Skip to comments.By What Mechanism Can We Return the Supreme Court to Its Original Limited Role? (Vanity)
Posted on 07/04/2013 8:23:48 PM PDT by dagogo redux
I listen to whatever I can in the way of talk radio when I drive around, and Mark Levin is the least unpalatable choice on the drive home from work each day. He was on one of his bulging-neck-vein rants the other day, this one about the history of the Supreme Courts overstepping their limited Constitutional role over the past several centuries, leading us to the judicial tyranny we see now, which was never the intent of the Founders.
He implied that the ultimate remedy was the restoration of the original intent of the Founders, rather than merely electing conservative Presidents who could appoint more conservative justices. He also implied that this would be a multi-generational task, but did not give any specifics.
I know what the Constitution says, and what the Founders concerns were, having read James Madisons notes from the Convention and several of the best commentaries about that summer. But I know little of how We the People might peaceably get out from under the judicial tyranny that has evolved.
Do any Constitutional scholars here or legal experts see any feasible pathway to eventually restore the proper and original powers to the Congress, and to We the People who elect them, and to the States, and get these nine lawyers (and a literal army of Executive branch tyrants) back to their proper limited roles in our lives?
Yes. Nominate conservatives who can win elections and who will place equally conservative judges on the bench.
Or maybe magic.
“Though subject to the process of impeachment, only one Justice has ever been impeached and no Supreme Court Justice has been removed from office. Supreme Court decisions have been purposefully overridden by constitutional amendment in only four instances: the Eleventh Amendment overturned Chisholm v. Georgia (1793); the Thirteenth and Fourteenth Amendments in effect overturned Dred Scott v. Sandford (1857); the Sixteenth Amendment reversed Pollock v. Farmers’ Loan and Trust Co. (1895); and the Twenty-sixth Amendment overturned some portions of Oregon v. Mitchell (1970). However, when the Court rules on matters involving the interpretation of laws rather than of the Constitution, simple legislative action can reverse the decisions (for example, in 2009 Congress passed the Lilly Ledbetter act, superseding the limitations given in Ledbetter v. Goodyear Tire & Rubber Co. in 2007). Also, the Supreme Court is not immune from political and institutional restraints: lower federal courts and state courts sometimes resist doctrinal innovations, as do law enforcement officials.
In addition, the other two branches can restrain the Court through other mechanisms. Congress can increase the number of justices, giving the President power to influence future decisions by appointments (as in Roosevelt’s Court Packing Plan discussed above). Congress can pass legislation that restricts the jurisdiction of the Supreme Court and other federal courts over certain topics and cases: this is suggested by language in Section 2 of Article Three, where the appellate jurisdiction is granted “with such Exceptions, and under such Regulations as the Congress shall make.” The Court sanctioned such congressional action in the Reconstruction case ex parte McCardle (1869), though it rejected Congress’ power to dictate how particular cases must be decided in United States v. Klein (1871).”
We still have a peaceful option to restore the Constitution in Exile. We must give the present federal government the Great Reset, the Three Finger Salute, the Control-Alt-Delete by going through the Constitution word by word with reference to the news of the last 100 years (since 1913), and repair the features that have failed or been compromised.
The power to do this has been in our hands since the beginning if we would only use it. That power is for the States to call a Convention to redefine the federal government.
This is a peaceful option. I am dismayed by how many people seen to think that going 5.56 on the whole mess will be productive and in the end better.
If, for example, we remove from government the power to create money out of thin air and to create infinite perpetual debt, we will force it to live within the means of the moment. The present arrangement enables infinite government through infinite money of its own creation. In the process, we are made debt serfs, having given our assets and encumbered all our future earning via the infinite debt burden we allowed in exchange for “benefits”. Shame on us.
We must put this government on a short leash before it succeeds in making us all grovel before it so we can get our health care. But even today, so-called conservatives will tell the voters how much better they would run the socialist public education system. That is a fine model for how Republican candidates will tell the voters how much better they will administer the Affordable Care Act if only the voters would throw out those profligate Democrats! What fools we must suffer as we watch our liberty be sold for EBT cards.
As I said, we have a peaceful option if only we would take it.
