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What Congress Giveth, Congress Can Taketh Away
GOPUSA email ^ | March 28, 2005 | Kay R. Daly

Posted on 03/28/2005 8:08:28 AM PST by The Final Harvest

The biggest misconception about the federal judiciary is that it is an all-powerful entity unto itself that can only be reigned in by placing strict constructionists or constitutionalists onto the bench and hoping for the best. The truth of the matter is that it is the United States Congress as designated by Article III of the U.S. Constitution that created the lower courts of the federal judiciary.

This seems to be lost not only on the American people, but several members of Congress.

The critical line in Article III, Section 1, states: "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress MAY from time to time ordain and establish." The key word is "may." It does not say that Congress "must" or "shall" create these federal courts.

In other words, it is the Congress that may or may not create the lower courts of the federal judiciary. They pay for the buildings, confirm the judges, and pay their salaries. In addition, without a statute from Congress granting jurisdiction, the federal court quite simply has no jurisdiction whatsoever.

Congress is in the driver's seat and can expand or limit the scope of their jurisdiction as they see fit. Specifically, in Section 2 of Article III, judicial powers are enumerated in detail.

At the heart of the battle over the Terri Schiavo case is the epic struggle between the legislative and the judicial branches of government. The biggest myth of all in this battle is that Congress overstepped its bounds by allowing federal jurisdiction in the Schiavo case. It was certainly an extraordinary step to take, but it only seems extraordinary because the myth of the untouchable judiciary has not been debunked.

As a matter of law, Congress could convene today and abolish the entire federal judiciary, with the exception of the Supreme Court. It could also create a federal court to hear nothing but Terri Schiavo cases within the bounds of federal legal jurisdiction as enumerated in Article III, Section 2. The Congress has already created specific federal courts on tax law, national security and even maritime issues, so it has been done before.

In the past couple of years, we have seen examples of judicial tyranny in landmark cases about the Pledge of Allegiance, the Ten Commandments, and gay marriage, to name but a few. Judicial activism and judicial tyranny has expanded exponentially only because "we the people" and our elected Congressional representatives have allowed it to happen.

Congressman Robert Aderholt (R-AL) and Senator Richard Shelby (R-AL) have introduced bills, S-520 in the Senate and HR 1070 in the House entitled the "Constitution Restoration Act of 2005" that would limit the power of the federal judiciary specifically in religious liberty cases. These bills were also introduced in 2004, but languished in committee and were reintroduced at the beginning of this current congressional session.

This is not a new idea. In fact, in the 1980s, Senator Jesse Helms and Congressman Henry Hyde introduced bills repeatedly that would limit the federal courts jurisdiction over the specific issue of abortion. And it is not only the "hot button" social issues that bring into focus the power of the federal judiciary. Capping damages in class action cases also limits the federal courts overly broad discretion.

The main point here is that what Congress giveth, Congress can also taketh away. And quite frankly, it should. The grassroots efforts to confirm federal judges who will apply the Constitution as it is written should also include a strong push to limit judicial tyranny by demanding that our elected representatives, sworn to uphold the Constitution, to become cosponsors and move these bills to final passage.

In fact to fulfill the oath to uphold and defend the Constitution, our elected representatives have an absolute obligation to reign in our out-of-control activist judiciary. In the last fifty years, it has been activist judges who have single handedly done more damage to our Constitution than the liberal media, pop culture and leftist politicians combined.

Terri Schiavo's greatest final gift to us might just be the spotlight that she has put on our system of justice. With all the legal and moral arguments swirling around her tragic story, there is enough speculation and misinformation to feed the punditocracy and legal scholars for years to come.

For those of us in the grassroots, troubled by Terri Schiavo's impending demise and the courts' complicity in it, roll up your sleeves. The fight has only begun.

--------------------

Note -- The opinions expressed in this column are those of the author and do not necessarily reflect the opinions, views, and/or philosophy of GOPUSA.


TOPICS: Crime/Corruption; Culture/Society; Editorial; Government; News/Current Events
KEYWORDS: congress; courts; judiciary; terri
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This needed to be repeated:

"For those of us in the grassroots, troubled by Terri Schiavo's impending demise and the courts' complicity in it, roll up your sleeves. The fight has only begun."

