“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.
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.
Friday, June 16, 2006
Supreme Court V. America, can we win the case against Judicial Activism?
Posted by Kierstyn Paulino at 10:25 PM