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.

“In expounding the Constitution of the United States, every word must have its due force and appropriate meaning; for it is evident from the whole instrument that no word was unnecessarily used or needlessly added…Every word appears to have been weighed with utmost deliberation, and its force and effect to have been fully understood. No word in the instrument, therefore, can be rejected as superfluous or insignificant…” Chief Justice John Marshall (Father of Judicial Review), 1840, writing the majority opinion in Holmes v. Jennison (1840) on the absolute duty of Justices to interpret the US Constitution strictly.

“(The right to privacy derives from) Penumbras and emanations of the bill of rights” 1960’s era Supreme Court majority opinion establishing precedence for a “Constitutional” right to personal privacy.

“The Constitution does not explicitly mention any right of privacy, (but) in a line of decisions, however, going back as far as 1891 the Court (appears to have) recognized that a right of personal privacy…. does exist under the Constitution.” The majority opinion in Roe v. Wade (1973) creating a constitutionally protected “right” to an abortion.
In 1802, Chief Justice John Marshall famously held (Marbury v. Madison) that the Court’s duty was to interpret the Constitution. This duty was considered sacred, as Chief Justice Marshall also wrote: “(our founding fathers drafted the Constitution) to establish for their future government…principles…deemed fundamental…Supreme and permanent….(in writing too) not be mistaken, or forgotten… Forming the fundamental and paramount law of the nation.” Unfortunately, as early as 1947, Supreme Court Justice Hugo Black wrote of his fellow Justices’ “practice of substituting the Court’s concepts of decency and fundamental justice for the language of the Bill of Rights.” This was the same year in which the Supreme Court, for the first time in US history, used the non-constitutional term “Wall of separation between Church and State.” Interestingly, in 1947 Justice Black opined in a minority opinion: The Court is (Free of the) outworn 18th-century straight jacket (of strict interpretation)”.

Becoming virtually unchecked by late 1958, the court held (Cooper v. Aaron) that the Court’s interpretation, whether using strict standards or not, becomes the supreme law of the land. In 1962, 

The Court used supreme “precedence” from the 1947 “Wall of separation” case to strike down school prayer.  A year later Bible reading was driven from school.  Outrageous decisions followed throughout the 1960’s leading up to the ridiculous Roe v. Wade “abortion right” decision in 1973. 
The right to an abortion is, in no way, a part of the US Constitution.  In Roe v. Wade, the Court had to use precedential terms like “penumbras and emanations” from the Bill of Rights.  The majority was forced to look “under” the Constitution to justify this non-existent “right.”  The travesty is in the fact that by 1973 the states were already deciding this political and social issue.  The more Liberal states allowed abortion and the conservative states banned the procedure.  A woman could obtain a legal abortion, and yet states and communities were not forced to allow what they considered murder.  Under our Federal system, this is the manner that issues like abortion were intended to be handled.  Constitutional “rights” can only derive from that given expressly by the Constitution.  Otherwise, the people must form a super-majority to amend the Constitution.  Constitutional protections are meant to be absolutely essential.  The Constitutional “right” to abortion is not in that category.  Since Roe v. Wade, over 40 million babies have been aborted in America.  The upheaval and pain caused to America over the past 35 years are the worst since legalized slavery. 
Though many Americans have come to see abortion as a “Constitutional” right (just as they believe “Wall of separation between Church and State” is Constitutional language), it is not.  The Court was wrong to involve itself in this political issue.  If the Court were to overturn Roe v. Wade, many states would keep it, and the states that don’t would end the practice by the will of the people.  It is time for Americans to begin putting pressure on our government over this issue.  Congress has rightful “checks” over the Court, but fails to use them.  Congress can end Supreme Court appeals authority over certain issues.  It can even dissolve lower Federal Courts.  The problem is that most Americans have become sheep in the process.  They continue electing a Congress without the backbone to help check the Courts when the Judiciary is overreaching.  It is time Americans fight back and give our children the country our founders intended.  The abortion issue is a great place to start.

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