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The Expansionist
Thursday, July 01, 2010
 
Judicial Dictatorship. The United States is constantly dictated to by unelected judges, doing things that the people don't want. And everyone feigns impotence: "There's nothing we can do about a Supreme Court decision." Bull. I have addressed aspects of this problem in the past, but no one has done a thing to remedy it, so I feel compelled to address it again.
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Here are four things we can do ANY TIME we are enraged by a preposterous decision of the Supreme Court.
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(1) Ignore a plainly unconstitutional ruling. Nowhere does the Constitution authorize the Supreme Court to void a law duly passed in accordance with the procedure set out in the Constitution itself, which entrusted interpretation of what is and is not Constitutional to the elected representatives of the people. Further, the Constitution nowhere gives the Supreme Court any jurisdiction whatsoever over either of the other branches of Government, the Executive (President and executive departments) and Legislative (Congress). No, the branches were supposed to be separate and equal. One is not supposed to interfere with either of the others. The Supreme Court is supreme among Federal courts, not over the other branches of Government, nor the states, nor the people.
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The Courts have NO jurisdiction over, for instance, the day-to-day operations of the Executive Branch as regards, for instance, whether to permit or forbid oil companies to drill on Federal territory. The Department of the Interior cannot tell the Federal Courts how to rule on cases before them; the Courts cannot tell the Department of the Interior how to run its operations. Period.
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Nor is the Court authorized to void a gun-control law passed by Congress or any other governmental legislature, that restricts gun ownership to anyone who is not part of a "well regulated militia". Contrary to the Supreme Court's preposterous ruling this week, individuals who are not part of a governmental militia, or even police force; who may never have had so much as one second's training in the use of firearms; and who are not subject to direction by a militia command, do NOT have a right to bear arms. The introductory language of the Second Amendment is plain. It is there ONLY because it constitutes a caveat, a limitation, on what follows: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." There would be no reason whatsoever for such language to be in the text of the Second Amendment if it had no meaning. So the Supreme Court is 100% wrong to find that it means nothing, and that everyone, whether part of a militia or not, has the right to keep and bear arms.
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So the first defense against judicial tyranny is disobedience. In the immortal words of President Andrew Jackson, "John Marshall [then-chief justice of the U.S. Supreme Court] has made his decision. Now let him enforce it."
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The Constitution gives the Supreme Court ZERO power to enforce its decisions. Therefore, WHETHER to abide by a Supreme Court decision and enforce it upon ANYBODY is wholly within the POWER of the Executive Branch. If the President, or other executive authority, decides that the Supreme Court is just plain wrong, it has the actual, physical POWER to IGNORE that decision, and any decision of the Supreme Court. That is the reality. But we don't live in reality. We live in fantasy, in which we "have" to do what the Supreme Court says. No, we really don't.
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There's another quotation relevant here, this one, alas, from Josef Stalin: "How many divisions does the Pope have?" He properly dismissed the notion that lectures from the Papacy had any real force in the world. The Pope thus has only such influence as he is given. In exactly the same way, the Supreme Court does NOT determine what the law is when it stands AGAINST the Executive Branch, or the Congress, and pretends the right to interpret the Constitution. It does not have that authority under the Constitution, and if other people, far more numerous than five old fools, should decide that the Constitution says no such thing — read it for yourself — then they can simply ignore those old fools and tell them to go f*k themselves.
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(2) Forbid Court Review. Congress can pass legislation with a proviso that it cannot be reviewed by the courts. The Constitution, in Article III, section 2 states:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction . In all the 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 the Congress shall make.

Texas Republicans want to restore sodomy laws and criminalize same-sex marriage, and want Congress to use this provision to forbid the courts from voiding such statutes.
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This means that Congress does NOT have to permit the courts, including the Supreme Court, to review everything but can specifically provide exceptions, forbidding courts to rule on whatever Congress chooses to put beyond the courts' reach. This provision was inserted in the Constitution to ensure that elected officers of Government, not unelected judges, have the last word in what the Government does. That principle has been lost, and the notion has arisen that unelected judges are the be-all and end-all of Government, and the electorate has nothing to say about what Government may and may not do. NEVER was that intended by the Framers of the Constitution.
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So the quick fix to any offensive ruling by the Supreme Court is to pass a new law that contains the provision that courts are forbidden to review that law. It can even provide that any attempt by a judge to void that law is an act of insurrection against the duly constituted legal authority of the Government of the United States, punishable by DEATH.
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(3) Impeachment. Congress has the right to remove any Federal judge for any reason (or pretext) it chooses, on the ground that s/he has misused or failed to use properly the authority vested in him or her. The relevant language in the Constitution is this, from Article III, section 1:

