Posted on 10/09/2004 3:06:08 PM PDT by Ed Current
Twice this year, the House has passed bills to curb judicial activism by limiting federal court jurisdiction.
The passage of the Pledge Protection Act of 2004 (H.R. 2028) by the U.S. House of Representatives on September 21 by a vote of 247-173 has highlighted some very encouraging signs in Congress. And I do not simply mean that the Pledge of Allegiance would be protected, though that is a good thing as well.
H.R. 2028 states: "No court created by Act of Congress shall have jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide" cases pertaining to the Pledge of Allegiance. This bill, along with a related, earlier House-passed measure known as the Marriage Protection Act of 2004 (H.R. 3313), has prompted a few congressmen to dust off and read their copy of the U.S. Constitution.
It’s always a good thing when you can get congressmen to look at the Constitution, especially when so many of them routinely vote for unconstitutional legislation.
The Pledge Protection Act was introduced after the U.S. Supreme Court struck down on a technicality the case of Newdow v. U.S. Congress, a suit charging that the phrase "under God" in the Pledge of Allegiance is unconstitutional. Like the Marriage Protection Act, which the House passed on July 22, the Pledge Protection Act would invoke the power of Congress to limit the appellate jurisdiction of the Supreme Court — and, by extension, the jurisdiction of all other federal courts — under Article III, Section 2 of the U.S. Constitution.
Ordinarily, congressional committee reports are the perfect antidote for insomnia. But in the case of the House Judiciary Committee Report on the Marriage Protection Act, the repartee recorded in the report is both instructive and encouraging.
Ranking Democrat of the House Judiciary Committee John Conyers (D-Mich.), a radical leftist fixture in Congress for dec-ades, railed against the legislation, claiming that "this statute is itself unconstitutional." Rep. John Hostettler (R-Ind.) countered that it "is obvious to anyone who actually reads the Constitution that Congress can do this." Article III, Section 2 of the U.S. Constitution reads, in part: "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."
Conyers asked if Hostettler had seen any "research brought to his attention that we would limit any application for appellate review." Hostettler’s reply was simple and direct: "The main body of research I have done is to read the Constitution of the United States."
Liberals are incensed over the prospect that they may no longer be able to legislate through the courts. During the debate on the Pledge Protection Act, Rep. Barney Frank (D-Mass.) complained, "Once my colleagues start down this road, this is the second time the majority has done this, telling us that the Supreme Court cannot decide, they are going to create a precedent, if this ever succeeds, that will be followed in other issues." What other issues? Over the years activist federal courts have issued rulings on a whole host of issues ranging from abortion to anti-sodomy laws to school prayer. By limiting the jurisdiction of the federal judiciary on these issues, they could be returned to the states — where they belong!
Liberal Democrats who worry about excessive use of this provision of the Constitution do have a point. A totally activist court could in theory be prohibited from deciding on all but a few matters that the Constitution guarantees to the Supreme Court.
But that’s not a reason to stop encouraging this form of legislation to limit the jurisdiction of activist judges. Invoking Article III, Section 2 is a relatively mild check on the federal judiciary provided to the legislature by the U.S. Constitution. Congress also possesses the power to impeach judges. In fact, Congress could even abolish any and all federal courts except for the Supreme Court.
And Congress does appear to be, finally, showing some vigilance. Rep. Lamar Smith (R-Texas) told his colleagues on the Judiciary Committee that judicial activism "seems to have reached a crisis. Judges routinely overrule the will of the people and invent new rights and ignore traditional morality. Judges have redefined marriage, deemed the pledge of allegiance unconstitutional, outlawed religious practices and imposed their personal views on Americans." Smith correctly observed: "They seem to be legislators, not judges, promoters of a partisan agenda, not wise teachers relying on established law."
In that, Smith sounded impressively like President Jefferson, whom Judiciary Committee members found had written the following to a friend in 1821: "You seem … to consider the [federal] judges as the ultimate arbiters of all constitutional questions, a very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy.... The constitution has erected no such single tribunal, knowing that, to whatever hands confided, with the corruptions of time and party its members would become despots."
Fortunately, the U.S. Congress appears to be awakening to the judicial oligarchy in America. Congressmen and their constituents need to unite under the Constitution to put activist judges in their place, or find new judges who will judge the law without trying to rewrite the law.
PING
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The resources in the second paragraph of post#1 are more than sufficient explanation.
The second amendment has nothing to do with hunting, or crime control. It is the ultimate check on tyrannical federal government.
