Skip to comments.Congress, the Court, and the Constitution
Posted on 03/11/2003 9:53:45 AM PST by Remedy
PREPARED STATEMENT OF MATTHEW J. FRANCK, CHAIRMAN AND ASSOCIATE PROFESSOR OF POLITICAL SCIENCE, RADFORD UNIVERSITY
When Congress made its most recent attempt to influence the Supreme Court, the result was an unmitigated failure. I refer to the fate of the Religious Freedom Restoration Act of 1993 (RFRA), overturned on June 25 of last year in the case of City of Boerne v. Flores. In response to a perceived threat to the free exercise of religion in the Court's 1990 Smith decision,(see footnote 130) Congress in RFRA sought, through the use of its power to enforce the terms of the Fourteenth Amendment, to overturn that ruling and restore, as against every agency of government in the land, the ''compelling interest'' test for judging the validity of incidental burdens on free exercise resulting from generally applicable laws. RFRA had overwhelming support from all points on the political spectrum, and passed in the Congress nearly unanimously. But to veteran Court-watchers, the Boerne decision was entirely predictable, inasmuch as the justices of the Court do not take kindly to legislative instruction in how to decide constitutional cases.
But the Act's failure went far deeper: it was in fact not a serious enough challenge to the Court's authority, for it conceded too much to the current regime of judicial supremacy. The following are the multiple ironies of the clash between Congress and the Court that culminated in Boerne. 1. Congress assumed that the Court is properly the enforcer of the First Amendment.
1. Congress assumed that the Court is properly the enforcer of the First Amendment.
This is by now a very old error, and one so venerable that to speak in correction of it is to raise questions about one's sanity in most circles. So deep runs the popular myth that the Supreme Court is properly the final authority in enforcing virtually every provision of the Constitution that a digression is necessary here into the more general question of judicial review. As Professor Robert Clinton has shown, the judicial power to invalidate the actions of other branches of the national government was widely understood at the founding to be ''departmental'' or ''coordinate''a power he calls ''functional review'' enabling the judiciary to pronounce authoritatively on the constitutionality of laws touching on the integrity of the courts' own functions, for instance where a case concerns jurisdictional issues, standards of evidence, or the provision of simple due process. This limited version of judicial review was all that was either exercised or claimed for the Court by John Marshall in the 1803 case of Marbury v. Madison.(see footnote 131) On the other hand, the legislative and executive branches have a like authority to have the ''last word'' on those constitutional questions bearing on the exercise of their own powers, arising from the provisions of the Constitution addressed to themselves. Thus, that same John Marshall, for instance, held that the reach of Congress's power over commerce among the states was to be controlled authoritatively not by the judiciary, but by the people through democratic processes: such are ''the restraints on which the people must often rely solely, in all representative governments.''(see footnote 132)
Now obviously, the terms of the First Amendment address themselves to the Congress and not to the judiciary, and in no way would an infringement of one of the rights therein have an adverse effect on the proper functioning of judicial processes. Moreover, if the First Amendment had been expected to be the subject of routine judicial enforcement, we would expect the subject to have come up frequently in the First Congress that debated and drafted the Bill of Rights. Yet, in his brilliant account of how the Bill of Rights came to be added to the Constitution, Professor Robert Goldwin manages to tell the whole story in complete detail without ever once mentioning that the subject of judicial enforcement of the Bill arose at all. The point of the Bill of Rights was not to trigger judicial review, but to weave a love of liberty into the American political culture. Here ''is how it works,'' Goldwin tells us in his recent book:
[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 reviewobviously amendments five through seven, arguably four through eightbut 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.
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)
Of course, on the Court the debate has gone all the other way, so that Justices Scalia and Thomas no less than their more liberal brethren act unquestioningly on the basis of twentieth-century precedents that declared that much of the Bill of Rights is selectively ''absorbed'' or ''incorporated'' into the terms of the due process clause of the Fourteenth Amendment. But these precedents are worse than doubtful: they represent a plain usurpation of power by the Court, and they ought not to be respected, on or off the Court, by anyone who regards the Constitution as superior to ''constitutional law.''
