Rush, I love ya, but you made a critical error Tuesday on Marbury v. Madison

I’ve been listening to you since the first month you went on the air in New Orleans. You are an inspiration and my whole family loves you.

In the last half of your first hour on Tuesday you were discussing how far out in left field the Federal Judiciary has gone in the last several decades. You discussed parts of the Scalia v Breyer debate and were hitting on all cylinders in the way that only Maha Rushie can.

Then you proceeded to explain the history of the “source” of much of the judicial tyranny we suffer under today. And here I quote you from your website:

"So in Marbury vs. Madison the Supreme Court says: We are the arbiters of what's constitutional or not." Therefore, we get the Supreme Court telling us whether abortion is legal or not, whether it's constitutional or not, whether busing is constitutional. It was never part of the intention of the Founders in structuring the three branches, and now the court and judges, who are liberal activists seek to impose their own political agenda on society when they get the chance as in this court and this judge's ruling on the war on terror."

Rush while you are of course correct that: “It was never part of the intention of the Founders in structuring the three branches, and now the court and judges, who are liberal activists…..” you made a major mistake about Marbury that needs correction. “Nothing in Marbury supports the modern myth of judicial supremacy in interpretation of the Constitution.”

Rush, the problem we conservatives face today is that the MISUNDERSTANDING of what Marbury ACTUALLY said and did has become so entrenched that it’s taught in high-school civics as well as advanced law school courses. This misunderstanding has become so fully accepted that even conservatives have come to perpetuate it. It is in many ways the Achilles heel of those who want to restore true order to the judicial branch. It is also one of the major obstacles to ending the holocaust of abortion, which the Supreme Court began with its infamous Roe decision.

Rush I know that you are a great supporter of the Pro-Life Movement. I believe some of your finest moments are when you speak about the sanctity of life. However, the Pro-Life Movement, and conservatism in general suffers greatly because of what has become the “accepted facts” of what precedents Marbury set—but virtually every part of the myth about Marbury is incorrect.

Perhaps no one individual sets the record straight on the truth of Marbury v. Madison better than University of Minnesota Law Professor Michael Paulsen. Dr. Paulsen is the Briggs & Morgan Professor of Law, Northwestern University. Dr. Paulsen presented “THE IRREPRESSIBLE MYTH OF MARBURY” during the CONSTITUTIONAL THEORY COLLOQUIUM SERIES in the spring of 2004. It is in PDF format at http://www.law.northwestern.edu/mainpages/curriculum/colloquium/Michael%20Paulsen.pdf

Also you may read about Dr. Paulsen at the Law school website. http://www.law.umn.edu/facultyprofiles/paulsenm.htm

Rush, please review Dr. Paulsen’s study on Marbury, and help break the Myth which does so much harm to the advancement of our cause of Conservatism.

If we had a President and Congress up to the task, then I'd almost wish that the Sup Court would go ahead and issue a decision imposing gay marriage/civil unions. Then I'd like to see the President and Congress simply refuse to enforce it. They could declare the decision to be w/o basis in the Constitution, and deride it as an obvious attempt by the judiciary to effect policy that had already been rejected by the people at the ballot box. What could the Courts do about it? If the Congress went along with the President, then there would be no danger, and if they were smart about it then they could win the people to their side.

I think the people would side with the Executive and Legislative branches, and it would be great if it forced a nationwide debate that forced Americans to examine the very points you refer to. Ideally, this would shatter forever the bogus idea that the Sup Court is the only and ultimate arbiter of Constitutionality, and that it can issue orders to its 'coequal' branches.

That would be a great thing indeed.

Congress is at fault here, they have the ultimate authority. It just happens that Congress agrees with most of the crap the courts are handing down. It sure gives them something to hide their true nature, after all the Court has ruled, we can't defy them.

Article III, Section 2

By William E. Dannemeyer

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.

On Aug. 18, 1821, Jefferson wrote to Charles Hammond and expressed his fear that, of the three branches of government which were created, the one he feared the most was the federal judiciary in these words:

"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)."

Decisions of the federal judiciary over the last half century have resulted in the theft of our Judeo-Christian heritage, a brief sampling is as follows:

• Enacting "a wall of separation between church and state"

• Banning nondenominational prayer from public schools

• Removing the Ten Commandments from public school walls

• Removing God from the Pledge of Allegiance

Congress should use Article III, Section 2, clause 2 of the U.S. Constitution to recover what has been stolen. Under the heading "Jurisdiction of Supreme and Appellate Courts," the clause says:

"In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

Over the last 200 years, Congress has exercised this authority to except certain areas from the jurisdiction of the federal court system. In Turner vs. Bank of North America 4 Dall. (4 U.S.,8(1799)),the Supreme Court concluded that the federal courts derive their judicial power from Congress, not the Constitution.

In Cary vs. Curtis 3 How, (44 U.S.), 236 (1845), a statute made final the decision of the secretary of the Treasury in certain tax deductions. The statute was challenged as an unconstitutional deprivation of the judicial power of the courts. The Supreme Court concluded that the jurisdiction of the federal courts (inferior to the Supreme Court) was in the sole power of Congress.

