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.
Cowardice and ignorance coupled with the incessant shrill demand to correct the Constitution via amendment, when the federal courts are the problem.
14 Ed Current
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Congress cannot just make up a 'rule' regarding our fundamental rights to life liberty & property, any more than can States.
All legislative bodies must use due process in framing law..
As the second Justice Harlan recognized:
"The full scope of the liberty guaranteed by the Due Process Clause `cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.
This `liberty´ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . ."
27 tpaine
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The federal courts were not given veto power over state and local laws not subject to their jurisdiction.
31 Ed C
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I've never claimed the feds had 'veto power'.
Are you saying States have the power to ignore our BOR's?
One thing that I think needs to happen is to form a balance between having a court which can make decisions with neither regard for earlier precedent nor regard for the precedent the decision will make, and a court which is so bound by the concept of precedent that either it cannot deal with exceptional cases or else it gets "stuck" by them.
At minimum, the court needs to be able to make explicit in a decision that the facts of the extant case make it unique, and thus it should not be used for guidance in how to decide more general cases.
Further, I would like to see the Court be able to issue a decision in such a way as to explicitly create "anti-precedent". For example, if the court found that a statute as worded forbade an activity but also found that a reasonable person reading the statute might well conclude otherwise, I would like for the Court to issue a ruling which would forbid prosecution under the state's reading of the statute of any action performed before the second business day following the Court's ruling, but would allow prosecution for actions performed after that time.
To be sure, if there were nothing to discourage a court from doing that on every case, a court could decide cases at whim without rhyme or reason creating a judicial tyranny at least as bad as what exists now. But if it could be made clear that decisions claiming "exceptional facts" were to be regarded as inferior to decisions which did not claim such, except when such claim was in fact materially necessary, such things might be kept in check.
What is case law ?
The Calif. Legislature banned "assault weapons." ---The 9th Circuit Court of Appeals said it was okay. ---The 9th Circuit Court (as I recall ) said that the USSC would have to overturn Cruikshank (and Presser ) before the Second Amendment could restrict the Calif. legislature.
This is the enforced law in California.
Did the courts not already violate this when they did not hear the defense of those unborn?
And in the case in question, CA has rejected the 2nd Amendment? -- Please advise.
It does appear that we live in a UNITED STATE, rather than the United States. The federal government wasn't created to enforce the BOR. The BOR were added to RESTRAIN the federal government.
Work to change the CA law! Folk in other states should not allow same to occur in their own state and donate resources to CA folk who are trying to repeal this law!
Citizens should have access to weapons that pose a serious deterrent to the federal government. This would include personal possession of any firearm in use by the military or federal police. WMD aren't needed to deter fed gov from imposing martial law, if the citizenry are appropriately armed and sufficient numbers in the military and fed police support Constitutional government. The worst case would be civil war, vs the annihilation of large segments of the unarmed populace, as happened in various places last century.
Significantly prior to the BOR - The Avalon Project : Virginia Declaration of RightsXIII
That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.
All legislative bodies must use due process in framing law..
As the second Justice Harlan
recognized:
"The full scope of the liberty guaranteed by the Due Process Clause `cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.
This `liberty´ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on.
It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . ."
But where was due process when the lives of unborn persons were summarily rendered subservient to the will of others?
Roe was decided because States were attempting to decree that early term abortion is murder. -- Due process tells us that juries get to decide that question in the USA.
Did the courts not already violate this when they did not hear the defense of those unborn?
The court was defending a womens right not to be convicted of murder by unconstitutional decree, a "Malum Prohibitum" - An act which is deemed illegal because it is seen [by some] as immoral.
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.
It does appear that we live in a UNITED STATE, rather than the United States. The federal government wasn't created to enforce the BOR.
Read the Preamble Ed. -- Establishing a Union and Securing the Blessings of constitutional Liberties pretty well says it all.
The BOR were added to RESTRAIN the federal government.
You deny that it also restrains the States? Read the 10th again about prohibited powers. One prohibited from State infringement is our RKBA's.
Work to change the CA law! Folk in other states should not allow same to occur in their own state and donate resources to CA folk who are trying to repeal this law! Citizens should have access to weapons that pose a serious deterrent to the federal government. This would include personal possession of any firearm in use by the military or federal police. WMD aren't needed to deter fed gov from imposing martial law, if the citizenry are appropriately armed and sufficient numbers in the military and fed police support Constitutional government. The worst case would be civil war, vs the annihilation of large segments of the unarmed populace, as happened in various places last century.
