 1868. On March 12, Congress repealed the provision of the 1867 act that gave the Supreme Court appellate jurisdiction over writs of habeas corpus. Several members of Congress clearly stated that their purpose was to prevent the Supreme Court from deciding McCardle and thereby hinder Reconstruction. One congressman declared that the legislation was “aimed at striking at a branch of the jurisdiction of the Supreme Court ... thereby sweeping the case from the docket by taking away the jurisdiction of the Court.” President Andrew Johnson vetoed the bill on March 25, and Congress overrode his veto on March 27.
A few months after McCardle, the Supreme Court decided Ex parte Yerger, another case of a newspaper editor challenging the Military Reconstruction Act. On the surface, this may appear as if the Supreme Court had defiantly challenged Congress’ power to limit its appellate jurisdiction. But a careful reading of this case shows that the court did not directly contradict or overrule Congress in its handling of McCardle; the court instead heard Yerger’s case based on a technical point, noting that the 1867 act that repealed its appellate jurisdiction over writs of habeas corpus did not affect its jurisdiction over writs of certiorari. Put simply: the court narrowly defined what limits Congress had set upon the court, not what Congress has the power to do.
The fact that the Supreme Court did not dispute Congress’ actions in McCardle is not surprising, given the great deal of deference it had previously shown toward congressional power. In fact, prior to McCardle the court had taken a very narrow view of its own jurisdiction and a broad view of the power of Congress to define and limit its jurisdiction. In earlier years the court seemed to believe its powers of jurisdiction were not self-executing. Rather, even in those areas in which the Constitution gives the court original or appellate jurisdiction, the court can exercise that jurisdiction only pursuant to an act of Congress.
In Turner v. Bank of North America (1799), Justice Samuel Chase wrote, “The notion has frequently been entertained, that the federal courts derive their judicial power immediately from the constitution; but the political truth is, that the disposal of the judicial power (except in a few specified instances) belongs to Congress. If Congress has given the power to this Court, we possess it, not otherwise: and if Congress has not given the power to us, or to any other Court, it still remains at the legislative disposal.”
In 1881, the court considered The Francis Wright, another Exceptions Clause case, and simply ruled: “While the appellate power of this court under the Constitution extends to all cases within the judicial power of the United States, actual jurisdiction under the power is confined within such limits as Congress sees fit to prescribe.... What those powers shall be, and to what extent they shall be exercised, are, and always have been, proper subjects of legislative control.”
Two leading 20th-century cases also addressed the Exceptions Clause. Both acknowledged that Congress had the authority to limit the appellate jurisdiction of the Supreme Court. In 1995, in Plaut v. Spendthrift Farm, Inc., the court heard a challenge to an act of Congress that had the effect of overturning a previous Supreme Court decision. Though the court held the act unconstitutional under the Separation of Powers doctrine, it stipulated Congress’ authority to limit cases the court could hear. Speaking for the court majority, Justice Antonin Scalia acknowledged that if a new law “makes clear that it is retroactive, an appellate court must apply that law in reviewing judgments still on appeal that were rendered before the law was enacted, and must alter the outcome accordingly.”
In 1996, the Supreme Court considered Felker v. Turpin. Felker had been convicted of murder and sentenced to death; his state court appeals had been denied; and his petition for writ of habeas corpus (his appeal for a hearing) in federal district court had been denied as well. He then brought a second habeas corpus petition in federal court, but while it was pending, Congress passed the Antiterrorism and Effective Death Penalty Act of 1996. This act provides that after a first petition for writ of habeas corpus has been denied, subsequent petitions for writs of habeas corpus must be dismissed unless the law under which the petitioner had been convicted has been changed, or unless new evidence has been discovered that could not previously have been known, and no reasonable fact-finder would have convicted the petitioner if this evidence had been presented at the trial.
Felker argued that the 1996 act unconstitutionally usurped the appellate jurisdiction of the federal courts. But Chief Justice William Rehnquist ruled that the act is constitutional. He noted that the act did not deprive the court of its jurisdiction to hear the first petition for writ of habeas corpus, and further, that the act did not deprive the court of its authority to hear original petitions for writs of habeas corpus.
If we are truly interested in reining in our out-of-control federal judiciary on issues such as abortion, we should work to take the powerful congressional “Exceptions Clause” off the shelf and put it into practice.
