Impeaching Federal Judges: A Covenantal and Constitutional Response to Judicial Tyranny, was cited twenty-four times at the House Impeachment Hearings in 1999. Steven Fitschen, ENDNOTES: On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.- Thomas Jefferson (1743-1826), letter to Judge William Johnson, (from Monticello, June 12, 1823) The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary, as distinguished from technical meaning; where the intention is clear, there is no room for construction, and no excuse for interpolation or addition. - Martin v. Hunter's Lessee, 1 Wheat 304; Gibbons v. Ogden, 9 Wheat 419; Brown v. Maryland, 12 Wheat 419; Craig v. Missouri, 4 Pet 10; Tennessee v. Whitworth, 117 U.S. 139; Lake County v. Rollins, 130 U.S. 662; Hodges v. United States, 203 U.S. 1; Edwards v. Cuba R. Co., 268 U.S. 628; The Pocket Veto Case, 279 U.S. 655; (Justice) Story on the Constitution, 5th ed., Sec 451; Cooley's Constitutional Limitations, 2nd ed., p. 61, 70. "[W]e have no government armed with power capable of contending with human passions unbridled by religion morality and. . . . Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." John Adams, The Works of John Adams, Second President of the United States Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness, these firmest props of the duties of man and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connexions with private and public felicity. Let it simply be asked, Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths, which are the instruments of investigation in Courts of Justice? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle. It is substantially true, that virtue or morality is a necessary spring of popular government. The rule, indeed, extends with more or less force to every species of free government. Who, that is a sincere friend to it, can look with indifference upon attempts to shake the foundation of the fabric? George Washington, Address of George Washington, President of the United States . . . Preparatory to His Declination (Baltimore: George and Henry S. Keatinge), pp. 22-23. In his Farewell Address to the United States in 1796.) "If the institutions they [the Fathers] adopted are to survive, if the governments which they founded are to endure, it will be because the people continue to have similar religious beliefs. It is idle to discuss freedom and equality on any other basis. It is useless to expect substantial reforms from any other motive. They cannot be administered from without. They must come from within. That is why laws alone are so impotent. To enact or to repeal laws is not to secure real reform. It is necessary to take these problems directly to the individual."- Calvin Coolidge "The Foundation of Our Institutions"
Balancing the Ninth (IMPEACH EM ALL)
It was the fifth time the Ninth Circuit had been reversed in a month. Seven of eight cases already decided by the high Court this year from the Ninth Circuit have been reversed, and six of those seven were by unanimous or nearly unanimous rulings. A few years ago, the Supreme Court even took the extraordinary step of issuing a special order barring the Ninth Circuit from issuing any further last-minute rulings in a death penalty case. The year I was fortunate enough to serve as a law clerk at the Supreme Court, 28 of 29 cases from the Ninth Circuit resulted in reversals. It is almost as if one could write a word processing macro - call it the [Alt-9] macro - which would automatically insert at the end of any opinion involving a case from the Ninth Circuit the following conclusion: "The opinion of the Ninth Circuit is reversed; the decision of the Court is unanimous."
The Ninth Circuit is by far the largest Circuit Court in the country. It is the largest geographically, covering the western states of California, Arizona, Nevada, Oregon, Washington, Idaho, Montana, Alaska, and Hawaii - more than one-third of the entire nation. Thus it is no surprise that the lion's share of cases taken by the Supreme Court each term recently come from the Ninth Circuit, but it does not explain the high reversal rate.
STENBERG v. CARHART :Justice Scalia, dissenting. IMPEACH Stevens, Souter, Ginsburg , Breyer, O'Connor
I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court's jurisprudence beside Korematsu and Dred Scott. The method of killing a human child-one cannot even accurately say an entirely unborn human child-proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion. And the Court must know (as most state legislatures banning this procedure have concluded) that demanding a "health exception"-which requires the abortionist to assure himself that, in his expert medical judgment, this method is, in the case at hand, marginally safer than others (how can one prove the contrary beyond a reasonable doubt?)-is to give live-birth abortion free rein. The notion that the Constitution of the United States, designed, among other things, "to establish Justice, insure domestic Tranquility, . . . and secure the Blessings of Liberty to ourselves and our Posterity," prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.