Finally - somebody is saying what I have been saying for years and years.

1 posted on 03/28/2005 8:08:28 AM PST by The Final Harvest
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To: CyberAnt

I'm in!


2 posted on 03/28/2005 8:09:18 AM PST by austinaero
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To: austinaero

Good!! We have just begun to fight!!!!


3 posted on 03/28/2005 8:10:35 AM PST by The Final Harvest (President Bush: "America is the greatest nation on the face of the earth")
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To: CyberAnt

Unfortunately, implementing such reasoning depends upon having a spine and testicles, neither of which are common among Republicans.


4 posted on 03/28/2005 8:10:52 AM PST by pabianice
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To: CyberAnt

Payback is going to be a Hillary. I can't wait to exact some revenge for this.


5 posted on 03/28/2005 8:15:55 AM PST by thoughtomator (Order "Judges Gone Wild!" Only $19.95 have your credit card handy!)
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To: pabianice

Sadly, you are correct. If the Congress is unable to enforce it's own subpoenas requiring Terri Schiavo to appear as a witness, who in Hell thinks they'll be able to assert control over an obvious renegade judiciary?!?


6 posted on 03/28/2005 8:18:15 AM PST by Mad Mammoth
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To: CyberAnt

Very interesting article!


7 posted on 03/28/2005 8:18:56 AM PST by cvq3842
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To: CyberAnt

Every bill should contain a clause that takes it outside the power of the judiciary beneath the Supreme Court to review for constitutionality.

Or we should have a single bill passed that removes constitutional review of congressional acts from lower court review.

I'm not real certain that SCOTUS has a power of constitutional review. Some find an implied power, but if there is debate, why compound that by included lower courts in it?


8 posted on 03/28/2005 8:19:01 AM PST by xzins (Retired Army Chaplain and Proud of It!)
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To: CyberAnt

This is a fight that is long overdue. But why did the Republicans wait for Terri's case to fire the first shot? It is, in my opinion, a mistake to have waited so long.

The Dems and MSM have been very effective in pushing the notion that the Republicans are playing politics and interfering with personal decisions. The MSM has utilized the following misconceptions 1)Terri is in a coma or on life support (respirator); 2)Terri left a living will; and 3) Terri's family is in full agreement that she would not want to be kept alive in this condition. Add to this a fake "Republican Talking Points" memo and the MSM has a bonanza on its hands. Oh, also add the daily dosage of the "Republicans are Hypocrits" stories and it gets even better.

The emotion and misconceptions carried along with this case have made it easy to demagogue. The Republicans better get their acts together and come out on the offensive PDQ.


9 posted on 03/28/2005 8:20:00 AM PST by FlipWilson
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To: CyberAnt

How do we motivate our elected Congressional leaders to
act according to the US Constitution.IMO the Bush babies
chose to bow before the men in black rather than honor their Constitutional powers and Oath of Office. Joseph Story said in "A Familiar Exposition on the Constitution of
the United States(from the 1859 original) that the powers of
the Judiciary were intended to be "co-extensive" to those of the Legislative branch. I Nothing I have read is the
power of the Judiciary purported to trump all other.
and even Marbury v.Madison-that construct of the Court did not DARE say what too many Judges have bleieved too long-
That Constitution is what they say it is.Marbury clearly says The Constitution is"an instrument as a rule for the government of courts,as well as of the Legislature."How else
could it be Supreme Law of the Land?


10 posted on 03/28/2005 8:22:21 AM PST by StonyBurk
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To: pabianice

I hope you haven't made any bets on that!!


11 posted on 03/28/2005 8:22:22 AM PST by The Final Harvest (President Bush: "America is the greatest nation on the face of the earth")
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To: CyberAnt

Bump.


12 posted on 03/28/2005 8:29:44 AM PST by First_Salute (May God save our democratic-republican government, from a government by judiciary.)
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To: CyberAnt

We are living in a judicial oligarchy, not a representative republic. Those who do not realize that have not been paying attention the past few weeks. The courts sentenced an innocent woman to death; trampled on the Constitution; rendered the House, Senate, Governor and President impotent; among other things. If you think the courts cannot affect you the same way, don't look now, but there is a Judge Greer in every community. I have totally lost faith in my country -- a country that would allow such tyranny. I hope I never have to step inside a courtroom. I know justice will not be served.