In fact, there is now legislation before Congress to do exactly that. Last year, Congressman Ron Paul (R-Texas) introduced the Sanctity of Life Act (H.R. 2597) and the “We the People Act” (H.R. 300) to limit the jurisdiction of the federal courts in certain areas. The Sanctity of Life Act, as the name implies, would limit the appellate jurisdiction of the Supreme Court and the jurisdiction of federal district courts to prevent them from adjudicating abortion cases. The “We the People Act” would prevent the federal judiciary from adjudicating not only cases concerning “reproduction” but also same-sex marriage and state or local policies concerning the free exercise or establishment of religion. Others have proposed to eliminate the Supreme Court’s jurisdiction over cases involving same-sex marriage, the display of the Ten Commandments, and other controversial subjects.
Congress can and should use its power under the Exceptions Clause to effectively eliminate Roe v. Wade and to end other abuses by the federal judiciary as well. But it will not happen until we inform many more of our fellow citizens about the existence of this power and put pressure on Congress to apply it.
* The only other way to amend the Constitution is for two-thirds of the states to call a convention for proposing amendments. We have not had a constitutional convention since the original one of 1787, but if a modern-day convention were called, it could probably propose any number of amendments including a new Constitution.
John Eidsmoe is senior staff attorney on the Alabama Supreme Court, a professor at Oak Brook College of Law, and a retired lieutenant colonel in the U.S. Air Force Reserve.
We the People Act (H.R. 300)1
says the “The Supreme Court of the United States and each Federal court” may not adjudicate –
any claim involving the laws, regulations, or policies of any State or unit of local government relating to the free exercise or establishment of religion;
any claim based upon the right of privacy, including any such claim related to any issue of sexual practices, orientation, or reproduction; or
any claim based upon equal protection of the laws to the extent such claim is based upon the right to marry without regard to sex or sexual orientation; and that
a violation by a justice or a judge of any of the provisions of the Act shall be an impeachable offense, and a material breach of good behavior subject to removal by the President of the United States according to rules and procedures established by the Congress.
The first screaming objection you hear upon mentioning jurisdiction stripping legislation is “THEY CAN’T DO THAT!” But that intimidating objection, from those with acute cases of delirium, does nothing to prove that Congress hasn’t already done so on many occasions: “In the 107th Congress (2001-2002), Congress used the authority of Article III, Section 2, clause 2 on 12 occasions to limit the jurisdiction of the federal courts.” 2 The only thing that opponents could mean is that the Constitution prohibits what the text of Article III explicitly permits: Just “ask Alice, when she's ten feet tall.”3
Wonderland, like Disneyland, expects visitors to eventually leave. But for those who have taken up permanent residence in Alice’s adventure, consider what Chief Justice John Roberts said once upon a time, in a place far, far away from the state of affairs today:4
When Chief Justice John Roberts was Special Assistant to the Attorney General during the Reagan Administration, he wrote a 27-page document defending the constitutional power of Congress to limit federal court jurisdiction. Proving that Supreme Court justices recognize this power over the courts, he pointed out that former Supreme Court Justice Owen Roberts (no relation) had proposed an "amendment of the Constitution to remove Congress' exceptions power."
The Owen Roberts amendment was passed by the Senate in 1953 but then tabled by the House. John Roberts concluded that Congress's constitutional authority to make exceptions to federal court jurisdiction is so clear that only a new constitutional amendment could deny it.
Last fall, Congress proved again that it has the power to define court jurisdiction by giving immunity to gun manufacturers and owners from lawsuits that try to impose liability on them for the criminal misuse of their weapons by others. This Protection of Lawful Commerce in Arms Act was promptly signed by President Bush.
Is there more to this picture than meets the eye? Is a devil lurking somewhere in the details of Constitutional explication? Why doesn’t your representative ever mention it? Why does the media avoid it? Why do all the political action organizations suppress this truth? How do we know that Roberts wasn’t on mushrooms in Wonderland? Once upon a time, there was a just Justice in the minority for a minority, who informed everyone how to calibrate their Constitutional baloney detector:5
[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean." Dred Scott v. Sandford, 19 How. 393, 621 (1857) (Curtis, J., dissenting).