I recommend the The Revolutionary Second Amendment with the following in mind:
Hot Topics - visionforum.org Black's Law Dictionary: Interposition
"The doctrine that a state, in the exercise of its sovereignty, may reject a mandate of the federal government deemed to be unconstitutional or to exceed the powers delegated to the federal government.
The concept is based on the 10th Amendment of the Constitution of the United States reserving to the states powers not delegated to the United States. Historically, the doctrine emanated from Chisholm v. Georgia, 2 Dallas 419, wherein the state of Georgia, when sued in the Supreme Court by a private citizen of another state, entered a remonstrance and declined to recognize the court's jurisdiction. Amendment 11 validated Georgia's position.
Implementation of the doctrine may be peaceable, as by resolution, remonstrance or legislation, or may proceed ultimately to nullification with forcible resistance."
James Madison, 'Father of the Constitution',Virginia Resolution : 1798
That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them. http://www.yale.edu/lawweb/avalon/virres.htm
Thomas Jefferson, Kentucky Resolution : 1799
That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy: That this commonwealth does upon the most deliberate reconsideration declare, that the said alien and sedition laws, are in their opinion, palpable violations of the said constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states in matters of ordinary or doubtful policy; yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiesecence as highly criminal: That although this commonwealth as a party to the federal compact; will bow to the laws of the Union, yet it does at the same time declare, that it will not now, nor ever hereafter, cease to oppose in a constitutional manner, every attempt from what quarter soever offered, to violate that compact: http://www.yale.edu/lawweb/avalon/kenres.htm
Extremely well stated. Thoughtfully written personal page, too! Welcome to FR, from a fellow paleocon!
CHRISTIAN PATRIOTS FOR LIFE at:
http://www.CpForLife.org’
NATIONAL AMERICAN HOLOCAUST MEMORIAL at:
http://www.CpForLife.org/Memorial
Knights For Life at
http://www.KnightsForLife.org
Thanks,
Kevin
Bump
Very nice to find a fellow paleo with a most outstanding tag line.
I don't think that would pass muster, since the Supreme Court would claim appellate jurisdiction in the matters which were barred to other courts.
I would think that to be constitutional (though admittedly even this would be in defiance of the Founder's intention, except insofar as it may be necessary to counter the Supreme Court's actions in defiance of that same intention) what Congress would have to do would be to create two new appellate courts related to "freedom from relgion" cases. The first court would be predisposed to support reasonable actions by local and state governments even if they happen to somehow mention something related to God or Christianity. The second court would have appellate jurisdiction over the first, but might take awhile to hear certain cases.
Note that I deplore judicial obstructionism, but if evil people can use it, I see no reason for unilateral disarmament.
But the question by tpaine was about California's ban on "assault rifles."
The 9 th Circuit Court of Appeals has ruled (more than once, I believe ) that there is no individual right to a firearm. They have also said the USSC would have to overturn two rulings that the Second Amendment is only a restriction on the Federal govt.
It seems the Supremes are reluctant to overturn the previous cases. Without overturn, the case law becomes law (so said Justice O'Connor).
Is CA 'legally' banning assault weapons by ignoring our 2nd Amendment?
The First Amendment, as written, placed no restrictions on state governments. Although its plain meaning would forbid Congress from passing laws restricting broadcasting or campaign advertising, nothing in the First Amendment would forbid states from imposing even draconion censorship laws if they so choose.
One fundamental difficulty with the notion of "incorporation" as applied to the First Amendment is that while the First Amendment is vast in what it limits (it forbids any sort of law that might abridge the enumerated freedoms) it's narrow in who it restricts (Congress), the protections states must give are necessarily narrower in what they restrict and broader in who. Trying to apply the First Amendment to the states is thus a very poor fit.
Or, to look at things another way, the First Amendment should be applied against the states, but only in a literal fashion: no state should a abridge people's right not to have Congress of the United States pass laws restricting the Freedom of the Press, Freedom of Religion, etc. Pre-17th-Amendment, such a rule might actually have had some meaning, as it would forbid states from appointing Senators who would seek to pass such laws. And I suppose even today it could be applicable against Electors, though--sad to say--such an interpretation would forbid states from appointing electors who would vote for Bush.
since the Supreme Court would claim appellate jurisdiction in the matters which were barred to other courts.