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior[.]
This is a much lower standard than set out for impeachment of a President or other officer of the Executive Branch:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Judges can be removed any time their "Behavior" ceases to be "good".
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Perhaps we need to remove half the Supreme Court — or every single member, and START OVER. Even a single impeachment would warn the Supreme Court in perpetuity that it had better watch its step, lest its members be removed from office — and possibly jailed for abuse of authority, which Congress can define as ever it wishes.
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(4) Constitutional Amendment. Since putting any legislation beyond judicial review entails the risk of Congressional tyranny, rather than judicial tyranny, at the expense of the citizenry's basic rights, it is probably not a good idea to encourage Congress to forbid judicial review as a general remedy. The wisest of the four courses I outline here is thus to amend the Constitution to expressly permit judicial review but allow Congress, with or without the President, to overrule the Supreme Court on anything and everything whatsoever, by specified supermajorities. For instance, 2/3 of both houses of Congress plus the President, or 3/4 of Congress without the President.
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Such an amendment would grant the courts a right the Constitution does not presently grant at all, but force the Supreme Court to watch out, and not abuse its new right to void legislation, lest Congress start overruling the Court as a habit they resort to with ever-increasing ease. In the present Constitution, the one supreme branch of the Federal Government is CONGRESS, which is given the power to pass legislation over the veto of the President, and to put legislation beyond the reach of the courts. The Supreme Court has undone the intent of the Framers, and since there is no provision GRANTING judicial review within the Constitution, there is equally no provision to check the power of the Court. Had the Framers intended the Court to have the right to veto legislation, they would have provided as well a mechanism for override of a Court ruling just as they provided a mechanism for overriding a Presidential veto.
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Override of a Supreme Court veto of legislation would complete the system of checks and balances the Framers intended to keep the behavior of the Federal Government moderate and democratic. The Supreme Court has seized and usurped authority the Framers never intended it to have. You have to remember that they were writing the Constitution from the vantage point of their traditions. Since the United States was new, the only legal traditions of long standing in their universe were British. And there was no judicial review in Britain. The Framers of the Constitution did not anticipate that the courts would dare even to try to void a law passed in accord with their new Constitution, and they certainly did not authorize courts to do any such thing.

The power of courts of law to review the actions of the executive and legislative branches is called judicial review. Though judicial review is usually associated with the U.S. Supreme Court, which has ultimate judicial authority, it is a power possessed by most federal and state courts of law in the United States. The concept is an American invention. Prior to the early 1800s, no country in the world gave its judicial branch such authority. [Emphasis added] * * *

The most important rule of judicial restraint is that statutes are presumptively valid, which means that judges assume legislators did not intend to violate the Constitution. It follows that the burden of proof is on the party that raises the issue of unconstitutionality. In addition, if a court can construe a disputed statute in a manner that allows it to remain intact without tampering with the meaning of the words or if a court can decide a case on nonconstitutional grounds, these courses are to be preferred. Finally, a court will not sit in judgment of the motives or wisdom of legislators, nor will it hold a statute invalid merely because it is deemed to be unwise or undemocratic.
Alas, there IS NO RESTRAINT in the U.S. Supreme Court. As Britain's Lord Acton famously observed, "Power tends to corrupt, and absolute power corrupts absolutely." Why should the Supreme Court restrain its tyrannical impulse, when nobody does a damned thing to stop it, no matter how preposterously and arrogantly it may act?
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Thus have we arrived at the absurd situation where a Nation of 308 MILLION people is tyrannized by five old fools. Lord Acton had something to say about dictatorship we, and those five old fools, need to consider.

It is bad to be oppressed by a minority, but it is worse to be oppressed by a majority. For there is a reserve of latent power in the masses which, if it is called into play, the minority can seldom resist.
This is a polite way of saying that if ever the American people get angry enuf at the arrogant tyranny of the Supreme Court, we can extremely easily kill every member of the Court who infuriates us. We could do it legally, by passing a law that states that voiding a law is punishable by death. Or we could simply storm the Supreme Court building, drag the tyrants out, and hoist them all by a stout rope around their neck. Quick fix.
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The Supreme Court's tyrants are very certain that Americans are gutless losers who will take any abuse the Court may wish to dish out. The American Revolution was, they know, a very long time ago. But in granting every private citizen a right to bear arms, aren't those insane Supreme Court "justices" risking their very lives? They would be, except that Americans really have lost either their will to be free, or their guts.
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(The current U.S. military death toll in Iraq, according to the website "Iraq Coalition Casualties", is 4,409 — for Israel.)



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