Skip to comments.What Congress Giveth, Congress Can Taketh Away
Posted on 03/28/2005 8:08:28 AM PST by CyberAnt
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.
"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.
Good!! We have just begun to fight!!!!
Unfortunately, implementing such reasoning depends upon having a spine and testicles, neither of which are common among Republicans.
Payback is going to be a Hillary. I can't wait to exact some revenge for this.
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?!?
Very interesting article!
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?
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.
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?
I hope you haven't made any bets on that!!
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.
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.
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).
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.
"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.
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?
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.
I believe that is supposed to be the voters job.
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