Constitution Series, Part XII: The Supreme Court and the Judiciary

[Sorry, due to an error on my part the post has been blank for the past day]

Until now, we have focused on two importnat branches of the federal government: the legislative, embodied in the Congress, which is the House of Representatives and the Senate; and the executive, which is embodied by the president of the United States.

The third branch, the judicial, deals with the power to try specific cases to determine if it is a violation of the law, and if so, what remedy or punishment should be applied.

The judicial branch is embodied by the Supreme Court. As of now, there are nine justices of the Supreme Court. One of them is the chief justice.

At the bottom are the federal judges. These are the judges that hear cases. In the middle are the appellate courts. These hear appeals from the lower courts. At the top is the Supreme Court. There is no higher court than the Supreme Court in the federal government, and there is only one.

The constitution gives power to congress to determine how many justices on the Supreme Court there are and how many courts and how they are organized. Although congress writes laws to organize the courts, the president selects and the Senate approves all judicial appointments.

Judges can be impeached for no reason at all. Traditionally, Congress has agreed that they will not impeach a judge for a dumb ruling. They will, however, impeach judges for corruption or other crimes. One judge who was impeached and removed from office for corruption is now serving in the House of Representatives—Alcee Hastings, a democrat from Florida’s 23rd congressional district. Personally, I think that congress should impeach judges who make bad decisions. Their job is to apply the law that congress has written. Congress should exercise this check over them.

Congress also determines what types of cases they can hear. This is a powerful control over the courts. If the courts do not have jurisdiction—the power to hear a case—they cannot proceed. Congress can write a law giving the judges jurisdiction over certain kinds of cases, or they can prevent it. Right now, the federal judiciary is allowed to hear cases where anyone can sue people for harming the environment, even if they have no harm done to them. Because of this, companies are tied up forever as the judiciary hears every little petition on behalf of other people’s property.

The constitution limits congress in that they cannot write a Bill of Attainder. A Bill of Attainder declares someone or some group guilty of a crime without a trial. The constitution also dictates that criminal trials must occur within the state where the crime occurred and must be tried with a jury. (If the crime was committed outside of the states, then congress can determine where the trial shall be heard by law.)

The power of the jury is an important one. Every criminal case is guaranteed a trial by jury according to the constitution. You cannot be found guilty of a crime without a jury deciding so. Today, the justice system pretends that jury nullification doesn’t exist. Judges try to impress upon the minds of the jury that if the person broke the law, then they must to be found guilty. However, this is simply false. Juries exist as a check on government law. Juries can find that the defendant did break the law, but they are guilty of no crime. This power was the reason for the creation of juries in the first place, and their perpetuation. Juries keep the government honest and keep the honest out of prison.

Once a jury finds you innocent of a crime, you can never be tried again for that crime. To be tried for the same crime twice is called double jeopardy.

The principle of ex post facto is another constraint on the federal government. If what you did was not illegal at the time of the action, you cannot be found guilty. That is, congress can’t write a law punishing people for bad behavior in the past. They can only write laws for the future.

There are several other protections listed in the constitution itself or as an amendment. For instance, the executive cannot violate your personal papers without a search warrant, and warrants can only be issued in specific circumstances by a judge. Also, even though a person is guilty of the most despicable crime, they cannot be punished with cruel and unusual punishments. (The punishment may not be both cruel and unusual. That is, cruel and usual is permitted, as well as not cruel and unusual.)

The justice system has grown far more powerful than it was ever intended to be. Thomas Jefferson was worried that the constitution gave too much power to the judiciary, and that judges could easily grow beyond their limits. Today, we see Thomas Jefferson’s fears being realized. Judges are acting far outside of their jurisdiction and even bring the constitution itself into question. With a few words, they twist key passages of the constitution into what it was never meant to be. For instance, the right to privacy of papers has been twisted into the right to murder unborn children within the womb. The purpose of government to provide for the general welfare has been interpreted to mean specific welfare—helping individuals and specific groups of people. The power of congress to regulate trade has been interpreted as the power to set the size of toilet flush capacities. The right to sieze property through imminent domain for public benefit has been reinterpreted to mean seizing property through imminent domain for private benefit. Today, the constitution is used to limit the power of the people when the purpose of the document was to set the parameters for government and the basic assumption of its creation was that the power of the people was unlimited and unspecified.

Up until about 1930, the courts were a powerful check to keep both the president and the congress acting within the limits of the constitution. Ever since then, our freedoms have eroded since the courts have not exercised their power appropriately. Today, the courts is almost balanced. On the right side of the court, there are strict constructionalists such as Scalia, Thomas, Alito, and Roberts. These judges read the constitution in the frame of mind it was written in, and do not allow the meaning of the constitution to change over time except as it has been amended. On the other side of the court, the justices draw on foreign law, supposition, reinterpretation, and imagination to invent their rulings.

Since judges aren’t elected by the people, but are appointed by the president and confirmed by the senate, the two bodies most distant from the people, it was intended that judges would be kept far from politics. Of course, we know that not to be true today. The Democratic Party has consistently chosen judges whose sole purpose in life has been to overturn existing law and freedoms to make our society more socialist and less free.

In my belief, once the court is restored with strict constructionalist who read the constitution and apply it without reinterpretation or inventions, then we will see the constitution return to its power. In order to do so, we must maintain the president and the Senate with people who believe that the constitution is the ultimate limit on government and cannot change its meaning over time except by amendment.

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