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Judiciary Powers

The appointment of the first woman to the U.S. Supreme Court is the basis for this comedy, released just before Sandra O'Connor earned the job in real life. Jill Clayburgh stars as the ultra-conservative justice who goes toe to toe with veteran liberal Walter Matthau, the only one of her new colleagues who opposes her assignment to the bench.

The Supreme Court's immense prestige in modern times is often traced back to John Marshall, and his decision in the Marbury case that so broadened the Court's role as an arbiter of national powers. Actually, its foundations were laid at least a quarter century before, in 1780, when a federal Court of Appeal was established under the Articles of Confederation to settle disputes over the disposition of ships taken as prizes. This body heard sixty-five cases before it met for the last time - in Philadelphia, in May of 1787 - two days after another group of men assembled in the same city to establish a new and broader national judiciary as part of a new system of government.

Arguments still rage over the precise structure and scope the members of the Constitutional Convention intended to give to the federal court system that emerged from their secret sessions. The language of the Constitution is general:

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 judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties ...
From Sections 1 and 2, Article III


This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties -& shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
From Article VI

These broad definitions caused many who read the proposed Constitution to worry that the federal courts might become too powerful. "There are no well defined limits of the Judiciary powers," said Elbridge Gerry of Massachusetts, a drafter of the Constitution who had refused to sign the final document. By contrast, others among the Founding Fathers-Alexander Hamilton, for example-looked unhappily on the judiciary as "beyond comparison the weakest of the three departments of power."

Many of the judiciary's precise functions and powers remained to be defined by the first Congress assembled under the ratified Constitution, and in the Judiciary Act of 1789 Congress did so. Though this act was partially voided by Marshall in the Marbury case, it still stands-along with the broad wording of the Constitution-as the main basis and definition of the federal judiciary's authority.

Among the provisions of the act was one creating a chief justice for the Court, and Washington named John Jay as the first man to fill the post. This versatile statesman from New York presided over the Court's first session, held on February 1, 1790, in the Royal Exchange Building in Manhattan. After two short terms there, Jay and his colleagues followed the rest of the government to Philadelphia. Here the Court stayed for nearly ten years, quartered most of the time in the newly built City Hall.

During these early days, Supreme Court justices were required by the Judiciary Act to sit on the federal circuit courts as well; there, since at first not many cases reached the high tribunal, many important precedents were established. By 1792 the circuit courts had taken these big steps: declared a state law invalid as infringing on a treaty; declared a state law unconstitutional; and, most significantly, declared an act of Congress unconstitutional. Thus the Supreme Court had a precedent for the Marbury decision.

Upon his election as governor of New York in 1795, Jay resigned. One of his original associates, John Rutledge, who had left to become chief justice of South Carolina, was recalled by Washington to take Jay's post. He took the oath of office and actually presided over one term, only to have his nomination turned down by the Senate because of antiFederalist remarks he was alleged to have made, After an extended search Oliver Ellsworth-chief drafter of the Judiciary Act, staunch Federalist, and former head of Connecticut's highest court-was appointed and confirmed.

The Court held its last term in Philadelphia in August of 1800, reconvening the following February in the new capital district on the Potomac. And with its new home, there came a new Chief Justice. Ellsworth had resigned because of illness, Jay had declined reappointment, and President John Adams unexpectedly submitted to the Senate the name of his Secretary of State, a forty-five-year-old former congressman who had never held a judicial office. On January 27, 1801, John Marshall of Virginia was confirmed as the nation's fourth Chief Justice. Under his tutelage the young Court was to achieve powerful maturity.