Yet the Congress, in passing RFRA, paid its respects to this judicial usurpation. The Act prescribed a judicial test of constitutionality to be applied to the laws and policies of all levels of government, including acts of Congress,(see footnote 135) but clearly the legislation was motivated chiefly by fears for religious liberty's fate at the state and local level. Thus the Senate report on the Act cited, as part of the authority for its passage, the ''incorporation'' precedent of Cantwell v. Connecticut, a 1940 case in which the free exercise clause of the First Amendment was applied to the actions of states in a casual four sentences carrying no historical analysis whatsoever.(see footnote 136)
Whatever one's worries about the fate of religious liberty after the Smith caseand Archbishop Flores of San Antonio was hardly being ground beneath the heel of oppressionwhatever one's politics in these matters, the proper position of a constitutional conservative is to wonder what on earth the Supreme Court is doing enforcing the terms of the First Amendment against state and local governments. Wisely or unwiselyand I think the formerthe framers of the Bill of Rights and the framers of the Fourteenth Amendment left the subject of religious liberty in relation to state and local policy to be sorted out by state constitutions, state legislatures, and state courts. How members of Congress ostensibly committed to federalism could overlook this is a source of some wonder. Why Congress does not wish to restore that federalism from the ashes in which the Court has left it is cause for amazement. 3. Congress assumed the soundness of the ''compelling interest'' test.
3. Congress assumed the soundness of the ''compelling interest'' test.
Even if we assume both that the Supreme Court is the proper enforcer of the First Amendment and that it may act against the states under that banner, there remains the fact that the Smith ruling was no innovation, but a return to a previous generation of decisions under the free exercise clause. The ''compelling interest'' test, having originated in other areas of constitutional law, was carried over to the adjudication of free exercise cases only as recently as 1963 (in Sherbert v. Verner), with its full import being discernible only in 1972 (in Wisconsin v. Yoder).(see footnote 137) The effect of the test is to carve out exemptions to generally applicable laws, otherwise held valid, for those with religious scruples about obeying them. From the date of the very first religion case under the First Amendment until 1963, it was not thought that such exemptions are affirmatively required of government by the provision against ''prohibiting the free exercise'' of religion. As Chief Justice Morrison Waite put it in 1879, ''[l]aws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.'' To hold otherwise, he continued, ''would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.''(see footnote 138) Precisely so did the Court begin to hold in the 1960s and 1970s.
In the 1990 Smith case, the Court did not overrule the Sherbert and Yoder precedents, but distinguished them away so that they would have practically no value for the guidance of future decisions. In RFRA, Congress explicitly identified Sherbert and Yoder as the precedents it wished the Court to follow instead of Smith. Much disagreement persists on and off the Court about just how the free exercise clause ought to be applied. But I would offer one fairly mild judgment about this matter: that Sherbert and Yoder are the progeny of judicial activism, and Smith a return to judicial restraint. One may like Sherbert and Yoder and dislike Smith, but it seems clear that if that is one's preference, one is (here at least) on the side of judicial activism.
Thus the Religious Freedom Restoration Act presented the ironic spectacle of the Congress complaining that the Supreme Court was not being activist enough in its interpretation of the Constitution. ''Stop us all before we legislate again!'' was the rallying cry of the Act's partisans as it swept virtually unhindered through both houses of Congress. In the final irony, the Court in the Boerne case rebuffed the demand, standing on its dignity and defending its newfound judicial restraint respecting the free exercise clause of the First Amendment.
In a way, Boerne presented a case in which judicial activism was at war with itself. Congress, as I have said, demanded of the Court more activism than the Court was prepared to provide. But the Court could only refuse the demand by turning to its own well-worn precepts of judicial supremacy in the interpretation of the Constitution. Mistakenly citing Marbury v. Madison for support of judicial authority to have the last word,(see footnote 139) Justice Kennedy's opinion for the Court concluded that Congress overreached with its power to enforce the Fourteenth Amendment:
Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is. It has been given the power ''to enforce,'' not the power to determine what constitutes a constitutional violation.(see footnote 140)
What everyone (except perhaps Justice Kennedy himself) must surely notice is that he is, in effect, saying that only the Supreme Court enforces constitutional rights by changing what they are (and sometimes by making them up out of whole cloth), and that it will not tolerate the Congress interfering as it goes about its business.
The Boerne case, in the end, presents the friend of the Constitution's original meaning and of judicial restraint with one of those rare instances when he does not know which side to choose, and must instead say ''a pox on both your houses.'' On the one hand, the Court continued on its accustomed course of asserting its supreme position in the decision of all questions of constitutional politics, even where a clause of the Constitution (§5 of the Fourteenth Amendment) arguably gives Congress a legitimate role to play in such questions. On the other hand, Congress, rather than truly challenge judicial supremacy, had written legislation that embraced it: accepting the Court's role as final enforcer of the First Amendment, accepting the application of that amendment to the states, and importunately demanding that the Court return to its activist habits in the interpretation of the free exercise clause. Little wonder that the Court had the better of the confrontation.