Who, other than Roberts, and the author of the posted article can we turn to for a strict interpretation? How do we know that the Constitutional text means exactly what it states? Examine the written and oral Congressional testimonies of Martin H. Redish, Louis And Harriet Ancel Professor Of Law And Public Policy, Northwestern Law School;6 Phyllis Schlafly, Founder And President, Eagle Forum;7 the Prepared Statement of Professor Charles E. Rice, Professor Emeritus of Law, Notre Dame Law School, submitted by Rep. Steve Chabot,8 and others in agreement with those expert witnesses. Obviously, Red Queens in black robes and their acolytes are in opposition to the text. Professor Redish calls them “phantoms” – a euphemistic term for the citizens of Wonderland and postmodernism.
A couple of years ago, some churchmen signed a document acknowledging that abortion is murder.9 The fact that abortion is murder (at least 36 states have fetal homicide laws)10 is acknowledged by atheist Doris Gordon, founder of Libertarians For Life.11 The reign of terror precipitated by the federal court and unopposed by nearly every politician finds no refuge in religion or in its absence. This reign of terror, licensing murder, is based in anarchy:12
Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger….
The following is some commentary by too few voices against anarchy:
Ending Pro-Abortion Judicial Tyranny13
Why We Need The "We The People" Act (H.R. 300)14
The Imperial Judiciary15
Bill limits federal courts: Would stop judges from ruling on abortion, same-sex marriage cases16
We, The People Act17
31 years since roe and counting18
2006 State Republican Party Platform of Texas19
1 http://www.thelibertycommittee.org/home.asp Representative Ron Paul reintroduced the We the People Act (H.R. 300) on January 5, 2007 with cosponsors Rep. Walter B. Jones, Jr.; and Rep. Ted Poe to "limit the jurisdiction of the federal courts, including the United States Supreme Court, in certain cases."
Are you fed up with activist federal judges telling our children that they can't say the Pledge of Allegiance? Do you want federal courts telling you that there is a right to pornography in schools but God must be kept out of the classroom? That's what some courts are saying, but Congress can stop them.
Do you want federal courts forcing partial-birth abortion on America as a "constitutional right" by striking down state laws duly enacted by the people to ban that gruesome procedure? Do you want federal courts declaring that homosexuals have "special rights" that you and I don't have, or forcing racial quotas and affirmative action on jobs and higher education? If not, then do something about it.
2 http://www.washtimes.com/news/2003/oct/06/20031006-085845-5892r/ Article III, Section 2, updated 12:00 a.m., October 7, 2003.
3 http://www.lyricsmode.com/lyrics/j/jefferson_airplane/white_rabbit.html Jefferson Airplane
White Rabbit lyrics. “When logic and proportion have fallen sloppy dead”
4 http://www.eagleforum.org/column/2006/jan06/06-01-25.html Can Congress Limit Federal Court Jurisdiction?
5 http://www.law.cornell.edu/supct/html/91-744.ZX4.html PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA, et al., PETITIONERS 91-744 v. ROBERT P. CASEY, et al., etc. ROBERT P. CASEY, et al., etc., PETITIONERS 91-902. Justice Scalia, with whom the Chief Justice, Justice White, and Justice Thomas join, concurring in the judgment in part and dissenting in part.
9 http://www.firstthings.com/article.php3?id_article=5358 That They May Have Life, 2006 First Things (October 2006). A Statement of Evangelicals and Catholics Together. Thus the most basic commandment of neighbor-love is “You shall not kill” (Exodus 20:13, Deuteronomy 5:17). “You shall not kill” is rightly understood as “You shall not murder.” The direct and intentional taking of innocent human life in abortion, euthanasia, assisted suicide, and embryonic research is rightly understood as murder. In the exceedingly rare instance of direct threat to the life of the mother, saving her life may entail the death of the unborn child. Such rare and tragic instances are in sharpest contrast to the unlimited abortion license created by the Supreme Court, resulting in more than forty million deaths since 1973.
10 http://www.ncsl.org/programs/health/fethom.htm Currently, at least 36 states have fetal homicide laws. The states include: Alabama, Alaska, Arizona, Arkansas, California, Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia and Wisconsin. At least 19 states have fetal homicide laws that apply to the earliest stages of pregnancy ("any state of gestation," "conception," "fertilization" or "post-fertilization"), indicated below with an asterisk (*).
