How to control our "out of control" courts
Written by Bill Connor
In Bill Powell’s excellent letter in the Sunday Times and Democrat, he asks a crucial question. I will paraphrase his primary concern: “What can the hard-working, non-lawyer citizen do to stop leftist US courts from replacing the will of the majority.” Most Americans agree with the “out of control” court problem, yet feel helpless to bring positive change. As I have written many articles decrying the problem, I will attempt to answer this concern.
To begin with, let’s summarize the issue. In the last 40 years, the Federal Courts have decided the most critical questions in American society: Abortion, religion in public life, marriage and divorce, private property rights, etc. In making these decisions, many Americans have watched as judges substitute their Liberal values for the terms of the Constitution and intent of the founders. Establishment clause interpretation is a case in point: “Congress shall make no law recognizing the establishment of religion, or prohibiting the free exercise thereof.” Through judicial legislation (unconstitutional decisions based on personal values, thereby establishing un-Constitutional “precedent”), courts have turned the Establishment Clause into a ban on God in public life. To prevent judicial legislation, Congress should use its powers to check the Judiciary. This begins with individual American citizens holding legislators accountable for fulfilling their duty. The damage has reached the point at which Americans can no longer sit by while watching “checks and balances” give way to Judicial Supremacy.
Article III of the Constitution leaves little doubt about the power of the Courts and checks of Congress: “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”…. “In cases affecting Ambassadors, other public ministers and Consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In ALL OTHER CASES before mentioned, the Supreme Court shall have APPELLATE JURISDICTION, both as to law and fact, WITH SUCH EXCEPTIONS, and under such REGULATIONS as CONGRESS SHALL MAKE.”
The Supreme Court’s duty is to faithfully interpret and enforce the will of the people expressed in Congressional Legislation (including the Constitution). However, Congress has the power to deny Supreme Court review of all cases not dealing with “Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party.” Congress establishes all federal courts beneath the Supreme Court. The Supreme Court has absolutely no authority to derive powers beyond the express terms of Article III. All Supreme Court appellate authority is by the will of Congress.
The US founders clearly intended the courts to be checked as the Legislative and Executive branches are checked. Thomas Jefferson gave Americans one way to check the power of the Courts: “How to check these unconstitutional invasions of rights by the Federal judiciary? Not by impeachment in the first instance, but by a strong protestation of both Houses of Congress that such and such doctrines advanced by the Supreme Court are contrary to the Constitution; and if afterwards, they relapse into the same heresies, impeach and set the whole adrift. For what was the government divided into three branches, but that each should watch over the others and oppose their usurpations?”
Impeachment is one option for Congress. However, this should only be used in extreme cases of judicial legislation. A better choice is for Congress first to warn the Courts to use more faithful Constitutional interpretation. If the Courts continue with clearly unconstitutional holdings (as with the current Establishment Clause interpretation), Congress should strip the courts of jurisdiction over specific types of cases. After stripping jurisdiction, Congress should then legislate in the area. For example, Congress could strip the courts, then legislate the Constitutional constraints of the Establishment clause. Congress could also strip the courts of the power to rule against the partial-birth abortion ban.
Congress is given a free pass to criticize the courts, yet helpless with judicial legislation. Most Americans are misinformed and believe Legislators have no power to check the courts. In our system, American citizens should expect elected representative to control the courts. As our founders expressed when they built our system of checks and balances: “Power corrupts and absolute power corrupts absolutely.” The Supreme Court has come to hold unchecked, absolute power in crucial areas. As we have seen with judicial legislation, this power is a corrupting influence.
Individual Americans can make a difference. First, we can study the Constitution and understand what’s being interpreted. It was written for all Americans and not only a judicial elite. Next, we can contact legislators and inform family and friends about congressional powers to check the courts. Congress will be forced to control the courts. In fact, Congress may not have to get involved. The threat of Legislative involvement may bring judges back to the Constitution.
The road back to the genuinely Constitutional United States will take time. For over 40 years the Courts have usurped more power increasingly and taken American social policy further to the secular left. During this time, the American people and their elected representatives in Congress have become increasingly despondent about how to fight back. Our Constitution tells us how to fight back. For the sake of our children, we must begin the struggle. There really is no time to lose.