13 posted on 03/28/2005 8:31:09 AM PST by Polyxene (For where God built a church, there the Devil would also build a chapel - Martin Luther)
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To: Mad Mammoth

If this govt is BY THE PEOPLE then we have to stop sitting here whining and complaining about what our representatives are or are not doing.

When was the last time we sent an email to our reps and told them what we think. Did we do it ONE TIME and because they didn't bow and scrape - did we give up?

We tend to be lazy and say, it's just politics and all politics is corrupt anyway - so why bother. How many of us have said that and have just given up.

I was so discouraged over this issue with Terri - but somehow it didn't keep me down because somewhere inside I've become madder and madder about it - and I'm ready to fight to get not only the judiciary back in it's proper place - but to get some laws in place which will prevent an "estranged" husband from disposing of a wife he no longer wants - and he is disposing of her because he doesn't want her to tell how badly he abused her.

But .. I'm not expecting it to change overnight - and anyone who is expecting that outcome is deceived.


14 posted on 03/28/2005 8:35:41 AM PST by The Final Harvest (President Bush: "America is the greatest nation on the face of the earth")
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To: All
the federal judiciary is ... an all-powerful entity unto itself that can only be reigned in by ...

I've seen this so many times over the past few days -- see the current sidebar poll for another example -- I have to speak out.

It's "reined in," as in the reins on a horse.

"Reigning" is what federal judges have been doing far too long (with Congress's tacit approval).

15 posted on 03/28/2005 8:38:14 AM PST by newgeezer (Just my opinion, of course. Your mileage may vary.)
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To: CyberAnt

Congress has no power to control Judge Greer. He is not a federal judge. All they can do is limit federal courts, not state courts.


16 posted on 03/28/2005 8:43:35 AM PST by 1Peter3v14
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To: xzins

"I'm not real certain that SCOTUS has a power of constitutional review"

You are very correct - and in Mark Levin's book, "Men in Black", he tells the story of how "judicial review" became the bellweather of law. There are enough lawyers in the halls of congress to determine is a law is correct or not - and if there isn't - then a panel of within congress should be established to go over this stuff and make sure the Constitutional guarantees are not abused.

I believe "judicial review" needs to be taken away from the USSC NOW!!! I believe this is one of the first major things to be done.

We also must retrain our congress people to write laws correctly IN THE FIRST PLACE. We must stop this practice of just writing up a bunch of stuff and then abdicating our responsibility to get it right - by saying - the courts will tell us if it's right or not. THAT IS GIVING THE COURTS WAAAAAAAAAY TOO MUCH POWER. A power the Constitution DOES NOT AND SHOULD NOT GIVE THEM.

Good questions!


17 posted on 03/28/2005 8:44:04 AM PST by The Final Harvest (President Bush: "America is the greatest nation on the face of the earth")
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To: CyberAnt

Who will rein in Congress? Who will rein in the Executive Branch when the wrong people are in power? Who will rein in the federal government and allow the states to run their own affairs as was always intended?


18 posted on 03/28/2005 8:50:30 AM PST by TKDietz
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To: CyberAnt

Marbury v. Madison was the ruling that kicked this mess off. Judges ruled that the only people qualified to make determinations on the Constitutionality of laws were... judges. They took power unto themselves, and they haven't been challenged on it since. Thomas Jefferson saw the danger in this ruling, and made his prediction on judicial tyranny. He was right.


19 posted on 03/28/2005 8:55:17 AM PST by ex 98C MI Dude (Our legal system is in a PVS. Time to remove it from the public feeding trough.)
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To: TKDietz
Who will rein in Congress? Who will rein in the Executive Branch when the wrong people are in power? Who will rein in the federal government and allow the states to run their own affairs as was always intended?

I believe that is supposed to be the voters job.

20 posted on 03/28/2005 8:57:42 AM PST by CzarNicky (The problem with bad ideas is that they seemed like good ideas at the time.)
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To: CyberAnt
"There are enough lawyers in the halls of congress to determine is a law is correct or not - and if there isn't - then a panel of within congress should be established to go over this stuff and make sure the Constitutional guarantees are not abused."