11 http://www.l4l.org/library/someinfo.html As libertarians, LFL's interest in the abortion debate is in everyone's unalienable rights. LFL's reasoning is philosophical, not religious. Some LFL associates are religious; others, such as Gordon, are atheists.
12 http://www.yale.edu/lawweb/avalon/federal/fed51.htm The Federalist Papers : No. 51
13 http://www.prolifealliance.com/sanctity%20of%20life%20act.html Members of the National Pro-Life Alliance are putting heat on politicians to bring an end to pro-abortion judicial tyranny by passing the Sanctity of Life Act.
14 http://www.newswithviews.com/DeWeese/tom78.htm By Tom DeWeese, March 21, 2007. In order to hold Federal judges accountable for abusing their powers, the act also provides that a judge who violates the act's limitations on judicial power shall either be impeached by Congress or removed by the President, according to rules established by Congress.
15 http://www.newswithviews.com/Pratt/larry51.htm THE IMPERIAL JUDICIARY, By Larry Pratt
December 3, 2005. Does the Constitution provide for judicial supremacy through the process of judicial review? Attorney Edwin Vieira, J.D. answers with an emphatic “No!” in his book Imperial Judiciary. A look at Article III of the Constitution does not reveal a heavy work load for the Supremes: the court has original jurisdiction in cases involving states as well as diplomats. All other cases are brought on appeals, and if the lower courts are eliminated by Congress which has that authority, that ends the discussion.
16 http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=48319 Call it the 10th Amendment Restoration Act.
17 http://www.traditionalvalues.org/modules.php?sid=2673 One of TVC’s primary goals during the next several years is to take back our federal courts from radical leftwing activist judges who have no respect for the Constitution or the laws passed by state legislatures or Congress.
18 http://www.rnclife.org/faxnotes/2004/jan04/04-01-21.html Republican National Coalition for Life. Pro-life Republicans should expect candidates to have a consistent position on the right to life.
Too many politicians get away with splitting the difference. On the one hand, they say they are pro-life, and on the other, send a signal to the pro-abortion crowd that they are really no threat to legal abortion after all.
But then Mr. Ryan sends a different signal. He says, “Ronald Reagan, George W. Bush and Henry Hyde share my system of beliefs that abortion should only be allowed in cases of rape, incest or when the life of the mother is at stake.” The glaring inconsistency of this position is amazing, and unfortunately, it is an inconsistency that is commonly expressed by politicians and often accepted as sufficient by pro-life voters! It is impossible to believe in the “sanctity of human life from conception until natural death,” and at the same time justify abortion for rape or incest or any other reason.
We must send a loud and clear message to candidates that we will not grant them pro-life status unless they earn it with a publicly stated position that the unborn child has a fundamental individual right to life which cannot be infringed—no exceptions—no compromise!
If legal protection of the right to life is to be restored in the United States it will take a majority of Members of the U.S. House and Senate who will exercise their powers under the U.S. Constitution to withdraw jurisdiction from the Courts over these matters. If legislation is to be enacted recognizing that unborn babies are persons under the law, it will take Congressmen and Senators and state legislators who are unconditionally pro-life to do it. If men and women with the dedication and commitment necessary to make these things happen are to be elected it will take pro-life leaders and individual voters who will no longer settle for second best.
19 http://www.texasgop.org/site/DocServer/2006_Plat_with_TOC_2.pdf?docID=2022 Appellate Jurisdiction of the Supreme Court – Congress should be urged to exercise its authority under Article III, Sections 1 and 2 of the United States Constitution, and should withhold appellate jurisdiction of the Supreme Court in such cases involving abortion, religious freedom, and all rights guaranteed under the Bill of Rights.
http://nordskogpublishing.com/publisherscorner/TNA%232402_Cover_Story.pdf
SECOND ATTEMPT TO POST THE SOURCE FILE FOR THE ARTICLE
I no longer have my pro-life ping list, but you kind folks might want to ping your lists.
