Mark Levin is a brilliant man, as a lawyer, author, talk
show host and student of the constitution and of history. I do not however,
think Mr. Levin would disagree when we say that hearing someone else discuss
the constitution is no substitute for understanding it ourselves. So before we
read excellent books like “Ameritopia”, Liberty and Tyranny”, or “Men in Black”
before we study Locke and Alexis de Tocqueville, before we dig in to the Federalist Papers or
the Debate on the Constitution, and before we look at ways to limit the out of
control power of the Federal Bench, let’s look directly to the Constitution
itself and see what the founders intended in the first place.
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 Continuance in Office.
The judicial Power shall extend to all
Cases, in Law and Equity, arising under this Constitution, the Laws of the
United States, and Treaties made, or which shall be made, under their
Authority;--to all Cases affecting Ambassadors, other public Ministers and
Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to
Controversies to which the United States shall be a Party;--to Controversies
between two or more States;-- between
a State and Citizens of another State,--between Citizens of different
States,--between Citizens of the same State claiming Lands under Grants of
different States, and between a State, or the Citizens thereof, and foreign
States, Citizens or Subjects.
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.
The Trial of all Crimes, except in Cases
of Impeachment, shall be by Jury; and such Trial shall be held in the State
where the said Crimes shall have been committed; but when not committed within
any State, the Trial shall be at such Place or Places as the Congress may by
Law have directed.
Treason against the United States, shall
consist only in levying War against them, or in adhering to their Enemies,
giving them Aid and Comfort. No Person shall be convicted of Treason unless on
the Testimony of two Witnesses to the same overt Act, or on Confession in open
Court.
The Congress shall have Power to declare
the Punishment of Treason, but no Attainder of Treason shall work Corruption of
Blood, or Forfeiture except during the Life of the Person attainted.
Passed by Congress March 4, 1794. Ratified February 7,
1795.
Note: Article III, section 2, of the Constitution was
modified by amendment 11.
The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens
or Subjects of any Foreign State.
These are the specific regulation as it affects the Federal
judiciary. As you can see the majority of what the guidelines deal with is jurisdictional.
A couple of things strike me. 1st
is that nowhere is the court given the specific power to declare a law
unconstitutional. This arose from the Supreme Court decision of Marbury vs
Madison in 1803. The decision was far more important than the actual case it
decided. You see outgoing president John Adams had issued an extra-constitutional
commission that new Secretary of State James Madison refused to deliver. William
Marbury the recipient of the commission sued to force its issuance. Chief Justice John Marshall’s majority
decision included a phrase that has since defined the check and balance of the
Supreme Court, ““A Law repugnant to the Constitution is void.”
Even though this power was not specifically granted, the
court is charged with the words,” The judicial Power shall extend to all Cases,
in Law and Equity, arising under this Constitution, the Laws of the United
States,” hence I believe and most across the political spectrum agree that
Judicial Review is very much a legitimate function of government.
So the powers of the court were limited to trying those
cases that fall in its jurisdiction and those cases that involve rather a law
is constitutional. Judicial Review was used in limited cases in those early
years. After Marbury vs Madison there was not another case overturned as
unconstitutional until 1857, (the controversial Dred Scott case). While clearly disagree with the principle
behind “Dred Scott” it cannot be overstated how important the Supreme Court has
been in protecting the rights and limits of the constitution for the American
people. Even when the constitution was not correct, as in women’s suffrage, the
court insured that the laws were made and changed in strict accordance to the
procedure laid out in the constitution.
Now though the court has become not a protector of our
rights but one of the chief threats to the same. How then do we turn it back? Nowhere
was it intended that the Supreme Court be the check on the other branches but
that it have unlimited power. First the constitution allows for the removal of
any official through impeachment. Recently a Federal judge was convicted in an
impeachment trial for taking bribes.( http://articles.cnn.com/2010-12-08/politics/washington.impeach.judge_1_judge-walter-l-nixon-judicial-impeachment-previous-impeachment?_s=PM:POLITICS)
but should we limit impeachment to criminal acts? Judges do not receive life
appointments as we often say; they receive appointments for a term “during good
Behavior”. Now let us consider dangerous
ground. Dangerous because congress can never be permitted to impeach a judge
just because it doesn’t like his or her politics, but for decades politics has
permeated the Federal bench through judicial activism. Black's Law Dictionary defines judicial activism as a
"philosophy of judicial decision-making whereby judges allow their
personal views about public policy, among other factors, to guide their
decisions. This is not appropriate. We’ve long felt the goal was to elect
presidents who would appoint the right type of judge, but in a close court this
is not enough, John Roberts proved that. If the court can no longer protect the citizenry
from the most egregious invasion of individual liberty in the history of the Republic,
we need more then we need to do something drastic, even dangerous.
Suggestion one:
an impeachment list. Each Congress
should declare at its onset a list of impeachable acts, in addition to illegal
or unethical conduct some things which should be impeachable are citing of foreign
law in making domestic decisions, citing constitutional rights that are not identifiable
in the constitution i.e. the right to unrestricted access to abortion. Issuing orders that exceed the court authority
or denying the rights of citizens guaranteed in the constitution. Like I said, dangerous ground, but bringing
the debate over these matters to the Senate floor would possibly keep the
courts in check.
A second less
dangerous suggestion is to limit the terms of the court to 8- 12 years or so. There
is a fear this would further politicize the court but I am gambling it will
have the opposite effect. It would also prevent one party from locking in an ideologically
friendly court for an extended item.
Surely these are
not the only suggestions and they may not even be the best but I hope to start
a debate that will bring sanity and restraint back to the courts.
Until next time,
keep on the firing line.
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