One Nation, under Judges
By David Morgan
If there is anything that should be clear, it is
that the Founders of our nation and those who wrote the Constitution were
emphatic about the need for a distinct separation of powers among the various
branches of government. Voluminous notes and writings exist dedicated to this
very proposition. Federalism - the compact in which each member agrees to
subordinate its governmental power to that of the other in certain specified
common affairs - lies at the heart of our governmental system and our
Constitution.
Yet, what is happening in the United States today is that
the United States Supreme Court and its judicial tentacles have sucked the
meaning out of the Constitution and are re-writing a new one in accordance with
their own views. They have hammer locked a virtual monopoly on making law by
empowering themselves to be the final arbiter of all meanings of the
Constitution - even those that empower the other coequal branches of government.
And the citizens of America stand idle and watch.
William
Marbury
The Court today is more than willing simply to
ignore Congress and the President, as was self-evident in the recent Terri
Schiavo case. Congress issued a subpoena for Terri Schiavo to appear before
them, the legal requirement being that she, by law, should be protected until
she could do so. The state judge in Florida totally ignored and even mocked the
subpoena. Subsequently, Congress and the President signed a law requiring the
federal court system to make a "de novo" review of the case ("new, from the
beginning") due to an increasing amount of evidence that was surfacing and had
never been considered. The federal courts, for all practical purposes paid
Congress and the President no heed and acted in ways flagrantly indifferent and
inimical to the law.
Not long ago, Congress and the President signed a
bill into law declaring that "partial birth abortion" was illegal. Once again
one lone federal judge said no.
Each time the judiciary invades the
intentions of the legislative and executive functions by blatant and
unconstitutional interpretations, evaporation of the co-equality of the federal
branches drains the essence of the Constitution. (See sidebar at the end of this
article for a detailed review of various judicial Constitutional
misinterpretations)
Thomas Jefferson himself worried about this
In 1820 he wrote to William C. Jarvis: "You seem...to
consider the judges as the ultimate arbiters of all constitutional questions, a
very dangerous doctrine indeed and one which would place us under the despotism
of an oligarchy...The constitution has erected no such single tribunal, knowing
that, to whatever hands confided, with the corruptions of time and party its
members would become despots...At the establishment of our constitution, the
judiciary bodies were supposed to be the most helpless and harmless members of
the government. "Experience, however, soon showed in what way they were to
become the most dangerous; that the insufficiency of the means provided for
their removal gave them a freehold and irresponsibility in office; that their
decisions become law by precedent, sapping by little and little the foundations
of the constitution, and working its change by construction...In truth, man is
not made to be trusted for life if secured against all liability to account."
Jefferson's worries were well founded. Over the past two centuries, the
elected branches have largely acquiesced to the tyranny of the judiciary. It is
the harsh reality of today that the Supreme Court simply looks upon Congress and
the President simply as advisory bodies. Unfortunately the majority of the media
and the people do so as well.
All look to the judiciary to give them the
"law." The "law" and its corresponding "rights" are now thought to be handed
down by the Court.
It was never intended to be this way
The
first and second paragraph of the Declaration of Independence states, "When in
the Course of human events, it becomes necessary for one people to dissolve the
political bands which have connected them with another, and to assume among the
powers of the earth, the separate and equal station to which the Laws of Nature
and of Nature's God entitles them...We hold these truths to be self-evident,
that all men are created equal, that they are endowed by their Creator with
certain unalienable rights, and that among them are Life, Liberty, and the
pursuit of Happiness...."
These are rights that no man made 'laws' can
take away. The people simply 'lend' to their government certain laws for the
government to use in carrying out their proper functions.
Neither judges
nor the government have the right to usurp them and cannot claim ownership of
them as they are simply on loan to the government by the people. The basic
principles of our law - truth, justice, and the value of life and individual
responsibility - come directly as gifts of the Creator.
In addition, the
US Constitution starts out by saying "We the People..." It does not start out by
saying "We the judges..."
Our laws flow as follows: From God to
the people, from the people to the Constitution, from the Constitution to our
elected government officials, and from our elected government officials to our
judicial system to insure that our laws are in "harmony" with the Constitution.