More on Article III Section 2 Jurisdiction Stripping
http://en.wikipedia.org/wiki/Jurisdiction_stripping
Early in the nation's history, Justice Joseph Story argued that the words, ''shall be vested'' in Article III dictate that the lower federal courts must exist to exercise judicial power in those cases constitutionally excluded from both the highly limited original jurisdiction of the Supreme Court and the jurisdiction of the state courts. Were the jurisdiction of the lower federal courts not to exist in such cases, the command of Article III that some federal court be available to adjudicate the case—either a lower court or the Supreme Court—would be violated. However, even if Story were correct in his assumption that the words, ''shall be vested'' are to be construed to be a command—by no means an obviously correct construction—he ignored the fact that, given the nature of the Madisonian Compromise that led to the drafting of Article III, there are absolutely no federal cases constitutionally excluded from state court jurisdictional authority. Thus, the entire logic of Story's theory breaks down. It is therefore not surprising that, while the theory has acquired some modern scholarly support, it has been virtually ignored by the courts. See Linda Mullenix, Martin Redish & Georgene Vairo, Understanding Federal Courts and Jurisdiction 7–9 (Matthew Bender 1998).
Also in the link below the great Justice Scalia, who is very Pro-Life has stated that he would NOT grant personhood status to the unborn. Thomas is the ONLY one who might. Point being that if even Scalia can be wrong on this how many "Pro-Life Rebublicans" are...
I love the New American and completely agree with the article.
BUT—Christians are going to have to change the culture first through serious Pro-Life education of school age kids before we have the political numbers to make this possible.
And sadly there is little interest from Christian leaders in Pro-Life education.
What are they waiting for? They are waiting for an amendment, conservative judges, and other things that may never be. Why are they waiting? Their own neck isn't in the noose. But, you are correct on your assessment of politicians. 99 percent aren't pro-life. Why should any be, when they can get elected by merely claiming to be?
Abortion is murder. How much educating does that take? 36 states have fetal homicide laws. The ones that don't are rogue states.
What states need to do is ignore SCOUTS on abortion and start closing the murderous facilities. Surely, federal forces wouldn't invade.
* List (chapter and verse) all the regulations and laws that need to be repealed in order to drill, and drill now. Use this list as the new “Contract With America for Energy Independence”. Have a mega-bill introduced that in one fell swoop removes the self-imposed energy embargo.
Now that I have had the opportunity to read this, Thanks for posting it! I have been arguing Congressional authority for several years and finally came across the post Civil War example reading an excellent history book co-written by one of my professors, the one Republican in the school. I had hoped to have time to search the Constitutional Convention debates and the Federalist papers, nice to have so much of the work done for me. If I can find some money I want to attend Law School and would love to argue this point with a knowledgeable prof, the ones I have encountered so far don’t have any idea and just brush the question aside.
Uhhhh? Blow me?
Great discussion. Some of the cases were discussed and distinguished in Boumediene. All in all, it’s not entirely clear to me one way or the other as to what the intent of the founders was, but I do believe that we need a supreme court that can render acts of congress invalid if they violate the constitution, or effectively we have no constitutional rights.
It’s funny how you can just take things for granted. I thought all this was clearly spelled out, but it’s not. It would be fun to sit in on a law school class on Marbury v. Madison and hear what they had to say.
Thanks for the article.
On the other hand, I find much of the judicial process dubious at best. Judges decide many legal issues on the basis of matters of fact that should properly left to juries. Judges try to come up with standards for how long a cop must wait after knocking before breaking down the door in order to perform a 'reasonable' search, and declare that if a cop waits (or claims to have waited) the requisite amount of time the search is reasonable. Only through judicial vanity could the thousands of pages of Fourth-Amendment precedents be considered a better indication of what is allowable than the Constitution itself.
The first-line rule should be very simple: allow the defense to demand that the jury be informed of all the facts surrounding a search and the execution thereof, and that the jury be instructed that it should ignore any evidence that was obtained unreasonably. The jury should base its decision of reasonableness on common sense--not upon the thousands of pages of anti-Constitution driven which tries to justify unreasonable behavior.
Article VI, Clause 2 reveals that majority opinions aren’t equal to, or greater than 1) This Constitution; 2) the Laws of the United States which shall be made in Pursuance thereof; 3) all Treaties made, or which shall be made, under the Authority of the United States…. This fact is admitted by the Administrative Office of the U.S. Courts on behalf of the U.S. Courts: “The courts do not make the laws. That is the responsibility of Congress.”[1]
The difference between a law and a majority opinion is enormous. Majority opinions extend no further than between the parties to the case or controversy. Majority opinions are evidence of law, not law.[2] Law encompasses everyone under its jurisdiction. Therefore, “the authority of Supreme Court precedent is very weak indeed.”