You are preaching to the choir, Ed.
Significantly prior to the BOR - The Avalon Project : Virginia Declaration of Rights XIII
That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.
Again, -- we can all agree that the miltary is controled by civil power. --- Are you trying to say that a State should have the power to control/prohibit military 'type' arms, as does CA?
If Congress criminalized the actions of Parents who leave their children to die in their cars so that they could go off to the salon, then the supreme court could abrogate that by saying that those parents are not responsible for the murder of their children?
Due process also says a person has the "Right to be heard in one's own defense."
But are you saying that the supreme court found a way to say who is as good as dead without a trial?
If congress passed a criminal law saying that all the doctors, and all the nurses of a hospital can just walk out one single morning without giving reasonable warning, they would be held responsible for the resulting deaths of their patients.
No such 'law' could be passed.
If that occurred, the Supreme court would then say this would violate a persons right to leave work? What about the precedent? What about the lives of those and other patients who could be further harmed by this new trend of unreliability?
Why would the USSC 'say' that? Get a new example.
If Congress criminalized the actions of Parents who leave their children to die in their cars so that they could go off to the salon,
Such actions are, and always have been criminal.
then the supreme court could abrogate that by saying that those parents are not responsible for the murder of their children?
Rest assured, Space. They wouldn't.
Due process also says a person has the "Right to be heard in one's own defense."
Good point. But are you saying that the supreme court found a way to say who is as good as dead without a trial?
It is still perfectly legal, anywhere in the USA, to find a prosecutor to file murder charges against a woman who has had an abortion, and bring her to trial. Let a jury decide the issue.
If congress passed a criminal law saying that all the doctors, and all the nurses of a hospital can just walk out one single morning without giving reasonable warning, they would be held responsible for the resulting deaths of their patients.
No such 'law' could be passed.
If that occurred, the Supreme court would then say this would violate a persons right to leave work? What about the precedent? What about the lives of those and other patients who could be further harmed by this new trend of unreliability?
Why would the USSC 'say' that? Get a new example.
If Congress criminalized the actions of Parents who leave their children to die in their cars so that they could go off to the salon,
Such actions are, and always have been criminal.
then the supreme court could abrogate that by saying that those parents are not responsible for the murder of their children?
Rest assured, Space. They wouldn't.
Due process also says a person has the "Right to be heard in one's own defense."
Good point.
But are you saying that the supreme court found a way to say who is as good as dead without a trial?
It is still perfectly legal, anywhere in the USA, to find a prosecutor to file murder charges against a woman who has had an abortion, and bring her to trial. Let a jury decide the issue. [Corrected]
Indeed! A most informative and compelling post from 'Ed'. There are several issues over which subpreme judges ought to have been and should be impeached, bud sadly each is faced by politicians with both eyes on their survival at the ballot box over their responsibility to the Republic. Our system is perhaps too corrupted now to reverse the damage, especially with one of the two major political parties using judicial activism to serve the perverse interests of their constituencies.
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Folk have too much stress and too little time to "keep their Republic."
That, plus the fact that many people prefer the chilling effect of laws that may or may not be enforceable, but which nobody is willing to "test", to the actual effects of laws that are well-understood.
It seems to me that there should be a specific legal defense that the defendant reasonably understood allegedly-criminal actions taken to be legal, and such defense should not be mooted by court decisions which occur subsequent to the actions that find that they are, in fact, not legal. The effect of this would be to rule that the judicial decisions' effects can not criminalize an activity ex post facto any more than can legislation.
If courts could separate the issues of "what might a reasonable person believe the law says" and "what does the law actually say", and recognize that they may be different, that would probably help things a lot.
This would allow a court to issue a ruling that, while people may have reasonably believed that a particular activity was legal, it isn't. Because people could have reasonably believed it to be legal prior to the ruling, nobody may be prosecuted for performing that activity when they could reasonably have believed it to be legal. After the court's ruling, however, reasonable people would no longer be able to believe the activity to be legal, and thus people could be prosecuted for future offenses.
Is anyone aware of any courts having ruled in such a fashion?
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