SAVING OUR CONSTITUTION FROM JUDGES

By O. R. Adams jr.

© O. R. Adams Jr., 2006  

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Thomas Jefferson, after his experience as president, and after many years of observing the judiciary, said in 1820:

        The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundation of our confederated fabric. ...

        Having found from experience that impeachment is an impractical thing, a mere scare-crow, they consider themselves secure for life, they skulk from responsibility to public opinion. ...

Had Jefferson observed the decisions of the United States Supreme Court in the last fifty years, he would have seen his warnings confirmed.  Much insidious destruction has been wrought upon our Constitution.

Many articles and books have been written on the problem, some of which are Men in Black, by Mark R. Levin, 2005; The Supremacists, by Phyllis Schlafly, 2004; “Runaway Judge,” by Blake Hurst, 1995; “Curbing Our Imperial Courts,” by Roger Clegg, 1995; and “The Conservative Case for Amending the Constitution,” by Robert H. Bork in 2000. In 1993, AEI Press published Judge Bork’s fine book, Coercing Virtue – The Worldwide Rule of Judges.

The deplorable actions of our federal courts, and particularly the United States Supreme Court, have become so flagrantly wrong that the American people should do something to correct the matter.

It is a situation that could easily be corrected, and not only for the future, but in such a way that past damage to our Constitution could also be automatically repaired, over time. It merely takes correcting the root problem.

The basic problem is that our Constitution has no curb for activist judges, except impeachment, which they obviously do not fear. This is because there is nothing in our Constitution that states how a law or a constitutional provision should be interpreted by the courts. The courts, and particularly the United States Supreme Court, make their own rules for interpretation. Under English law, before the United States became a country, jurists and authorities like Sir William Blackstone developed rules for construing statutory law which required first going by the plain wording of the provision, and if further construction was needed for a particular issue, then determining the intent and purpose of those who enacted the law. This is not only a matter of common sense, but it is a rule that requires judges to interpret the law, and leaves the making and changing of the law to those who have that authority. These are also the only rules that prohibit judges from injecting their own particular ideas and biases into the law and onto our Constitution.

We were very fortunate in the early history of our country to have had some Supreme Court justices who respected our Constitution, and who followed and developed such rules as rules of construction for the federal courts. All of our early Supreme Court justices stated and followed these time honored rules clearly and emphatically. These included a number of eminent jurists, including Chief Justice John Marshall, Justice James Wilson, Justice Bushrod Washington, Justice and eminent constitutional authority Joseph Story, Chief Justice Roger Taney, and later such jurists as Justices Benjamin Curtis, Stephen Field, John Harlan (the first Justice John Harlan), Oliver Wendell Holmes, Jr., Louis Brandeis, and Benjamin Cardozo. These judges had the integrity to recognize that only the people and their elected representatives have the right to change the Constitution. The rules were formulated and followed by the best legal minds in the country.

These rules were followed with reasonable consistency for more than 150 years, but finally the power that our federal courts have began to overweigh their integrity, and the temptation to mold our Constitution according to their own thinking was engaged in by a number of them. This misbehavior became particularly prevalent and great damage was done during the era of Chief Justice Earl Warren. Today, sadly to say, the majority of our Supreme Court are activist liberal judges, and great harm to our Constitution has been done and is continuing to be done in a number of areas. In recent years, only the late Chief Justice Rehnquist, and Justices Scalia and Thomas, have shown any respect for our Constitution. The majority has established its preference for European, United Nations, World Court precepts, and their own liberal biases, over the intent and purpose of our Constitution, including our Bill of Rights. Hopefully, our new Chief Justice, John G. Roberts, and our most recent justice, Samuel Alito, will add some conservatism to the Court, but the majority will still be liberals.

The primary purpose of our entire Constitution was to have a government of the people, by the people, and for the people – and not of the courts, by the courts, and according to the activist ideas of the courts.

This judicial misbehavior, besides damaging our Constitution, has caused or aggravated many other problems in the Country. It has been the primary factor in creating a very litigious society. Spurious and unfounded lawsuits of all kinds are filed around the country; and Congress continually struggles with trying to correct some of the problems caused. A large part of our medical expense is brought about by invalid malpractice cases, and excessive verdicts in many that are well founded.

Activist lawyers are continually trying to figures out new bases for lawsuits of all kinds, many of which are unwarranted and outrageous, and they are continually aided by activist judges.