While I am in an I-told-you-so mood, I must recall my bemusement, in Casey, at the joint opinion's expressed belief that Roe v. Wade had "call[ed] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution," Casey, 505 U.S., at 867, and that the decision in Casey would ratify that happy truce. It seemed to me, quite to the contrary, that "Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since"; and that, "by keeping us in the abortion-umpiring business, it is the perpetuation of that disruption, rather than of any Pax Roeana, that the Court's new majority decrees." Id., at 995-996. Today's decision, that the Constitution of the United States prevents the prohibition of a horrible mode of abortion, will be greeted by a firestorm of criticism-as well it should. I cannot understand why those who acknowledge that, in the opening words of Justice O'Connor's concurrence, "[t]he issue of abortion is one of the most contentious and controversial in contemporary American society," ante, at 1, persist in the belief that this Court, armed with neither constitutional text nor accepted tradition, can resolve that contention and controversy rather than be consumed by it. If only for the sake of its own preservation, the Court should return this matter to the people-where the Constitution, by its silence on the subject, left it-and let them decide, State by State, whether this practice should be allowed. Casey must be overruled.
STENBERG v. CARHART: Justice Kennedy, with whom The Chief Justice joins, dissenting
STENBERG v. CARHART : Thomas, Chief Justice, Scalia join, dissenting.
BOY SCOUTS OF AMERICA v. DALE IMPEACH Stevens, Souter, Ginsburg , Breyer
Evolution and the Law:"A Death Struggle Between Two Civilizations"
Justice Holmes agreed, urging that "the lawyer's task . . . was to participate actively in freeing the law from those archaic doctrines that prevented the law from consciously fulfilling its role of promoting social policy," [217] because "the justification of a law for us cannot be found in the fact that our fathers always have followed it. It must be found in some help which the law brings toward reaching a social end." [218]
Justice Cardozo agreed, declaring:
If there is any law which is back of the sovereignty of the state, and superior thereto, it is not law in such a sense as to concern the judge or lawyer, however much it concerns the statesman or the moralist. [219]
Justice Louis Brandeis (1856-1941) therefore encouraged the Court to break new ground and lead society in new directions, urging, "If we would guide by the light of reason, we must let our minds be bold." [220]
Even though individual Justices and legal educators had encouraged evolutionary law, it was not until Earl Warren (1891-1974) became Chief Justice that there was finally a majority of Justices on the Court willing to embrace that view. One of those Justices (now in the majority) was William Brennan (1906-1997), champion of what he termed "the evolving understanding of the Constitution," "the 'living' Constitution," "the freedom to reinterpret constitutional language," "a malleable Constitution," the Constitution's "power of adaptation," and "the Constitution's 'suppleness.'" [221]
Consequently, during Warren's sixteen year tenure, the Court became a powerful societal force, striking down numerous long-standing historical practices while acknowledging that it was doing so without any previous precedent. [222] In short, the Court thus publicly affirmed that it had finally arrived at its fully evolutionary aspiration, no longer bound by history or precedent.
