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Wednesday, May 5, 2010

Judicial Supremacy and the Constitution

From National Review:

Judicial Supremacy and the Constitution
We need to reclaim the Constitution from the Supreme Court

Many Americans are puzzled and angry about the judicial assault on religion, morality, and common sense that has been going on for the past few decades. People wonder, for example, how the First Amendment (which guarantees freedom of religion as well as separation of church and state) could possibly require the expulsion of religion from public life, or outlaw prayers at high-school football games and graduation ceremonies. To answer questions like these, one must understand how federal judges got the power to make such controversial political decisions in the first place, and how the judges used that power to bludgeon the American citizenry into believing that their power was legitimate.

Plato tells us in the Republic that democracies will always succumb to tyranny. The Framers of our Constitution certainly troubled themselves to prevent that from happening here, but the anti-Federalist who wrote under the name Brutus did not believe they had gone far enough — especially when it came to the Supreme Court. Though Alexander Hamilton described the Court as the “least dangerous branch,” Brutus thought that the Court would eventually expand its own power and, in the process, enable the national government to expand its power at the expense of the states.

That Brutus was something of a prophet is beyond question. The Supreme Court is certainly more powerful than it was in the beginning. And so is the national government. In fact, during the past half-century, the Court and the country seem to have embraced the idea of judicial supremacy — the doctrine that the Court is the exclusive, ultimate authority on all constitutional issues. But the Constitution is very clear on the judicial role, and it does not authorize judicial supremacy. Judicial supremacy is an unwarranted extension of the power of judicial review — a power that allows the Court to disregard or invalidate laws in a limited range of cases. To see this clearly we need to examine some of the Constitution’s key provisions very carefully...

Read the rest.

Then answer this question:

How do you peacefully remove the lifetime-tenured judicial elites who created the problem in the first place?


Anonymous Anonymous said...

It's not just the SCOTUS, but many layers of government (fed and state) which include the prosecutors and committees made up of elected reps. The problems with how the legal system has evolved are very complicated.


After you read the above link, you will easily understand that it's not just how the Constitution is interpreted, but also the application of the law by who and against who.

May 5, 2010 at 3:14 PM  
Anonymous Anonymous said...

"How do you peacefully remove the lifetime-tenured judicial elites who created the problem in the first place?"

How do you assault a fortified position? You don't; you circumnavigate the fortification.
How do you take on the USSC? You don't; you bypass the opposition.

This is done through jury nullification. Juries are the final court of appeal. If they refuse to return a conviction because they disagree with some particular law, they have laid rightful claim to their sovereign power as the final judge of all legislation.

This make the USSC superfluous as an adjudicator of constitutional law and returns them to their rightful place as a referee of disputes between the sovereign states. If they discharge this duty with humility and reverence, we may yet avoid the break-up of These United States.


May 5, 2010 at 4:29 PM  
Anonymous Oldfart said...

I suppose we could ask them - politely, of course, to resign...

May 5, 2010 at 4:38 PM  
Anonymous D. Schneider said...

Dear Professor Clinton: Your analysis is in error. Reason-- Both the general government and the several state governments are controlled by the limitations of the U.S. Constitution. Moreover any U.S. justice who commits perjury against the Constitution also commits Article III Treason. That judicial officer is levying war against the Uited States by means of the public force. The way to remove a such a justice is by Presentment for Treason, prosecuted by a Presentment Grand Jury, and, if found guilty of Treason, enforced by the Militia of the United States.

May 5, 2010 at 6:49 PM  
Anonymous Spitnyri said...

"How do you peacefully remove the lifetime-tenured judicial elites who created the problem in the first place?"

By reiterating and reaffirming the limitations placed on them by the Constitution in Article 3 Section 2 that defines its specific responsibilities. The specific wording is: "The judicial power shall extend to all cases in, law and equity, ARISING UNDER THIS CONSTITUTION, ...etc. They have NO Authority to anything but what is specifically permitted and defined within this document.
Not opinion, fact. The hard part is enforcing it.

May 5, 2010 at 10:34 PM  
Blogger Ed Rasimus said...

The answer to your question is simple: amend the Constitution. That's the only way to change a fundamental provisions (lifetime tenure) in the basic document.

