A Proposed Constitutional Amendment

After the Civil War, Congress established the Federal Court for the Indian
Territory (Oklahoma) under the "Hanging Judge" Isaac Parker, and appeals to
the Supreme Court were disallowed. The result, if you were a bad guy and you were tried in Judge Parker's court, found guilty, and sentenced to hang, you hung, unless you recieved Executive Clemency, something hard to come by back then since 1. It had to be paid for 2. Back then, it seen as being
Soft on Crime. And I wonder how much of the crime surge of the 1960s and
70s was due to the Warren Court's overexpansion of the rights of criminals.
 
And I wonder how much of the crime surge of the 1960s and
70s was due to the Warren Court's overexpansion of the rights of criminals.
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You mean like requiring that they be tried by juries???

I'm not happy with unrestricted commerce clause power...but what rights do criminals have after the Warren court that are unreasonable? Protecting the integrity of criminal proceedings is a perfect example of why we need independent courts. There are some issues that shouldn't be up to a majority vote after every term.
 
The way I understand it, the SCOTUS already has limited jurisdiction. I think the States intended the 11th Amendment to clarify that affairs between a Citizen and a State were just that, affairs between a Citizen and a State, and not a federal affair at all. Of course, since the Civil War, and the 14th "Amendment", the US assumes they have the power to define their own jurisdiction.

We are not going to get the US Congress to check the SCOTUS, or vice versa. The US cannot check itself. The intended check on the US is the States. That is why we are the United States and not just the one big State of America ... the US (thirteen States at the time) was considered too vast an area for a simple republican form of government. It was deemed by our Founders and Framers that such a vast area needs a further separation of powers - a separation of State and federal powers.

I know a lot of y'all here see things a certain way, like for instance you might have a lot of emotional investment in what the phrase "all men are created equal" means ... but I think what it means is that, rather than have one man or a few men rule over the others, "all men are created equal" means that it is right to have the majority rule (at the State level). So when the SCOTUS, for instance, tells Texans that they cannot pass laws against people committing homosexual acts ... how can nine judges outweigh a whole State full of people if everyone is equal? The SCOTUS is not the Texas Government, they were not elected by Texans as their reps ... where is the republican form of government that the US Constitution guarantees to Texas?

The US has no business saying they have jurisdiction over all matters ... that is why we had a revolution was because King George declared he had jurisdiction over the Colonies in all matters. And that is why the South fought the Civil War, to try to keep the US from claiming that it has jurisdiction over the internal affairs of the States.
 
The right to trial by jury is well established, I am referring to decisons such as Miranda and Gideon vs. Wainwright. I recall learning in the 1950s that
you had the right to remain silent and could not be forced to be a witness
against yourself, and as far as Gideon vs. Wainwright goes, an assistant
prosecutor told me some years ago "The taxpayer shouldn't have to pay for
the bad guy's lawyer."
My main point is that is that voters in many states have the right to recall
judges, to get rid of judges who are arrogant and power hungry and want to be the public's master, not its servant. I think that Federal voters deserve the same right.
I also note that in many of its recent decisions such as the pro-homosexual decision
of 2003 the liberals have engaged in the obnoxious practice of citing foreign
law, in that case, decisions of the British Parliament. Not only has SCOTUS repealed the Constitution of the United States, it has also repealed the Declaration of Independence.
 
My main point is that is that voters in many states have the right to recall
judges, to get rid of judges who are arrogant and power hungry and want to be the public's master, not its servant. I think that Federal voters deserve the same right.
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There are significant differences between federal judges and state judges.

There are judges who are subject to political pressure, and judges who aren't.

Both are necessary.

My suggestion is to learn the theory of the existing system before jettisoning it.
 
I am not a big believer in theories. It was a professor of law who said to
me that "Theories tend to be maps of imaginary countries-follow them in the
real world and you get lost very quickly". And that's what's happened to us.
Look what has happened in Massachusetts, where the Supreme Judicial Court
enacted gay marriage by judicial fiat, and 4-3 decision. While in those states
that truly have "government by the people", gay marriage has been overwhelmingly rejected.
 
The founding fathers clearly saw the danger of an unrestrained judiciary.

http://cf.heritage.org/almanac/results_quotes.cfm

Adams, John Thoughts on Government
1776
Topic: Judiciary

The dignity and stability of government in all its branches, the morals of the people, and every blessing of society depend so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, and both should be checks upon that.

Hamilton, Alexander Federalist No. 78
1788
Topic: Judiciary

And it proves, in the last place, that liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.

Hamilton, Alexander Federalist No. 81
1788
Topic: Judiciary

In the first place, there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State.

Hamilton, Alexander Federalist No. 81
1788
Topic: Judiciary

[T]here is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution.

Jefferson, Thomas letter to Abigail Adams
September 11, 1804
Topic: Judiciary

[T]he opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves, in their, own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.

Jefferson, Thomas letter to Judge Spencer Roane
September 6, 1819
Topic: Judiciary

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, Thomas letter to Charles Hammond
Aug 18, 1821
Topic: Judiciary

The germ of dissolution of our federal government is in the constituion of the federal judiciary; an irresponsible body, (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one.

Jefferson, Thomas letter to Edward Livingston
March 25, 1825
Topic: Judiciary

One single object...[will merit] the endless gratitude of the society: that of restraining the judges from usurping legislation.

