Friday, June 16, 2006

Supreme Court V. America, can we win the case against Judicial Activism?


“This member of the government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is…by sapping and mining slyly and without alarm the foundations of the constitution, can do what force would not dare to attempt” –Thomas Jefferson 1825.

Today the majority of America is influenced in some way by the media, the latest actor, or newest band. We pay more attention to entertainment than our government. Our culture has shown a lack of interest in the future of our government and Nation, and a rising interest in the latest movies and technology.

For most, life revolves around their sphere of friends and family, and they pay little attention to the world events around them. The oblivious state of mind today is deplorable to say the least.

In spite of the general disinterest, the government still runs and is still very influential whether we realize it or not. Sadly, our courts seem to have noticed this trend, and are using it to expand their constitutional boundaries. What is and was originally the weakest of the three branches of government is believed by many to be the most powerful and influential.

This general assumption, however, is incorrect. The “untouchable” Courts of today are in fact “touchable”. Moreover, the courts are constitutionally the weakest of the three branches.

Alexander Hamilton in Federalist Paper # 78 wrote “The Judiciary, on the contrary, has no influence over either sword or purse; no direction either of the strength or wealth of society, and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment; and must ultimately depend on the aid of the executive arm even for the efficacy of its judgments. This simple view of the matter suggests several important consequences. It proves incontestably that the judiciary is beyond comparison THE WEAKEST OF THE THREE BRANCHES OF POWER...” (Emphasis is mine).

Also, in the constitution, the legislative branch has more authority than the Judicial Branch does.

For example, the legislative has the power to:
Tax, maintain and provide for the military, declare war, borrow money, grant letters of marquee and reprisal, provide for the calling of the militia to execute laws of the Union, suppress insurrections and repel invasions, make rules concerning captures, create post offices and roads, define laws/rules and punish lawbreakers, coin money, and punish counterfeiting.
This is an excerpt of Article 1 section 8 of the US Constitution.

Let us take it a step further and look at the executive role.

The following is an excerpt of article 2 section 2 of the constitution:

The President is the Commander in Chief of the military, and has the power to:
Grant reprieves and pardons for offences, make treaties, nominate ambassadors, other public ministers and consuls, judges, and all other offices, and fill up all vacancies. Even though it does not look like much, making treaties, nominating officers, and just running the nation is an unimaginable workload.


The judges on the other hand, constitutionally speaking, had jurisdiction over cases involving:

Law and equity under the constitution, laws of the US, treaties, ambassadors, other public ministers and consuls, admiralty and maritime jurisdiction, controversies to which the US will be a party, to citizens of a state and another state, citizens in the same state claiming lands under grants of different states, and between a state and a foreign state.
(This was an excerpt of Article 3 section 1 of the Constitution)
It is important to note however, that a large portion has been nullified by the 11th amendment:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. (Ratified 2/7/1795)
So now, the role should look like this:
(The Judicial power extends to :) Laws of the US, treaties, ambassadors, other public ministers and consuls, admiralty and maritime jurisdiction, citizens in the same state claiming lands under grants of different states, and controversies to which the US will be a party.
By far the Executive and Legislative branches have more duties and responsibilities than the Judicial.




Reading that should also make us realize a little more of how this Nation is supposed to operate. The court, constitutionally, has little power. However, so many times, especially in recent history the court has ignored it’s bounds and stepped outside of it’s constitutional role.

In Article 3 section 1 of the Constitution, it lays the grounds for the judge’s term.

The judicial Power of the United States, shall be vested in one Supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts SHALL HOLD THEIR OFFICES DURING GOOD BEHAVIOR, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.
(emphasis mine)

A Biblical principle can actually be seen here, I think we all know the story of Lucifer being kicked out of heaven because he was vain and wanted to be worshipped. He originally wasn’t a threat, but then got proud. God then removed him from heaven forever. It could be said that Lucifer was not exercising “Good Behavior” and got punished…or in a sense, impeached from that “office”. God is a just God and does not tolerate lawlessness or deceit.

Today, it is increasingly obvious that “Good behavior” is not what our judges are executing. Rather, they have implemented their own ideas and agendas over the law of the constitution.