The court versus congress since Marbury. "In some 81 instances since this Court was established, it has determined that congressional action exceeded the bounds of the Constitution." Thus wrote Chief Justice Earl Warren in 1958, in a decision justifying an eighty-second such instance. An eighty-third, by Warren's count, occurred this past February, when the Supreme Court struck down legislation revoking the citizenship of Americans who stayed out of the country to avoid the draft. Among other cases in which the Court, relying upon the precedent established in Marbury v. Madison, has rejected congressional legislation have been these:

  1. Dred Scott Case, 1857, the first nullification since Marbury, declaring the Missouri Compromise to have been invalid.
  2. First Legal Tender Case, 1870, striking down a provision making legal tender of greenbacks printed to finance the Civil War. The Court, with two new justices, reversed itself the following year.
  3. Income Tax Case, 1895, in which a federal income tax was held to be unconstitutional. The Sixteenth Amendment, ratified eighteen years later, was drawn up to get around the Court's ruling.
  4. Child Labor Case, 1918, holding Congress powerless to prevent the sale across state lines of goods made by under-age workers.
  5. New Deal Cases, including those invalidating the National Industrial Recovery Act (1935), the Agricultural Adjustment Act (1936), and the Bituminous Coal Act (1936).
  6. Military Jurisdiction Cases, 1955 and 1957, greatly restricting Congress's granting of jurisdiction over certain civilians to military courts.

In the Federalist Papers #78, one of the authors of the Constitution, Alexander Hamilton, declared that if judges substituted their will for that of the people, "they should be disposed to exercise will instead of judgment -& [that] would prove that there ought to be no judges distinct from that [legislative] body."

Hamilton must have believed that if judges were politicized or had an agenda where a majority of them could rewrite or override the intent of the Constitution or the true will of the people, that was enough reason to dissolve them as a separate branch of government.

In 1996, jurist and candidate for the U.S. Supreme Court Robert Bork suggested the same thing. In his wonderful book, "Slouching Towards Gomorrah," Bork suggested that the Supreme Court and the entire court system act outside the U.S. Constitution.

If Congress does not challenge their usurpation of power by overriding examples of extreme injustice that are unconstitutional or extra-constitutional on their face, then we have tyranny of the judiciary. It should surprise no one that will include judicial homicide.

We are living under the rule of men who are not elected by the people of the United States. They remake this nation at every turn, breaking the social contract between the people and the state. Recently, Justice Antonin Scalia declared in his dissent to a Supreme Court decision: "What a mockery today's opinion makes of Hamilton's expectation, announcing the Court's conclusion that the meaning of our Constitution has changed over the past 15 years -. not, mind you, that this Court's decision 15 years ago was wrong, but that the Constitution has changed."

In a speech to the Woodrow Wilson Center think tank, Scalia repeated his contention that judges were illegally remaking the Constitution to suit their political whims or prejudices: "If the Supreme Court is to be invariably and inescapably political, you realize we have rendered the Constitution useless."

So, how does Congress get around the courts in the gay marriage matter, or preferences for one person over another? Legal commentator, Mark Sutherland relates: "Congress has the power to limit what areas the judicial branch can rule in. Under authority granted to Congress in Article III, Section 2 of the U.S. Constitution, Congress can place regulations and exceptions on the judicial branch that would prohibit the courts from ruling on certain issues and in certain areas."

On a federal level, the governor has the authority to stand against any federal court order, and the only person who can overrule him is the president. Sutherland remarks, "This is how our checks and balances system was supposed to work." It should also work similar to this at the state level. If a state judge makes a ruling that defies the constitution of a state, then it is the duty of the governor of that state to refuse to enforce the state judge's decision, and it is the duty of the state Legislature to refuse to obey the courts, on account of the oath of office they took to support and defend the Constitution of the United States and their own state constitutions.

In the end, enforcement power is in the hands of the president and the executive branch of government. The president has the authority, and duty, to refuse to enforce any court order that he views as contrary to the law. Article II, Section 3 of the U.S. Constitution instructs the president to "take Care that the Laws be faithfully executed."

The president alone may decide how to execute or enforce the laws. If the president understands a judicial decision as contrary to the law, the president is within his constitutional rights to ignore a judge's order. Whether or not our Congress or the president has the guts to act in the, I do not know. Challenging the authority of the courts or a "right" that does not exist may take more courage than our leaders have. I suspect they will cave, like Pilate, when the screaming and yelling starts by the media, some few insane Democrats, the proponents and true believers of the death culture, the ACLU, and the "compassionate" who believe anyone less than perfect or the radically dependent have no right to live.



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