Prior columns of mine have attempted to lay the groundwork for restoring constitutional government and principles to our United States of America. Obviously we must elect ONLY candidates who agree with our goal, and we must initiate primaries and targeted campaigns against those who do not. With two chambers in Congress and three branches of government, the task may appear to be insurmountable. There is a light at the end of the tunnel, however if constitutionalists (not merely the GOP as the present circumstances illustrate) control the House. Boehner and company are NOT committed to reducing government let alone shrinking it to meet constitutional muster.
The House of Representatives was designed to be the most powerful element of the federal government because it controls the power of the purse. The House could refuse to fund much of the unconstitutional activity of the federal government, or they could pass funding reductions over a short 2-5 year term for “zeroing out” the violating programs. Clearly for this strategy to be successful, the House must have a veto-proof majority of strict constitutionalists. The President if he were opposed to the budget cuts would be hamstrung, and the Senate would be forced into stalemate with the House. When nothing gets done, nothing gets funded….unless the House caves.
What about the judiciary you may ask? They have overturned and undermined many legislative initiatives over the years as well as declaring and creating “new rights” from the bench. Is there any way for them (aside from more discerning appointments) to be restrained from their sometimes bizarre interpretations of the Constitution? Yes, there is. Here is the relevant portion of the Constitution of the United States of America:
Article III - The Judicial Branch Note
Section 1 - Judicial powers
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. from www.usconstitution.net
Congress has the responsibility to establish and ordain courts other than the constitutionally-mandated Supreme Court of the United States. With the power to establish comes the authority to restructure or abolish. This is not some wild-eyed theory. It has been done before through the urging of Thomas Jefferson and James Madison who were major proponents of The Judiciary Act of 1802.
The Judiciary Act of 1802: "An Act to amend the Judicial System of the United States"
2 Stat. 156.
April 29, 1802.
Soon after its repeal of the Judiciary Act of 1801, the Republican majority in Congress in the spring of 1802 recognized the need to enact its own organization of the federal courts. The resulting statute was a response to the practical needs of a growing judiciary and the continuing partisan conflict over the role of the federal courts. The Judiciary Act of 1802 perpetuated the Federalists’ plan of six regional circuits. Although Supreme Court justices again were required to serve on the circuit courts, the circuits were smaller and travel accordingly less demanding than in the 1790s. Kentucky, Tennessee, and Maine remained outside the circuit system, thus relieving the justices of travel to these distant areas. When the district judge and circuit justice were of divided opinion on a case before a circuit court, the new act gave either party the right to refer the case to the Supreme Court, whereas since 1793 split decisions had required the attendance of a second justice to issue a ruling at the next session of the circuit court.
In the Judiciary Act of 1802, Congress eliminated the Supreme Court’s summer session and provided for one annual session to begin on the first Monday in February. This provision intensified the partisan dispute that began when Congress, in an act of March 8, 1802, revoked the judiciary act of the previous year and restored the structure of the judiciary as it had stood previously, thereby abolishing the sixteen judgeships assigned to the reorganized circuit courts. Jeffersonian Republicans asserted that Congress’s right to establish inferior courts implicitly allowed it to abolish such courts. The incumbent circuit judges and their Federalist supporters insisted that judges appointed for service during good behavior could not be removed by statute. When the act of April 1802 canceled the Supreme Court term scheduled for June of that year, Federalists accused the Republicans of seeking to delay a ruling on the constitutionality of the repeal act until months after the new judicial system was in operation.
Chief Justice John Marshall, who entered office in February 1801, doubted the constitutionality of the repeal act as well as the new act’s requirement that the justices resume their circuit duties. Following an exchange of letters in which a majority of the justices concluded that they were obligated to serve on the circuit courts, Marshall deferred to the act. In March 1803, the Supreme Court in the case of Stuart v. Laird ruled that Congress had authority to transfer a case from a court established by the act of 1801 to one established by the act of 1802, and by implication affirmed the constitutionality of the Judiciary Act of 1802.
2 Stat. 156.
April 29, 1802.
Soon after its repeal of the Judiciary Act of 1801, the Republican majority in Congress in the spring of 1802 recognized the need to enact its own organization of the federal courts. The resulting statute was a response to the practical needs of a growing judiciary and the continuing partisan conflict over the role of the federal courts. The Judiciary Act of 1802 perpetuated the Federalists’ plan of six regional circuits. Although Supreme Court justices again were required to serve on the circuit courts, the circuits were smaller and travel accordingly less demanding than in the 1790s. Kentucky, Tennessee, and Maine remained outside the circuit system, thus relieving the justices of travel to these distant areas. When the district judge and circuit justice were of divided opinion on a case before a circuit court, the new act gave either party the right to refer the case to the Supreme Court, whereas since 1793 split decisions had required the attendance of a second justice to issue a ruling at the next session of the circuit court.
In the Judiciary Act of 1802, Congress eliminated the Supreme Court’s summer session and provided for one annual session to begin on the first Monday in February. This provision intensified the partisan dispute that began when Congress, in an act of March 8, 1802, revoked the judiciary act of the previous year and restored the structure of the judiciary as it had stood previously, thereby abolishing the sixteen judgeships assigned to the reorganized circuit courts. Jeffersonian Republicans asserted that Congress’s right to establish inferior courts implicitly allowed it to abolish such courts. The incumbent circuit judges and their Federalist supporters insisted that judges appointed for service during good behavior could not be removed by statute. When the act of April 1802 canceled the Supreme Court term scheduled for June of that year, Federalists accused the Republicans of seeking to delay a ruling on the constitutionality of the repeal act until months after the new judicial system was in operation.
Chief Justice John Marshall, who entered office in February 1801, doubted the constitutionality of the repeal act as well as the new act’s requirement that the justices resume their circuit duties. Following an exchange of letters in which a majority of the justices concluded that they were obligated to serve on the circuit courts, Marshall deferred to the act. In March 1803, the Supreme Court in the case of Stuart v. Laird ruled that Congress had authority to transfer a case from a court established by the act of 1801 to one established by the act of 1802, and by implication affirmed the constitutionality of the Judiciary Act of 1802.
From: the Federal Judicial Center….www.fjc.gov
Sixteen federal judgeships were abolished via this legislation, and it was ultimately upheld by the Supreme Court. So, after our newly elected Congress refuses to fund unconstitutional federal programs and begins to wean the states and citizens from their dependencies through diminishing block grants, then they should ABOLISH the entire federal court system (having a new plan in hand) and begin anew with constitutionally-committed appointees.
See? Wasn’t that easy? The point of these columns is that the tools to clean up the mess are already present in the Constitution. We merely need citizens and political officeholders who are committed to doing it. This is why ABSOLUTE FIDELITY to the Constitution is so critical a criterion for choosing and supporting candidates. Our leaders, our public servants must be willing to use the entire toolbox to “fix” our Republic.
Comment: www.cearlwriting@hotmail.com
Tonight (Wed. 11/9) 6-7:00pm, 1370 WSPD, Toledo www.wspd.com
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