There are many cases of judicial activism that we have seen evident in recent history. Two cases in particular really got my attention; those were: Rasul V. Bush, and Griswold V. Connecticut.

The Supreme Court decision in Rasul v. Bush ruled that foreign enemy combatants had “the right to petition the federal courts to review their status as detainees” This is entirely unconstitutional. U.S. Code 28 states in part: “writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge WITHIN THEIR RESPECTIVE JURISDICTION.” In Rasul v. Bush, Justice Scalia explained the verdict in the dissenting opinion: “…it permits an alien captured in a foreign theater of active combat to [bring a suit] against the Secretary of Defense.”

The Griswold case came as a result of Poe V. Ullman. Harlan, an attorney for the ACLU explained his strategy for getting the court to adopt the privacy rights approach. He explained “…If there is no exact counterpart to the particular case before the Court, there are others that resemble it in a general sort of way, and the principles applied in similar cases should also be applied- perhaps even EXTENDED a little bit- to the new case” (Emphasis mine). In Griswold V. Connecticut in 1965 Justice William Douglas adopted Harlan’s reasoning and the catch phrase “Right to privacy” became law. Douglas wrote that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.

Do not feel bad if you don’t know what a penumbra and emanation is. The lawyers reading the decision did not even know. A penumbra is an astronomical term describing the partial shadow in an eclipse or the edge of a sunspot- it is another way for describing something unclear or uncertain. Emanation is a scientific term for gas made from radioactive decay, also meaning an emission.

One thing that these two cases have in common is that there are no constitutional grounds for the decision. In BOTH cases, the Constitution was distorted to fit an agenda.

These cases may seem far off and seem to have little impact on America in general. However, when we look at the cases we see the effects of it. One well-known example is Roe V. Wade. The Supreme Court decision that legalized abortion “on demand”. Since Roe V. Wade 47 MILLION children have been murdered, an entire generation has been killed since the Supreme Court decision legalizing abortion. The resulting effects of that decision are detrimental. We have lost 47 million voters, politicians, singers, actors, businessmen, workers, and families since the 1970s.

In these instances, and many more, the Supreme Court has stepped outside of it’s constitutional role and the justices have not exercised good behavior. In article 3 section one of the constitution it reads: “…Judges shall hold their offices during good behavior…” When we look at Federalist paper 78 we will see an explanation by Alexander Hamilton about the terms of office. He wrote: “The Courts must declare the sense of the law; and if they be disposed to exercise WILL instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body.” In other words, they would be subject to impeachment.

So now that we have seen the problem, not only with today’s mind or lack thereof, but with the courts as well. What can we do about it? Can we really win the case against Judicial Activism in America?









There are many options of stopping judicial activism available. Two of the most prominent I’ve seen is 1. Term limits and 2. Impeachment. Both of these are good options in my opinion. Though personally, I favor impeachment as that has partially been done before, and it is constitutional. It is constitutional because any official is subject to impeachment, including Supreme Court Justices. Also, impeachment has been partially done, though the enforcement was never carried out. If we impeach a few of the justices who are not exercising good behavior, and enforce it, I believe it will send a stronger message than setting a term limit. I believe that a term limit would be effective for activist judges, but it would also hinder the judges who have a strict interpretation of the Constitution.

Do I believe that we can win the case against Judicial activism?
Yes we can, if we work hard and elect officials who are good strong Christian leaders that will not back down in the face of the mainstream media. Many republicans in office currently are timid because they are afraid of how the media will construe them. I believe that in these upcoming elections we need to pay close attention to the candidates and ask them about what they will do to prevent judicial activism. We need to remember that with God, all things are possible and we can win the case against judicial activism, if we are willing to take a stand.

12 comments:

anyoneUSA said...

Judges cannot be activists. they have no control over the cases that come into their court room. they don't choose the cases or controversies that come before them. secondly, all courts in this country have appellate review - every person has the right to have an decision reheard by an appellate court, all the way up to the Supreme Court if necessary.

it is procedurally impossible for any one judge to "act" on his own.

