Replies

This is the basic point that is being missed in the anger of Newties against anyone that criticizes his proposed remedy for renegade courts. Nobody is arguing you can't impeach a judge in the constitutional confines (for wrong doing), but there is no basis to subpoena, arrest, and impeach a judge for simply ruling to our dislikes.

Newt is in the first stages of Altzheimer`s.

Simple question: If separation-of-powers means that Congress cannot subpoena judges, then a practice that has been tested by those same courts and found to be Constitutional? Why is Congress's oversight authority valid for the executive, but doesn't stretch over the judicial? I think the reason is that the northeastern elitist pseudo-intellectuals have a very firm grip on the judiciary, and don't want that grip challenged.

An excellent example of the necessity of this oversight is that Kagan ought to be questioned before Congress for refusing to recuse herself in the Obamacare case.

One question here. If a judge continually violates the Constitution and is not impeached, who has control of this judge?

Subpoena Newt and see what he knows about the disappearance of Judge Crater.

There is always the power of the purse strings, congress could zero out the budget of the entire Judicial branch if they chose, defund all their staff (including security), kick them out of the federal buildings they occupy. This would seem like significant “persuasion” to make sure a Judge responds to a subpeona.

Feral Judges aren't above the law, they are the law.

Don't believe it?

Tell any judge what he can and can't do and see for your self...

but there is no basis to subpoena, arrest, and impeach a judge for simply ruling to our dislikes.

Granted, everyone will eventually look at the 'facts' and make an unpopular decision. That goes with the job.

However, some activist judges have opted to whole-sale make laws without a shred of authority (granted by the Constitution). I offer the polarizing "Abortion" as an example. I oppose Abortion (convenience murder) ethically; however what I find even more offensive is the upsurping of authority across the US without so much as a vote. In frank honesty, this policy should be set by the "State". Some states will have constituents who support Abortion, while others states will opt to oppose this practice. According to the Constitution, powers not enumerated by the Constitution, belong to the states - this is such an example.

The judges that "upsurped" this, need to be replaced. They had no legal grounds for implimenting this - and this set a precident that has since been further encroached. Why pass a law through the complicated Legislative branch, when the Judicial branch can arbitrarily decree it? Those bums gotta go.

It would be no more appropriate for Congress to subpoena a federal judge (or that judge’s clerks) about the reasoning of one of the judge’s rulings than it would be for Congress to subpoena the president (or his top advisors) about a controversial decision that was within the president’s constitutional authority,

Um, Congress did exactly that to Nixon and GW Bush (re the perfectly Constitutional firing of 8 DOiJ attorneys). And the courts upheld it.

This author is clearly ignorant of the law and history...

Much of this problem would be resolved if judges gave clear, concise, and accurate rulings which had direct constitutional basis refernced in their decisions.

It is the lack thereof which frustrates me. Consider the entire illegal alien problem right now? We have US courts ruling to ignore their own laws, punishing states and officers for enforcing those laws, and filing injunctions to prevent the application of their own laws.

I'll bet Congress can find the power to control the Judicial branch if they look deep enough into the penumbras.

Dunno. It seems that the courts have slipped the reins and that there is no longer a check on them, or at least none that Congress is willing to apply.

Well, indiannutburger, nobody including Newt suggested impeaching them for us not liking them.

Now I know this is an actual thought and as such it is likely to simply rattle around in that vacuum box atop your shoulders... but it was suggested that judicial authority is limited under the constitution and that Congress finally start fulfilling its mandated authority to remove judges when they over reach that authority.

I know, I know, that is too simple and clear a thought for your mind, and you will continue to launch into this thread attacking Newt (who really is an unstable and crappy candidate) whether he was right on this or not.

Flame on.

XI
31 January 1788
The nature and extent of the judicial power of the United States, proposed to be granted by this constitution, claims our particular attention.

Much has been said and written upon the subject of this new system on both sides, but I have not met with any writer, who has discussed the judicial powers with any degree of accuracy. And yet it is obvious, that we can form but very imperfect ideas of the manner in which this government will work, or the effect it will have in changing the internal police and mode of distributing justice at present subsisting in the respective states, without a thorough investigation of the powers of the judiciary and of the manner in which they will operate. This government is a complete system, not only for making, but for executing laws. And the courts of law, which will be constituted by it, are not only to decide upon the constitution and the laws made in pursuance of it, but by officers subordinate to them to execute all their decisions. The real effect of this system of government, will therefore be brought home to the feelings of the people, through the medium of the judicial power. It is, moreover, of great importance, to examine with care the nature and extent of the judicial power, because those who are to be vested with it, are to be placed in a situation altogether unprecedented in a free country. They are to be rendered totally independent, both of the people and the legislature, both with respect to their offices and salaries. No errors they may commit can be corrected by any power above them, if any such power there be, nor can they be removed from office for making ever so many erroneous adjudications.

The only causes for which they can be displaced, is, conviction of treason, bribery, and high crimes and misdemeanors.

