Diary

Is the Judiciary Acting Unconstitutionally?

It can happen, you know.

My interest in this possibility has come about by the enjoining of the State of Arizona from enforcing parts of its new immigration law by ruling of Federal Judge Susan Bolton.

Can anyone name any other branch of the federal government that has such authority, which is akin to a “line-item veto?” The President can’t do it. Members of Congress can’t do it. So how does an unelected official hold the power to pick and choose which parts of a law he or she thinks are acceptable – a law properly passed by the elected representatives of 6.5 million people. Shouldn’t a judge be required to rule up or down on a law in its entirety, just like members of other branches of the federal government are required to do?

This conundrum led me back to something I’ve been thinking about a lot lately: the topic of Judicial Tyranny. Unfortunately, like many of our problems, we seem to have brought it upon ourselves.

Contrary to our current customs, the Judicial branch of our federal government – it isonly one of three, you know – is NOT the “owner and protector” of the U.S. Constitution.

(A CAVEAT AND INVITATION TO DEBUNK ME – I’m not a constitutional expert, just a reasonable person basing his thoughts on a review of the original source: the Constitution and all of its amendments. And, if I am wrong, I hope someone will point out my errors.)

The founders appeared to be deliberately brief on the subject of the Courts, writing fewer than 500 WORDS about it in the entire Constitution, most of them in Article III. (Perhaps they felt they were clear enough as to not need further explanation?)

Let’s walk through those words, and start by delving into “Article III – The Judiciary.”

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.”

(A brief aside: Notice they did not capitalize the word “supreme” in the presentation of the concept of a “supreme Court.”) Apparently, they didn’t think of this element of government as having absolute power, as in “Supreme Being.”)

Noteworthy to me in Section 1 is the idea that “the Congress” is empowered to manage the “business” (the size and scope) of the U.S. judiciary. To me, that implies Congress is pretty much the final arbiter of what the Courts can and cannot do in their daily affairs.

Even more importantly, this section – nor does any other part of the Constitution or the amendments – makes no reference to “lifetime appointments” for any member of any Court. Check it out for yourself.

This stunned me. I’ve always been told that the Constitution requires such lifetime appointments for our highest court. The idea is everywhere – it has somehow become official doctrine. Even in reports prepared for Congress by their official research services, the lifetime appointments for the supreme Court is mistakenly represented to be an idea of the founders’ and actually a part of the Constitution.

If it’s not in the Constitution or amendments, perhaps it lies in a Court ruling somewhere? Who would pay attention to any order by a judge that he or she be kept in office for life? (Help me here, debunkers!)

How about the next section, which concerns itself with the scope of the judiciary and its authority? Here is Section II of Article III:

Clause 1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another state;–between Citizens of different States,–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Clause 2: 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.

Clause 3: The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Hmmmm… did you notice the phrase in Clause 2 which read: “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.” [Emphasis mine.]

Isn’t Arizona a state? And doesn’t that say only the supreme Court has original Jurisdiction in cases “where a State is a party?” So what was this Judge Bolton – who is only a Federal District Judge – even doing looking at the case? Shouldn’t it have gone right to the Supreme Court? Am I missing something here?

Finally, here’s what Section 3 of Article III, which concerns itself with Treason, has to say:

“Clause 1: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

Clause 2: The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.”

OK, that’s pretty clear. Since it has to do with Treason, and because that’s not the subject here, I’ll move on without comment.

There – you’ve just read almost the entirety of what the U.S. Constitution has to say about the Judicial branch and how it should operate. By my count, the word “Court” appears four more times in the Constitution, having to do with how supreme Court justices are nominated and confirmed; and one more time, in Amendment 7, which preserves the right of a jury trial for “suits at common law, where the value in controversy shall exceed twenty dollars.”

So, I ask again, in all innocence and immodesty concerning my legal bona fides:

1. Why is a federal judge in Arizona reviewing and ruling on a law over which the Constitution clearly states only the supreme Court has jurisdiction?

2. Why is a judge able to use the equivalent of a line-item veto to strike down parts of a law, when no other officials in the other two branches of our government are given this power by the Constitution?

3. Where is it written in our Constitution or its amendments that judges in any court, supreme or otherwise, are to receive lifetime appointments?

Set aside for a moment the whole concept of “judicial activism,” about which most conservative thinkers could – and do – write volumes.

How has the Judiciary in general, and Judge Susan Bolton in particular, obtained such authority? If it comes from laws enacted by Congress, then such laws can be undone. If it comes only from rulings by the Judiciary, then it is entirely fraudulent.

We always hear we must be “a nation of laws, not men.” Yes, but it’s time we also remember that “laws are written and enforced by men (and women)” as an expression of how they wish to live their lives and order their society. Laws do not come from some magical judicial “eight-ball,” nor do they spring from the forehead of Zeus.

Yes, even the Judiciary – somehow miscast as the only arbiter of our Constitution – is capable of acting unconstitutionally, and it’s time we all realize that it may be doing so.