Article 3, Section 2, Clause 2
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 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 http://www.washtimes.com/op-ed/20031006-085845-5892r.htm
Actually, what the Supreme Court could do if it wanted to maintain consistency with itself would be to reaffirm what it actually said in Miller (as opposed to what the syllabus says, or what other cases have claimed that it said). To wit: for someone to claim that the rights related to particular artifacts are protected by the Second Amendment, one must show that the artifacts are of a type that would be suitable for use as Arms in a well-functioning citizen army.
Under such an interpretation, the government could restrict or tax alcohol even though it can be used to make weapons (molotov cocktails) since such items are not generally useful in a well-functioning citizen army. It could also restrict such items as the goofy "credit card shotgun" that appeard on a couple threads last week. But weaponry similar to that used by armies here and abroad would clearly presumably be suitable for such use.
If the Supreme Court were to issue such a ruling, it would be entirely consistent with its own precedent and indeed would be upholding its own precedent against misapplication. Unfortunately, I don't think that what the Court actually said in Miller is what the Court really wants to say.
Yes, I know that's what the Constitution clearly says, but you and I both know that the Supreme Court will "interpret" even the plainest text as needed to support their view. I really don't think the public would oppose the Supreme Court if it refused to acknowledge legislation which shut it out entirely.
On the other hand, given that the Supreme Court has already held that--absent explicit mechanisms for doing so--decisions cannot be appealed until they are rendered, I would think that having an appellate court in line to the Supremes which simply took awhile to hear cases would be more likely to pass muster (or else require the Supreme Court to acknowledge that people should not have to wait for a decision before appealing 'inaction'). And actually, if the Supreme Court took the latter approach, I'd be glad of it, since judicial obstructionism can and does lead to tyranies even more insidious than judicial decisions.
Without overturn, the case law becomes law (so said Justice O'Connor).
The federal courts issue opinions. They don't make LAW. The legislature makes law.
The President can either enforce, or refuse to enforce judicial opinions.
A point made in the second debate last night by Bush:
Unborn in Roe V Wade, Blacks in Dred Scott Supreme Court Decisions ...
If, as the Supreme Court held, slaves and the unborn are not "persons" what are they? They become a form of property. The legal impact of Dred Scott v Sandford, 60 US 393 was to free slave owners to abuse or even kill an unruly slave "property" if they so chose. The legal impact of Roe v Wade, 410 U.S. 113 was to free pregnant women to abuse or even kill an unborn infant if they so choose.
Ed Current wrote:
I apologize. The resources in the second paragraph of post #1 are more than sufficient explanation.
Not really, and below you still do not answer my question .
The second amendment has nothing to do with hunting, or crime control. It is the ultimate check on tyrannical federal government.
True enough. But do you support CA's 'power' to ignore our RKBA's?
I recommend the 'The Revolutionary Second Amendment'
That site seems to agree with you that guns can be banned by States. -- Correct me if I'm wrong.
with the following in mind: Hot Topics - visionforum.org Black's Law Dictionary:
Interposition "The doctrine that a state, in the exercise of its sovereignty, may reject a mandate of the federal government deemed to be unconstitutional or to exceed the powers delegated to the federal government.
And in the case in question, CA has rejected the 2nd Amendment? -- Please advise.
I really don't think the public would oppose the Supreme Court if it refused to acknowledge legislation which shut it out entirely.
The good freedom loving folk of Iraq allowed Saddam to govern. I agree that the good freedom loving folk of the U.S. will probably continue to allow SCOTUS to dictate.
Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives. - James Madison
Justice Curtis's warning is as timely today as it was 135 years ago:
"[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).
The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life tenured judges--leading a Volk who will be "tested by following," and whose very "belief in themselves" is mystically bound up in their "understanding" of a Court that "speak[s] before all others for their constitutional ideals"--with the somewhat more modest role envisioned for these lawyers by the Founders.
"The judiciary . . . has . . . 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 . . . ." The Federalist No. 78, pp. 393-394 (G. Wills ed. 1982).
Or, again, to compare this ecstasy of a Supreme Court in which there is, especially on controversial matters, no shadow of change or hint of alteration ("There is a limit to the amount of error that can plausibly be imputed to prior courts," ante, at 24), with the more democratic views of a more humble man:
"[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal." A. Lincoln, First Inaugural Address (Mar. 4, 1861), reprinted in Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101-10, p. 139 (1989).
This is the USSC case the the 9th Circuit court of Appeals is using to say that the State ( California ) is not restricted by the Second Amendment ---
Link to --- U S v. CRUIKSHANK, 92 U.S. 542 (1875)
Quote --- "The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constituton of the United States. "
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