The ''judicial usurpation of politics,'' as First Things magazine referred to our present straits a little over a year ago, remains the most pressing problem confronting the American experiment in republicanism. If RFRA is a failed model for congressional challenges to that usurpation, what is to be done instead? 1. Challenge judicial supremacy directly.
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 oppositea 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 sosuch as the remedial-power and class-action provisions of the 1938 Rules of Civil Procedure (as amended in 1966).
Consider the recent fate of the Communications Decency Act (CDA) of 1996. No one was ever prosecuted under the Act's provisions. Instead, under federal rules of procedure that are within the power of Congress to change, politically interested parties led by the ACLU brought suit against the government, secured a hearing before a three-judge panel of a district court as required by the CDA itself, and won a preliminary injunction from that panel against the government's enforcement of the law's indecency provisions against anyone whatsoever. Then, under a ''special review provision'' of the CDA itself, a rapid appeal was taken directly to the Supreme Court. The resulting affirmance of the district court's injunction means that a writ that cannot be gainsaid runs against every U.S. attorney barring enforcement of the Act, presumably on pain of contempt proceedings if any federal prosecutor seeks to enforce it anywhere. Major provisions of the CDA were thus rendered a dead letter before they ever really lived.(see footnote 143)
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 1854but 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.
It must be said that the CDA was designed to be struck down; it was passed with an engraved invitation to the courts to do so. Had Congress, in passing the CDA, been confident of its own position as a true equal of the Court in interpreting the Constitution, it not only would have refrained from the timidity of the special review provisions in the Act. It would have included instead a provision shielding the Act from the injunctive procedure by which the courts declared it unconstitutional. Then we would have seen some criminal trials under the Act's provisions, and if on appeal of any convictions the Supreme Court had held the Act unconstitutional, it would still be open to Congress to legislate support for the Act's continued enforcement against others, and for the executive to prosecute under it. What would happen next could get very interesting indeed.
The fate of the CDA should, more generally, prompt rethinking of some of the procedural aspects of modern-day judicial power. As Professor Gary McDowell pointed out ten years ago, it is within the power of Congress to undo some of the damage that has been done to the traditional ''case or controversy'' requirement of Article III by the loosening of standards in the judicial process concerning standing to sue, class actions, intervention, consent decrees, declaratory judgments, and the merging of actions in law and equity.(see footnote 144) By traditional procedural criteria, the lawsuit that resulted in the invalidation of the CDA's indecency provisions would never have gotten off the ground. 2. Start defending the states instead of undermining them.
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 decisionsand I do notwe 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 scaleand 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. By ''incorporation'' of the Bill of Rights, and by creating under the doctrine of ''substantive due process'' rights which are contained nowhere in the Constitution at all, the Court has used the Fourteenth Amendment to nationalize some of the most important policy questions that the Constitution properly leaves to the states.
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 jurisdictionas 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 concernedsuch as the ''right of privacy'' at the heart of the abortion decisionseven 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 jurisdictionand 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.
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 issuesthat 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 reviewabout 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. 4. Leave the Constitution alone.
4. Leave the Constitution alone.
By no means have we exhausted the possibilities for controlling the judiciary under the terms of the Constitution, but I should like to mention one other that is generally a bad idea: succumbing to the urge to amend the Constitution. In the last session alone, several amendments were introduced, for example, to limit the judicial term of office to eight years in the lower courts (H.J.Res. 74), or to ten years at all levels including the Supreme Court (S.J.Res. 26 and H.J.Res. 77), or to twelve years for all (H.J.Res. 63). The amendments that absolutely limit judicial terms would do little to address our difficulties, as judges would be free to act as they please during their term of office. And those that provide for reappointment for successive terms might endanger the independence of the judiciary that Hamilton and his fellow framers were intent on securing.
For all the branches of government, the courts included, it was the aspiration of the framers to create a balance of strength and limitationwith officeholders powerful in their own right and free to act on their convictions, yet restrainable by the others when power becomes tyranny and the freedom to act becomes mere license. I have argued that the Constitution as it already stands provides us with the principles that reveal judicial usurpation for what it is, and with the tools necessary to fashion remedies for that usurpation. The abuses of the judiciary run deep in the body of twentieth-century caselaw, and it will not be the work of a moment to undo the damage. But patient toil, and a renewed attention in Congress to the high politics of constitutionalism, can begin to move us away from government by judges and back to genuine republican government.