This part of the plan is so modelled, as to authorise the courts, not only to carry into execution the powers expressly given, but where these are wanting or ambiguously expressed, to supply what is wanting by their own decisions.

That we may be enabled to form a just opinion on this subject, I shall, in considering it,

1st. Examine the nature and extent of the judicial powers — and

2d. Enquire, whether the courts who are to exercise them, are so constituted as to afford reasonable ground of confidence, that they will exercise them for the general good.

With a regard to the nature and extent of the judicial powers, I have to regret my want of capacity to give that full and minute explanation of them that the subject merits. To be able to do this, a man should be possessed of a degree of law knowledge far beyond what I pretend to. A number of hard words and technical phrases are used in this part of the system, about the meaning of which gentlemen learned in the law differ.

Its advocates know how to avail themselves of these phrases. In a number of instances, where objections are made to the powers given to the judicial, they give such an explanation to the technical terms as to avoid them.

Though I am not competent to give a perfect explanation of the powers granted to this department of the government, I shall yet attempt to trace some of the leading features of it, from which I presume it will appear, that they will operate to a total subversion of the state judiciaries, if not, to the legislative authority of the states.

In article 3d, sect. 2d, it is said, “The judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority, &c.”

The first article to which this power extends, is, all cases in law and equity arising under this constitution.

What latitude of construction this clause should receive, it is not easy to say. At first view, one would suppose, that it meant no more than this, that the courts under the general government should exercise, not only the powers of courts of law, but also that of courts of equity, in the manner in which those powers are usually exercised in the different states. But this cannot be the meaning, because the next clause authorises the courts to take cognizance of all cases in law and equity arising under the laws of the United States; this last article, I conceive, conveys as much power to the general judicial as any of the state courts possess.

The cases arising under the constitution must be different from those arising under the laws, or else the two clauses mean exactly the same thing.

The cases arising under the constitution must include such, as bring into question its meaning, and will require an explanation of the nature and extent of the powers of the different departments under it.

This article, therefore, vests the judicial with a power to resolve all questions that may arise on any case on the construction of the constitution, either in law or in equity.

1st. They are authorised to determine all questions that may arise upon the meaning of the constitution in law. This article vests the courts with authority to give the constitution a legal construction, or to explain it according to the rules laid down for construing a law. — These rules give a certain degree of latitude of explanation. According to this mode of construction, the courts are to give such meaning to the constitution as comports best with the common, and generally received acceptation of the words in which it is expressed, regarding their ordinary and popular use, rather than their grammatical propriety. Where words are dubious, they will be explained by the context. The end of the clause will be attended to, and the words will be understood, as having a view to it; and the words will not be so understood as to bear no meaning or a very absurd one.

2d. The judicial are not only to decide questions arising upon the meaning of the constitution in law, but also in equity.

By this they are empowered, to explain the constitution according to the reasoning spirit of it, without being confined to the words or letter.

“From this method of interpreting laws (says Blackstone) by the reason of them, arises what we call equity;” which is thus defined by Grotius, “the correction of that, wherein the law, by reason of its universality, is deficient[”]; for since in laws all cases cannot be foreseen, or expressed, it is necessary, that when the decrees of the law cannot be applied to particular cases, there should some where be a power vested of defining those circumstances, which had they been foreseen the legislator would have expressed; and these are the cases, which according to Grotius, [”]lex non exacte definit, sed arbitrio boni viri permittet.”

The same learned author observes, “That equity, thus depending essentially upon each individual case, there can be no established rules and fixed principles of equity laid down, without destroying its very essence, and reducing it to a positive law.”

From these remarks, the authority and business of the courts of law, under this clause, may be understood.

They will give the sense of every article of the constitution, that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal. And I conceive the legislature themselves, cannot set aside a judgment of this court, because they are authorised by the constitution to decide in the last resort. The legislature must be controuled by the constitution, and not the constitution by them. They have therefore no more right to set aside any judgment pronounced upon the construction of the constitution, than they have to take from the president, the chief command of the army and navy, and commit it to some other person. The reason is plain; the judicial and executive derive their authority from the same source, that the legislature do theirs; and therefore in all cases, where the constitution does not make the one responsible to, or controulable by the other, they are altogether independent of each other.

The judicial power will operate to effect, in the most certain, but yet silent and imperceptible manner, what is evidently the tendency of the constitution: — I mean, an entire subversion of the legislative, executive and judicial powers of the individual states. Every adjudication of the supreme court, on any question that may arise upon the nature and extent of the general government, will affect the limits of the state jurisdiction. In proportion as the former enlarge the exercise of their powers, will that of the latter be restricted.

That the judicial power of the United States, will lean strongly in favour of the general government, and will give such an explanation to the constitution, as will favour an extension of its jurisdiction, is very evident from a variety of considerations.

