Part II of III
This is part 2 of a 3 part series from an article originally released in 2005.
Although Marbury v. Madison was the first case asserting the power of judicial review, it was not a power that the Court initially exercised with frequency. It was not until Dred Scott v. Sandford in 1857 that the Supreme Court invalidated another act of Congress. Furthermore, the Court treated the decision with deference: between 1804 and 1894, Marbury was cited in only twenty-four separate opinions in the U.S. Supreme Court that reiterated Marbury’s initial jurisdictional holding proclaimed by Marshall. And when Jeffersonian Republicans and Jacksonian Democrats launched attacks on the Court, they did so with a belief that congressional or presidential interpretations of the Constitution were entitled to as much respect as those of the Court.
Rules for the Courts
Most of the Constitution’s direct instructions for the courts are found in three places: Article III, Amendments 4–8 of the Bill of Rights, and certain provisions of Article I, Section 9.
For an obvious example of what this means from the Bill of Rights, according to Robert Lowery Clinton, Professor at Southern Illinois University, “one only need add the requirement of the Fifth Amendment that such a confession be un-coerced.” He continues:
Now suppose that Congress, in a zealous attempt to suppress subversion, amends the federal rules of criminal procedure so as to make it possible for the government to obtain a conviction on a charge of treason on the basis of a coerced confession, or on the testimony of only one witness. Much like the situation faced by the Court in Marbury, this situation presents a clear-cut case of a judiciary nature precisely because the Court cannot apply the statutory provision without at the same time violating the Constitution.
Attention to this principle can help to determine whether any particular case is of a judiciary nature. One may simply ask: “Can the Court apply the law in question without itself directly violating the Constitution?” If the answer to this question is no, then the case is “judiciary” in nature; the Court will have no sensible alternative but to invalidate (refuse to apply) the law. If the answer is yes, then the case is “non-judiciary” in nature, and the Court must apply the law, whether or not the judges believe that the law itself violates the Constitution.
A good testimony to the good sense of Madison and the Founders is that they “extended federal judicial power to cases ‘arising under’ the Constitution, laws, and treaties only after they had generally agreed that the power was ‘limited to cases of a judiciary nature.’ Limiting ‘final’ constitutional review by the Court to these cases leaves to coordinate branches of government final authority to determine the reach of their own constitutional powers. It preserves the coequality accorded to each division of the government by the Founders. It strengthens the separation of powers by emphasizing the constitutional responsibilities of Congress and the President. And it recovers an important strand of our republican heritage that is nowhere more apparent than in the Supreme Court’s own rich constitutional legacy.
What should be done?
It is time that the people, Congress, and the President take steps to revise this ever-expanding judicial tyranny before our Constitution and our government is molded into a shape that cannot be repaired. Unfortunately, we as a people have willingly given the judges these powers that they so eagerly grab. The only true guardian of the Constitution is an educated citizenry, and a citizenry having the courage to accept the responsibilities that liberty requires.
As Robert Yates, a delegate to the Constitutional Convention from New York, wrote, “Perhaps nothing could have been better conceived to facilitate the abolition of … governments than the constitution of the judicial.”
Mark Levin stated in <em>Men in Black: How the Supreme Court Is Destroying America</em>, “The intensive and concerted effort to exclude references to religion or God from public places is an attack on our founding principles. It’s an attempt to bolster a growing reliance on the government–especially the judiciary–as the source of our rights. But if our rights are not unalienable, if they don’t come from a source higher than ourselves, then they’re malleable at the will of the state. This is a prescription for tyranny.”
The judiciary was never granted the right to mold a new constitution or to advance its own agendas and political causes through the judicial system. It has simply grabbed that right through intimidation.
Congress has the power, providing it has the will.
Article III affords the Congress to create lower courts under the Supreme Court, to determine the original and appellate jurisdiction in these courts as well as of the Supreme Court. It therefore has the power to disburse with such courts and/or to change the jurisdiction.
The President has the authority to nominate candidates to the federal bench who can take office with the advice and consent of the Senate. They have the duty to appoint men and women who will uphold the intent of the Constitution. Filibusters are not a Constitutional impediment to such advice unless the Congress has no stomach for upholding their sworn duties. If this nation’s choice of judges remains subject to unconstitutional filibusters, then those who shrivel and shirk their sworn responsibilities are not worthy of their office.
The House of Representatives can impeach judges and the Senate can try them and remove them. This has rarely if ever been done, but then rarely has it become more apparent that drastic action is needed. Certainly, the fearless arrogance of the judiciary should not be met with Congressional timidity.
In 1980 Congress passed a law that created a process for removing judges for misconduct or disability. The law’s glaring weakness is that it allowed the chief justice and other judicial members to attest to a judge’s inabilities. A process controlled by the judges will do little to correct the status quo.
Perhaps the most major practical power that Congress holds is the power to limit the Supreme Court’s jurisdiction over various laws.
Article III plainly states that the jurisdiction of the Supreme Court is tempered “…with such exceptions, and under such Regulations as the Congress shall make.”
Part of the problem here is that each bill must have the explicit and required language in it so that it would be qualified under this provision. One such bill that is currently pending in Congress is the Marriage Protection Act which is proposed specifically to remove the Court’s jurisdiction from the Defense of Marriage Act. (See sidebar of cases)
Moreover, the Court has attempted in a few cases to stick its long nose into this Constitutional prerogative of Congress and to declare such actions unconstitutional.
Nevertheless, Congress needs to augment and use this specific power and can do so in several ways.
It could establish its own Constitutional Integrity Committee for the explicit purpose of routinely and regularly insuring that the Supreme Court ceased issuing its non-judiciary opinions and maintained the integrity of judicial clarity for which it was established. This committee could be composed of nine members appointed to five year terms. Four could be appointed by the House, three by the Senate, and two by the President. These members would be charged with reviewing the decisions of the Supreme Court, and if necessary other federal courts, to insure that such decisions were indeed in keeping with the language of the Constitution.
Should the Committee find otherwise, then the Supreme Court would have to rectify their ruling or else the Congress would immediately remove the Court from having jurisdiction over the law involved and/or removing the lower court altogether if such rulings were habitual. This would put the Court on notice that it, too, was being watched.
Finally, a Constitutional Amendment could be proposed that would no longer give lifetime membership to judges on the Courts. Somewhere between a nine and a twelve year term would certainly be adequate to insure that judges would be protected while attempting to provide judicial impartiality.
Our Constitution is being shredded page by page on a daily basis by judicial interpretations pulled out of thin air. It is time for judicial tyranny to be reigned in or else we will cease to exist as the nation we were, and all the blood spilled to preserve what we were will have been shed for naught. And if we cannot hold on to what we were, we will become what we were not, and that is exactly who we will be.
Editors Note: This series of articles will conclude next week.