My opposition to amending the Constitution to deal with our difficulties is not rooted in mere reverence for the framers' handiwork if evidence shows its insufficiency in some respect. No institutions crafted by human beings can be truly permanent, never requiring any alterations. Yet the Constitution, as Joseph Story said, was ''reared for immortality, if the work of man may justly aspire to such a title.'' Before we take risks with a structure whose ''foundations are solid'' and whose ''compartments are beautiful, as well as useful'' (again Story's words),(see footnote 155) we should explore the building thoroughly and be certain we have not overlooked any of the useful features it already contains. Conclusion.
All the suggestions I have made will come to nought until members of both houses of Congress recover for themselves what the framers had in mind when creating truly co-equal branches of government under the Constitution. Only in this century did it begin to become commonplace to regard the justices of the Supreme Court as the ''guardians'' of the Constitution, as though only they, and no one else, had this charge by virtue of their oath of office. The framers knew better. For them, the fate of republicanism, and of constitutionalism itself, rested with ''the extent and proper structure of the Union,'' and with institutions that ''divide and arrange the several offices in such a manner as that each may be a check on the other.'' They knew that men are not angels, nor are they governed by angelsthat we have a government ''administered by men over men,'' and that judges are no more angelic than legislators.(see footnote 156) Thus they charged all public officials, indeed all citizens, with the duty to preserve the Constitution, fully expecting us to persuade, to argue, to clash over what that preservation means. To forget that, to believe complacently that that highest task of our shared political existence is somebody else's business in which we will not interfere, is to let the cause of republican self-government slip through our fingers, and to dishonor the memory of the men from whom we inherited that cause.
Mr. CANADY. Thank you, Professor Franck. You get the award for giving your testimony within the allotted time. [Laughter.]
(Excerpt) Read more at commdocs.house.gov ...
STENBERG v. CARHART :Justice Scalia, dissenting. If only for the sake of its own preservation, the Court should return this matter to the people-where the Constitution, by its silence on the subject, left it-and let them decide, State by State, whether this practice should be allowed. Casey must be overruled.
Balancing the Ninth It was the fifth time the Ninth Circuit had been reversed in a month. Seven of eight cases already decided by the high Court this year from the Ninth Circuit have been reversed, and six of those seven were by unanimous or nearly unanimous rulings. A few years ago, the Supreme Court even took the extraordinary step of issuing a special order barring the Ninth Circuit from issuing any further last-minute rulings in a death penalty case. The year I was fortunate enough to serve as a law clerk at the Supreme Court, 28 of 29 cases from the Ninth Circuit resulted in reversals.
The Ninth Circuit is by far the largest Circuit Court in the country. It is the largest geographically, covering the western states of California, Arizona, Nevada, Oregon, Washington, Idaho, Montana, Alaska, and Hawaii - more than one-third of the entire nation. Thus it is no surprise that the lion's share of cases taken by the Supreme Court each term recently come from the Ninth Circuit, but it does not explain the high reversal rate.
Break Up 9th Circuit Appeals Court Simpson's bill, which received a House subcommittee hearing this summer (HR 1203) but never got a vote because of time constraints, is expected to pass the House Judiciary Committee in 2003.
Ninth Circuit Asked to Reconsider State's Gun Laws, Second ... The Ninth U.S. Circuit Court of Appeals was asked yesterday to reconsider its Dec. 6 ruling that individuals have no right to bear arms under the Second Amendment.
Urgent Petition The Ninth Circuit has always been a radical, left-leaning court. A recent survey showed that 80%-90% of the Ninth Circuit's decisions are reversed by the U.S. Supreme Court. In one recent term, the Supreme Court reversed 24 of the Ninth Circuit's decisions, and 16 of those decision were reversed by a 9-0 opinion by the United States Supreme Court. It's hard to find the United States Supreme Court unanimously agreeing on anything, but one thing it has agreed on is that the Ninth Circuit is in left field.
It is time for Congress to take action and impeach the two judges on this Federal Court. They will only act if we all get involved and let them know our outrage. I am asking you to sign this petition and forward it to all your friends. You may not be able to go overseas and fight for our freedoms, but you can take a stand by signing this petition.
One of the two judges in the majority, Stephen Reinhardt, is a holdover from the liberal judges appointed by President Carter. This judge is even left of the Ninth Circuit Court. Judge Reinhardt once issued an opinion that the United States Constitution guarantees the right to assisted suicide. This decision was overruled. During one term of the Supreme Court, this same judge was unanimously reversed 5 separate times by the High Court on 5 separate cases. Obviously a judge like this does not belong on a Federal Court.
TREASON AT THE 9th CIRCUIT COURT OF APPEALS Arthur Alarcón, Diarmuid O'Scannlain and Ronald Gould are foul men and grotesque judges. They are a disgrace to their profession and an insult to America. They should be impeached immediately and should never again hold any public office in this land.
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