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.
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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.
Ping for later.
"I believe that is supposed to be the voters job."
Really? Does the Contitution even grant us the right to vote?
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.
Read Mark Levin's book, "Men in Black". It will answer all your questions.
Why would Congress want to do that. They stay in office by abusing those guarantees and exercising powers not granted to them.
"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]
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.
I agree. Limit the powers of these courts if they are going to abuse them.
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.
"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]
bttt
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."
Bush babies? You people are starting to make me sick. This used to be a conservative Republican website.
So .. throw up your hands and give up!!
You're either the problem or the solution - the CHOICE is up to you.
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!
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.
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)
I do believe he was addressing the sitution of "what if Hillary won?".
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!
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