Lack of any binding rules of construction of the law causes an enormous number of appeals to the federal circuit courts of appeal, and the contrary decisions among the circuit courts (which come about for the same reason) create more cases that the Supreme Court must decide. The resulting workloads of the courts are tremendously increased. A great part, if not most, of this great caseload would be eliminated if the courts could be depended upon to follow the time honored and time proven rules for interpreting the meaning of our statutory and constitutional law. There would simply be much more uniformity in decisions, and therefore much fewer contradictory decisions that higher courts must straighten out. Activist lawyers would be discouraged from filing spurious lawsuits, and also from trying to invent new and outrageous causes of action.

Even some of the best of our judges have at times yielded to the temptation that comes from the power they have to make their own rules of interpretation.

We witness congress wasting great amounts of time because of filibusters against judicial appointments by certain members who want to get judicial activists on the court who they think will carry their particular political agendas, rather than making decisions according the Constitution as they should. Committees hold up appointments, when their party is in the majority; and all kinds of jockeying and procedures are engaged in by both parties to try to get judges and justices favorable to particular views and political agendas. It is a very serious and long-standing problem that should now be corrected for the benefit of our people and our constitutional form of government. This problem would be largely eliminated if judges could be depended upon to follow our statutory and constitutional provisions according to the true intent and purposes for which they were enacted. If judges could be depended upon to follow the intent and purpose of the law, including our constitutional provisions, their personal views and politics should make little difference. But this is obviously not the situation that presently exists – hence the political infighting and confusion that is clearly damaging to the country, and to our Constitution. The many U. S. Supreme Court cases covered in the book I have written on this subject show how easy it is to determine the purpose and intent for enacting a law, and particularly a provision of our Constitution.

Many people in the country are now fed up with what the Supreme Court is doing to our Constitution. Various knowledgeable people and leaders in the country have a variety of ideas on what we should do about the problem.  

In a recent article in Human Events, 12-18-06 , "Term-Limit Judges, Let Congress Veto Court Rulings," Mark R. Levin advocates amendments to the Constitution to limit the terms of federal judges, and allow Congress to veto a Supreme Court decision by the vote of a "super majority" in both houses. Levin is a noted and respected author on this problem with judges, and served as Chief of Staff to Attorney General Ed Meese in the Reagan Justice Department. As explained below, Judge Robert Bork previously advocated a similar method for handling the problem.  However, I do not believe that this is the way to take care of the situation. It would put judges more into politics, and it would reduce their independence. Moreover, it would allow Congress the power of overriding and actually amending our Constitution.  Our founders had a better way. Article V of our Constitution provides that it may only be amended by the people and their representatives, with a weighting by states within our federalist system. The problem is merely the judges – not our Constitution. Also, this would do nothing to repair past damage to our Constitution. A better way to take care of this matter is explained below.

Robert H. Bork, an eminent jurist, educator, and writer posits that the best way to stop our serious court misbehavior would be a constitutional amendment making any federal or state court decision subject to being overturned by a majority vote of each house of Congress. (Slouching Towards Gomorrah . New York ; HarperCollins Publishers, Inc., 1996; p. 117 ). In a later book, he adds three other possibilities to help to some extent: (1) Removing all federal jurisdiction as to certain cases, such as abortion, under Article III, Section 2, of the Constitution; (2) Appointing judges who will construe the Constitution according to the original understanding of its principles; (3) Persuade the Court itself to mend its ways. (Coercing Virtue, The AEI Press, Washington, D.C., 2003; pp. 81-82 ). Judge Bork fully recognizes the improbability of any of these reforms in our current political climate, and their limitations if they could be accomplished.

Phyllis Schlafly, in her fine article, "We Must Reject the Rule of Judges," The Phyllis Schlafly Report, March, 2004 , recommends such things as the Constitution Restoration Act, pending in Congress, removing jurisdiction from the federal courts to hear cases brought against a federal, state, or local government, or officer for acknowledging God. Mrs. Schlafly also states:

The Constitution Restoration Act also orders federal courts not to rely on foreign laws, administrative rules or court decisions. Americans have been shocked to learn that five U.S. Supreme Court Justices have cited foreign sources, even though it is self-evident that U.S. judges should be bound by the U.S. Constitution and U.S. laws, not foreign ones.

The Constitution Restoration Act also states that a judge who engages in any activity that exceeds the jurisdiction of the court thereby commits "a breach of standards of good behavior" and may be removed by impeachment and conviction.

The temerity of our Supreme Court justices in referring to the law of liberal European nations, and of the United Nations, instead of our own valid historical precedent, and in decimating our Constitution by doing so, shows their utter disregard for our Constitution, and their lack of fear of impeachment.

