July 23, 2014 at 2:10 p.m.
This law isn't the answer
Editor's Mailbag
By To the editor:-
The long-standing debate over the court invented legal doctrine of “separation of church and state” has led to the introduction in Congress of one of the most potentially dangerous bills that I have ever read. Our own Congressman Mike Pence is a co-sponsor. Rep. Pence has been one of the best congressmen ever elected by this district, but on this issue he is totally wrong.
Article III, section 2 of the U.S. Constitution reads, “In all 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. H.R. 3799 and S. 2082, titled “The Constitution Restoration Act of 2004,” uses this clause to ban the Supreme Court from reviewing cases that involve “acknowledgment of God as the sovereign source of law, liberty or government.” It also denies district courts jurisdiction over any case the Supreme Court can’t review.
The very worthy intent of the legislation is to use the “exceptions” clause to deny the federal courts jurisdiction over Ten Commandments or Christmas displays, prayer by city councils or school children, and “under God” in the Pledge of Allegiance. If passed and declared legal by the courts it would give Congress unlimited power to ignore the Constitution by simply adding a line to every bill denying to the federal courts the right to review the issue. If it wanted Congress could ball all political speech but its own before an election, ban all firearms ownership, or actually establish a religion. It would be an ever more dangerous assault on the separation of powers than unconstitutionally allowing judges to legislate from the benches has become.
Fortunately there is little chance of that happening. Article III, Section 2 also states that “The judicial power shall extend to all cases, in law and equity, arising under this Constitution.” Obviously under the separation of powers all constitutional cases belong to the judicial branch. The “Exceptions” and “Regulations” granted Congress refer only to deciding appellate jurisdiction or which court can hear a case first, not if the case can be heard.
Article III, Section 2 further tells us that the Supreme Court has original jurisdiction in all cases in which a state is a party. Simply citing a state as one of the defendants would allow the Supreme Court to hear the case. And since state laws empower local governmental bodies, the state could also be cited in any local lawsuit.
The Fifth and 14th Amendments were written after Article III of the Constitution and they both require “due process of law.” It would be hard to argue that denying individuals a hearing on Constitutional issues did not deny “due process.” Imagine the result if Congress had denied the courts jurisdiction over civil rights cases back in the 1960s.
Even an honest reading of the First Amendment would overturn this legislation. It reads “Congress shall make no law respecting (pertaining to) an establishment of religion.” Since the courts have written laws declaring the objects of this legislation to be “establishments of religion” then it would clearly be unconstitutional for Congress to pass this law respecting them. Of course under an honest reading of the First Amendment it would also have been unconstitutional for the courts to write their own body of laws respecting an establishment of religion and creating the “separation of church and state” doctrine in the first place. And did I mention that under the separation of powers courts don’t even have the authority to write laws?
The real source of this controversy goes much deeper than the court’s obvious distortions of the establishment clause. Under the official doctrine of “stare decisis” (let the decision stand) the courts have replaced the letter of the law with questionable and even blatantly unconstitutional precedents.
One bad decision becomes the precedent for 10 more bad decisions that become the precedents for hundreds of bad decisions. And not a single court is supposed to look back at the actual letter of the law or the original meaning of the law because the unconstitutional precedent has totally replaced the letter of the law.
The unbelievably numbing number of unconstitutional decisions coming from our courts has left the average citizen with a total sense of disbelief about what is happening. It has virtually undermined the integrity of the entire judicial system.
We desperately need a Judicial Accountability Amendment to the U.S. Constitution that would ban legislation from the bench and require each and every judge in the nation to place the original letter of the law and the original meaning of that law before the unconstitutional decisions of any other court. Congressman Pence indicated through his legislative assistant Ryan Fisher that he was not interested in sponsoring such an amendment.
Stephen Erwin
Portland[[In-content Ad]]
Article III, section 2 of the U.S. Constitution reads, “In all 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. H.R. 3799 and S. 2082, titled “The Constitution Restoration Act of 2004,” uses this clause to ban the Supreme Court from reviewing cases that involve “acknowledgment of God as the sovereign source of law, liberty or government.” It also denies district courts jurisdiction over any case the Supreme Court can’t review.
The very worthy intent of the legislation is to use the “exceptions” clause to deny the federal courts jurisdiction over Ten Commandments or Christmas displays, prayer by city councils or school children, and “under God” in the Pledge of Allegiance. If passed and declared legal by the courts it would give Congress unlimited power to ignore the Constitution by simply adding a line to every bill denying to the federal courts the right to review the issue. If it wanted Congress could ball all political speech but its own before an election, ban all firearms ownership, or actually establish a religion. It would be an ever more dangerous assault on the separation of powers than unconstitutionally allowing judges to legislate from the benches has become.
Fortunately there is little chance of that happening. Article III, Section 2 also states that “The judicial power shall extend to all cases, in law and equity, arising under this Constitution.” Obviously under the separation of powers all constitutional cases belong to the judicial branch. The “Exceptions” and “Regulations” granted Congress refer only to deciding appellate jurisdiction or which court can hear a case first, not if the case can be heard.
Article III, Section 2 further tells us that the Supreme Court has original jurisdiction in all cases in which a state is a party. Simply citing a state as one of the defendants would allow the Supreme Court to hear the case. And since state laws empower local governmental bodies, the state could also be cited in any local lawsuit.
The Fifth and 14th Amendments were written after Article III of the Constitution and they both require “due process of law.” It would be hard to argue that denying individuals a hearing on Constitutional issues did not deny “due process.” Imagine the result if Congress had denied the courts jurisdiction over civil rights cases back in the 1960s.
Even an honest reading of the First Amendment would overturn this legislation. It reads “Congress shall make no law respecting (pertaining to) an establishment of religion.” Since the courts have written laws declaring the objects of this legislation to be “establishments of religion” then it would clearly be unconstitutional for Congress to pass this law respecting them. Of course under an honest reading of the First Amendment it would also have been unconstitutional for the courts to write their own body of laws respecting an establishment of religion and creating the “separation of church and state” doctrine in the first place. And did I mention that under the separation of powers courts don’t even have the authority to write laws?
The real source of this controversy goes much deeper than the court’s obvious distortions of the establishment clause. Under the official doctrine of “stare decisis” (let the decision stand) the courts have replaced the letter of the law with questionable and even blatantly unconstitutional precedents.
One bad decision becomes the precedent for 10 more bad decisions that become the precedents for hundreds of bad decisions. And not a single court is supposed to look back at the actual letter of the law or the original meaning of the law because the unconstitutional precedent has totally replaced the letter of the law.
The unbelievably numbing number of unconstitutional decisions coming from our courts has left the average citizen with a total sense of disbelief about what is happening. It has virtually undermined the integrity of the entire judicial system.
We desperately need a Judicial Accountability Amendment to the U.S. Constitution that would ban legislation from the bench and require each and every judge in the nation to place the original letter of the law and the original meaning of that law before the unconstitutional decisions of any other court. Congressman Pence indicated through his legislative assistant Ryan Fisher that he was not interested in sponsoring such an amendment.
Stephen Erwin
Portland[[In-content Ad]]
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