Free Republic

There's a telling personal anecdote in the prologue to the latest book by Pulitzer Prize-winning political scientist James MacGregor Burns, Packing the Court: The Rise of Judicial Power and the Coming Crises of the Supreme Court. The scene is 1937 and Burns is a wide-eyed Williams College undergraduate upset at the Supreme Court for thwarting the will of his beloved President Franklin D. Roosevelt. "How could these justices," he writes in the voice of outraged youth, "most of whom had been appointed to the Supreme Court decades earlier, paralyze a government twice elected by a huge majority of Americans and...

In the comments to yesterday's jury nullification piece (yes, I read your comments) Smitty was especially on-point when he said, "The real problem might be toleration, or more accurately, the lack of it. We wish our preferred freedoms to be respected, while applauding governmental crackdowns upon those freedoms we dislike or are indifferent to." Frankly that's been an ongoing hurdle in the effort to preserve and extend liberty. Until pot-smokers and gun owners and low-taxers and sexual minorities recognize that liberty is indivisible and that we're all in this together, we're going to be picked off piecemeal by government officials...

The Supreme Court’s Business Cases Reviewed by: Irene Warren, November 06, 2008 The American Enterprise Institute (AEI) for Public Policy Research Legal Center hosted its annual review of the U.S. Supreme Court’s 2007-2008 October term recently, and to mull over its regulatory framework of prime business cases, which make up the bulk of its civil lawsuits. “Recent regulatory and financial crises bring increased urgency to the examination of the justices’ future course,” as AEI pointed out. “Will Congress and the Executive finally create a stable regulatory framework, or will there be uncontrolled litigation and regulation over past misconduct, real and...

The Judge Steps Out by: Irene Warren, November 03, 2008 In this year’s vice-presidential debate, millions of Americans got to see U. S. Sen. Joseph Biden, D-Del., explain what he is looking for in a Supreme Court Justice. As chairman of the Senate Judiciary Committee, he gets to act on these convictions whenever a president nominates a candidate for one of the nine seats on the highest court in the land. As a long-time member of that committee, Sen. Biden has grilled many Supreme Court nominees, such as Robert Bork, whose nomination President Ronald Reagan sent to the Senate in...

Original Intent for All by: Irene Warren, September 17, 2008 Although conservatives generally embrace the original intent of the U.S. Constitution, while liberals see it as a living document, one legal scholar points out that a liberal read of the document constrains both left and right, while an interpretive one lends itself to exploitation by such political factions. “When liberated from the original meaning of the Constitution, both left and right became free to use the courts, both to pursue their political agendas and to obstruct the political agendas of their opponents,” said Randy Barnett, a professor at Georgetown University...

...courts deserve criticism when they exercise legislative or executive powers....But better to call this behavior what it really is, which is not "activism" but lawlessness. By contrast, judicial activism -- defined as courts holding the president, Congress, and state and local governments to their constitutional boundaries -- is essential to protecting individual liberty and the rule of law. Judicial review, the power to invalidate unconstitutional laws, was essential to the scheme of republican government established by our Constitution....Liberal critics cite statistics showing that the Supreme Court under Chief Justice William Rehnquist was more activist in invalidating federal laws than any...

Final Soluton to U.S. "Abortion Problem" is Clearly Laid Out in Contstitution Says Writer FRONT ROYAL, Virginia, March 11, 2006 (LifeSiteNews.com) – Today's LifeSiteNews Special Report analyses the American Constitution and what is says about who has ultimate authority over U.S. laws concerning abortion. Rand Brown, a student at Christendom College in Front Royal Virginia states in his article that the final solution to the "Abortion Problem" lays "not where most pro-life Americans think it to be".Brown relates that Congress "can overthrow a Supreme Court ruling precisely because it, and not the Judiciary, is the voice of the American people....

US Judge rules against Right to Petition. Read on...

Lost in all the hoopla over potential nominees and "strict constructionists" is the battle over Judicial Review. Judicial review was "created" in Marbury v. Madison. Nowhere in the constitution are the Federal Courts granted Judicial Review. They simply assumed that power in Marbury v. Madison. Recently, the U.S. Court of Appeals for the 4th Circuit upheld a lower court decision that threw out a federal ban on partial birth abortions since it did not provide a "health" exception. The problem is, the US Court of Appeals doesn't have the constitutional power to override Congress, yet it did. A "strict constructionist"...

In a recent opinion against judicial activism, Alabama Supreme Court Justice Tom Parker reproduces a stunningly precient 200-year-old quote from a former Congressman and judge about the dangers of permitting judges to claim the final authority to interpret the Constitution: "Just before Marbury v. Madison was decided (1803), Congressman Joseph Nicholson, a former judge, warned what might happen if a right of judicial review of constitutional questions was permitted to become a doctrine of judicial supremacy: By what authority are the judges to be raised above the law and above the constitution? Where is the charter which places the sovereignty...