David Barton strongly recommends that the people try to pressure Congress into impeaching judges who are engaging in the misbehavior that I have outlined in this book. He clearly points out their constitutional power to do so. He also states:

        If impeachment is not soon restored to its original role as a tool to reign in the judiciary, then Thomas Jefferson's portentous warning will become established reality:

       The Constitution ... is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please. (Jefferson, Memoirs, Vol. IV, p. 317) (Barton, David, Restraining Judicial Activism, Wallbuilders, Aledo , Tex. 2003; p.50 )

Many reputable leaders around the country are calling for impeachment of our activist judges because of their misbehavior for their decisions regarding God, the Ten Commandments, religion, abortion, homosexuality, and other things that I have covered in detail in the book.

I am for all of these things, but all would be temporary, all would be very difficult, and none would repair the past serious erosion of our Constitution and the rights of the people to govern themselves. None would even prevent future misbehavior in areas not particularly covered. I certainly think that Congress has failed in its duty to impeach these activist judges, as do Bork, Schlafly, Barton, and a great number of our cultural leaders.  

As to such things as the Constitution Restoration Act, I am all for it. But it is only a piecemeal solution, and may be an overextension of the power of Congress. The Supreme Court, if it passes, may well declare it unconstitutional, whether it is or not. They have already exhibited that propensity, time and again. Sooner or later we must have a constitutional amendment to turn judges from makers of the law, including constitutional law, back to being judges and properly interpreting the law.

Persuading judges to refrain from their misbehavior has never worked in the past, and would always be up to the discretion of each judge.

I do not like the idea of taking away from the Court the power to overturn legislation, state or federal, that is truly unconstitutional.

Our Constitution, as provided for us by our founding fathers, is the world's greatest instrument for just government. Our problem has been misbehavior of judges, and particularly liberal justices of the United States Supreme Court.

My solution is a simple constitutional amendment requiring judges to follow the time honored rules for interpreting constitutional and statutory law that were long ago established by the best legal minds in the country. This would obviously prevent future misbehavior. The reason it would in time correct past damage to our Constitution, is because it would remove prior cases as precedent, unless they were also decided by those rules. Willful failure to follow the rules would be express grounds for removal.

This one amendment would permanently take care of all of the problems brought about by our activist judges. And judges would retain all of their independence under the Constitution, as envisioned by our Founders. They would merely be required to abide by their oath to uphold the Constitution, rather than changing it to their liking.

Moreover, it would retain our full tripartite government with its separation of powers, and its checks and balances. Our Constitution is a beautifully formed and balanced instrument of government. The problem has been that judges have not retained their integrity and followed it.

The fact that our Constitution itself provides that only the people and their elected representatives have a right to change it expressly prohibits the misbehavior judges engage in by usurping the right of the people to change the Constitution.

Fair and honest judges should welcome these simple binding guidelines on construing the law.

It would be easier for lawyers and judges to figure out what the law really is and predict the outcome of litigation. We would no longer have to look at the political views and biases of the individual judges to predict the outcome of a case. We could truly assess a case by studying the relevant common, statutory, and constitutional law. This in itself would greatly reduce caseloads. It would go far in curbing the excesses of a society that has become so litigious.

It would tend to eliminate judge and jurisdiction shopping in an effort to get a case before a particular judge of particular biases, either by attorneys or by organizations like the ACLU.  

It should eliminate to a large extent the striving of liberals for litmus tests for judicial appointees on the views so dear to liberals, such as abortion and a privileged status for homosexuality. It would very greatly reduce Congress' work in this regard. 

Enforcement of this provision would help take politics out of judging. And judges would be encouraged to try to become true jurists of integrity.

Above all, this would put changing the Constitution back in the hands of the people and their representatives, as provided by Article V  of our Constitution. It would restore the right of the people to run their governments at both the state and federal levels, subject only to true constitutional limitations, as intended by our Founders.

If the people could really become informed on this matter, I believe that they would pressure our representatives into bringing it about. We also have many representatives with the integrity to support this proposed amendment.

Any fair and honest person who truly believes in our Constitution should favor the amendment. Anyone who would oppose it would be put in the position of having to admit he prefers judicial activism to the true meaning of our Constitution.

I have written a book, A way to Save Our Constitution From Judges, that shows in detail the early development of acceptable rules for construing our Constitution and laws, and the case by case misbehavior of our United States Supreme Court in various fields. The book is currently being considered for publication.

I believe that the book is written so that any ordinary person should be able to understand it; but it will also withstand a critical examination by any true constitutional law scholar.

Below is a copy of the Amendment I am proposing.