Be careful what you wish for... I sure don't trust Congress to protect the Constitution. The judicial branch may get out of hand sometimes but I think the whole checks and balances system between the three branches of government is a good idea overall. I just hope the courts start reviving federalism before it's too late and restore much of the sovereignty they have allowed Congress and the Executive Branch to steal from the states.
21 posted on 03/28/2005 8:59:00 AM PST by TKDietz
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To: AnOldCowhand

Ping for later.


22 posted on 03/28/2005 9:00:53 AM PST by AnOldCowhand (The west is dead. You may lose a sweetheart, but you will never forget her - Charles Russell)
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To: CzarNicky

"I believe that is supposed to be the voters job."

Really? Does the Contitution even grant us the right to vote?


23 posted on 03/28/2005 9:01:35 AM PST by TKDietz
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To: FlipWilson

I agree with your assessments.

But .. congress has been a little busy with a couple of wars and all .. so this kind of stuff took a back seat.

And .. this "judicial review" thing has been going on for so long - most people don't even realize it's not Constitutional.

Also .. without a super majority in congress - these things are going to take years and years to get fixed - and we have to be ready to hang in there for the long haul .. because the only other option is to just give up .. and that's exactly what the liberals want. They want us to tire from the fight.

Remember, in the American Revolution, our forefathers did not give up the fight just because the odds seemed stacked against them or the battle was too hard .. they perservered. We can do no less - or we will be complicit in the demise of America.


24 posted on 03/28/2005 9:03:27 AM PST by The Final Harvest (President Bush: "America is the greatest nation on the face of the earth")
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To: StonyBurk; All

Read Mark Levin's book, "Men in Black". It will answer all your questions.


25 posted on 03/28/2005 9:04:45 AM PST by The Final Harvest (President Bush: "America is the greatest nation on the face of the earth")
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To: CyberAnt
There are enough lawyers in the halls of congress to determine is a law is correct or not - and if there isn't - then a panel of within congress should be established to go over this stuff and make sure the Constitutional guarantees are not abused.

Why would Congress want to do that. They stay in office by abusing those guarantees and exercising powers not granted to them.

26 posted on 03/28/2005 9:05:54 AM PST by El Gato (Activist Judges can twist the Constitution into anything they want ... or so they think.)
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To: Polyxene

"I have totally lost faith in my country"

Well then .. just continue to whine and hide in your closet and everything will be okay. [/s]


27 posted on 03/28/2005 9:06:00 AM PST by The Final Harvest (President Bush: "America is the greatest nation on the face of the earth")
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To: thoughtomator
Payback is going to be a Hillary. I can't wait to exact some revenge for this.

Correction, payback is going to BE Hillary. The truly sad thing is that you and others like you who seem to be so eager to jump the Republican ship are so blinded by this, that you can't allow yourself to see that it's the Democrats, yes the Democrats who are going to benefit from all of the GOP infighting.

28 posted on 03/28/2005 9:07:29 AM PST by Melas
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To: xzins

I agree. Limit the powers of these courts if they are going to abuse them.


29 posted on 03/28/2005 9:07:51 AM PST by McGavin999
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To: Mad Mammoth
It's not that congress can't, it's that congress won't. The real problem is the subpeonas were bogus, and congress knows it. To pursue anything further means a detailed examination of just how bogus the subpeonas really are.

Let's be honest. Congress wasn't really calling for testimony. Congress was issueing subpeonas with the sole intent that the feeding tube be reinserted. The subpeonas were a pretext for the real agenda, the reinsertion of the feeding tube.

30 posted on 03/28/2005 9:09:43 AM PST by Melas
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To: Polyxene; All

"I have totally lost faith in my country"

Well then .. just continue to whine and hide in your closet and everything will be okay. [/s]


31 posted on 03/28/2005 9:10:01 AM PST by The Final Harvest (President Bush: "America is the greatest nation on the face of the earth")
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To: CyberAnt

bttt


32 posted on 03/28/2005 9:10:25 AM PST by expatguy (http://laotze.blogspot.com/)
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To: TKDietz
Who will rein in Congress? Who will rein in the Executive Branch when the wrong people are in power? Who will rein in the federal government and allow the states to run their own affairs as was always intended?

