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.
"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.
"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.
"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.
"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.
"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.
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.
Excuse me .. I didn't write this article - why don't you tell the author.
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?
Excuse me .. I didn't write the article - please complain to the author.
And .. for those who don't ever read the Bible - I believe there is such a word in there - made by JOB - he said, "The Lord giveth and the Lord taketh away".
The author was using a scriptural reference as a play on words. Those of us who do read the Bible knew what she meant.
Yes, well - don't look now but your party disloyalty is showing.
To have that attitude and claim you are conservative and a Republican is 180 degrees our of alignment.
How is pointing out that some people are self-serving disloyal of me?
Why not? A good part of the activist judges are Republican.
You really need a sarcasm detector.
So .. you're insinuating that I don't read anything more than the Bible ..?? [sigh ..]
I believe that is supposed to be the voters job.
We do not live in a democracy. 51% of the population cannot pass unconstitutional laws, no matter how much they want to.
The Judicial branch of our government exists to prevent the majority from walking over the minority's rights.
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