Posted by
David Smith on Thursday, September 13, 2007 1:12:46 AM
I have a real problem with the Federal Judiciary, if you have not yet noticed. Here is my beef.
We see the Supreme Court and the several "inferior Courts" of the Federal Judiciary with absolutely no trepidation towards overturning Federal Law or State Law, while also having no problem with declaring slavery, segregation, and abortion Constitutional.
I doubt that anybody would argue with my assertion that slavery and segregation go against the very nature of our Constitution, so surrender me those points. I would make the point that there is no difference between these two issues and abortion in this manner--none is covered by the Constitution, therefore a cursory reading of the 10th Amendment would relegate these issues to the States exclusively.
But then there's that nasty issue of Judicial Review.
Judicial Review is a Power that gives the Supreme Court, and by extension the Federal Judiciary, also known as "inferior Courts," the Power to declare what the Constitution means. Judicial Review traces to the 1803 case, Marbury v. Madison, and later was determined to not simply apply to matters of Federal Law, as in Marbury, but also in matters pertaining to States' Rights, such as slavery in Dred Scott v. San(d)ford (1857).
The problems with Judicial Review are many.
First, the very idea of a self-awarded Power, which Judicial Review is, having been awarded by the Judiciary, through Chief Justice John Marshall, to the Judiciary, is reprehensible and completely in contravention to the very nature and Spirit of the Constitution. Let me explain.
The Constitution, as we know, was established by the States. The States called the Constitutional Convention of 1787. The States ratified the Constitution following the Convention. The Madison Debates, the notes taken by James Madison at the Convention, as well as the State Ratifying Conventions, are rife with concerns about the Federal Government seizing power not awarded it. Hence the great struggle for the Bill of Rights.
"Congress shall make no Law regarding..." and that type of language. Concerns for the rights of individuals and States alike.
Now, fast-forward to 1803 when Chief Justice John Marshall states in Marbury that it is the Power of the Judiciary to declare what the meaning of the Constitution is. Hmm...
Secondly, the Power of the Congress over the Judiciary is well-stated in Article III of the Constitution of the United States of America. Article III covers the Judiciary in the body of the Supreme Court. There are three sections in Article III, and each states that Congress in one way or another maintains authority over the Judiciary.
So much for "co-equal Branches of Government," or so goes the popular phrase used by supporters of the Judiciary to defend "their" defenders and supporters. That bastion of the Constitution, the Supreme Court.
Oh, and don't forget the 9th Circuit Court of Appeals. Yeah, the one created by Congress under Article III, Section I. "The judicial Power of the United States, shall be vestetd in one supreme Court, and in such inferior Courts as the Congress shall from time to time ordain and establish." Emphasis added, of course. How can I resist?
I have mentioned in a previous blog the fact that the Judiciary has no Power over Congress and the Legislative Branch according to Article I, which deals with the Legislative Branch.
Hmm...Article I, Legislative. Comes before the Executive Branch in Article II. Comes before Article III and the Judiciary. So much for co-equal. Give the Courts their own building and they think they are something.
It is, in fact, the Judiciary which is dependent upon the Congress for it's every Power. It's every action is dependent upon Congress and it's approval.
For the moment that Congress decides it has had enough, it gets to play the Trump Card...Article III, Section II: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution...with such Exceptions, and under such Regulations as the Congress shahll make." Emphasis added again for this reason. As soon as Congress grows a pair of nads, collectively speaking, the "supreme Court" becomes a group of amateur golfers looking for a tee-time.
At present, it is the Judiciary who instructs the Legislative as to what is Constitutional. This is the "What Is" of the present moment.
It is time that the Judiciary receive a loud, obnoxious wake-up call that shows all in it's ranks and the legal business that the Constitution is still in place and in effect. For it is the Congress who has the Power to restrict the Courts, and not the other way around.
This is the "What Should Be," and I look forward to the Congress that has the veracity and the balls to conform itself and the Courts to the Constitution's very letter and spirit.
So how do I recommend this be accomplished? That is for a future blog. Come back. I'm sure it will shock you.