A Facebook Thread on the Judiciary

William M. Nix The judiciary is quietly being changed. That is great for the future.

David DeGerolamo The judiciary will never recover from Marbury v. Madison. Too bad Jefferson was not present for writing the Constitution. He would have been able to add his provision for Congress to remove a Supreme Court judge. He warned us about this genie getting out of the bottle.

William M. Nix What does Article III of the Constitution say regarding the tenure of a court member?

David DeGerolamo What is your definition of “good behavior”? Jefferson wanted a mechanism in place where Congress would be able to remove a sitting Supreme Court Justice with a vote.
William M. Nix Since the Congress is the only group allowed to create laws in our Republican form of government, they have the authority to remove any justice they see fit in issuing an opinion that is not specifically stated in the law as written. Period! Congress over the years has subrogated their responsibility for properly defining laws that they know would not pass public muster and leave it to the court to take the hit. It is a self serving cowards way out. Both parties are responsible and share equal blame. These people are appointed and approved, not elected. The ACA is I prime example of what I am referring to. As written it was illegal but the court rewrote it and redefined it to make it fit within some pretty strict standards mandated by the Constitution.

David DeGerolamo Diane Rufino Do you want to explain Marbury v. Madison.

Diane Rufino David DeGerolamo The explanation doesn’t have to reach to the Marbury decision. It is explained by the Separation of Powers doctrine. Each branch is separate and each provides checks. Although we call them co-equal branches of government, that wasn’t the original intent. The Judiciary was expected to be the least important, only empowered to render an “opinion.” It was not the intent for the Court to have absolute dominion over the legislative and executive branches and over the States.

Diane Rufino The only opportunity for Congress to get rid of justices is by using the impeachment option.

David DeGerolamo So how do we stop activist judges from making laws?
Diane Rufino The Congress re-legislates around the decision.

David DeGerolamo Like Obamacare?

Diane Rufino The Supreme Court SHOULD have struck the ACA down, and in the opinion offer that had the law been written as being supported by a built-in tax. Then if Congress really wanted a healthcare bill characterized for the American people as a tax than it could have redrafted the law as such and put it to a vote.
David DeGerolamo The consequences of being able to blackmail the chief justice of the Supreme Court.

Diane Rufino But to your point, David. It was in the Marbury v. Madison decision when Chief Justice John Marshall claimed that extreme power for the Supreme Court. That decision said that when the Supreme Court renders its opinion, it necessarily will decide WHAT the Constitution means. A law that is challenged for constitutionality will either be upheld or struck down – and the Supreme Court will make that decision. And that decision is binding on the parties – meaning the other branches of government, the States, and the parties to the lawsuit. The question is,who watches the watchers? We see everyday, how hard it is for something to come out of Congress. A final bill looks hardly like the initial bill. And then there is the threat that the President won’t sign it. Or that he will sign it with an executive order directing that part of the bill not be enforced because he questions its constitutionality. And then after that, Congress can expect legal challenges. Lots of checks and balances, built into the system and by the nature of our political system. Same with the President. We are watching that play out right now. Congress is frustrating him with phony charges and a special prosecutor is investigating him and liberal circuit courts are blocking his lawful executive orders. What are the meaningful checks on the justices of the Supreme Court? Who watches the watchers? There is impeachment, but it has never been used effectively (Jefferson came closest to actually impeaching someone from the bench, Samuel Chase).

Diane Rufino Sorry I’m responding late. Anyway, to continue: Read the wording of Article III of the Constitution (The Judiciary). At the same time, keep in mind the type of law that governs the meaning and intent of the Constitution — Contract Law. 

