"ButtMaster" Dana steals someone else's frothings:
http://www.thenewamerican.com/tna/2003/07-28-2003/vo19no15_court.htm
Reining In the Court
by William Norman Grigg
Clipping and posting John Bircher literature now, eh, Dana?
The Constitution offers Congress powerful means to deal with an increasingly
lawless judiciary. . . .
.... to do a run-around on the Constitution. Makes perfect sense to me.
.. . .
How should we deal with a renegade federal court? This question has been
asked by constitutionalists with increasing frequency in recent years, as
outrageous judicial rulings accumulate.
Translation from Republican into English:
Constitutionalist (n): A John Bircher nut case or fellow traveller.
But don't give me that shite about "recently". You Birchers have been
suggesting this stuff for years.
Last year, the Ninth Circuit Court of Appeals ruled that reciting the Pledge
of Allegiance in public schools is unconstitutional on account of the phrase
"under God." . . .
And all one has to do is look at the voluminous Congressional
testimony back in 1954(!) when they passed this "slight modification"
to see that their primary purpose in doing this was a desire to
bring the country back to Gawd (read: "Jaaayyyzzzuuz") in the
face of the evil commies. "Brownshirts For Christ", they wanted. . . .
Strangely enough, this country did well enough without these words,
and in fact without the pledge itself, for most of the severest
trial of its history.
. . . On July 1st of this year, the 11th Circuit Court of Appeals
upheld a District Court ruling that displaying a granite sculpture of the
Ten Commandments in the Alabama Judicial Building is an unconstitutional
establishment of religion. . . .
Rrrrriiiigggghhhtt. And Judge Roy Moore is just a history buff,
not a frothing "bring this country back to Biblical law"
Christian reconstructionist, when he commissions this huge
granite plaque. . . .
. . . The Supreme Court's late-June decisions upholding
affirmative action and striking down state anti-sodomy laws leaves the
impression that practically the entire judicial branch is united in a
campaign to undermine our culture . . .
.... and don't forget, not just let those nigras in _your_ schools, but
to _fluoridate your water_, too ...
. . . and destroy any embattled remnants of true
federalism.
Yep, federalism came under full assault when that uppity Supreme
Court thought it should be able to decide for Florida what
Florida state law was .... ummm, never mind, that kind of
federal usurpation was just _fine_ with your folks as long as
it got your "born-again" poster child for the terminally
lazy installed as Doofus-in-Chief.
But waiddaminnit, wasn't the _defendant_ in the affirmative action
cases the _state_???
So much for your idea of "federalism". . . .
Translation from Republican into English:
Federalism (n): Letting the states do what they want, _unless_ the JBS
wants them to do something different.
But there are remedies available for judicial usurpation of the powers
reserved to the states and the Congress. First, all courts inferior to the
Supreme Court (which is a creation of Article III of the U.S. Constitution)
were created by Congress, and can be dissolved by Congress if necessary.
Second, under Article III, Section 2, clause 2 of the Constitution, Congress
has the power to define exceptions to the appellate jurisdiction the Supreme
Court . . .
.... in a clause that has to do with which cases are assigned to the
Supreme Court on first instance, and which to the lower courts.
They discuss what cases are the subject of the federal judiciary
as a whole in a _different_ clause.
. . . and, by extension, all other federal courts. . . .
Only so far as division of original versus appellate jurisdiction,
IMNSHO.
. . . Third, Congress has the
power, when necessary, to impeach any federal judge, including Supreme Court
justices.
True, but with the caveat that they shouldn't do so as long as the judge
is on "good behaviour".
In the 1868 case Ex Parte McCardle, the Supreme Court recognized the
congressional power to limit its appellate jurisdiction. The case arose from
a Civil War incident involving a civilian accused of publishing "incendiary
and libelous" anti-war propaganda. Arrested and held by the U.S. Army,
McCardle faced a trial by a military commission. Protesting that he was
illegally imprisoned, he applied for a writ of habeas corpus. The military
commissioner responded with the claim that Congress had authorized McCardle'
s detention and prospective trial by military commission. After McCardle's
appeal, Congress passed an act removing the matter from the appellate
jurisdiction of the Supreme Court.
Hard to put up a single case from the turbulent period right after the
Civil War as the best evidence for the rather curious notion that
Congress can, on its own, simply write the Constitution itself out
of existence by making in unenforceable. . . .
It's clear that the military imprisonment of McCardle violated the due
process guarantees contained in the Bill of Rights. But the Supreme Court
recognized that Congress, whatever its motives, had the power to act as it
did in removing the issue from the Supreme Court's appellate jurisdiction.
"We are not at liberty to inquire into the motives of the legislature,"
noted the ruling. "We can only examine into its power under the
Constitution; and the power to make exceptions to the appellate jurisdiction
of this court is given by express words."
The opinion took note of an earlier case, Durousseau v. The United States,
in which the Court held that "while 'the appellate powers of this court are
not given by the judicial act, but are given by the Constitution,' they are,
nevertheless, 'limited and regulated by that act, and by such other acts as
have been passed on the subject.'"