The purpose of lifetime appointment is to isolate the judicial branch from public influence. Rule of "law" not of man.

When your judges are subject to re--election (as in most states) they must then raise campaign money, make political allies, and bow to public pressure in their decisions. Avoiding that is a good thing.

If you don't like the decisions of the course then the legislature or executive have the option to modify the laws or executive regulations to make them Constitutionally compliant.

I really doubt you would want the federal judiciary pandering to an electorate that could choose our current administration or Congressional leadership!

May 5, 2010 at 11:01 PM  
Blogger Gaige said...

You don't have to remove them. You just introduce an institutional check on their power.

I would suggest something along the lines of a Governor's Council, that upon majority vote, would be able to overturn any Federal Law.

Or perhaps the same power, but invested in the various State Legislatures? Power to overturn Federal Law upon 2/3 of the states adopting identical resolutions to that effect?

May 5, 2010 at 11:48 PM  
Anonymous Anonymous said...

We have a system that was made up of three separate branches theoretically to keep balance. None having a greater power than the either of the others.

In practice what has become standard is that all 3 branches chronically overstep their proscribed authority and limits.

I suspect the answer to your question is: rope.

Do I win?

May 6, 2010 at 12:05 AM  
Anonymous Anonymous said...

Peaceful removal of the robed dictators that can not understand plain English written in the founding documents is not likely.

May 6, 2010 at 12:10 AM  
Anonymous Rollory said...

Article 3, Section 2:
"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."

In other words, Congress can pass a regulation (in the form of a law if necessary) saying that a certain area of law is outside the jurisdiction of the Supreme Court and said court is simply not allowed to consider any cases bearing on the matter.

That's it. Done. Finished. No more argument, no more judicial usurpation of Congress' ability to govern.

Except that that would be "controversial".

May 6, 2010 at 2:15 AM  
Anonymous Vlad Tepes said...

Rope, tree, black robed high priests of tyranny and treason...

Some assembly required.

May 6, 2010 at 6:45 AM  
Blogger Dedicated_Dad said...

Anonymous (5/6 @ 00:05) said...

"We have a system that was made up of three separate branches theoretically to keep balance. None having a greater power than the either of the others..."

The first problem we need to solve is repeal of the 17th Amendment.

By design, Senators were to be appointed BY THE *STATES* - and there to represent the interest of the State who sent them.

Members of the H of R were to be elected by the people, and there to represent the people of their district.

In this design there is a deliberate balance of Legislative power -- for a bill to be passed it must have the support of a majority of the representatives of the people, *and* the States.

The 17th Amendment drastically changed the structure of CONgress, removing all State representation and creating a class of "super-reps" who "serve" (ha!) for 6 years instead of 2, and "represent" (ha-ha) many more people.

Allowing direct-election of Senators eliminated this balance, and forced both houses of CONgress (at least in the beginning) to pander to the will of constituents in order to ensure re-election.

Further, under Original Intent a Senator could be recalled and replaced by the State's Legislature - now they answer only to the people who elected them and THEN as much as 6 years after-the-fact.

I'm sure anyone here can see how this was an *IMMENSE* blow to States' Rights, and how it fundamentally altered our system of Government -- for the WORSE!

If it were repealed, Senators would once again have to please the Legislature of the State which appointed them, and they could be fired and replaced at will if they abrogated their responsibilities.

If it were repealed, Party-affiliation would largely become irrelevant in the Senate, and it would be much more difficult (if not impossible) to pass laws which ran contrary to States' Rights.

If it were repealed, it would be much easier to impeach Judges and others who acted contrary to States' Rights.

Ultimately, the usurpation of power by the Federal government would not have been possible without the 17th Amendment - and such usurpation can and will never be undone without its repeal via means peaceful or otherwise.

It is my opinion - and I know I am not alone - that repeal of this horror should be our PRIMARY focus on the Federal level.

The 10th Amendment "movement" can simply not succeed without first repealing the 17th.


May 8, 2010 at 7:13 AM  
Anonymous Anonymous said...

Hey DD,

Excellent observation, very good post and thought process....but when has an amendment ever been repealed?

I still say rope is the answer to the question as posed.


May 10, 2010 at 12:05 AM  

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