Judicial activism is a word made up by the right wing. obviously, you buy into it.

also - its pretty hilarious and ironic that you spew off about judicial activism being wrong - when the most activist judge of all in recent years was Roy Moore.

slightly hypocritical of you, don't you think?

anyoneUSA said...

oh - excellent points made by MG in your posts below. that's exactly true.

anyoneUSA said...

Griswold's decision also relied on the 9th amendment. which, you know, does have a purpose.

anyoneUSA said...

by taking an enemy combatant prisoner - detaining them at a US detention facility - they are brought within the jurisdiction of the United States courts.

a person being detained has a right to challenge his detention. Unless you call them prisoners of war - when the military can hold and detain them so long as the war is ongoing.

Matt A. said...

Judges cannot be activists.

Logically that is ridiculous. It is like saying man cannot be a murderer.

they have no control over the cases that come into their court room. they don't choose the cases or controversies that come before them.

Big deal. They can still be activists over what DOES come to their courtroom.

it is procedurally impossible for any one judge to "act" on his own.

Really? Once again that is logically ridiculous. That is like saying it is impossible for man to act on anything…

Judicial activism is a word made up by the right wing.

when the most activist judge of all in recent years was Roy Moore.

You just contradicted yourself. You say it is non-existant and made up, then say Roy Moore is an activist judge.

slightly hypocritical of you, don't you think?

In Christ’s Love and in all respect,

Matt

anyoneUSA said...

well actually - i was referring to the activism of roy moore outside of the courtroom.

Again - a judge doesn't make a ruling, a jury does. after that ruling, ifyou appeal, it goes to an appellate court where experienced judges (not 1 judge....3 or more judges!!) review the decision. If it is inconsistent with the law, it can be overturned. THEN, if its a state case - it can be appealed to a state supreme court. Where the ENTIRE state Supreme Court rules.

Explain exactly to me, how it is that ONE JUDGE can "act" in a way that defines "judicial activism"?

You can't. Because it is not PROCEDURALLY possible. Civil procedure 1. At any law school. you'll figure out i'm right.

Kierstyn Paulino said...

well actually - i was referring to the activism of roy moore outside of the courtroom.

And I'm referring to activisim INSIDE the court room.

But to answer the previous question about Moore, he was not an activist Judge, he ruled on the law, not catch-phrases. The 10 commandments issue was constitutional, the Judge on the court above Moore, stepped out of HIS constitutional role and ruled where he had no jurisdiction.

Again - a judge doesn't make a ruling, a jury does. after that ruling, ifyou appeal, it goes to an appellate court where experienced judges (not 1 judge....3 or more judges!!) review the decision. If it is inconsistent with the law, it can be overturned. THEN, if its a state case - it can be appealed to a state supreme court. Where the ENTIRE state Supreme Court rules.

if you'll notice, I'm talking about the Supreme Court, not local, state, or appellate.

Explain exactly to me, how it is that ONE JUDGE can "act" in a way that defines "judicial activism"?

You can't. Because it is not PROCEDURALLY possible. Civil procedure 1. At any law school. you'll figure out i'm right.


Where have I stated anything about ONE judge? I have mentioned how things change with ONE ruling, but never ONE judge. If you'll notice, I refer to activist JUDGES not an activist Judge alone. It IS procedurally possible to have many activist judges, and that can and has effected the rulings of the Supreme court.

Anonymous said...

1st amendment.

separation of church and state.

a state cannot promote one religion over another.

putting the 10 commandments in a courthouse is clearly unconstitutional. your buddy Roy Moore fought for the right OFFEND every other person of any other religion that walked through a courthouse door. THAT sounds pretty "activist" to me.

from your argument - if you don't agree with the ruling, its an "activist" judge. if its a "action" in favor of the right, you think its fine?

Kierstyn Paulino said...

1st amendment.

Oh? lets see... 1st Ammendment states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people to peacebaly assemble,and to petition the government for a redress of grievences.

separation of church and state.

a state cannot promote one religion over another.


Its not in there, you like most of America have fallen into the fallacy that Seperation of Church and State is in the constitution. When really we get that cathc-phrase from Jefferson's PRIVATE DISCOURSE to a Connecticut Baptist church.

putting the 10 commandments in a courthouse is clearly unconstitutional. your buddy Roy Moore fought for the right OFFEND every other person of any other religion that walked through a courthouse door. THAT sounds pretty "activist" to me.