Story, Joseph Commentaries on the Constitution
1833
Topic: Judiciary

The truth is, that, even with the most secure tenure of office, during good behavior, the danger is not, that the judges will be too firm in resisting public opinion, and in defence of private rights or public liberties; but, that they will be ready to yield themselves to the passions, and politics, and prejudices of the day.

Story, Joseph Commentaries on the Constitution
1833
Topic: Judiciary

Without justice being freely, fully, and impartially administered, neither our persons, nor our rights, nor our property, can be protected. And if these, or either of them, are regulated by no certain laws, and are subject to no certain principles, and are held by no certain tenure, and are redressed, when violated, by no certain remedies, society fails of all its value; and men may as well return to a state of savage and barbarous independence.
 
I am not a big believer in theories.
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The constitution is an excellent ballance of theory and reality.

Without understanding the theory, there is no way to recognize that.

There is no justification for ignorance, other than choice.

Neither the constitution nor the supreme court are examples of single issue resolution.

Our system isn't about results, our system is about process. If you don't accept that premise, you will never be satisfied with our government, and this discussion isn't worth having.

I won't mention that your example can be construed as a case of circular logic, I will trust that you applied other logic to your determination of what constitutes a "government by the people."

However, here's a clue: they are all executing the will of the majority of their populations, and no single issue will serve as a litmus test of that execution.
 
I do not think that popular recall of SCOTUS justices would be a good idea, but I would not object to 10- or 20-year term limits. The number of justices who die in office suggests that they may savor wielding the power of their position too much.
 
SIGHSR,

You should read the Massachusetts decision, Goodridge v. Department of Public Health. Based on the constitution of that state, there's no reasonable way they could've voted otherwise. After reading it, I think it would've been judicial activism to refuse to allow gay marriage.

Waitone,

Hamilton, in Federalist 78 wrote:
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
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I think that sums up the main argument in favor of an independent court pretty well.

Hamilton's Federalist paper theories are a virtual rough draft of Marbury v. Madison. He's definitely not your man if you want to argue for limited judiciary powers and smaller federal government, since he was a strong proponent of centralized authority.
 
"The life of the law has not been logic, it has been experience." So said
Oliver Wendell Holmes Jr. When people get too theoretical, you have a situation such as that described in a book I read by the noted economist Lester Thurow in which he noted that over-reliance on mathematical models
has given economists a bad name, because to make the numbers come out right they have to make assumptions that fly in the face of reality. I have an
MBA and the better professors I had were all scornful of the number crunchers
and "quantification quacks".
Imagine this scenario-SCOTUS rules 5-4 that the government has the right
to outlaw ownership of handguns, and it cites the actions of the Labour
government of Tony Blair in so doing. How many of you would take such a
decision lying down?
 
Imagine this scenario-SCOTUS rules 5-4 that the government has the right
to outlaw ownership of handguns, and it cites the actions of the Labour
government of Tony Blair in so doing.
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That's not what happened in Lawrence v Texas. I recommend you read it. It's US law and reasoning. The mention of what the Europeans have done is clearly comparative, not authoritative.
 
In Lawrence vs. Texas the court did not overturn Bowers vs. Hardwick as
it simply ignored it. I quote the words of Justice Byron White who wrote the
majority opinion in Bowers "The Court is most vulnerable and comes nearest to
illegitimacy when it tries to expabd upon judge made rights not found in the
clear and unambiguos language of the Constitution."
 
SIG,

uh....Lawrence most definitely overruled Bowers. I think it's actually written right into the opinion (my paraphrase of course): "We overrule Bowers. It's wrong."
 
In a course on 19th Century Europe I remember the professor clearly saying that the difference between an autocrat and a tyrant is that an autocrat is bound by precedent, a tyrant isn't. Therefore we have judicial
tyranny and the best way to deal with tyrants is to topple them. In our case
in a genteel and civilised manner.
Regarding theories, I recall seein in 1990 or so an editorial cartoon on the
crumbling of the Warsaw Pact and the dissolving of the Iron Curtain. It showed the dejected figures of Marx, Engels and Lenin sitting on a curb, the
caption was "I still say the theory was right, dammit."
 
I'm too lazy to pull up my files and cite cases, but there are more than enough times when the Congress has decided that if SCOTUS has said something was unconstitutional the way around that was to just re-legislate it to deal with the glitch that the appelate case pointed out. It should not be hard to do when SCOTUS has laid it all out for you. It must not be hard, because even Congress seems been able to do it.

Someone once explained to me that the US scheme of government was split into 3rds intentionally - the House of Representatives as a place where the majority could act without considering the rights of the minority, the Senate to act more slowly with cool deliberation, and SCOTUS to put it back to rights if either/both of the first 2 blew it. Legislating from the bench has moved that concept closer to the trash heap, but I don't think we are quite there yet.

stay safe.

skidmark
 
I think a lot of it comes down to philosophy of government. Again, I quote the late John Connally -"Why should we let the Supreme Court decide everything." I heard a news story on the BBC World Service a little while ago
on the upcoming referendum in the Netherlands where the proposed EU Constitution was submitted for popular rather than Parliamentary approval-the
Dutch rejected it by an even bigger margin than the French. The BBC interviewed one Dutchwoman who noted that this was the first referendum
in the 200 years since the modern Dutch nation was formed and she thought
they should have referendums every two years, otherwise the politicians decided everything. Again, you get people on the bench, they get all academic and theoretical, and dictatorial and tyrannical. When the people decide for themselves, you have government by the people, when a tiny
and unresponsible elite decide, you have a People's Government.
 
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