Posted on 02/05/2017 10:04:05 AM PST by VitacoreVision
It’s no surprise the Democrats plan to fight against the nomination of President Trump’s Supreme Court pick, 10th Circuit Court of Appeals judge Neil Gorsuch. There are no confirmation battles like Supreme Court confirmation battles because, as we always hear, such a decision can “shape the country for a generation.”
This doesn’t sound like the role envisioned by the founders. As Alexander Hamilton wrote in The Federalist, No. 78, the judiciary is (theoretically) the “least dangerous” branch of government because it “has no influence over either the sword or the purse.” So how have the courts been afforded so much power?
“Afforded” is the word. In reality, the judiciary has become the most dangerous branch due to ignorance and congressional abdication of responsibility.
Conservatives often complain that the courts thwart the people’s will, act unconstitutionally and impose their own biases via judicial fiat. A good example is the 2015 Obergefell v. Hodges decision dictating that states must recognize faux (“same-sex”) marriage. What most don’t know is that Congress could long before have prevented the courts from weighing in.
Article III, Section 2 of the Constitution grants Congress the power to limit the jurisdiction of federal courts below the Supreme Court and the appellate jurisdiction of the latter. In other words, Congress could simply have prevented federal courts below the SCOTUS from ruling on marriage (and other issues) to begin with and the SCOTUS from reviewing lower-court decisions on those issues. This would, essentially, have left marriage where it belongs: in the states.
Why was this not done?
Cowardice.
Congress would’ve had to take a firm stand on a contentious issue and perhaps suffer electoral consequences. It’s easier for politicians to just puff up their chests, complain of judicial overreach, then throw up their hands and say “The courts have ruled — there’s nothing we can do.” Few today understand the Constitution, so who will argue?
Congress also has the power under Article III to eliminate any and every federal court except the SCOTUS. For example, it could have sent the United States Court of Appeals for the Ninth Circuit — known for insane rulings and as the nation’s “most reversed” court — packing long ago. It certainly would make judges mind their p’s and q’s, too, if they knew acting unconstitutionally could mean their jobs.
Again, though, this would require Congress to take a stand. Besides, if it actually did so and drained the judicial swamp, what could Congress blame for divisive political outcomes? The transgressing courts would be gone and the remaining ones chastened, and judges would more often leave issues (e.g., abortion, marriage) in the legislature’s hands, putting politicians on the hot seat. Can’t have that. Federal judges don’t have to be reelected — congressmen do.
Yet this is why courts are going rogue. How can there be a balance of power in our system, as the founders intended, if one branch refuses to exercise its power?
The kicker is that accepting the courts’ current role is not only misguided, but, according to Thomas Jefferson, makes our Constitution a “felo de se” — a suicide pact.
Jefferson was warning of judicial supremacy, the idea that courts have the power to determine what law means and thus constrain not only their own branch, but the other two as well. Why did this bother Jefferson?
The legislature’s power to create law and the executive branch’s power to enforce it are granted by the Constitution. But what of judicial supremacy?
It is nowhere to be found in the Constitution.
Rather, this “power” was declared by the courts themselves, most notably in the Marbury v. Madison decision in 1803. Talk about circular reasoning: The SCOTUS has trump card power....
Because the SCOTUS says so.
The result? The Supreme Court was only meant to be supreme among courts. Instead, in a government supposedly of, by and for the people, five lawyers can determine what law means for 320 million Americans.
With Trump poised to transform the SCOTUS, conservatives may say that now isn’t the time to question its power. But Republican judicial nominees have often disappointed. Moreover, draining the swamp is fine, but if we want the right kind of governmental revolution, perhaps we should start by listening to the revolutionaries who created our government.
It’s time to split up the 9th Circuit Court of Appeals
It is time to “repeal and replace” the 9th circuit.
Amen To That!
That is EXACTLY what I have been saying for years!!
The entire West is held hostage to this San Francisco far left Star Chamber.
Break it up. Add a circuit for the Intermountain West - Arizona, New Mexico, Colorado, and Utah - and then another for the Northwest - Washington, Oregon, Idaho and Montana.
And while we're at it, make the Supreme Court a product of the circuit courts: one Justice each from each of the circuits. That way we don't end up with the Bolshevik Lawyers club of New York City that we have now.
This article promotes two ideas:
I supported the Federal Marriage Amendment and lost interest in Fred Thompson as a Presidential Candidate when he thought it best to leave this to states, ignoring the judicial threat that would lead to. A political solution that set the standard that the court must uphold was the ideal solution. Perhaps it was too hard to implement.
But I'm not sure preemptive restriction of the courts is a good solution for the current problems. How many issues need preemptive restrictions? Where does it end?