In Sheldon vs. Sill 8 How (49 U.S. 441 (1850)), involved the validity of the assignee clause of the Judicial Act of 1789 restricting such action to establish federal court jurisdictions. The Supreme Court sustained the power of Congress to limit the jurisdiction of the inferior federal courts.

In Ex Parte McCardle 6 Wall. (73 U.S.) 318 (1868), the Supreme Court accepted review on certiorari of a denial of a petition for a writ of habeas corpus by the circuit court. Congress, fearful the Supreme Court would honor the writ, passed a law repealing the act which authorized the appeal. The Supreme Court dismissed the case for lack of jurisdiction.

In Lauf vs. E.G. Shinner & Co. 303 U.S. 323, 330 (1938), the Supreme Court upheld the power of Congress to define and limit the jurisdiction of the inferior courts of the United States in the form restrictions on the issuance of injunctions in labor disputes under the Norris-La Guardia Act of 1932.

In Lockerty v. Phillips 319 U.S. 182 (1943), Congress provided for a special court to appeal price control decisions under the Emergency Price Control Act of 1942. The Supreme Court sustained this restriction.

One of the outstanding Constitutional scholars in the Senate is Robert Byrd, West Virginia Democrat. In 1979, in order to once again allow voluntary prayer in public schools, he introduced a law to except this subject from the federal court system under Article III, 2.2. Unfortunately, it was not enacted into law.

In the 107th Congress (2001-2002), Congress used the authority of Article III, Section 2, clause 2 on 12 occasions to limit the jurisdiction of the federal courts.

Sen. Thomas A. Daschle, South Dakota Democrat, used the exception authority of Article III, 2.2 in order to cut some timber in South Dakota.

Congress responds to pressure from the public. Call, write, e-mail or fax your senator or member of the House to enact S1558 by Sen. Allard, Colorado Republcican, and HR 3190 by Rep. Pickering Mississippi Republican. These bills allow the Ten Commandments to be displayed and retain God in the Pledge of Allegiance and use Article III, Sec. 2.2.

itsahoot and Aetius,

You guys are on DA MONEY!

Article III, Section 2 INDEED!!!!!!!!!!

How Roe v Wade can END in 2005

Kevin Jeanfreau, Louisiana Director
Knights For Life

A Life Amendment or Supreme Court opinion banning abortion is nowhere on the horizon. The good news is that neither is necessary.

Two laws, if passed, would have the desired effect of a Life Amendment—with only a simple (NOT SUPER) majority vote in both houses and presidential signature required for each. But first a Pro-Life constituency must become informed and then demand that our elected representatives vote for it. The following overview should be made known to the entire public. Moreover, this legislation would identify which politicians are truly Pro-Life and which politicians manipulate the Pro-Life movement for their own purposes.

The Constitution gives Congress authority to remove appellate jurisdiction from the Supreme Court and inferior federal courts [1], which Congress uses regularly. Congress used this authority 12 times in 2001 - 2002 to remove appellate jurisdiction from federal courts on several different matters [2]. In September 2004, the House passed a resolution amending the U.S. Code, to limit Federal court jurisdiction over questions under the Defense of Marriage Act (DOMA). It was then sent to the Senate. [3]

Along these same lines Congressman Ron Paul of Texas introduced the We The People Act, (H. R. 3893) [4], which prohibits The Supreme Court and each Federal court from adjudicating any claim based upon reproduction. If passed, the law would prohibit all federal courts, including the U.S. Supreme Court from breaking the law of any State restricting abortion, including restrictions that are more severe than those prior to the 1973 case of Roe v Wade.

It is far easier to remove the issue from a rogue judge than the judge from his bench. Congressman Paul explains this further in a recent article:

“The ultimate solution to the problem of unbridled judicial activism at the federal level is clear: Congress must reassert its constitutional authority to define and restrict the jurisdiction of federal courts. This power is plainly granted in Article III, and no constitutional amendments are required. On the contrary, any constitutional amendment addressing judicial activism would only grant legitimacy to the dangerous idea that social issues are federal matters. Remember, when social issues are federalized, conservatives always lose. Giving more authority over social matters to any branch of the federal government is a mistake, because a centralized government is unlikely to reflect local sentiment for long. If anything, the marriage amendment would have given the secular left an excuse to impose gay marriage on all of us in future years, as the issue would have been irrefutably federalized.” [5]

Subsequent legislation could then be passed. With a simple majority vote in both houses and presidential signature, the U.S. Code could be amended to include unborn human beings as persons, thereby guaranteeing their protection under the Law. With the first piece of legislation in effect, no lawsuits from pro-abortion forces could be presented to the courts.

Ending abortion can actually be this easy, and perhaps that is why the Pro-Life movement is only presented with the near impossible prospects of a Life Amendment and a Pro-Life majority on the Supreme Court.

VALUES VOTERS must be educated about these facts and then must demand this approach NOW for it to be possible in 2005. Only We The People can make this happen.

More details are available at www.KnightsForLife.org and clicking on our new section Ending "Legal" Abortion.