“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
from Article Five of the United States Constitution
“A judge may also be removed by impeachment and conviction by congressional vote (hence the term good behavior); this has occurred fourteen times. Three other judges, Mark W. Delahay, George W. English, and Samuel B. Kent, chose to resign rather than go through the impeachment process.”
SCOTUS never had an “original limited role”. Ever. Never ever.
Marbury v. Madison
Not without an army of Clarence Thomases on the court. Ever since 1803, in Marbury v. Madison, the Supreme Court has staked out a position in which “it is emphatically the province and duty of the judicial department to say what the law is”. In the 1870’s the court eviscerated the rights defined by the post-Civil War amendments to the Constitution, and we all know how the court redefined the commerce clause to include anything and everything, to give the federal government jurisdiction over everything in the 1930’s. the only way to curtail the power of the courts is by filling them with judges who believe in judicial restraint.
Hey, Bucky. Good to see ya.
The most essential step, the step that’s first, is to get our anchor with God solid again. The devil, the literal devil, is behind this, like he’s ultimately behind all sin. God gives us a choice of what spirit to get attached to: His own, or that of the devil and the guises he works in (vain self-focus or futile worldliness). And this starts with you and me. From such a beginning we can exhort and the movement can grow and grow and grow, if people are willing to accept God’s love and put their old sins behind them. God isn’t holding any grudges, but God wants us to chuck out those old sins.
On the other hand, who was to blame for falling under the spell of judicial primacy. While Andrew Jackson isn’t a particularly virtuous example (it was wrong for him to death-march those Cherokees, with or without the chieftains’ concurrence) that’s how it can happen.
LOL they look like nascar drivers...oh..wait...is that a race-ist statement?
Exactly. Well said. And that is just never, ever gonna happen.
I am amused, but not in a good way, when I see those nitwit pundits on news entertainment talk about “an activist Court”. They have ALL been activist courts from the beginning. Conservative, Liberal, in between, every single one is activist.
And, again, I agree with your post 100%. But the only Judge I have ever seen that truly believes in “judicial restraint”, and I mean by what they do and not what they say, IS Thomas. And it is just not practical to expect a Court full of them. Furthermore, SCOTUS just doesn’t render that many decisions. There is also no way to load those benches with Thomas’.
Ive argued before Courts at every level, including SCOTUS. Judicial activism IS SCOTUS and our Court system. Don’t be deluded by pundits. Most are stupid and virtually all are in it for one thing ... to get paid.
Other mechanisms of balance have been proposed, such as the “Bork Amendment” which would empower a supermajority of both houses of Congress (very preferably a supermajority of the full bodies, not just who happens to be sitting in the rooms at the time) to veto any court decision in the Federal system. Still, nothing is perfect that is of worldly construction! Without a return to a complete, widespread gospel faith, Satan will find a way to work evil around it. A Bork Amendment would buy time. If the time is not used wisely it will result in even a worse fail.
Require the Supreme Court to rule in full adherence to both the letter and spirit of the original Constitution, and face criminal charges for failing to do so.
Require the Supreme Court to ignore precedent established by rulings from the Woodrow Wilson era onward.
Require Congress to include the constitutional justification for every item of new legislation. Require the Executive branch and Supreme Court to review each new item of legislation, and report on its constitutionality. If discrepancies arise, they can become the purview of a civilian review board.
Require that all new laws automatically sunset after a period of five years.
Require that the federal government be deprived of all power and authority to raise taxes, but may only apply to the states for its funds.
Unfortunately for us, it will probably take the “blood of tyrants and patriots” to straighten out this mess.
Your point is well taken, but I don’t see how nine lawyers can unilaterally “stake out a position” that defines their role so drastically and tyrannically. By what force - yes, I mean force - can they back this position up if opposed by the other two branches, the People, or the States?
Working as intended.
But .... repealing the 17th amendment would be a good start to restoring the U.S to what our founders wanted.
This is the only peaceful way we will ever be free again. Our exact situation is the reason the founders added this option to the constitution. The founders could foresee a day when the federal government would simply refuse to control itself. That time is now.
38 states can and will stop this tyranny. Let Texas lead the way and be state number one!
The way would have been to get Gingrich into the White House.