Neither is court elimination. Sure, who wouldn't love to see the 9th circus disbanded. But are we going to eliminate courts every time a judge or set of judges become problematic? Is it the court structure or the judge that is the problem?
I maintain it's the judge. I think the Executive needs an office of judical review that evaluates the rulings of controversial judges, puts together a case for their impeachment and submits it to Congress.
Impeaching judges requires more votes that eliminating courts. But it is the judge that is the issue. And impeaching judges puts all judges on notice.
Eliminating courts may be the easier path, but it's a path that probably needs to be closed. Sure we could eliminate the 9th circuit. And when democrats are in power that could eliminate the entire court structure and rebuild it in their image, staffing it completely with their pics.
And that is a danger that exists unless we close that path. We need to make it as hard to eliminate courts as it is to impeach a judge.
Pray.
If some of these people can only be removed by death or quitting, we need to pray that GOD would remove them however He sees fit.
Then Trump can install his own.
Who splits it up? Sounds good.
Brilliant dissection in a brief article of the historic roots of the growth of judicial power by judicial assumption of powers not named in the Constitution nor anticipated by the Founders. As brilliant as our Founders were at anticipating problems and trying to provide for a checks and balance system, they never anticipated a Judicial coup by John Marshall.
However illegal or exta-constitutional that assumption of the power to review our laws by interpreting the Constitution may be, the idea that Congress is able or likely to limit them is minuscule. That ship sailed with Marbury vs. Madison and thousands of precedent in opinions by the Federal judiciary without a response by the Congress.
Without some form of Constitutional Amendment, the political nature of our parties will come forth every time a judicial appointment of importance is made at any level of the judiciary.
Most in Congress lacks cajones. Trent Lott, Bob Dole, Mitch McConnell, and also those who choose them... and also many Democrats.
They intentionally write laws that are vague, that they think are unConstitutional, that include words like reasonable which mean reasonable to the swing vote on the court.
Spineless Congress Critters yield their power to the other branches.
This doesn’t sound like the role envisioned by the founders.
No it isn’t. But it was begun by Leftists who have since admitted that their decision (Roe v Wade) had NO BASIS IN LAW but was the “right” thing to do none the less. It continues today.They’re playing CalvinBall and we are afraid of confronting this truth. If Trump doesn’t have a game plan to counter this then they have figured out how to beat him.
Can it be done? And if does President Trump have the right to select or install judges?
Of course it can be done. The congress could wipe all the courts below SCOTUS as the article said an replace the whole district system. But what it comes down to is courage. And this is the reason that the 17th amendment must be repealed and give the states legislatures back the role of appointing the Senators. Now the senators have to answer to the voters instead of the states
At the risk of being accused as a 'conspiracy theorist', consider the plans the dems MAY have had when they assassinated Scalia. The ONE good thing I can credit Mitchie McConnell with is NOT moving Garland's nomination through the senate.
Ultimately, Congress will have to decide whether it supports the President upholding and executing its own legislative acts.
One can only imagine the constitutional crisis that would unfold if Congress attempted to impeach Trump over contempt of court resulting from an order that directly contradicts a law passed by Congress.
That's why Trump is going to win - he has logic and the law on his side.
Sure they did - it was discussed extensively in the Federalist papers. In fact, the issue of judicial review predates the US and dates back to the English civil war.
However, it's extremely telling that while the Constitution goes into almost minute detail about certain operating functions of government, it's incredibly brief about the court.
The SC asserted its right in Marbury, and it's been honored through custom and tradition since. But there has always been a presumption of unity with respect to nat'l security.
However, consider what would have happened if the SC had opposed Lincoln in the conduct of the Civil war? That's where we're going with this if the courts attempt to force the issue.
Very interesting article. Thanks for sharing. I hope the Trump team understands this fully. While it would ultimately be Congress that would have to start this process, Trump can obviously have a lot of influence on them.
If the State attorney general believes, as shown by a written opinion, that the law is valid notwithstanding the court's opinion, then the State should continue to enforce the law.
Under the Constitution, Article I, section 1, "All legislative Powers herein granted" are vested in Congress, which means that NO legislative powers are vested in the Courts. Amending or repealing a law is a legislative function, which the federal courts may not properly do.
Support Justice Moore.
The cowardice displayed by the U.S. Congress regarding the courts overreach and unconstitutional rulings is a trait shared by the states’ governors and legislatures. The latest act of cowardice was evidenced by lawmakers at all levels of government when they simply rolled over when the USSC declared the legality of same sex marriage. That unconstitutional declaration was allowed to override the laws and constitutions of several states. Of course the worst and most unconscionable and unconstitutional decision to come out of the USSC was Roe vs Wade. All legislative bodies in the country rolled on that one and they’ve been rolling ever since.
Nothing prevents a president from presenting to Congress a case for impeaching a judge.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.