Conservative Review - No Societal Transformation without Representation

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No Societal Transformation without Representation

By: Daniel Horowitz | June 29th, 2015

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It’s time to stop playing checkers while the other side plays chess.  Some on the right are saying this illegitimate Supreme Court decision in Obergefell is the law of the land.  Others are saying we should pass a constitutional amendment allowing states to decide marriage issues.  While the first group is clearly not part of the future of the conservative movement, the latter group is wasting our time to focus solely on a constitutional amendment.  There is no way we will ever come close to passing a constitutional amendment with super-majority support in both houses of Congress and successfully ratify it with 38 states on board.

It’s time for the presidential candidates to take sides on this issue and pledge to push a judicial reform package that would, among other things, take the ball out of the hands of the courts.

What is eminently more achievable and effective in the relative short-term and in the long-run is for Congress to strip the Judiciary of all jurisdiction over the issue of marriage and other similar societal and political questions.  Most Americans have been conditioned to believe that the SCOTUS is on par with the Supreme Court of God in heaven in that there is no higher authority.  The reality is that our Founders established three separate branches of government, and to the extent one of the branches is superior to the others, it is the legislative branch – the part of government most accountable to the people (and prior to the 17th Amendment – the states).

As Sen. Ted Cruz (R-TX) has noted, and as Mark Levin has been advocating for years, Congress has the authority to limit the scope of jurisdiction of the courts.  And this is something that can be accomplished with a Republican president and Senate.  It’s time for the presidential candidates to take sides on this issue and pledge to push a judicial reform package that would, among other things, take the ball out of the hands of the courts.

Supreme Court Appellate Jurisdiction

Article III, Section 2, Clause 2 of the Constitution explicitly grants Congress the authority to regulate and limit the appellate jurisdiction of the Supreme Court. 
“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.”

Whether Congress can completely shut down the Court’s jurisdiction over all issues but for the three issues over which the Constitution explicitly grants it original jurisdiction has been a subject of scholarly dispute.  But it is clear as day that Congress can banish the courts from specific issues and regulate the scope of their jurisdiction.  Who can have more credibility on the power of Congress over the Supreme Court than John Marshall, the fourth Chief Justice of the Supreme Court?  When speaking before the Virginia ratifying convention in 1788 he said:

“What is the meaning of the term exception? Does it not mean an alteration and diminution? Congress is empowered to make exceptions to the appellate jurisdiction, as to law and fact, of the Supreme Court.--These exceptions certainly go as far as the Legislature may think proper, for the interest and liberty of the people.” [emphasis added]
Even Justice Joseph Story, who disliked congressional limitations of court jurisdiction, admitted in Commentaries on the Constitution that Congress indeed has this authority:
“It is apparent, then, that the exception was intended as a limitation upon the preceding words to enable congress to regulate and restrain the appellate power, as the public interests, might, from time to time, require.”

In a landmark case during the Reconstruction era involving the jailing of a newspaper publisher who opposed congressional laws pertaining to punishing the South (Ex parte McCardle,1868), Congress stripped the power of the courts to hear the case after oral arguments were heard.  Chief Justice Salmon Chase, writing in a unanimous opinion, affirmed the power of Congress to make exceptions to their jurisdiction as mandated by the Constitution “in express words.”

If this term’s decisions are not grounds for Congress to strip the Supreme Court of jurisdiction – if this crisis is not in the national interest and in the interest of liberty – then the Founder’s words have no meaning.

The average ideological bent of the Supreme Court is actually to the right – perhaps, far to the right – of the median ideology of the appellate courts.

The Lower Courts are Even Worse

However, as bad as the Supreme Court has become, and it certainly appears that 5-6 of the Justices have hit rock bottom, ponder this disturbing thought for a moment.  The average ideological bent of the Supreme Court is actually to the right – perhaps, far to the right – of the median ideology of the appellate courts. As little regard as Justice Kennedy has for the Constitution, there are still plenty of instances in which he joins with the other 4 Republican-appointed justices to overturn lawless lower courts.  We have an emergency situation with the lawlessness of lower courts in most parts of the country. And remember, only less than 1% of the cases petitioned to the Supreme Court each year are granted certiorari, meaning that most of the corrupt rulings from the lower courts become “the law of the land.” 