Under this current theory, judges are solely responsible for the evolution of the Constitution, and it is living and organic according to their decree. As Justice Cardozo acknowledged, "I take judge-made law as one of the existing realities of life." [223] And Chief-Justice Charles Evans Hughes (1862-1948) similarly declared, "We are under a Constitution, but the Constitution is what the judges say it is." [224]
Harvard Professor Steven Wise summarizes this radical revolution in legal theory occasioned by the adoption of Darwin's principles:
"To understand the strong normative appeal of evolutionary models, one must first appreciate that American law, like biology at the time of Darwin, faces the problem of providing a theory of creation which does not invoke a Supreme Being." E Donald Elliott, "The Evolutionary Tradition in Jurisprudence," 85 Columbia Law Review 38, 91 (1985). Elliott, who believes that the manner in which law is affected by the ideas that it routinely borrows from other disciplines has been largely unexplored, sets sail by chronicling how the Darwinian idea of evolution has affected the jurisprudential work of such legal scholars as Holmes, Wigmore and Corbin. Id. See also Jan Vetter, The Evolution of Holmes, Holmes and Evolution, 72 Cal. L. Rev. 343, 362 (1984) ("Holmes' The Common Law is first of all an account of legal change, and its object in this respect is to exhibit the workings of Darwinian evolution in law"). Evolutionary jurisprudence was often shunned during the middle half of the twentieth century due to that period's association of evolution with Spencer's racist and reactionary Social Darwinism. Elliott, at 59, 76. It is shunned no longer. Id. See Roger D. Masters, Evolutionary Biology, Political Theory and the State, in Law, Biology & Culture-The Evolution of Law 171 (Margaret Gruter & Paul Bohannon eds., 1983). [225]
Yet, is the fact that the Constitution is now a living, malleable, evolving document, necessarily bad? After all, society does change and should not necessarily be bound by decisions made two centuries ago.
Significantly, the framers agreed with this thesis-they understood that times would change and therefore so should the Constitution. However, they would have vehemently disagreed with the mechanism by which this change occurs today.
The framers made clear that when the meaning, and thus the application, of any part of the Constitution was to be altered, it was to be at the hands of the people themselves, not at the feet of the judiciary or through the usurpation of any legislative body. For this reason, Article V was placed in the Constitution to establish the proper means whereby the people might "evolve" their government. As Samuel Adams explained:
[T]he people alone have an incontestable, unalienable, and indefeasible right to institute government and to reform, alter, or totally change the same when their protection, safety, prosperity, and happiness require it. And the federal Constitution, according to the mode prescribed therein, has already undergone such amendments in several parts of it as from experience has been judged necessary. [226]
George Washington also warned Americans to adhere strictly to this manner of changing the meaning of the Constitution:
If, in the opinion of the people, the distribution or the modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed. [227]
Alexander Hamilton echoed this warning, declaring:
[The] Constitution is the standard to which we are to cling. Under its banners, bona fide [without deceit], we must combat our political foes, rejecting all changes but through the channel itself provides for amendments. [228]
Already, the people have "evolved" their Constitution twenty-eight times by abolishing slavery, granting full suffrage without regard to race or gender, replacing capitation taxes with progressive taxes, imposing term limits on presidents, reducing the voting age for youth, requiring Congress to face the electorate before a congressional pay hike can take effect, etc.
It is this method of "evolving" the Constitution set forth in that document which must be jealously followed. Therefore, if the belief in theistic origins, transcendent values, unalienable rights, or any other political doctrine established in our documents, is to change, it must be done by the people themselves, according to the process established in Article V. Any other method of change is an abuse of power and a usurpation of the rights of the people.
The real danger of societal evolution rests, then, not in the fact that corrections are needed but rather in the fact that those "corrections" are made by a small, elite, and unaccountable group-and often by individuals whose personal values do not reflect those of "we the people." In fact, in a number of recent cases, the courts have unilaterally reversed the outcome of direct elections wherein the people clearly expressed their will. For example:
[T]he fundamental principle of our Constitution . . . enjoins [requires] that the will of the majority shall prevail. [240]
And President Thomas Jefferson, an Anti-Federalist, had echoed:
[T]he will of the majority [is] the natural law of every society [and] is the only sure guardian of the rights of man. Perhaps even this may sometimes err. But its errors are honest, solitary and short-lived. [241]
Very simply, the allegedly evolving values of the nation have not been reflected in the Court's evolution of the Constitution, the people have shown no inclination to alter either the view of theistic origins incorporated in our documents or of the type of civilization that proceeds from that belief. Until the people make that change, it is judicial tyranny to impose contrary beliefs on the people. And despite any well-meaning intentions that might rest behind such efforts, those other means are, as George Washington explained, "the customary weapon by which free governments are destroyed."