The judges did not write the Constitution and, therefore, they have no
right to re-write it. Amending the Constitution was never a right given by the
founders to the judiciary. That right was given to the people. If the framers of
our Constitution had wanted to empower the Supreme Court with a legislative
veto, they would have done so.
While Mozart had the right to re-write his
orchestral compositions, the critics of Mozart had no such right. The critic had
the right to determine if the orchestra was performing them in "harmony" with
what the composer wrote, but not to revise the composition or to add new music
to what was written.
This would be anathema to what was written and,
indeed, has become so.
Notice that the judicial oath of office, imposed
by the legislature, states: 'I do solemnly swear that I will administer justice
without respect to persons, and do equal right to the poor and to the rich; and
that I will faithfully and impartially discharge all the duties incumbent on me
as according to the best of my abilities and understanding, agreeably to the
constitution and laws of the United States.' "Agreeably to" was intended to mean
"in harmony with."
What gave rise to this usurpation of the
Constitution by the Court?
The case that is primarily cited is
Marbury v. Madison
In the Presidential election of 1800, Thomas Jefferson
defeated John Adams, becoming the third U.S. President. Although the election
was decided on February 17, 1801, Jefferson did not take office until March 4,
1801. Until that time, Adams and the Federalist-controlled U.S. Congress were
still in power. Congress passed a new Judiciary Act, creating a number of new
courts to be controlled by Federalists.
On March 2, Adams appointed 42
Federalists to these courts while sitting as a lame duck less than a week before
the end of his term. The following day, on March 3, the judges were approved by
the Senate. One of these "Midnight Judges" was William Marbury, appointed to a
position as Justice of the Peace in the District of Columbia. At noon, Adams
left office and Jefferson was inaugurated as President.
Marbury's
commission, as well as that of others who were part of the lawsuit, was signed
by Adams and John Marshall, his Secretary of State. As a complication of
matters, Marshall had been appointed as Chief Justice of the Supreme Court on
February 4, but had continued to act as Secretary of State until Jefferson was
inaugurated. On March 3, Marshall became Chief Justice and swore in
Jefferson.
Jefferson treated as void the 42 commissions approved on
Inauguration Day, including Marbury's, because they had not been officially
delivered by day's end. He appointed James Madison as the new Secretary, and
ordered him not to deliver the Marbury commission.
At this point in the
Country's history, the Supreme Court had very limited powers. Chief Justice
Marshall knew that if the Court decided for Marbury, Jefferson would almost
certainly ignore the decision-a result that would further erode the court's
authority. Such a result arguably occurred about 30 years later when Marshall
ruled in Worcester v. Georgia, and President Andrew Jackson refused to compel
the state of Georgia to abide by the decision. He is famously supposed to have
said, "John Marshall has made his decision. Now let him enforce it."
What
Marshall finally decided was that, first, Marbury had a right to the apointment
and that, secondly, the laws of the country offered him a remedy.
The
requested remedy was an order (known as a writ of mandamus) directed against
James Madison, the new Secretary of State, to transmit the commission to
Marbury. It was here that Marshall made his mark. The Constitution, the Supreme
Court held, confined its original jurisdiction-the ability to hear cases in the
first instance-to "all cases affecting ambassadors, other public ministers and
consuls, and those in which a state be a party.
In all other cases the
Supreme Court shall have appellate jurisdiction." (Not original jurisdiction, as
had occurred in this case.)
Marshall reasoned that "if this Court is not
authorized to issue a writ of mandamus to such an officer, it must be because
the law is unconstitutional, and therefore absolutely incapable of conferring
the authority and assigning the duties which its words purport to confer and
assign."
Marshall's opinion simultaneously asserted the Court's power to
hold acts of Congress unconstitutional and yet avoided a direct confrontation
with the President. By giving up the power of original jurisdiction in cases not
specifically enumerated in the Constitution, it seized the power of judicial
review.
Politically, Jefferson was forced into a corner: either agree
with the ruling and use it as a justification to continue denying the Midnight
Judges their commissions, or disagree with the very ruling that legitimized his
action.