He was determined to limit the power of the court.
Thanks for your questions on THE NINE SUPREMES.
My question is about the existing legal mechanisms for “ we, the people” to remove a SC justice when his/her ruling violates The US Constitution?
Pass a constitutional amendment EXACTLY defining SCOTUS’s roles and responsibilities, limitations, etc.
Then again, SCOTUS would prolly rule the amendment unconstituional ...
The only way is to pass a Constitutional amendment that would specifically limit the powers of the court, with some type of automatic impeachment clause for any justice that attempts to rule outside of those powers, or judicially invalidate said amendment. Even then, we’d need a Congress willing to enforce that amendment against the Court.
In other words, ain’t going to happen.
I have an idea for that: an amendment with 5 or so sections: removing the power of monetary-value regulation from congress, defining the Dollar in terms of weight of pure gold, reiterating the previous weight in SI units "to prevent the congress from abusing its ability to set weights and measures", mandating the treasury to give an accounting of gold physically in its possession (which shall be public), denying the congress the power to assume any debt which would cause the total debts of the US to exceed 110% the amount reported by the treasury, and forcing trial (for theft) of any government agent/officer/judge/employee confiscating gold and if guilty convicted mandating (a) immediate firing/loss-of-office, (2) forfeiture of all retirement benefits [including pension], (3) restitution of twice the stolen amount to the bereaved, (4) liability of ALL legal costs.
I'd like to be able to "shock" Roberts into telling us what was in that briefcase he was holding in front of a bank in Malta.
Marbury vs Madison is the most lied about court opinion in history. John Marshall didn’t in any way lay claim to the kind of judicial power that made the court the final or sole definer and determiner of what is constitutional. In fact, he said just the opposite. He plainly said that the courts have to follow the Constitution, because it is the supreme law of the land. And so does everybody else in the other branches. Anything else would be a mockery of the oath, and of our form of government.
Frankly, if Marshall had said what the law schools today teach that he said, the founders would have probably hung him. Most of them were still alive, after all.
The only way to fix it is to throw all the bums out of the legislative and executive branches, and to replace them only with people who understand the fundamental moral obligations of their oaths.
Follow that up with impeachments for every single judge who in any way transgresses their own legitimate constitutional powers.
Nothing to it - - it would merely require a President with the guts to say, "I wish to thank the Supreme Court for weighing in on this important issue. It was a 5 - 4 ruling and I happen to agree with the 4 dissenters, and since my job description includes (fill in Constitutional provision here) I will handle the issue in the way I believe is Constitutional and best for the nation. Thank you."
Now, naturally, such a proclamation would bring the mice scurrying out of the Democrat "mainstream" newsrooms howling, "Constitutional crisis!", but again, it would require a president with the guts to laugh off the Democrat "mainstream" newsrooms.
For example, it would require the OPPOSITE of cowardly (former Florida Governor) Jeb Bush who got stared down by a freaking county probate judge and stood by helplessly wringing his hands as a woman was deliberately murdered by starvation on international television over the course of three excruciating weeks.
Then, what did Marshall mean in Marbury v. Madison, when he stated:
"It is emphatically the province and duty of the Judicial Department to say what the law is."
“By What Mechanism Can We Return the Supreme Court to Its Original Limited Role? (Vanity) “
Ask the Egyptians...
Its called "pulling an Andrew Jackson", who supposedly responded to the SCOTUS ruling in Worcester v. Georgia by saying:
"John Marshall has made his decision; now let him enforce it!"
When conservatives cannot win simple majority elections, is there any particular reason to believe they could dominate a convention and then have 3/4 of state legislatures or convention ratify the proposed amendments?
You don't have to go for the whole Magilla - just strike the fear of God into Congress, the Executive Department, and the Judiciary.
The way to do this is to hold a limited Constitutional Convention, voting on a single issue that 38 states can agree on ...
What would it be? I don't know - maybe Congress having to read ENTIRE finalized versions of bills BEFORE voting on them.
Once passed, the PEOPLE of the United States would have put these clowns on notice that they CAN and WILL pass constitutional amendments in order to get these Morons to do their jobs ...
Marbury v. Madison
Of course hey did, they just used Marbury to assert power they never had and it went unchallenged, by another spineless Congress.