House Majority Leader Tom DeLay is citing a controversial new book sharply critical of the Supreme Court's judicial activism as the basis for new Republican initiatives on court reform. "As a guide to his views on the subject, DeLay has been urging reporters to read "Men in Black: How the Supreme Court Is Destroying America," reports the Washington Post. Written by former Reagan Justice Department official Mark Levin, "Men in Black" details the history of the high court going back to Marbury vs Madison - exposing more than a few members of the exclusive legal club as racists, anti-Semites and...

Amnesia and an abundance of hot air are the order of the day in the Senate. Liberals are screaming bloody murder because Senate Majority Leader Bill Frist is seeking a way to derail unprecedented judicial filibusters by Democrats. But when Democrats were nominating the judges, they sang a different tune. Senator Frist is seriously considering a measure to allow confirmation of judges on an up-or-down vote by a simple majority. The Democrats, prodded by far-left-wing groups, are resisting. Currently it takes 60 votes (three fifths of the Senate) to break any filibuster. But for over 200 years, judicial filibusters were...

The framers of the U.S. Constitution feared a judiciary that might abuse its power. But even most of them did not envision the judicial oligarchy that confronts Americans in this 21st century. In case after case, judges and "last word" Supreme Court justices have substituted their personal opinions for the clear meaning of the Constitution or the law. The courts have overreached on abortion, gay rights, affirmative action, the death penalty, bilingual education, immigration, enemy combatants, law school admissions, flag-burning, ordering local governments to raise taxes, limits on political speech, prayer and the Ten Commandments in the public square, seizure...

Perhaps judicial review wasn't such a great idea after all. In Marbury v. Madison (1803), Supreme Court Chief Justice John Marshall assumed the power of judicial review over acts of the legislature. According to Marshall, the Constitution vested in the Supreme Court the ability to overturn legitimately enacted laws if those laws conflicted with the Constitution itself. It is anything but clear that the Constitution meant to create the power of judicial review. Marshall's opinion is full of holes, both textual and logical. As Judge Learned Hand stated, Marshall's opinion "will not bear scrutiny." Professor Alexander Bickel of Yale University...

An Exegetical Look at the Establishment Clause Monty Rainey www.juntosociety.com January, 11, 2005 Sometimes in the course of human events and an egregious society, it becomes necessary to muddle through the confusion and reveal the basic premise of an object. Such is the case with the First Amendment of the U. S. Bill of Rights, and more specifically, the establishment clause. The First Amendment has fallen under a barrage of hyperbole surrounding what it means and what it doesn’t mean. So-called experts in the field of interpretation have managed, over the years, to drape a veil of confusion and distortion...

Judicial review has its limits. In 1985, Edwin Meese, President Reagan's attorney general, created a furor when he attacked judicial supremacy. He argued that the executive and the legislative branches of government--not just the judicial one--had an obligation to interpret the Constitution. Supreme Court rulings may be final in a given case, he granted, but they could not settle the meaning of the Constitution, which remains independent of any one interpretation. Thus the president and members of Congress were free to reject court-fabricated rules, such as the "right" to an abortion. The legal establishment, naturally, responded as if Mr. Meese...

Brown Reconsidered by Joseph Sobran January 13, 2004 Judicial review was originally proposed (most notably in Federalist No. 78) as a method of making sure legislatures didn’t pass unconstitutional laws. Today it has become a method of changing the very meaning of constitutions under the guise of interpreting them. The problem was highlighted this past November, when the supreme court of Massachusetts handed down the sensational ruling that the state’s constitution required that same-sex “marriage” be recognized in law. The court didn’t even bother citing any specific passage of the constitution that might be construed to mean this; obviously it...

Brown Reconsidered January 13, 2004 Judicial review was originally proposed (most notably in Federalist No. 78) as a method of making sure legislatures didn’t pass unconstitutional laws. Today it has become a method of changing the very meaning of constitutions under the guise of interpreting them. The problem was highlighted this past November, when the supreme court of Massachusetts handed down the sensational ruling that the state’s constitution required that same-sex “marriage” be recognized in law. The court didn’t even bother citing any specific passage of the constitution that might be construed to mean this; obviously it couldn’t find one....

Do the Federal courts have a monopoly of the interpretation of the Constitution? Further, are the judges, in the words of Thomas Jefferson, "the ultimate arbiters of all constitutional questions . . ."?.1 There is little reason to doubt that the prevailing view in the country would give a resounding affirmative answer to the first question. There are dissenters, of course, but so far as they are numerous and widely influential, their dissents are to particular decisions or opinions of the courts, not to the propriety of the courts making some decision. The judges act as if they have a...

Conservatives frustrated by the notoriously liberal, San Francisco-based U.S. Court of Appeals for the 9th Circuit may finally have a chance to do something about it. Thanks to the new Republican majority in both houses of Congress and a rarely invoked congressional check on the power of the judicial branch, lawmakers could narrow the geographic scope of the long-infamous circuit court that recently banned the Pledge of Allegiance and nullified the 2nd Amendment right to keep and bear arms. Congress could then create a new circuit court to serve many of the states in the Northwest.Rep. Mike Simpson (R.-Idaho) told...

My question is... Are the courts the final arbiter of the Constitution? Does this mean they are the Imperial Courts? What happened to co-equal branches of government and the balance of powers? Article III. Section. 1. 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 Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their...