The Supreme Court would remain, not that they'd been too great at reining in Congress exercise of powers not granted and even those specifically prohibited. They came up with the notion of "Compelling State Interest" allowing Congress (and lower levels of government as well) to violate the very rights supposed to be protected by the Bill of Rights.

In the end the only answer to your question is:

"We the People".

And the ultimate check:

"A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

33 posted on 03/28/2005 9:10:51 AM PST by El Gato (Activist Judges can twist the Constitution into anything they want ... or so they think.)
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To: StonyBurk

Bush babies? You people are starting to make me sick. This used to be a conservative Republican website.


34 posted on 03/28/2005 9:11:19 AM PST by Melas
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To: 1Peter3v14

So .. throw up your hands and give up!!

You're either the problem or the solution - the CHOICE is up to you.


35 posted on 03/28/2005 9:11:21 AM PST by The Final Harvest (President Bush: "America is the greatest nation on the face of the earth")
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To: TKDietz

That's your personal opinion and does not have anything to do with this discussion.

GORE LOST - GET OVER IT!
KERRY LOST - GET OVER IT!


36 posted on 03/28/2005 9:13:49 AM PST by The Final Harvest (President Bush: "America is the greatest nation on the face of the earth")
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To: Melas

Funny, every time I hear that canard, the Democrats end up imploding, their fake unity having caused them to rally behind an untenable position, and the Republicans make more and more gains.

GOP infighting = discussion of the issues of the day. We have that on the right, the left doesn't have it, and that's why our ideas are new, fresh, current and relevant, and all they have is 40-year-old failed ideology.

If you think the right wing is going to shut up and get in line, you haven't been on this side of the fight very long.


37 posted on 03/28/2005 9:14:26 AM PST by thoughtomator (Order "Judges Gone Wild!" Only $19.95 have your credit card handy!)
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To: TKDietz
Really? Does the Contitution even grant us the right to vote?

By inference at least.

Art. 1 section 2 declares that the Representatives shall be elected by "The People of the Several States",

The 17th amendment provides the same with respect to Senators.

The 15th, 19th, 24th and 26th amendments each prohibit denial of the "right to vote" (thus indicating that such a right exists) on various grounds. (race or previous condition of servitude, sex, inability to pay a poll tax, and finally age if 18 or over)

38 posted on 03/28/2005 9:20:46 AM PST by El Gato (Activist Judges can twist the Constitution into anything they want ... or so they think.)
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To: CyberAnt
GORE LOST - GET OVER IT!
KERRY LOST - GET OVER IT!

I do believe he was addressing the sitution of "what if Hillary won?".

39 posted on 03/28/2005 9:23:23 AM PST by El Gato (Activist Judges can twist the Constitution into anything they want ... or so they think.)
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To: CyberAnt

Logically correct, but it contains a jarring error that is far too common. "Reign", "rein", and "rain" are homonyms, not synonyms. And their derivatives retain the separateness of their meanings, a situation abused more than once in this article.

"Reigning in" is nonsensical. To reign is to rule or preside, however benignly or despotically. This might seem to apply to the judicial arrogation of power being described, but the phrase actually evokes the metaphor referenced below.

"Reining in" would refer literally to the act of controlling an animal, such as a horse, that is pulling or carrying a burden, by means of a rein or halter. Based on the metaphorical parallel, this was the proper word choice above.

And rain, of course, falls from above. It might be the gentle drops of a Spring shower, the fury of a storm, or even the death and destruction of war. The current issue of our local newsletter uses the same mistaken word with this intended meaning, in 243 copies. Arrgh!


40 posted on 03/28/2005 9:25:22 AM PST by MainFrame65
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To: TKDietz; All

"be careful what you wish for"

I'm not wishing for anything but conformance to the Consitution.

"judicial branch may get out of hand"

I believe they have been OVER THE TOP for years and they need to be stopped. They are ruling on issues they have NO AUTHORITY OVER - and yes, they are "states issues".