Allowing the federal judiciary to be the final authoritative voice in determining what the people "need" not only smacks of elitism but also places America under what President Thomas Jefferson so aptly described as "the despotism of an oligarchy." [242]
Laws and Standards - Do They Evolve?
The way in which a society addresses such controversies is directly related to how it answers the following three foundational questions: (1) Can man legislate morality? (2) If so, by what standard should man legislate? and, (3) Does this standard evolve? The answer to each of these questions is determined by one's approach to origins. By convincing large numbers of Christians that law is morally neutral, that human reason is the arbiter of truth, and that standards change as cultures mature, Darwinism has neutralized the restraining influence of Biblical Christianity on culture. While many Christians resist formal acceptance of the evolutionary hypothesis, they have implicitly accepted the assumptions on which the theory rests.
It is impossible to pass a law which is free from moral implications. The real question is not whether man can legislate morality, but which system of morality will be legislated.
1. The Blackstone Tradition
Blackstone predicated his entire analysis of law on the superiority of special revelation (the Bible) over general revelation (nature), on the reality of a literal twenty-four hour, six-day creation week, on a literal Adam and a literal Fall resulting in the corruption of human reason, and on the Dominion Mandate of Genesis as the foundation for the law of property ownership. Blackstone affirmed the authority of Scripture as the only legitimate foundation for society, and he specifically refuted the idea that laws could evolve as societies change. He wrote:
Men do not make laws, they do but discover them. Laws must be justified by something more than the will of the majority. They must rest on the eternal foundation of righteousness. . . . The doctrines thus delivered we call revealed or divine law, and they are to be found only in holy scriptures. . . . And if our reason were always, as in our first ancestor before his transgression, clear and perfect, unruffled by passions, unclouded by prejudice, unimpaired by disease or intemperance, the task would be easy. . . . But every man now finds the contrary in his experience, that his reason is corrupt. . . .
2. The "Scientific" Approach to Law
There proceeded during the 19th Century, under the influence of the evolutionary concept, a thoroughgoing transformation of older studies like History, Law, and Political Economy; and the creation of new ones like Anthropology, Social Psychology, Comparative Religion, Criminology, Social Geography. . . . (Julian Huxley)
A millennium of Christian legal tradition came to an end in 1870. In that year, Christopher Columbus Langdell, newly appointed Dean of Harvard Law School, began a revolutionary approach to legal education which specifically discarded the Genesis foundation of law in favor of a philosophy rooted in Darwinism.
The single most influential jurist of the Twentieth Century was United States Supreme Court Justice Oliver Wendell Holmes, Jr. His massive treatise, The Common Law, supplanted Blackstone's Commentaries as the premier text for law students. Holmes taught "the life of the law has not been logic, but experience," and argued that it was the responsibility of courts to direct the evolution of law. Because right and wrong do not exist in any absolute sense, judges must determine which standards are most appropriate at a given point in the evolution of a society.
Holmes and his contemporaries laid the foundation for legalized abortion, no-fault divorce, the legalization of homosexuality, and the rejection of the Framers' vision for Constitutional interpretation. Today, most courts have embraced an evolving standard for Constitutional interpretation, rejecting the notion that the Constitution must be interpreted in light of the meanings intended by the Framers.
Is Religion Dangerous for America? The Supreme Court's Liberals Think So.
The Supreme Court's decision upholding the constitutionality of taxpayer-financed vouchers for private and religious schools was doubtless a significant victory for the cause of religious and educational freedom in America. But supporters of vouchers - and the prerogatives of religion in our national life generally - should note soberly that the victory was the result of a sharply divided 5-4 decision. And more important than the closeness of the vote was the clear and frightening hostility of the Court's liberal bloc toward those who take their faith seriously.