The Court, by enforcing a contitutional restriction on judicial
power, essentially did nothing.
Hence Marshall claimed the Court's right
of judicial review simply by having the gumption to claim it. That is all there
was to it.
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. However, the Court treated the
decision with deference: between 1804 and 1894, Marbury was cited in only 24
separate opinions in the U.S. Supreme Court that reiterated Marbury's initial
jurisdictional holding proclaimed by Marshall.
It should be noted that
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 uncoerced. 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
"nonjudiciary" 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 Constituion 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 Men in Black, "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 judcial 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 appelate 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 advise and consent of the Senate. They have the duty to appoint men and
women who will uphold the intent of the Constitution. Fillibusters 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 fillibusters, then those who shrivel and shirk their sworn
responsibilities are not worthy of their office.
The House of
Representives 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 propsed specifically
to remove the Court's jurisdiction from the Defense of Marriage Act. (See
sidebar of cases below)
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 5 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.
David Morgan is Editor-at-Large of The Tribune
Papers
Tearing apart the fabric of America, case by case Harry Blackmun, former associate justice of the U.S. Supreme Court, authored the 7-2 majority opinion in the landmark 1973 Roe v. Wade decision legalizing abortion. Blackmun was appointed in 1970 by Richard Nixon and retired in 1994. In a 1983 interview on the eve of his most famous decision's 10-year anniversary, Blackmun repeated the phrase "author of the abortion decision" slowly and softly. "We all pick up tabs," he said. "I'll carry this one to my grave."
Undermining religious beliefs Part of the First Amendment of the Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…" Seems simple enough. Our founders did not want the federal government to establish a state religion, and they wanted to be sure that any citizen could worship in freedom wherever and whenever he or she saw fit. Notice that this is in the very first amendment. However, in 1947, the Court in Everson v Board of Education re-wrote this Amendment by incorrectly seizing from a letter that Thomas Jefferson wrote to the Danbury Baptists Jefferson’s phrase that there should be a "wall of separation" between church and state. Jefferson’s meaning, of course, was that the state should not establish a religion. However, the Courts decided that the First Amendment means that instead of citizens having the right to freedom ‘of’ religion, that they have a right to freedom ‘from’ religion. In Lee v Wiseman in 1992 the Court inaugurated its "coercion test" which promulgated a new nonexistent constitutional "right" not to be offended and not to feel uncomfortable by having to listen to religious expression in a public place. The Court has hopelessly twisted the meaning of this part of the First Amendment into a number of absurd judicial outcomes leaving a great deal of confusion in their wake. (To explore the subject in more detail, check Barry Krusch’s Web site, www.krusch.com/real/first.html.) Right to Privacy It takes a great deal of research in the Constitution to find the "right to privacy" simply because it does not exist and is nowhere to be found. Yet it was the Court’s underpinning for the 1961 decision in Poe v Ullman that led to the Griswold v. Connecticut decision in which the "right to privacy" became constitutional law by fiat. In Justice Douglas’ ruling he wrote that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." Out of this emission from a penumbra was born the "right to privacy." Pretzels became law. The founders quite obviously proposed no specific rights to privacy because criminal acts such as murder, rape, incest, brutality and other evils could be committed in privacy. In 1973 in its most notorious use of this phrase, in Roe v. Wade, Justice Blackmun felt that regardless of where the "right to privacy" comes from, it includes the right to abortion. He declared strongly that the unborn baby was not a "person" which meant, in effect, that it was just a piece of property. (Much like slaves had once been.) When life begins was never an issue and was not considered. Unlike wetlands, endangered species, or old growth trees, the mother could destroy the unborn baby at will. The Court in general has a horrible record on other similar cases. In 1856 it not only upheld slavery, but it imposed it on the free territories, and in the mid 1890’s it dug out "separate but equal" from the Constitution. Definition of marriage The simplest and oldest concept of marriage is that it is when a man and a woman become a husband and wife so that they might become a father and a mother. It takes a man and a woman. A man who is "gay" has the right to "marry" a woman who is a lesbian or who is heterosexual and vice versa. No rights have been threatened. More than a century ago, the U.S. Supreme Court spoke of the "union for life of one man and one woman in the holy estate of matrimony." Murphy v. Ramsey, 114 U.S. 15, 45(1985). However, the Court has set the stage to try to "redefine" marriage to include unions of two men or two women, just for starters. (Instead, unions of two men should simply be called ‘gaymiages’ and of two women ‘lesbiages’ or some other definitive term.) In Lawrence v. Texas, in 2003, in response to an attorney attempting to justify the Texas anti-sodomy statute, Justice Breyer exclaimed," You’ve not given a rational basis except to repeat the word morality," as if morality has no basis in law. What is happening is that the Court is rapidly abandoning the moral foundations that underpin our Constitution, and is instead writing a new constitution in their own elite image. As a direct result of an outcry from the people, Congress is attempting to reign in the judges in this regard. In July 2004 Rep. John Hostettler of Indiana sponsored the Marriage Protection Act, which would strip all jurisdiction from federal courts (in accordance with Article III, section 2) in deciding the constitutionality of the Defense of Marriage Act. The bill passed the House but as of now the issue is dormant. Diversity & reverse racism In the 2003 case of Gutter v. Bollinger Barbara Gutter had been turned down for law school even though she had a 3.8 grade point average and a score of 161 out of 180 on the Law School Admissions test. She sued the school saying she was turned down because she was white. In upholding the school, Supreme Court Justice Sandra Day O’Connor stated that "…student body diversity is a compelling state interest that can justify the use of race in university admissions…attaining a diverse student body is at the heart of the Law School’s proper institutional mission." However, there is nothing in the Constitution about diversity, admissions tests, and other pretzel-like minder-binders designed to go around the Constitution’s clear prohibition against racial discrimination. It is not the role of the Court to design social policy. Re-engineering citizenship Article I, Section 8 of the Constitution says that Congress shall have the power "To establish an uniform Rule of Naturalization…" One would think that this was clear enough. But not to the Supreme Court. The Court has put its nose in this arena and made abusive decisions as to how immigrants enter America, how they remain here, whether illegal immigrants can have monetary benefits that the states and Congress wanted to hold for US citizens, and whether or not they are entitled to free schooling and a host of other social benefits. They have even overruled laws and stated that non-citizens can seek tuition assistance, hold civil service jobs, and practice law. In 1976 the Court ruled in Hampton v Mow Sun Wong that citizenship was an unconstitutional requirement for holding a government job. In 1982 in Plyler v. Doe the Court ruled that illegal Texas immigrants ere entitled to a free public school education, and in 1977 in Nyquist v. Mauclet the Court ruled that it was not constitutional for New York to require resident aliens at least to apply for U.S. citizenship before becoming eligible for financial aid for education. The Court has stripped away any distinctions between citizens and legal aliens and those that are here illegally. In doing so it has written laws and set policies that the Constitution clearly designated to the Congress. This is clearly not constitutional and is indeed arrogantly dangerous. Everything falls under the "commerce clause" Under Article I, Section 8, the Constitution gives Congress the power to "regulate commerce with foreign nations and among the several States." The purpose of this was to promote trade by breaking down many of the barriers that had been set up by the States. However, in 1942 the Court made a gigantic leap into the entire marketplace with its ruling in Wickard v. Filburn. In that ruling the Court decided that Congress could regulate the amount of wheat that a farmer grew on his farm even though none of the wheat ever left the state. It arrived at its decision by more pretzel logic when it stated that because Filburn, a farmer, did not purchase any wheat on the open market and instead grew his own wheat that he was affecting interstate commerce by not buying any. Under this logic absolutely anything can be covered under the "commerce clause." The Court’s ruling on the commerce clause means that there are absolutely no Constitutional limits on the federal powers to make any law it chooses. Courts and election laws In the presidential election of 2004, in Florida, the Courts waded in where there was need for them to be. Article II, Section 1, Clause 2 of the U.S. Constitution states that "Each state shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector." What this meant was that the Florida legislature, which was controlled by the Republicans, had absolute authority to choose Florida’s members of the Electoral College and were preparing to do so in view of the resulting vote counting confusion. Bush would