Posted by
David Smith on Friday, September 07, 2007 11:38:08 PM
OK, so I'm always telling my Liberal friends to read the Constitution, not the New York Times and the 9th District Court of Appeals, to know what the Constitution means. So I decided to take up my own advice and compare the Congress and the Courts.
Boy, was that a smackdown!! Congress in the first round by KO! Nothing 'Technical' about it!
Here's what I mean. My assertion is, admittedly, a bit extreme, in that most of our present problems are due to the Supreme Court, specifically, and the Federal Judicial Branch in general.
I further believe that the Judiciary has historically taken on multiple topics that it had no business delving into, and that they have actually caused more harm to this nation, historically, than they have done good.
Bam!
Should be pretty easy to prove that assertion right or wrong, right?
For some time now I have been pointing out here and in conversations the following:
1.) The Judiciary is the 3rd branch of government. Nothing 'co-equal' about it.
2.) The Congress is supposed to be the branch in charge. Not the Judiciary.
3.) The Constitution says so.
"What?" you say. Again, very easy to prove me right or wrong on this one.
Refer now to your undergraduate political science texts (I kept mine as I couldn't sell it back. Apparently something changed that needed revision!). Article I of the Constitution pertains to the Legislative Branch, also known as Congreess. Article II (ignore for now) refers to the Executive Branch, or the President and Vice President. Article III pertains to the Judiciary. No arguments there.
Now, compare Article I and Article III. Article I is about 12 times as long as Article III. It awards great, broad, vast-reaching powers to the Congress. Well, actually, the powers awarded to Congress are quite limited. More on that in a moment. And to confound the Justices, each of the Sections of Article III award power to the Congress over the Judiciary and the Supreme Court. Now, one would expect that great powers are allocated to the Judiciary to keep those nutty Congressmen and other elected officials in line, right?
Buzz!! Wrong!!
Article III: Section I
"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."
Meaning: Congress has power over the Judiciary. Congress controls how many "inferior" Courts there are. Congress controls their establishment. Not the Courts themselves. The Courts are basically yard dogs to the Congress.
Article III: Section II
"In all other Cases before mentioned the supreme Court shall have appellatee Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
This is my favorite point in the entire Constitution, I think!! Are you ready for this???
Meaning: It is the Congress, Chief Justice John Marshall, who get to say what the Constitution says and means. Not the Judiciary!!
Here is why I say this. Take my favorite issue, abortion. State law. Always was prior to Roe v. Wade. There's a reason for that. THE CONSTITUTION DOES NOT MENTION ABORTION, IT DOES NOT AWARD POWER OVER THAT ISSUE TO THE FEDERAL GOVERNMENT, AND THE 10TH AMENDMENT RESTRICTS THIS AUTHORITY STRICTLY TO THE STATES--EACH FOR ITSELF!!
Sorry to yell like that.
Abortion is not an issue of Federal oversight. That's a period at the end of that sentence--as in, abortion is not an issue of Federal oversight--PERIOD!! Emphasis added. Such issues are strictly reserved to the States. That means that if a State decides to restrict abortion, it may do so. If a State does not take up the matter in its Legislative body, a State Court may do so. In absence of this being the case also, then the rest of the 10th Amendment, logically, comes into play and it becomes a matter left "to the people."
Enter the Roe Supreme Court. Never before had any Court ruled against guiding State Law on this matter. Roe was the first. Unfortunately, according to the 10th Amendment, Roe should never have been heard in Federal Court.
Enter the Congress. According to Article III, Section II, Congress may respectfully instruct the Supreme Court and the "inferior Courts" to butt a stump on this issue.
In other words, Congress may regulate the Supreme Court and except the issue of abortion from the realm of Federal oversight, vacating all decisions pertaining to this topic, and permanently remanding it to the States to decide this issue, each for itself.
Now, how do you think former Chief Justice John Marshall liked that point?
Actually, I'm quite surprised. It is rather embarassing that I'm the one pointing out this crap. I don't have a Harvard Law degree. I'm not a life-long student of the Federal Judiciary or the Constitution. I'm not an elected official (yet) in Congress with the ability to singlehandedly end the Supreme Court's, the "inferior Courts'," and the Federal Government's participation in the issue of abortion.
Can you imagine the uproar on the political left this would cause??? Man!! Exciting just thinking about the prospect.
Article III, Section III pertains to treason. Boring point as far as the present discussion is concerned, but my point is that Congress is given the Power to declare the Punishment of Treason and is mentioned to have such Power in the Judiciary's Article, not it's own. Important point: Every single section of the Judiciary's Article of the Constitution mentions the Legislative Branch having Power over it.
I imagine that, in addition to the whole "cousin" thing, that CJ Marshall didn't like the idea that "his" branch of government was "inferior" to the others. Tough nails, Mr. Chief Justice--deal with it.
Now, contrast Article III with the current practice at play in the Federal Judiciary. Who says what the Constitution means? Well, just about every day, the 9th Circuit Court of Appeals does. And somewhere between 40-60% of the time, when these decisions--or "opinions"--come before the Supreme Court on appeal, they are overturned.
Seems like a terrible waste of time to me. Very inefficient, don't you think?
Now, by contrast, take a look at Article I of the Constitution of the United States of America. Here are the only times that the Judiciary is even mentioned in Article I:
1.) Section 3, paragraph 6: When the President is tried before the Senate under Articles of Impeachment, the Chief Justice of the supreme Court shall preside.
2.) Section 3, paragraph 7: Impeached officials are liable under Law upon removal from office. Law being that dirty little thing that is passed by the Legislative body and signed into Law by the Executive. No mention of the Judiciary in the idea of 'Law."
3.) Section 8: "Congress shall have Power...To constitute Tribunals inferior to the supreme Court." Hmm...mentioned in both Articles. Interesting, isn't it. No mention of the Judiciary's Power to overturn Federal, much less State, Law (meaning Statutory). But Congress has a double-dipper Power to set up "inferior Courts." Interesting.
4.) Section 8: "Congress shall have Power...To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of thte United States, or in any Department of Officer thereof."
Now, that sounds a lot like Judicial Review, except that Congress is granted this explicit Power, not the Supreme Court, and not the "inferior Courts." I just love that term if you hadn't noticed. Actually, I really like the fact that the Constitution does not mention the "supreme Court" in caps anywhere in the document. Fascinating point to observe!!
There you have it--not one single mention of the Judiciary's Power over the Congress, the States, or the Constitution!!
That is such a bombshell thing to consider, I think that I shall state it once again!
NOWHERE IN THE CONSTITUTION IS THE JUDICIARY GRANTED ALL-POWERFUL 'POWERS,' BUT IN SEVERAL INSTANCES, THE JUDICIARY IS RESTRICTED FROM THE VERY POWERS IT ITSELF SAYS THAT IT HAS!!
Dumbfounding. Where are the Conservatives, the Christians, and Republicans passing such a measure in Congress restricting the Federal Judiciary in issues pertaining to States' Rights like abortion...capitol punishment...segregation...slavery? In every one of these cases, the nation would be far better off if Congress would "instruct" the Supreme Court and the "inferior Courts" to butt a stump!!
Commence to flame me if you desire, but make sure you are quoting the Constitution when you do so. I have read Roe. I have read Marbury v. Madison. Judicial Review, if it exists, should be Legislated, not self-awarded. More on that topic next time.