Obama has already appointed 254 judges to district courts, roughly 37% of the federal district bench.  He has chosen 53 of the sitting 179 appellate court judges.  As the New York Times found last fall, Democrat-appointed judges outnumber Republican-appointed judges in 9 of the 13 circuit courts of appeals. 

And it’s even worse than the numbers would indicate.  As we have all painfully learned, Democrats don’t make mistakes when they appoint judges.  Every last one of them is a post-constitutional leftist who decides issues involving public policy not based on legal jurisprudence but based on political ideology.  On the other hand, a good number of Republican-appointed judges are liberals and many of them are, at best, in the mold of John Roberts. 

This has rendered the balance of many circuit courts far to the left of even the Supreme Court.  Yet, so many of the inane decisions from the lower courts were denied certiorari at the Supreme Court.  For example, this year they refused to hear a case of the 9th Circuit overturning Arizona’s law eliminating bail for illegal aliens (almost 90% of them never show up for court appearances).  They refused to hear a case where the 3rd Circuit upheld a law of New Jersey banning gay conversion therapy (but somehow sex change mutilation operations are legal!).

Indeed, the magnitude of the shifting balance of the courts from the Obama era have not been fully actualized and will be felt for years to come.  If nothing is done by the next Congress with the support of the President, a runaway Judiciary will permanently remake this country even with conservative leadership in all elected positions.

The Supremacy of the Legislature over the Judiciary   

Unlike the Supreme Court, the lower courts lack even an original jurisdiction power from the Constitution in Article III.  Article I Section 8 explicitly grants Congress the power to create the inferior courts.  Congress has made the district and appellate courts; Congress can break them.   Congress can strip them bare and can also combine, add or eliminate circuits. 

Obviously, this is a complex and consequential issue, but it is incumbent upon presidential candidates to put forth a judicial reform package to stave off this growing bloodless revolution that is transforming America through the courts.  The spirit of the effort to whittle down the jurisdiction of the courts, especially the lower courts, should be rooted in Justice Scalia’s aphorism he established in his Olbergefell dissent: “no societal transformation without representation.”  Conservative leaders and presidential candidates need to find ways to target the court’s jurisdiction over societal issues as well as their ability to strike down state immigration laws.   

There will be those thumb-suckers in the conservative legal community who scoff at this idea. They will speculate about possible ancillary problems of jurisdiction stripping.

A Note to the Naysayers

There will be those thumb-suckers in the conservative legal community who scoff at this idea.  They will speculate about possible ancillary problems of jurisdiction stripping. But we don’t need to speculate about the constitutional crisis we are facing; it is already clear and present and only getting worse.  At some point, we need to reassert control over the Judiciary, and given the trajectory of the courts, any effort to strip some jurisdiction will invariably be a huge net benefit.  And unlike a constitutional amendment, these reforms can become law with a conservative president and Congress.

Moreover, why is it that Congress always comes out with the short end of the stick in any constitutional – and now even societal and political – dispute with the other two branches of government? James Madison stated the obvious in Federalist #51 that “in republican government, the legislative authority necessarily predominates.” 

Before we were transformed into a post-constitutional society from a constitutional Republic, Hamilton conceded in Federalist #78 that the Judiciary would be the weakest branch of government:
“[The Judiciary] will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.” He described the Judiciary as having “no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment.”

We will see who will continue with their small-ball priorities and blithely ignore the consequences of last week as if the calamity never happened.

If last week’s events don’t serve as a wakeup call demonstrating that we have moved immutably beyond the founding vision, then chances are nothing will ever spur pseudo-conservative intellectuals into action.  With Congress delegating more and more power to the Executive and Judiciary, and the weaker two branches continuously usurping power from the predominant branch of government – the one most accountable to the people – why would we not, at the very least, use a lawful constitutional remedy to limit their power over societal and political issues – power they incontrovertibly lacked from the founding of our Republic?  

Following last week’s constitutional massacre, we will now see who in the movement is truly down for the struggle. We will see who will continue with their small-ball priorities and blithely ignore the consequences of last week as if the calamity never happened.  [Those who scoff upon real reform ideas have a responsibility to put forth their own solutions.  Otherwise, these academic debates within the movement will become moot very soon.  Nothing less than the future of our government as one deriving its powers from the consent of the people is at stake.    

Daniel Horowitz is the Senior Editor at Conservative Review. Follow him on Twitter @RMConservative

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