have received these electoral votes in an entirely Constitutional manner. The Florida Supreme Court had initiated the real problem on November 17, 2000 when they, on their own motion, issued a temporary stay against Florida Secretary of State Katherine Harris from certifying the election results on the day provided by Florida law. The Florida Court totally ignored existing Florida law governing deadlines and recounts, and inserted its own deadline out of thin air. On December 8, once again the Florida Supreme Court committed a stunning abuse by its judicial activism. It ordered manual recounts in every Florida county that had significant numbers of "undervotes" without even establishing a standard for recounting the ballots. At that point the U.S. Supreme Court waded in and ordered the manual recounts stopped, and a few days later on December 12, 2000 the U.S. Supreme held that the Florida court had violated the ‘equal protection" clause of the U.S. Constitution by ordering statewide manual recounts with different standards in the different counties. If anything, the US Court should have ruled on whether or not the Florida Court had usurped and supplanted the Florida legislature’s authority. Instead it opened up a new Pandora’s box by widening the meaning of "equal protection." The Florida legislature should have moved to impeach members of the Florida Supreme Court for their blatant moves to rewrite the election laws illegally, and the US Supreme Court should have stayed out of the fray. George Bush would have had the Florida electoral votes anyway. Knocking down free speech in politics Another part of the First Amendment of the Constitution says that, "Congress shall make no law…abridging the freedom of speech, or of the press…" That’s what it says. However, in 2002 the McCain-Feingold Act was signed into law. It imposes grotesque limits on political speech and stated that groups could not run advertisements about a candidate’s position for thirty days before a primary election and sixty days before a general election. The media was exempted. This was challenged under McConnell v. Federal Election Commission in 2003. After the Court stamped its approval on the bill by discussing "soft money," discussing "hard money," defining "electioneering communication," and other unrelated topics, it ruled to uphold the bill. In whose wildest dreams could it ever be interpreted that the founders included in the Constitution a proviso that people could wind up in federal prisons for speaking out clearly and often in favor of a particular candidate? Perverting the Constitution to aid our enemies Article II, Section 2 of the Constitution states that "The President shall be Commander in Chief of the Army and Navy of the United States…" As such his primary task is to act so as to insure the safety and security of Americans in times of attack. As such the President has the authority to detain enemy combatants, the purpose of which is to gather intelligence and to ensure that they do not return to assist the enemy. Once again the Court has moved to increase its powers. In 2004 in Rhamdi v. Rumsfield the Court ruled that "…a citizen-detainee seeking to challenge his classification as an enemy combatant must receive…a fair opportunity to rebut the Government’s factual assertions before a neutral decision-maker." Going even further, in Rasul v. Bush the Court determined that the courts could listen to cases in which foreign enemy combatants challenge their detention. In their wisdom they gave alien combatants and enemies access to U.S. civilian courts. They gave an alien captured in a foreign active combat zone the right to bring a suit against the Secretary of Defense. Arming the enemy with subpoenas, affidavits, depositions, and lawyers borders on the ridiculous. These are more dangerous rulings that are simply grotesque power grabs by the Court. Certainly the Founders never intended to swap a tyrannical monarchy for an oligarchy of judges. "I acknowledge, in the ordinary course of government, that the exposition of the laws and Constitution devolves upon the judicial. But, I beg to know, upon what principle it can be contended, that any one department draws from the Constitution greater powers than another, in marking out the limits of the powers of the several departments. The Constitution is the charter of the people to the government; it specifies certain great powers as absolutely granted, and marks out the departments to exercise them. If the constitutional boundary of either be brought into question, I do not see that any one of these independent departments has more right than another to declare their sentiments on that point. There is not one government on the face of the earth, so far as I recollect, there is not one in the United States, in which provision is made for a particular authority to determine the limits of the constitutional division of power between the branches of the government. In all systems there are points which must be adjusted by the departments themselves, to which no one of them is competent." James Madison, Speech in Congress on Presidential Removal, June 16, 1789 The writer is indebted to Mark Levin’s book Men
in Black for much of the basic data covered
above. |