Posted on 01/14/2019 4:05:50 AM PST by Jacquerie
What is the “Judicial Power?” It’s worth knowing because the Constitution’s Article III grants all of it to Scotus and inferior courts. Through the Judicial Power, may courts fabricate previously unknown rights? What about lawsuits against government climate or border wall policies? Is this what the Framers had in mind?
The language of Article III § 2 makes clear the Framers did not envision federal judges rummaging around as they pleased through the Constitution and laws of the United States, but instead provided for resolution of disputes arising in a “judicial” manner.
The business of federal courts is limited to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. Persons do not have standing to sue in federal court when all they can claim is that they have an interest or have suffered an injury that is shared by all members of the public. Thus, a group of persons suing as citizens to litigate a contention that membership of Members of Congress in the military reserves constituted a violation of Article I, § 6, cl. 2, was denied standing.
So, while the Framers extended the Judicial Power to “cases, in law and equity, arising under this Constitution,” the cases brought before federal courts must still be a controversy appropriate for judicial determination subject to the Judicial Power. A justiciable controversy is distinguished from a difference or dispute of a hypothetical character; from one that is academic or moot. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests.
Make no mistake. Our courts are out of control not because the Framers got Article III wrong. Through its refusal to use its Article III authority to check Scotus, Congress condones our runaway judiciary.
(Excerpt) Read more at articlevblog.com ...
Good article Bump!
Our framers never imagined that the Courts would be bothered with frivolous lawsuits. Our framers never imagined that federal judges would usurp the authority given to them either.
Thomas Jefferson’s ideas concerning judicial tyranny:
“A judiciary independent of a king or executive alone is a good thing; but independence of the will of the nation is a solecism, at least in a republican government.”
Thomas Jefferson, letter to Thomas Ritchie, December 25, 1820
“Nothing in the Constitution has given them [the federal judges] a right to decide for the Executive, more than to the Executive to decide for them. . . . The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves, in their own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”
(Letter to Abigail Adams, September 11, 1804)
“The original error [was in] establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will.”
(Letter to John Wayles Eppes, 1807)
“Our Constitution . . . intending to establish three departments, co-ordinate and independent that they might check and balance one another, it has given—according to this opinion to one of them alone the right to prescribe rules for the government of others; and to that one, too, which is unelected by and independent of the nation. . . . The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”
(Letter to Judge Spencer Roane, Sept. 6, 1819)
“You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so . . . and their power [is] the more dangerous, as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with corruptions of time and party, its members would become despots.”
(Letter to William Jarvis, Sept. 28, 1820)
“The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our constitution from a co-ordination of a general and special government to a general and supreme one alone. This will lay all things at their feet, and they are too well versed in English law to forget the maxim, ‘boni judicis est ampliare jurisdictionem’ [good judges have ample jurisdiction]. . . . A judiciary independent of a king or executive alone is a good thing; but independence of the will of the nation is a solecism, at least in a republican government.”
(Letter to Thomas Ritchie, Dec. 25, 1820)
“The germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow) 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.”
(Letter to Charles Hammond, August 18, 1821)
“The great object of my fear is the Federal Judiciary. That body, like gravity, ever acting with noiseless foot and unalarming advance, gaining ground step by step and holding what it gains, is engulfing insidiously the special governments into the jaws of that which feeds them.”
(Letter to Judge Spencer Roane, 1821)
“At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life if secured against all liability to account.”
(Letter to A. Coray, October 31, 1823)
“One single object… [will merit] the endless gratitude of the society: that of restraining the judges from usurping legislation.”
(Letter to Edward Livingston, March 25, 1825)
Thus, when the Supreme Court issued a ruling which Andrew Jackson decided was outside their authority, Jackson could say "Justice Marshal has made his decision. Now let him enforce it". The SC then only had power to the extent that the people, the President, and the Congress agreed with their reasoning.
The framers never imagined the legislative and executive branches would allow, and in some cases encourage, the judicial branch to run roughshod over the Constitution.
The framers never imagined that a complicit government would aid a rebellious party in the destruction of the Constitution and our Republic. And that no one in government would value their freedom enough to rise up to stop the sedition.
Well said. Exactly.
Thank you!
True and true!
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