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Ending Judicial Activism
Monday, December 5, 2005
By George Detweiler
Past efforts at remedying judicial activism have failed largely because of the difficulty of implementing them, but newly proposed congressional legislation is promoting a workable fix. [This important article is being posted online today, December 5, 2005 (it was formerly only available in the print edition of The New American for May 30, 2005), to help encourage Americans to contact Congress in support of the Constitution Restoration Act of 2005 (S. 520 in the Senate and H.R. 1070 in the House) and to contact their state legislators to pass a state resolution in support of S. 520 similar to Louisana's recently approved Senate Concurrent Resolution 30.]
Politicians, pundits, and the public have lamented the outrageous decisions of the amoral Supreme Court and of other courts, both state and federal, which have violated both the letter and the spirit of the U. S. Constitution and state constitutions. The litany of complaints includes decisions blessing murder (abortion), sodomy, and same-sex “marriages”; preventing the free exercise of religion (prayer and Bible reading in public schools, prohibition of “religious displays” on public property); the taking of private property for political and not for public purposes (scenic easements, “endangered species” protection); and invasion of state powers and prerogatives (restrictions on use of the death penalty, mandating federal standards for creating state legislative districts). The list is illustrative and not exhaustive.
There is an unfortunately typical pattern in these events. The Supreme Court, and other courts as well, have chafed at constitutional restraints upon their powers. For decades they have gradually assumed powers beyond their authorities.
Of course, the judicial usurpations have caused instances of public outrage, the most notable arguably being the infamous 1973 Roe v. Wade decision eliminating all state anti-abortion laws. But despite the outrage, judicial usurpation has not stopped because the remedies for the problem were poorly researched, poorly organized, and poorly implemented. For the most part, they took the form of seeking a constitutional amendment to make unconstitutional what the court was claiming was constitutional. One problem with this approach is the difficulty of adding an amendment to the Constitution: it must be passed by a two-thirds majority vote by both houses of Congress and then ratified by three-fourths of the states. Another is the dangerous implication that the court can issue whatever outrageous rulings it wants — unless explicitly prohibited by a constitutional amendment.
Among the latest in the list of shocking, arrogant, blatantly unconstitutional actions of the federal judiciary is its abuse of Judge Roy Moore. In 2001, Judge Moore, Chief Justice of the Alabama Supreme Court, ordered a display of the Ten Commandments to be erected in that court’s building. His actions came before U.S. District Judge Myron Thompson, who ordered the display removed, ultimately resulting in the removal of Judge Moore from the bench by the State of Alabama. He based his actions on the First Amendment’s prohibition against the establishment of religion. To do so, he relied on previous decisions, which had twisted and distorted the establishment clause of the First Amendment to take on a meaning never envisioned by the Founders. A federal appeals court and the U.S. Supreme Court refused to hear Judge Moore’s appeal. It has stirred the blood of Congress to take notice. But Congress is beginning to choose its remedies more carefully. The Congress is now using its constitutionally granted powers.
Checks and Balances
One of the strokes of genius displayed by the Founders is the inclusion in the Constitution of the principle of checks and balances. Thus, all legislative power is vested in Congress, with the presidential veto of congressional acts standing as a check of what would otherwise be an unlimited power. The presidential veto is then subject to a separate check from Congress, which can override the veto with a two-thirds majority vote in each house. The president is also empowered to appoint judges, ambassadors and other officers, and to enter treaties, but only with the advice and consent of the Senate.One arrow in the quiver of checks and balances, which has seldom been nocked, is congressional control of the appellate jurisdiction of the Supreme Court. Article III, Section 2 provides, in part: “… the supreme Court shall have appellate Jurisdiction,... with such Exceptions, and under such Regulations as the Congress shall make.” Courts generally have two categories of jurisdiction: original and appellate. Original jurisdiction is one in which a court hears evidence and makes a decision, in other words, a trial. Appellate jurisdiction is the authority to review on appeal decisions of lower courts and to revise or confirm them.
The Supreme Court is the only judicial body created in the Constitution. Congress is authorized to create other “inferior courts.” As creatures of Congress, the jurisdictions of inferior courts, both original and appellate, are under complete congressional direction.
Control of Supreme Court appellate jurisdiction has received scant attention from Congress throughout much of the life of the republic, despite decades of judicial overreaching and excesses. A grand awakening of congressional awareness of this check on the federal judiciary manifested itself last year when the House passed the Pledge Protection Act (H.R. 2028). It would have removed from federal court jurisdiction any ability to hear challenges to the constitutionality of the pledge of allegiance to the flag. Later in 2004 the House passed the Marriage Protection Act (H.R. 3313), which would have withdrawn the definition of marriage from the jurisdictions of federal courts. It would also have prevented them from requiring states to give full faith and credit to same-sex “marriages” performed in sister states. Neither measure was voted on by the Senate by the end of the last Congress.
