Time to Curb the Court
Posted on: March 23, 2011
By Don Fotheringham
Campaign for Decency
We must marvel at the foresight of America’s founders. They looked centuries beyond their time and provided ways to save us from the dreadful effects of our own negligence. They gave us the means to correct a remiss Congress, to contain a power-prone president, and to limit an out-of-control Supreme Court. We may not deserve the safety measures handed down to us, but those provisions are clearly spelled out in the Constitution just waiting for us to use them.
From among the many wise provisions of our founders we find one particular safeguard we should welcome like fresh air in a stuffy courtroom. It’s that clause found in Article III, Section 2, providentially written as follows: “…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.”
It was never the intention of our founders to create an all-powerful, unaccountable Supreme Court. Each department of government has clearly defined bounds, but each also has oversight power that we call checks and balances. Most everyone is familiar with the president’s power to veto legislation and the offsetting power of Congress to override it. Also well known are certain checks on power through the nomination and confirmation process, and the ultimate check of impeachment, or at least the threat thereof.
The Exceptions Clause
So it is with the Supreme Court. Congress has a way to prevent its perverse rulings on appellate cases. The history of our country, even before the Constitution was ratified, confirms that there never was any misunderstanding about the meaning and viability of the exceptions clause of Article III. In 1796 Oliver Ellsworth, Chief Justice of the United States recognized not merely the option, but the essence of congressional limits on the Court’s appellate jurisdiction. This view was confirmed again by Chief Justice John Marshall in 1805 and has been affirmed by all Supreme Court justices who have commented on the subject.
The constitutional power of Congress to check the Court is alive today and remains one of the most timely and compelling mechanisms available to the American people. This means there never was any excuse for our nation’s moral standards to be mocked and demeaned by activist Supreme Court justices. Lower court cases, which have been settled on moral or religious grounds, find their way to the Supreme Court by the appeal process. Those kinds of cases — either individually or as a group — can be singled out by Congress and excluded from review by the Supreme Court.
Among landmark cases corrupted by the Supreme Court are the denial of Bible reading in public schools, prohibition of school prayer, the legalizing of abortion, banning religious displays in public places, legalizing sodomy, and defending pornography. Congress clearly has the power to make exceptions to those kinds of cases and block their review by the higher court.
In this carefully focused effort, a good question arises: If we seek to restrain the Supreme Court, why can we not also restrain the federal district courts? For certain, many of the lower courts are equally flagrant in their disrespect for moral standards. But unfortunately we cannot take on the lower courts and the high court at the same time, or at least not in this first stage of our Campaign for Decency.
Two Different Procedures
Control of the two court systems entails two different legal routes. Trying to combine the two goals into one legal action would very likely hamper, or even prevent, success. We need to explain:
The Supreme Court and the inferior federal courts cannot be limited by Congress in the same way because the two levels of the federal judiciary came into being through different levels of power. The power creating the Supreme Court was structural. It was created by the Convention of 1787, along with the mode of controlling it. On this constitutional basis, Congress may limit the appellate jurisdiction of the Supreme Court without asking permission and without passing a pertaining law. The lower courts, on the other hand, are an entirely different breed. These district courts were created by Congress, and their jurisdiction can thus be limited only by enacting a law for doing so.
For these and other carefully assessed considerations, our Campaign for Decency faces off initially only with the Supreme Court where the opportunity for success is greater than through a combination bill such as H.R.539, a measure presently before Congress. H.R.539 attempts to limit the two levels of courts at the same time through the same (statutory) procedure. But this process mixes apples and oranges, which may very well invalidate the bill. Moreover, as a formal bill, even if passed, H.R.539 must go to the president’s desk where it will face a certain veto.
Notice that no new laws are needed to execute the work of a department when its operations and options are established by the Constitution. The president, for example, may propose a budget, nominate ambassadors, or grant pardons without asking permission or without any new laws. Congress can make its own rules without any new laws, and the Supreme Court can try its original jurisdiction cases without asking permission. Similarly, Congress may exercise its constitutional power over the appellate jurisdiction of the High Court without asking permission or without any new laws.
Exceptions to this rule are constitutional provisions that require implementing legislation. But otherwise, no department of government need hesitate, or ask permission, to act within its established bounds. Thus Congress may limit the kinds of cases to be heard by the Supreme Court without any new laws or supplemental authority. Obviously, the exercise of an original structural power by any branch of government is not subject to a veto by the president. This is the avenue we propose for controlling the Supreme Court.
By Concurrent Resolution
How then, if not by passing a bill, does Congress notify the Supreme Court of new limits on its jurisdiction? This may be done by issuing a Concurrent Resolution, approved by a simple majority of the House and the Senate. That’s all. It is not a law, it is a statement through which Congress may assert a pre-existing constitutional authority, and by which the other departments of government are bound.
A recent example of the use of such a resolution is H.Con.Res.5, which affirms the pre-existing constitutional power of Congress to declare war. It was introduced in the House of Representatives in the 1st Session of the 111th Congress (with the Senate concurring) expressing that, according to Section 8 of Article I of the Constitution of the United States, Congress has the sole and exclusive power to declare war. Under this heading the “Whereas” clauses state the reasons and applications of the resolution.
A Concurrent Resolution to limit the Supreme Court would follow the same form, expressing that, “Pursuant to Section 2 of Article III of the Constitution of the United States, Congress has the sole and exclusive power to make regulations and exceptions to the appellate jurisdiction of the Supreme Court. Accordingly, effective this date, the Congress of the United States denies the Supreme Court appellate jurisdiction over cases relating to public or private religious expression, definitions of marriage, sexual practice, and abortion.”
Significantly, this procedure would accomplish our immediate purpose while safely circumventing the desk of the president.
The simplicity of this route and the independence of Congress in following it, should be a great advantage over previously defeated efforts. All such attempts have failed to get through the Senate, where reticence to face a veto by the president — any president — is most common. The Concurrent Resolution process bypasses that particular obstacle.
Correcting Past Sins
Okay, that should curb the Court’s passion for perversion, but what about its past sins? How do we nullify the existing immoral burdens imposed by former Supreme Courts? How for example do we reverse Roe v. Wade and Lawrence v. Texas?
That will take time. The Constitution does not provide Congress the means for nullifying past Court decisions. Therefore, each overturned case will have to be taken back to the court of its origin and re-tried.
Unfair? Yes, but the second time around the lawyers fighting for decency will have a slight advantage. They will have the same files, proven arguments, decent-thinking judges, and local juries. Under these refreshing circumstances, and knowing their work will not be overturned, the lawyers can move their cases quickly through the lower courts. Finally, the original moral decisions will be just and permanent. On this glorious occasion the moral spirit of America will once again be smiled upon by God.
But while God smiles, the Conspiracy will rage. And that is exactly the reason we have taken up this cause as a major campaign. While uplifting and inspiring the good men and women of America, we hope to expose the design of those who have placed the lowest form of evil on the highest public altar. By its deliberately crass and offensive display at the nation’s highest court, the Conspiracy has depressed and discouraged millions of Americans who think the whole nation wallows hopelessly in the sewers of Sodom and Gomorrah. This is an outlandish fraud, and we intend to expose and prove it.
Our Campaign for Decency will go a long way toward rekindling courage and hope in the American people, while showing the hand of the Conspiracy behind many of the most daunting problems of our time.
Specific action steps will be spelled out in subsequent Action Reports. Those steps will provide members with opportunities to help get an appropriate resolution or resolutions introduced in both houses of Congress, to build grassroots pressure on other congressmen to become co-sponsors, and to educate other activists and leaders on our side of the culture war regarding this opportunity. Stay tuned.