Contract interpretation. It begins by asking whether a valid ccntract (a binding understanding of responsibilities and burdens for each party) has been entered into and then, by determining WHAT the parties in fact agreed to. That is where the interpretation comes in. Only on those terms and meanings that the parties legitimately understood at the time the agreement was signed can be enforced against them. Think of us and mortgage agreements, or a contract to purchase a car. At the time the Constitution was signed, we have a few primary and contemporaneous documents that the States relied on in their decision to ratify or not. These documents are the Notes of the debates from the Philadelphia Convention of 1787 (although written notes weren’t available, but commentary was), discussions and debates from the State Ratifying Conventions (you should read these !!0, the Anti-Federalist Papers (these letters pointed out the weaknesses and the skepticism of the new Constitution, which caused the potential delegates to the State Ratifying Convention to side against ratification); and the Federalist Papers (the responses to the anti-Federalist Papers, and hence the most powerful of ASSURANCES as to what the terms and provisions of the Constitution really mean and what their intentions are). The Supreme Court hardly ever consults these primary documents. Why? Because they don’t care what the Constitution ACTUALLY means. In a sense, there is probably never a Supreme Court case where justices, as a body, truly “interpret” the Constitution before rendering an opinion. The court has fully abdicated its sole role – to interpret the Constitution (and laws made pursuant to it). So, back to Article III — It says nothing about the Supreme Court being the final word on the meaning and intent of the Constitution or having final binding authority. And if you read the Federalist Papers (written by Alexander Hamilton) that explain the Judiciary (No. 78 to start), you will see that is indeed the case, and clearly, the intent. In light of this, Thomas Jefferson and James Madison had argued that the states must have the final word because the Constitution had not expressly established an ultimate authority on constitutional matters. On this rested their rightful remedies of Nullification and Interposition, to resist the government on its overreach and unconstitutional action. But we know the true nature of any branch of the federal government – which the Supreme Court certainly is. Every branch has allegiance first and foremost to the federal government and without a doubt, puts its interests first. The natural tendency is to disregard limits to its power and to concentrate more and more power in the hands of the federal government. And if you doubt this, look how quickly they started doing so. The first court was seated in 1789 (Judiciary Act of 1789). In 1801, Marbury v. Madison was decided (giving full supremacy to the Supreme Court, and federal courts of last review – taking enormous powers away from the States), and in 1819, Marshall handed down the McCulloch v. Maryland decision (which officially changed the meaning of the “Necessary and Proper” Clause to “anything convenient that the government sees fit” Clause, which profoundly enlarged the powers of government to essentially remove limits to its powers in Article I, Section 8). The list goes on. The Court wasted no time to dismantle the “Constitution of limited powers.” Marshall was so controlling that he required that only HE write the opinion of the Court. The other justices could not write their own opinions, explanations, dissents, etc.

Now, both Hamilton and Madison each mentioned that allegations that a federal law is unconstitutional should not be made only by a state legislature. They explained that if a court decision supported that allegation, it would have more merit. For example, in Madison’s Virginia Report of 1800 (in which he articulated Nullification and explained the natural and legitimate basis for that doctrine), he acknowledged that states can declare federal laws unconstitutional; but the declaration would have no legal effect unless the courts agreed. He wrote: State “declarations … are expressions of opinion, (intended only for) exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect.” But he wasn’t talking about the federal Supreme Court. He was talking about state courts. State courts have the states’ interests in mind. To show how controlling the Supreme Court has become (and ambitious for the federal government), look at the Aaron v. Cooper decision of 1958. In that decision, the Supreme Court said that Nullification is NOT legitimate and that States have NO legal right to oppose a decision handed down by the Court. (Arkansas attempted to frustrate the Court’s decision in Brown v. Board of Education, which it articulated was an unconstitutional decision based on a flawed interpretation of the Constitution). Nullification, like secession is a legal doctrine that supersedes the Constitution. Just like the individual’s inalienable right to Life supersedes the Constitution (meaning that a person never surrenders his right to life and hence the government never has any legitimate authority in that area), the States have innate rights, under the natural rights of self-determination and self-preservation, to Nullification and Secession which can never be surrendered. Hence they supersede anything in the Constitution. If these doctrines are not in the Constitution, the Court has no authority to render an opinion on them.

Diane Rufino Mr. Nix, I write a lot about Nullification. If you are interested in the topic, I have a blogsite – www.forloveofgodandcountry.com
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