"checks and balances system ... is good idea overall"

It's not just a "good idea" .. it's the law as provided by the Constitution. But the USSC has overstepped it's authority so many times that it has now filtered down into the district, circuit and state courts.

"... hope the courts start reviving federalism before it's too late and restore much of the sovereignty they have allowed Congress and the Executive Branch to steal from the states."

The above comment is mind-boggling. You have it exactly backwards - it's not the Congress which has stolen authority from the states - it's the FEDERAL COURTS. You keep wanting to blame this on Bush - and it just doesn't fly.

As far as I'm concerned, Greer is FL's problem - and the people of FL need to investigate him and either recall or impeach him .. but the people of FL will have to do that.


41 posted on 03/28/2005 9:26:44 AM PST by The Final Harvest (President Bush: "America is the greatest nation on the face of the earth")
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To: El Gato; All

"They stay in office by abusing those guarantees and exercising powers not granted to them."

The power they are granted COMES FROM YOU - THE VOTER.


42 posted on 03/28/2005 9:29:20 AM PST by The Final Harvest (President Bush: "America is the greatest nation on the face of the earth")
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To: Melas; All

"the democrats are going to benefit from all the GOP infighting."

WHAT INFIGHTING ..??

It's the democrats - 47 of whom voted for the legislation - while the rest of them stayed hidden in their closets - who have the problem.

There is no way this advocacy of killing Terri is a winning issue for the dems - no way. I've seen a statement whereby Hillary is already out there saying people like Terri should be allowed to die SOONER - to make room for people who are in better condition. I hope that was somebody's sarcasm or a spoof - because if it wasn't - Hillary is going to lose ALL THE RED STATES before she even begins her campaign.


43 posted on 03/28/2005 9:35:27 AM PST by The Final Harvest (President Bush: "America is the greatest nation on the face of the earth")
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To: Melas; All

"the subpeonas were bogus"

No they were not - they were withdrawn. I don't know legally why - but just because they were withdrawn doesn't mean they had no original intent.


44 posted on 03/28/2005 9:38:23 AM PST by The Final Harvest (President Bush: "America is the greatest nation on the face of the earth")
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To: El Gato; All

"a well regulated malitia"

If you're advocating an armed insurrection - you're outta here!! I'm not against the 2nd Amendment - quite the contrary - I believe it is our guaranteed right. But to use it against my country - when I have abdicated my responsibilities as a citizen to make my representatives accountable - not a chance.

And .. I believe those who always want to do things by force .. it's because they want to impose their will upon people and they don't want no stinkin' laws to stop them. That's so dangerous.

I'm not advocating armed anything. You want INSTANT RESULTS - and that's not in the realm of reality.


45 posted on 03/28/2005 9:47:52 AM PST by The Final Harvest (President Bush: "America is the greatest nation on the face of the earth")
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To: CyberAnt
What Congress Giveth, Congress Can Taketh Away

Um, NO. They can take away, but no one "can taketh."

If you're gonna be archaic, people, do it correctly!
46 posted on 03/28/2005 9:49:19 AM PST by Xenalyte (I dare you to make less sense.)
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To: El Gato

If that's what the poster meant - I believe he may be capable of telling me that himself - and how do you know what he/she meant ..?? Can you read minds.


47 posted on 03/28/2005 9:50:54 AM PST by The Final Harvest (President Bush: "America is the greatest nation on the face of the earth")
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To: FlipWilson
This is a fight that is long overdue. But why did the Republicans wait for Terri's case to fire the first shot?

Because lots of judges are Republicans too. Preservation of power trumps party loyalty every time.
48 posted on 03/28/2005 9:51:15 AM PST by Xenalyte (I dare you to make less sense.)
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To: MainFrame65

Excuse me .. I didn't write this article - why don't you tell the author.


49 posted on 03/28/2005 9:51:59 AM PST by The Final Harvest (President Bush: "America is the greatest nation on the face of the earth")
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To: Polyxene

Right now, I'm considering law school.

Seriously.

I know I can get in.

I mean, if this is the direction in which our republic is moving and we can't change it, why not cash in?


50 posted on 03/28/2005 9:52:42 AM PST by Xenalyte (I dare you to make less sense.)
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