As all four of the dissenters imply, in varying degrees, those who take their religious faith seriously enough to pursue religious education for their children may pose a danger to society. You see, taking one's religious faith seriously may mean taking it too seriously for the public good, or so these wise men argue. All three dissenting opinions contend that such religious devotion is a grave threat to America, and advocate the use of the Constitution's Establishment Clause as a weapon against it.
The whole purpose of Justice Stephen Breyer's dissent - joined by two others - is to warn of the risk from voucher programs "in terms of religiously based social conflict." He argues that the majority's decision could lead to "a form of religiously based conflict potentially harmful to the Nation's social fabric." Justice John Paul Stevens joins in, explaining that he has "been influenced by [his] understanding of the impact of religious strife on the decisions of our forbears to migrate to this continent." And Justice Souter, whose opinion was signed by all the Court's dissenters, fears that vouchers will threaten the "confidence that religious disagreement will stay moderate," and refers in dark terms to "the divisiveness permitted by today's majority." Why Communism Kills: The Legacy of Karl Marx
This shocking candor makes clear what is at stake as new justices are appointed to the bench in coming years. And this ought to make clear what is at stake in this year's elections for the U.S. Senate, not to mention the presidency in 2004.
The Biden-Thomas exchange reflected at the partisan political level a problem that permeates the literature of legal philosophy. I call this problem the modernist impasse. Modernism is the condition that begins when Humans understand that God is really dead and that they therefore have to decide all the big questions for themselves. Modernism at times produces an exhilarating sense of liberation: we can do whatever we like, because there is no unimpeachable authority to prevent us . Modernism at other times is downright scary: how can we persuade other people that they want to do to us is barred by some unchallengeable moral absolute?
Yale Law Professor, Arthur Leff, expressed the bewilderment of an agnostic culture that yearns for enduring values in a brilliant lecture delivered at Duke University in 1979, a few years before his untimely death from cancer. The published lecture - titled, "Unspeakable Ethics, Unnatural Law" - is frequently quoted in law review articles, but it is little known outside the world of legal scholarship. It happens to be one of the best statements of the modernist impasse that I know. As Leff put it,
I want to believe - and so do you - in a complete, transcendent, and immanent set of propositions about right and wrong, findable rules that authoritatively and unambiguously direct us how to live righteously. I also want to believe - and so do you - in no such thing, but rather that we are wholly free, not only to choose for ourselves, individually and as a species, what we ought to be. What we want, Heaven help us, is simultaneously to be perfectly ruled and perfectly free, that is, at the same time to discover the right and the good to create it.
The heart of the problem, according to Leff, is that any normative statement implies the existence of an authoritative evaluator. But with God out of the picture, every human becomes a godlet - with as much authority to set standards as any other godlet or combination of godlets. For example, if a human moralists says "Thou shalt not commit adultery", he invites the formal intellectual equivalent of what is known in barrooms and schoolyards as 'the grand sez who?' Persons who want to commit adultery, or who sympathise with those who do, can offer the crushing rejoinder: What gives you the authority to prescribe what is good for me?
Arthur Leff had a deeper understanding of what the death of God ultimately means for man. He saw modern intellectual history as a long, losing war against the nihilism implicit in modernism's rejection of the unevaluated evaluator who is the only conceivable source for ultimate premises. Leff rejected the nihilism implicit in modernism, but he also rejected the supernaturalism that he had identified as the only escape from nihilism. Here is how he concluded his 1979 lecture:
All I can say is this: it looks as if we are all we have. Given what we know about ourselves, and each other, this is an extraordinary, unappetising prospect; looking around the world, it appears that if all men are brothers, the ruling model is Cane and Abel. Neither reason, nor love, nor even terror, seems to have worked and made us "good", and, worse than that, there is no reason why anything should. Only if ethics were something unspeakable by us could law be unnatural, and therefore unchallengeable. As things stand now, everything is up for grabs.
Nevertheless:
Those who stood up and died resisting Hitler, Stalin, Amin and Pol Pot - and General Custer too - have earned salvation.
The U.S. Supreme Court ending misuse of public funds
and a coup by Mary Frances Berry (D, US Commission of Civil Rights).