[1] http://www.law.cornell.edu/constitution/constitution.articleiii.html
[2] http://www.washtimes.com/op-ed/20031006-085845-5892r.htm
[3] http://thomas.loc.gov/cgi-bin/bdquery/z?d108:h.r.03313:
[4] http://thomas.loc.gov/cgi-bin/query/z?c108:H.R.3893.IH:108th%20CONGRESS
[5] http://www.house.gov/paul/tst/tst2004/tst100404.htm

Then I'd like to see the President and Congress simply refuse to enforce it.

I'm going to need to remember this and look this up, but I know one president did refuse to follow a SCOTUS decision, and simply told them to enforce it themselves or carry out there own decision.

I know it was 1900, but not sure exactley what it had to do with.

I think congress, while not happy, didn't really do anything either.

I did learn that SCOTUS actually doesn't have any personal that they can force or do anything with, to enforce there decisions or make somone carry them out (i.e. no troops).

I know I had this argument with somone before, about what if SCOTUS declared an constitutional amendment unconstitutional (I said it can't happen, but then went along for arguements sake), long story short, at that point, I think you would easily see a president disregarding SCOTUS decisions.

I think the people would side with the Executive and Legislative branches, and it would be great if it forced a nationwide debate that forced Americans to examine the very points you refer to. Ideally, this would shatter forever the bogus idea that the Sup Court is the only and ultimate arbiter of Constitutionality, and that it can issue orders to its 'coequal' branche

Most Freepers would understand the debate, but 99% of Americans are clueless and incapable of critical thinking. They are in the mindset as desired by those who design the government schools. The government parasites want sheep who can easily be led. From the article link -- The article backs your reasoning. Here is an interesting quote. Congress. But executive review, by the same logic, also means that the President may, indeed must, refuse to execute or carry out a decision of the judiciary that exceeds the limits the Constitution has imposed on that branch. This is constitutional legal review of the decisions of courts.

It is truly sad that the Supreme Court has WRONGLY assumed it is the final arbiter of our Constitution. The article referenced is fascinating, I recommend it to all.

Few things are as nauseating as when a President or Congressman says that "the courts have spoken, its now a matter of settled law, time to move on....."

Its really quite pathetic, and you're right that it strongly suggests that most in Congress actually do hold liberal social views considering how eager they are to bend over and take it from the Courts.

There is hope for the House. They did pass an Article 3 Section 2 inspired bill last year that removed from the Courts the right to hear challenges to marriage law (or maybe it was to the federal DOMA).

But the Senate? I hold no hope for them, despite having 55 Senators. Even if they could force an up or down vote from the full Senate, who really knows how many GOP Senators would defect? Chaffee, the two from Maine, McCain, Specter...?

Even if it passed they would have to stand firm just in case Sandra Day O'Connor or Anthony Kennedy decided to strike it down, as there is not much reason to expect they'd respect Congressional power to restrict their authority.

But again, you have to show up to fight to see how it turns out.

Most Freepers would understand the debate, but 99% of Americans are clueless and incapable of critical thinking. They are in the mindset as desired by those who design the government schools.

If I don't agree with you about Marbury v. Madison, I'm "incapable" of critical thought? I must be another Public Skool moron because I don't agree with you. Boy, I sure wish we lived in a country in which SCOTUS didn't interpret our Constitution and the Executive/Legislative branches could run wild. That would be so much fun. </sarcasm>

Let's not forget, before Roe v. Wade was decided, Evangelical Christians were strongly pro-choice (because they wanted to be sure they could abort their grandchild if their white daughter had consensual sex with a black man). Remember that Southern Baptists were pro-choice and condemned the Catholic Church for interfering in American Politics.

Oh, I forgot, having a memory of recent history makes me incapable of "thinking critically." Let's just blame SCOTUS for everything. I do blame SCOTUS for Roe v. Wade, because it gave Christian hucksters a chance to break into American politics in a big way. SCOTUS should have known better.

The following quote from Andrew Jackson is a concise statement of Constitutional principal that has been ignored, or forgotten for many decades. The prevailing myth seems to be that the Constitution is what the federal judiciary says it is, regardless of the extent of deviation from text or intent, and that all others who are bound by an oath of Office in Article 6, Clause 3 are forbidden to act on their understanding of the text
they are sworn to uphold.

Article 6, Clause 3 contains no Oath or Affirmation to support any federal judicial opinion. The plain text of the Constitution reveals separation of powers, checks & balances and coordinate functioning of three branches that are not coequal in power. Power of impeachment, funding, regulation of lower federal court jurisdiction and the U.S. Supreme appelate jurisdiction resides in Congress. The President has the power of enforcement and isn't Constitutionally, legally, or ethically required to blindly enforce blatantly unconstitutional opinions. The Supreme Court has only the power of opinion, which has become far more biased in its increasing disregard of plain text than the mainstream media has been in its disregard of plain fact.

The Avalon Project : President Jackson's Veto Message Regarding ...

If the opinion of the Supreme Court covered the whole
ground of this act, it ought not to control the coordinate
authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to
decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.

http://www.yale.edu/lawweb/avalon/presiden/veto/ajveto01.htm

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