"That's some catch, that catch-22. . . ."
By simple majority vote, Congress could pass an act denying federal
jurisdiction over social issues of any kind, such as abortion, pornography,
and homosexuality. . . .
IOW, Congress can deny any judicial remedy to anyone who claims, rightly
or
wrongly, that their Constitutional rights have been violated.
. . . This would leave the state legislatures free to enact
(or, in most cases, re-enact) laws on those matters reflecting the moral
consensus of their constituents. . . .
Which happen to be found to be un-Constitutional.
. . . This would leave the well-funded leftist
network of legal agitators - the ACLU, et al. - without effective recourse,
since they would have no access to their longtime allies in the federal
judiciary. . . .
Which is why the Founders so wisely decided that one government branch
is sufficient, any more would get in the way of "social progress". . . .
. . . Rather than use the judicial system as a detour around
representative government, . . .
Speaking of "run-arounds", isn't it a bit of a run-around to simply
quash all argument and litigation over Constitutional rights, when
the duly adjudicated outcome doesn't suit you? Here's the way it
_really_ works: If the Constitution (as interpreted by the Supreme
Court) is not to your liking, your remedy is spelled out in
Article V, not in some "creative parsing" of some subsidiary
clause in Article III.
. . . the cultural left would have to contend, on equal
terms, in state legislatures.
Hate to say it, but it was a heavily _Republican-appointed_
Supreme Court that handed down the sodomy and affirmative
action decisions. Hard to call that the "cultural left" ...
but maybe from where you Birchers are standing. . . .
A Bad Remedy
Note that by exercising the power to limit the kinds of cases that can be
heard by the federal courts, Congress would be exercising a critical
constitutional function: It would be acting as a check on the increasingly
lawless judiciary . . .
The "check" is in Article V (and the impeachment clause), you bozos.
Your idea of simply denying a remedy for violations that you're
in favour of is hardly upholding the law. Rather, _that_ is
a recipe for unchecked lawlessness.
. . . and protecting the powers reserved to the states. . . .
Don't give me this "powers reserved to the states". Rather, you'd
like "'power when I'm the one wielding it".
This suggestion of yours is just like the Republican RW attempts
to redo the California election, and to redistrict Texas, when
your boys don't win the first time. IOW, a naked power grab
by any and all means possible. And you think we should trust
the likes of _you_ to run the gummint???
. . . It's
equally important to avoid so-called solutions to this problem that would
actually undermine our federalist system, such as the proposed "Defense of
Marriage Amendment" (DOMA). That amendment recently earned the support of
Senate Majority Leader Bill Frist (R-Tenn.).
Supporters of the DOMA, which would define marriage within the United States
as a union between one man and one woman, argue that it is needed to
checkmate the insidious drive to legitimize homosexual marriage. But this
supposed remedy is based on a bad diagnosis, namely, that the Constitution
itself is somehow deficient. . . .
The minute that the Constitution is found to give other people
rights you don't want them to have, _you_ find the Constitution
"deficient" and are looking for ways to do an end run around it.
See above.
. . . Furthermore, making Washington the custodian of
marriage and family policy would undermine the constitutional mechanisms
intended to protect those critical institutions from central government
meddling.
As Dr. Alan Carlson of the Howard Center on the Family observes: "Family
policy has historically been regarded as a Tenth Amendment issue, one that's
within the purview of the states. When the U.S. Constitution was written,
one of the powers specifically not delegated by the states to the federal
government was control of family law and governance. In contrast to most
European constitutions, our foundational document makes no direct mention of
children, families, parenthood, marriage, or the family's relationship to
the state. This omission reflected the keen interest in the family held by
local communities and an unwillingness to subject such sensitive questions
to uniform, national answers."
George Detweiler, former assistant attorney general for the state of Idaho,
observed in the July 29, 2002 issue of THE NEW AMERICAN: "The definition of
marriage as a covenant in which 'a man [shall] leave his father and his
mother, and shall cleave unto his wife . and they shall be one flesh'
(Genesis 2:24) has been repeated in various versions for centuries in the
laws and practices of countries throughout the world. . . .
Hate to say it, but marriages existed long before your
Saviour-On-A-Stick
was born.
. . . That definition has
formed a part of the bodies of state laws . . .
Bet you think you have the patent on it, eh? Tell that to the Hindus
and Buddhists.
. . . and been widely recognized in
American jurisprudence. Although the language in [the DOMA] reflects
laudable concerns, it has no place in the U.S. Constitution and no place in
federal law. Marriage should remain exclusively under state dominion, and
those seeking to protect marriage should focus their efforts within that
arena."
How about in the dominion of the people themselves. As the aptly
named Loving v. Virginia case showed in 1967, states have no place
getting into the business of telling people who they can and cannot
marry.
Cheers,
-- Arne Langsetmo
.
