Article III, Section 2

Thomas Jefferson is generally recognized by most historians as the principle author of the Declaration of Independence. Our Founding Fathers created a federal system of three branches, Executive, Legislative and Judicial.

"The federal judiciary is ?working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the States, and the government of all be consolidated into one (i.e., federalization)."

Congress should use Article III to limit the jurisdiction of the federal courts. This explicit power is given to Congress by the Constitution, and it ought to be used without delay.

Article III, Section 1 of the Constitution provides that "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." Since Congress created the federal district and appellate courts, Congress can regulate, reorganize or even abolish them. As an example of proper regulation, Congress in the past has ordered that all cases of a certain kind must be heard by a three-judge district court, instead of by just one judge.

In the 1930s, liberals in Congress thought the federal courts were too pro-business to handle cases involving labor strikes fairly. In 1932 Congress passed the Norris-Guardia Act removing jurisdiction in this field from the federal courts, and this was upheld by the Supreme Court in Lauf v. E. G. Shinner (1938). Liberals followed the same procedure when they passed the Hiram Johnson Acts to remove federal court jurisdiction over public utility rates and state tax rates.

Another celebrated example was the Emergency Price Control Act of 1942 (OPA), in which Congress removed from federal courts the jurisdiction to consider the validity of any OPA regulation. In the test case upholding this law, Lockerty v. Phillips (1943), the Supreme Court held that Congress has the power of "withholding jurisdiction from them [the federal courts] in the exact degrees and character which to Congress may seem proper for the public good." In 1946 the Supreme Court handed down the portal-to-portal pay decision, which was generally recognized to be a big mistake that would send hundreds of firms into bankruptcy. Congress simply removed jurisdiction from the federal courts to handle any more such cases.

Although Congress's power over the Supreme Court is somewhat limited, the Constitution still gives Congress the power to define the boundaries of the Supreme Court "with such Exceptions, and under such Regulations as the Congress shall make." The Supreme Court upheld this limitation of its own authority in Ex parte McCardle (1868), stating, "the power to make exceptions to the appellate jurisdiction of this Court is given by express words."

One of the tragedies of history is that the effort led by Senator Robert Griffin (R-MI) to withdraw jurisdiction from the federal courts over forced busing failed in the Senate by only one vote on February 29, 1972. In 1980, Senator Jesse Helms' (R-NC) amendment to withdraw jurisdiction over prayer in public schools passed the Senate, but failed to come to a vote in the House because of Speaker Tip O'Neill's legislative chicanery. And in 1969 after the Supreme Court had shocked America with a series of 22 pro-obscenity decisions, Senator Everett Dirksen (R-IL) made a valiant, but unsuccessful, effort to withdraw jurisdiction from the federal courts to overturn a jury's finding that something is obscene.

For starters, Congress should deny federal judges the power to impose taxes. One of the Supreme Court's most arrogant decisions, Missouri v. Jenkins (1990), upheld a federal judge's doubling of property taxes in Kansas City in order to pay for the world's most extravagant public school facilities. The Court simply ignored the Constitution's most peremptory directive, "All Bills for raising Revenue shall originate in the House of Representatives" (Article I, Section 7), and the words of James Madison in Federalist No. 48: "The legislative branch alone has access to the pockets of the people.''

Congress should take away all jurisdiction from the federal courts to issue injunctions to overturn referenda and to prevent enforcement of the voters' wishes during the years that a case winds its way through the court system. It is outrageous that a single federal judge can nullify initiatives passed by a majority of the voters, as has happened in a half dozen states.

Congress should also take away any power of the federal courts to invent new rights, such as the so-called "rights" to same-sex marriage or to assisted suicide. Congress should stop the courts' arrogant micromanagement of schools and prisons. Congress Must Curb the Imperial Judiciary

...the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.... The judiciary...has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

...It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power1; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. ... from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

1 The celebrated Montesquieu, speaking of them, says: "Of the three powers above mentioned, the judiciary is next to nothing.'' "Montesquieu: The Spirit of Laws.'' vol. i., page 186. The Avalon Project : Federalist No 78

The electorate must demand that Congress act in accordance with the testimony presented in Congress, the Court, and the Constitution

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