HEROES:
Judges Guy Jr., Leavy, Silberman - Expanded wiretap guidelines do not violate the Constitution
HEROES:
9th U.S. Circuit Court of Appeals - Court blocks legal challenge to detention of Afghan war prisoners
ZERO:
In Los Angeles, US District Judge Robert Takasugi of Los Angeles issued a preliminary
injunction blocking enforcement of the US citizenship requirement for airport guards.
ZEROES:
In Washington, US Appellate Judges Clevenger, Friedman and Prost
ignore false statements and fraud at the US Patent Office to prevent US citizens
from ever patenting instruments capable of looking for alternative energy sources.
The Court purported measuring energy output has "no utility" for the US
even as Amicus Curiae were gagged who would have testified otherwise,
and as foreign companies (e.g. Mitsubishi) have staked out all relevant patents.
[Meanwhile, the US Patent Office does routinely allow patents using
astrology to predict lottery numbers, claiming they have "operability" and "utility".]
bttt
http://judiciary.house.gov/media/pdfs/Realinquirystate706.pdf
U.S. House of Representatives
Committee on the Judiciary
F. James Sensenbrenner, Jr., Chairman
_______________________________________
http://judiciary.house.gov/
News Advisory
For immediate release Contact: Jeff Lungren/Terry Shawn
September 20, 2006 202-225-2492
Courts Subcommittee Hearing Thursday on Whether
Impeachment Articles are Warranted for U.S. Judge Real
What: Legislative Hearing on H. Res. 916, a resolution impeaching Manuel L.
Real, a U.S. district judge of the Central District of California, for high
crimes and misdemeanors
Who: Subcommittee on Courts, the Internet, and Intellectual Property – Rep.
Lamar S. Smith (R-Tex.), Chairman
When: 9:00 a.m., Thursday, September 21, 2006
Where: 2141 Rayburn Building
In February 2000, Judge Real allegedly interceded on behalf of a defendant known to him in a
joint bankruptcy and California state unlawful-detainer action. According to published reports, Judge
Real received ex parte communications from the defendant and through third parties about the matter
before he took action. He was also supervising the defendant as part of her probation in a separate
criminal case in which she had pled guilty to perjury and loan fraud.
Judge Real withdrew the complaint from the bankruptcy court and enjoined the state eviction
proceeding. He allegedly gave no reasons for his assertion of jurisdiction over the case or his rulings.
The defendant was allowed to live rent-free in the home for a period of years. When the trustee appealed
by mandamus to the Ninth Circuit, Judge Real transferred the case to another district judge. The trustee
eventually reclaimed the property on appeal but lost at least $35,000 in rent during the proceedings.
Attorneys fees were in the tens of thousands of dollars.
A Ninth Circuit Judicial Council is investigating – for the third time – Judge Real’s behavior in
this case. A report issued yesterday by a Judicial Committee headed by Justice Stephen Breyer found
that the complaint was mishandled the two previous times by the Ninth Circuit. More information about
Judge Real’s conduct is available at http://judiciary.house.gov/Printshop.aspx?Section=306 .
ISSUES TO BE ADDRESSED...
T What are the facts surrounding Judge Real’s behavior when he became involved in the Canter
legal proceedings?
T What relevant impeachment precedents exist for review by the Subcommittee?
T Is the commission of a serious crime an essential requirement for impeachment? What is the
purpose of impeachment?
T Has the Ninth Circuit handled its investigation of Judge Real’s behavior appropriately?
T Are there other actions that the House of Representatives or Congress can take regarding Judge
Real’s behavior short of impeachment?
WITNESSES: The Honorable Manuel L. Real, U.S. district judge for the Central District of California;
Andrew Smyth, attorney for Deborah Canter (the defendant in the unlawful detainer and bankruptcy
actions); Arthur Hellman, Professor, University of Pittsburgh School of Law; and Charles Geyh,
Professor, Indiana University School of Law
####