 

AMENDMENT XXX

Section 1. The meaning of a provision of the Constitution of the United States shall be determined by the courts as follows:

A. It shall be given the meaning intended by the framers and those who ratified it, at the time it was ratified, with emphasis on the intention of the ratifiers, when such can be reasonably established.

B. The following factors shall be considered in arriving at the intended meaning:

1. Primary consideration shall be given to the plain wording of the provision. Phrases and ideas of judges or others not in the constitution shall not be engrafted and treated as a part of the constitution. Where the wording needs further construction for application to a particular question, the following additional factors shall be considered to the extent needed.

2. Reliable and relevant legal and general history of this country, and of Great Britain , where applicable, up to the date of ratification.

3. Relevant debates, speeches, and writings of our founders, framers, and those who took part in ratification.

4. Relevant matters of official record, including congressional records, legislative records, and other official records.

5. Extraneous matters such as personal views of judges and justices, events at a later date, changes in conditions, and what other countries may be doing in like cases shall not be considered, as those are matters for the people and their representatives, who have the sole prerogative to change the Constitution when changes are needed.

C. The precedents of prior cases shall not be followed unless those decisions were based on the principles of judicial construction herein stated.

D. A law enacted by the United States or a law or constitutional provision enacted by a State is presumed to be valid, and shall not be overturned by a federal court unless its invalidity, as contrary to this Constitution, is beyond any reasonable doubt.

E. Each court opinion on a constitutional issue or an important question of law shall set forth its basis; and the judges or justices joining in the majority opinion and those participating in any dissenting opinion shall be shown. Each judge or justice may be held accountable for his position.

Section 2. The meaning of a law enacted by the United States shall be construed to mean what Congress intended it to mean when it was passed. When needed and where applicable, the same factors shall be used to determine the intent and purpose of Congress as are stated for determining the intent and purpose of a provision of the Constitution. When the meaning of a state law has been determined by the highest court of the state, that meaning shall be followed by federal courts. If it has not been so determined, the meaning of a state law shall be the meaning intended by the State Legislature, or the people, when it was passed. The same factors should be used in determining the intent and purpose of the State Legislature, or of the people, as are used in determining the intent of congress as to federal laws.

Section 3. All United States Supreme Court justices and all federal appellate and lower court judges shall take an oath to uphold the Constitution of the United States , including the rules set forth herein for construing it. The wording of such oath shall be prescribed by Congress. Willful failure to abide by the oath shall be misbehavior requiring removal. This amendment shall have no effect on other grounds or provisions for removal or impeachment provided in the Constitution.

Section 4. Removal under this amendment of any justice of the United States Supreme Court or of any appellate or lower court federal judge shall be by a bill of removal which may be initiated by any member in either the House of Representatives or the Senate. On such presentment of a bill of removal in either the House or the Senate, it shall be voted on by the body in which it was first presented. If as many as one-fourth of the members of that body vote to proceed with the bill of removal, each defendant judge or justice named for misbehavior in the bill shall be given a fair and impartial hearing in a judiciary committee of that body, which shall make a record of the hearing. The judiciary committee shall then recommend for or against removal, but the recommendation shall only be informative and not binding on the House or the Senate, which shall proceed to consider and vote on the bill. No other committee shall hear or act on the bill. If passed by votes of simple majorities by both bodies, and signed by the president, the offending judge or justice is thereby removed. A presidential veto of the bill of removal may be overridden by another simple majority vote of the Senate and of the House of Representatives. No filibuster or other hindrance shall be allowed to stop the voting on a bill of removal.

A bill of removal may be brought against one or more judges or justices at the same time. The bill of removal voted by each body of Congress shall set forth the alleged misbehavior of the accused justice or judge, and it is not subject to review by any court.

Section 5. Where a final decision of any federal court has had the effect of declaring unconstitutional any law of the United States or of any state, including a constitutional provision of a state, a bill for review may be passed by congress or a legislature of any state affected, stating grounds for possible error in said decision, and notice thereof given to the United States Supreme Court. The Supreme Court shall then in due course review the prior decision and render another decision thereon on the questions presented, using the rules set forth in this amendment. .   

There shall be no limitation on the period of time in which a bill for review may be presented on any final decision of a federal court, whether made before or after this amendment. A bill for review in Congress may be initiated and passed in the same manner as a bill for removal. A bill for review by any state affected by a decision shall be passed in the manner determined by the state legislature. The United States Supreme Court shall hear and consider only one bill for review of a decision, and the decision on the questions presented in a bill for review shall not be subject to another bill for review. The decision shall set forth grounds as required in other decisions, and it can be grounds for a bill for removal of any justice or judge for misbehavior.

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