Your comment is very similar to the one made by “the celebrated Montesquieu: ‘Of the three powers above mentioned, the judiciary is next to nothing.’ ‘Spirit of Laws.’ vol. i., page 186.”[3] So, your “IMHO” is so well substantiated that it is a self-evident truth, which should be common Constitutional sense possessed by every voter and government official.
[1] http://www.uscourts.gov/about.html
[2] http://law.bepress.com/cgi/viewcontent.cgi?article=1078&context=uvalwps Since the content of a judicial opinion was not seen as the equivalent of law but only as evidence of law’s application to a particular case, the practice of stare decisis was qualified: whatever presumption lay in favor of following established “case law” needed to be understood as capable of being overcome once that “case law” was determined to be demonstrably erroneous. http://www.law.gmu.edu/assets/subsites/gmulawreview/files/14-2/documents/SINCLAIR.pdf Yet judges were not infallible. Their decisions did not make law, forof mundane institutions, only a legislature could do that.82 Judicial decisions were evidence of law, authoritative, but not preemptive. “[I]ndeed these judicial decisions are the principal and most authoritative evidence, that can be given, of the existence of such custom as shall form a part of the common law.”83 Yet a subsequent judge could find that his predecessor had been mistaken, that in the precedent case the court had misperceived the moral blueprint in the sky. The prior decision was not “bad law, but . . . itwas not law. . . .”84 On the declaratory theory a court did not and could not absolutely bind its successors.85 BLACKSTONE, supra note 38 at *69 (“[I]n such cases the subsequent judges do not pretend to make a new law but to vindicate the old one from misrepresentation.”). See Swift v. Tyson, 41 U.S. 1(1842) (Story, J.): In the ordinary use of language it will hardly be contended that the decisions of courts constitute laws. They are, at most, only evidence of what the laws are, and are not, of themselves, laws. They are often re-examined, reversed, and qualified by the courts themselves, whenever they are found to be either defective, or ill-founded, or otherwise incorrect. Id. at *18.84 BLACKSTONE, supra note 38, at *70.85 Blackstone:Yet this rule [to abide by precedents] admits of exception, where the former determination is most evidently contrary to reason; much more if it be clearly contrary to the divine law. But even in such cases the subsequent judges do not pretend to make a new law, but to vindicatethe old one from misrepresentation. http://www.lonang.com/conlaw/4/c45.htm The role of the judge is to declare what law already exists. The standard legal maxim is, Jus dicere, et non jus dare. That is, the province of a judge is to declare the law, not to make it. [U.S. v. Butler.] case precedents are binding in moral force only, that is, as a matter of persuasion, not as a matter of obligation. Prior opinions are not to be followed if plainly absurd. Thus, judicial opinions are not "law," they are only evidence of it. http://www.lonang.com/foundation/3/f36b.htm Supreme Court Opinions Are Only Evidence of Law, Not Law Itself and Not the Supreme Law of the Land. http://org.law.rutgers.edu/publications/law-religion/articles/7_1_1.pdf Roe v. Wade: A Scandal Upon The Court. Part I: The Unsettling of Roe v. Wade Chief. Justice Mansfield, in the English case of Jones v. Randall (1774), observed: The law would be a strange science if it rested solely upon cases; and if after so large an increase of commerce, arts and circumstances accruing, we must go to the time of Rich. 1 (1189-1199) to find a case, and see what is law. Precedent indeed may serve to fix principles, which for certainty’s sake are not suffered to be shaken, whatever might be the weight of the principle, independent of precedent. But precedent, though it be evidence of law, is not law in itself, much less the whole of the law. Whatever is contrary, bonos mores est decorum [literally: whatever is against good manners (or customs)] and seemliness (or propriety) [freely: whatever is against public morals], the principles of our law prohibit, and the King’s Court as the general censor and guardian of the public manners, is bound to restrain and punish.60
[3] http://www.yale.edu/lawweb/avalon/federal/fed78.htm The judiciary, on the contrary, 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.
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