Restoring Responsibility
The judicial persecution of Judge Moore caught the attention of a fellow Alabaman, U.S. Senator Richard Shelby, who introduced S. 520, a bill carrying the name “Constitution Restoration Act of 2005.” An identically worded bill of the same name, H.R. 1070, was introduced in the House by Representative Robert Aderholt (R-Ala.). A better name would be the Judicial Responsibility Restoration Act of 2005. It is judicial integrity and responsibility which need to be restored; the Constitution is in fine shape just as it was written.S. 520 is narrowly drawn. It does four things:
• It limits the court’s ability to hear cases regarding references to God in public spaces: “The Supreme Court shall not have jurisdiction to review, by appeal … any matter to the extent that relief is sought against an entity of Federal, State, or local government, or against an officer … [thereof]..., concerning that entity’s, [or] officer’s … acknowledgement of God as the sovereign source of law, liberty, or government.” This restriction applies to federal trial courts as well.
• It pushes the court’s justices to make decisions based upon the content and meaning of the Constitution: “In interpreting and applying the Constitution of the United States, a court … may not rely upon any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization … other than English constitutional and common law up to the time of the adoption of the Constitution of the United States.”
• It makes clear that any rulings that the Supreme Court or lower courts have made in the past or may try to make in the future in regard to this legislation are not binding on state courts. “Any decision of a Federal court which has been made prior to, on, or after the effective date of this Act, to the extent that the decision relates to an issue removed from Federal jurisdiction under section 1260 or 1370 … is not binding precedent on any State court.”
• It simplifies the impeachment of federal judges who try to regulate religious symbols in public places. “To the extent that a justice of the Supreme Court … or any judge of any Federal court engages in any activity that exceeds the jurisdiction of that justice or judge … by reason of section 1260 or 1370 … engaging in that activity shall be deemed to constitute the commission of — (1) an offense for which the judge may be removed upon impeachment and conviction; (2) a breach of the standard of good behavior required by article III, section 1 of the Constitution.”
S. 520 utilizes both powers conferred upon Congress by the Constitution: (1) creating exceptions to the Court’s appellate jurisdiction, and (2) providing regulations for its exercise of such jurisdiction. By creating exceptions, Congress removes an entire category of cases which reach the court. When the bill prohibits the Court from hearing cases challenging government officials’ references to God as the source of law, liberty, or government, it provides an exception to its jurisdiction. When the bill prohibits the Court from relying upon foreign law, when it provides penalties for judges who violate the bill, and when it provides that certain decisions of the Court shall not constitute precedents that are binding on State courts, it provides regulations for the exercise of jurisdiction in cases which the Court still can hear and decide. It is in this latter area — regulation — where a collision of the Court and Congress is likely to occur.
“Church and State” Fallacy
Critics of S. 520, and some timid analysts, have argued that the bill may be unconstitutional under Court decisions mandating a doctrine known as the “separation of church and state.” But this doctrine is manufactured out of whole cloth by the Court, with no constitutional provision to support it. The First Amendment merely prohibits Congress from establishing an official federal religion, and it prevents Congress from hindering the free exercise of religion. Also, the authority for Congress to regulate the Court’s jurisdiction rises from Art. III, Sec. 2. It exists even though some congressional regulations might impact the efficacy of previous Court decisions. Within the context of the present example, S. 520 would be constitutional even if the doctrine of separation of church and state were sound. The power to restrict the Court’s appellate jurisdiction is not the same as the power to overturn prior decisions. Congress has the former power by direct constitutional provision; it does not have the latter power. The pivotal point is that these are separate and distinct matters.If a jealous and overly zealous Supreme Court should try to overturn S. 520 on the grounds that it interferes with the efficacy of existing decisional doctrines, then the entire concept of separation of powers is destroyed with respect to the federal judiciary. It will become an all-powerful branch of government.
The cause is just and the need is great, but they do not assure victory. The task is to create a sustained stream of public pressure on Congress to do the right thing and pass S. 520, and on the president to sign it into law. There is more at stake than S. 520. The campaign to secure its passage is a bellwether event which will measure the resolve of the American people, and therefore of the Congress, to use Art. III, Sec. 2 to curb other judicial abuses of power.
If S. 520 becomes law, other efforts to deal with a long list of judicial abuses will be ready to receive the same remedy. They will most likely address one issue, or a few issues at a time. It is better to proceed slowly and enhance the chances of passage, rather than hastily, inviting a coalition of opposition to a diverse list of issues combined into a single bill. The Court will likely resist any curtailment of what it has come to regard as its prerogatives. It may even try to declare S. 520 unconstitutional, based on some fabricated pretext. If this happens, Congress must be prepared to proceed with impeachment against the offenders. It could create a constitutional confrontation of historic proportions, but it must be done. The alternative is growing judicial tyranny, which will be tantamount to a coronation of the Court.
George Detweiler was born in Salt Lake City in 1943. But, he has spent most of his life in Twin Falls, Idaho, where he wants to be known as one of its proud citizens.
Although he received his bachelor’s and law degrees from Georgetown University in Washington, D.C., he happily reports that the years he spent in the nation’s capital never compromised his determination to keep America independent.
George served for two years as an Idaho assistant attorney general. For most of his career, George ran a private law practice in the Twin Falls area. No longer practicing law, he devotes a significant portion of his time and energy directing JBS members throughout the nation in their efforts to protect the U.S. Constitution from any state officials who would propose a constitutional convention. He actively participates in Society activities in his community.
Having a lawyer with George’s thorough understanding of the Constitution within our Council has been of great benefit to our organization. He was appointed to the Council in 2003.
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