1st. The constitution itself strongly countenances such a mode of construction. Most of the articles in this system, which convey powers of any considerable importance, are conceived in general and indefinite terms, which are either equivocal, ambiguous, or which require long definitions to unfold the extent of their meaning. The two most important powers committed to any government, those of raising money, and of raising and keeping up troops, have already been considered, and shewn to be unlimitted by any thing but the discretion of the legislature. The clause which vests the power to pass all laws which are proper and necessary, to carry the powers given into execution, it has been shewn, leaves the legislature at liberty, to do every thing, which in their judgment is best. It is said, I know, that this clause confers no power on the legislature, which they would not have had without it — though I believe this is not the fact, yet, admitting it to be, it implies that the constitution is not to receive an explanation strictly, according to its letter; but more power is implied than is expressed. And this clause, if it is to be considered, as explanatory of the extent of the powers given, rather than giving a new power, is to be understood as declaring, that in construing any of the articles conveying power, the spirit, intent and design of the clause, should be attended to, as well as the words in their common acceptation.

This constitution gives sufficient colour for adopting an equitable construction, if we consider the great end and design it professedly has in view — these appear from its preamble to be, “to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and posterity.” The design of this system is here expressed, and it is proper to give such a meaning to the various parts, as will best promote the accomplishment of the end; this idea suggests itself naturally upon reading the preamble, and will countenance the court in giving the several articles such a sense, as will the most effectually promote the ends the constitution had in view — how this manner of explaining the constitution will operate in practice, shall be the subject of future enquiry.

2d. Not only will the constitution justify the courts in inclining to this mode of explaining it, but they will be interested in using this latitude of interpretation. Every body of men invested with office are tenacious of power; they feel interested, and hence it has become a kind of maxim, to hand down their offices, with all its rights and privileges, unimpared to their successors; the same principle will influence them to extend their power, and increase their rights; this of itself will operate strongly upon the courts to give such a meaning to the constitution in all cases where it can possibly be done, as will enlarge the sphere of their own authority. Every extension of the power of the general legislature, as well as of the judicial powers, will increase the powers of the courts; and the dignity and importance of the judges, will be in proportion to the extent and magnitude of the powers they exercise. I add, it is highly probable the emolument of the judges will be increased, with the increase of the business they will have to transact and its importance. From these considerations the judges will be interested to extend the powers of the courts, and to construe the constitution as much as possible, in such a way as to favour it; and that they will do it, appears probable.

3d. Because they will have precedent to plead, to justify them in it. It is well known, that the courts in England, have by their own authority, extended their jurisdiction far beyond the limits set them in their original institution, and by the laws of the land.

The court of exchequer is a remarkable instance of this. It was originally intended principally to recover the king’s debts, and to order the revenues of the crown. It had a common law jurisdiction, which was established merely for the benefit of the king’s accomptants. We learn from Blackstone, that the proceedings in this court are grounded on a writ called quo minus, in which the plaintiff suggests, that he is the king’s farmer or debtor, and that the defendant hath done him the damage complained of, by which he is less able to pay the king. These suits, by the statute of Rutland, are expressly directed to be confined to such matters as specially concern the king, or his ministers in the exchequer. And by the articuli super cartas, it is enacted, that no common pleas be thenceforth held in the exchequer contrary to the form of the great charter: but now any person may sue in the exchequer. The surmise of being debtor to the king being matter of form, and mere words of course; and the court is open to all the nation.

When the courts will have a precedent before them of a court which extended its jurisdiction in opposition to an act of the legislature, is it not to be expected that they will extend theirs, especially when there is nothing in the constitution expressly against it? and they are authorised to construe its meaning, and are not under any controul?

This power in the judicial, will enable them to mould the government, into almost any shape they please. — The manner in which this may be effected we will hereafter examine.

Brutus.

As I recall only the Supreme Court is specified in the Constitution and Congress was given authority to create and presumably remove all inferior Federal courts.

“...the usually excellent Megyn Kelly...”

Megyn’s “performance” in asking Gingrich that “question” (or was it a statement?) was nothing more -—or less— than a bit of network eye candy trying to get taken seriously.

She really thought she was going to pull off some kind of coup, but she got hammered by Newt’s response and humbled by the raucous applause from the audience that followed.

does NRO ever get tired of shilling for OBozo's bootlickers? William F. must be proud... the DC Est. strikes again.

Yeah...and there was no power of Judicial Review before Marbury v Madison...precedents are made all the time. Ask Obama who didn’t have to produce a birth certificate, or explain his Connecticut issued social security card before funning for POTUS.

Why can’t an investigative committee looking into possible impeachment charges against a judge pull him/her before the committee for questioning? Where is it forbidden?

Andy McCarthy is an idiot. Congress can subpoena anyone they like for any reason they like.

I agree. What is the point giving the POTUS or the judges more power that they can abuse you with and they will. We are headed in the wrong direction. More power to the feds no matter who it is is not the answer. Getting rid of the louses is.

Congress can subpoena anybody. And Newt is only talking about arresting a judge that failed to heed a Congressional summons.

Rediscovering the power to impeach judges would reign in a lot of the craziness we have seen out of the judicial branch.