That’s my understanding. Thanks.
Congress has authority over jurisdiction of the supreme court, or lesser courts.
Laws can restrict that jurisdiction, and to the extent that the court improperly decides a case because they are applying an incorrect standard, a law can be passed to define terms so that the incorrect standard (that would otherwise be precedent) is replaced by a different definition.
Or, an amendment can be passed.
For either approach, there is no substitute for winning elections.
Of course the supreme court had the authority to act as judges. Judges state what the law is in specific cases, for courts, for appellate courts.
This is what I wonder. If we can’t reliably, consistently put constitutional conservatives into office, this talk is all for naught. If we continue this “our side gets eight years of so-so/mostly-conservative nominees, then their side nominates extremely dedicated leftists for 8 years, and so on..” pattern, we will not change our trajectory in any meaningful way.
So, in a large way, this is a cultural/political challenge, and time is not on our side.
I’m at the point where prepping for systemic collapse is looking more and more reasonable.
You are quite correct. The problem is not that we’re not winning elections, it’s that we are losing and arguably have already lost the culture.
Elections are simply a consequence of what happens in the society at large. Breitbart was apparently the only person who really understood this and had a clue what to do about it.
His death was a true catastrophe for America.
Actually, you and I understand it. I just don’t have a clue how to counter-attack. I hope you have one.
Unfortunately, in that case Marshall was right, morally and legally, and Jackson was wrong.
Sadly, I have no clue either. Our opponents are ill-minded when it comes to policies and values, but they were clever enough decades ago to start work that would guarantee their control of the educational system, pop culture, the legal profession, etc etc. Their investments are paying dividends today, and their roots in these elements of society will not be easily removed.
In fact, I’m more and more convinced that we will collapse from this unsustainable path before we’re able to un-do the cultural entrenchment they’ve established. We might be better off creating what I call “islands of sanity” that will weather the tumultuous times to come. Those isles could be local jurisdictions, family units, neighborhoods of like-minded/sensible/moral people, etc.
I’ve all but lost hope for a national solution. We’ll be starting each presidential election where the Democrat nominee starts so close to 270EVs that the deck is incredibly stacked against the Republican nominee. And even if the Republican nominee wins.. what kind of Republican would it be that wins in this kind of environment?
After much thought over the past few months, refocusing my efforts on a more local level - where success is much more likely and where I’m much more likely to see the tangible results of those efforts - might do wonders for my sanity/blood pressure/etc.
First change would be direct election of Senators
Second change would be eliminating the vote from people that receive welfare.
Third would be Voter ID as good as Mexico’s (Google it)
Fourth would be the end of corporate welfare
Fifth would be a balanced budget
Six would be the end of ‘entitlements’
I love those and I would add that house and senate members stay in their districts and states 360 days a year and vote electronically . This would take so much power away from the lobbyist’s. This would also keep them grounded as we could give our input and visit them locally when these issues come up.
But .... repealing the 17th amendment would be a good start to restoring the U.S to what our founders wanted.
This is elemental, I can hardly believe it appears to be beyond the comprehension of so many thoughtful freepers.
Our Framers knew, and expected the House of Reps to have its share of loony-tunes. That is the nature of popular political bodies. It was pure idiocy to turn the senate over to the same desires and keep six year terms. The outcome, tyranny, was as predictable as sunrise tomorrow, as James Madison said in so many words to Patrick Henry at the VA ratifying convention.
The way to keep radical, anti-10th amendment Leftists off the courts is to return to a Senate of the States. Our framers did not rely entirely on sending virtuous men to govern us. They relied on separation of powers and the first, THE most important separation was vertical, the division of enumerated power residing with the feds and everything else left with the states. This vertical separation was to be enforced with the Senate of the States.
All other reforms will be just lipstick on a pig until the states are returned to the national government, when we will once again have a FEDERAL government.
It truly is the key. Another benefit to repeal is to prevent our Senators from being Trent Lott-isized.
When you get a yahoo that is against the repeal of the 17th click on their page. Almost always they turn out to be from a Northern state. Rarely is it a southerner or mid westerner against the idea. Think about it.
good post. we should do this