So then, using THAT logic. We should not allow for ANY religion in America, because that would be defending the right to offend EVERYONE of EVERYOTHER religion. Because they don't worship the same thing.

Also, it is NOT unconstitutional, The fact is that the 10 commandments is what common law is based on.

The fact is that some of our laws come from those commandments.

The fact is people have the ablity to look away.

The fact is, Congress shall make no law respecting an ESTABLISHMENT of religion.

The fact is, the 10 commandments are not a religion and are not in the slightest establishing a religon.

Notice it did not say Congress shall make a law banning the acknowledgement of the basis of law.

Nor did it say Congress shall make a law banning the acknowledgement of religion.

Moore didn't fight for a right to offend anyone. Look, if the 10 commandments offends a person THAT badly, look away. If someone posted an excerpt of the Koran in the court house, I wouldn't be offended, and even if I was, I would take initiative and LOOK AWAY.

I'm a Christian, and seeing a muslim or a buddah statue does NOT offend me in the least.

Why is it that EVERY other religion can be tolerated and their laws acknowledged and NOT Christianity?

Because there are moral absolutes, and because there is only ONE WAY, and ONLY balck and white, no gray.


from your argument - if you don't agree with the ruling, its an "activist" judge. if its a "action" in favor of the right, you think its fine?

No, I do not think that if its an action in favor of the Right it is fine. I think that we need to have Judges that have a strict interpretation that won't spin it, left or right.

God Bless,
KP

Anonymous said...

So then, using THAT logic. We should not allow for ANY religion in America, because that would be defending the right to offend EVERYONE of EVERYOTHER religion. Because they don't worship the same thing.

No - I would allow for EVERY religion in America, to be practiced with family, with friends, with fellow parishoners, in their homes, in their churches, even in public places....but I WOULD NOT allow government agencies, or government officials to PROMOTE any one religion over another. That's all. By posting christian teachings in a Courthouse - it shows a predisposition towards one religion.

Also, it is NOT unconstitutional, The fact is that the 10 commandments is what common law is based on.

I've been to law school. The common law is based upon many many things - arguably, certain of the commandments are contained within that common law, but there are many which are not. "Remember the sabbath and keep it holy" - there's no common law provision for that. prohibition of the worship of idols? come on...

The fact is that some of our laws come from those commandments. Some of our laws are THE SAME as those commandments - but i wouldn't necessarily say they "come from" them. Thou shalt not committ murder. You don't have the right to take the life of another. No one needs a commandment to know that.

The fact is people have the ablity to look away.

the point is, you shouldn't FORCE American citizens to just look away. The fact is - YOU can look at your commandments, and your scriptures and whatever anywhere you want on your own terms....but WHY this obsession with force-feeding it to everyone else?

Why do you feel the need to PUSH your religious beliefs onto others. You clearly have the right and ability to worship any way you like whenever you like. Why must you push your views onto others?

Matt A. said...

No - I would allow for EVERY religion in America, to be practiced with family, with friends, with fellow parishoners, in their homes, in their churches, even in public places....but I WOULD NOT allow government agencies, or government officials to PROMOTE any one religion over another. That's all. By posting christian teachings in a Courthouse - it shows a predisposition towards one religion.

The first amendment states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people to peacebaly assemble,and to petition the government for a redress of grievances.

Roy Moore never made any law about religion in the Ten Commandments case.

Why must you push your views onto others?

Why must you push your views on us?

slightly hypocritical of you, don't you think?

I find it funny that all you keep doing is telling how this activism is impossible.

1. It is logically ridiculous to say it cannot exist.
2. I haven’t seen you refute what KP has said.
from your argument - if you don't agree with the ruling, its an "activist" judge.

Our argument? That is what you are doing with Roy Moore. I ditto KP’s answer.

slightly hypocritical of you, don't you think?

Matt A. said...

Testing...just testing here...the comment deal says 10 comments...hoping it will update here so people know I replied. lol.