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Saturday, November 27, 2004

Bill of what? Wingnuts to challenge the Constitution


Reenactors at Valley Forge. Washington and the founding fathers had a clue, you know


Courts first to go in right-wing revolution

By George McEvoy

Palm Beach Post Columnist

Saturday, November 27, 2004

Every time the so-called Christian Right has tried to turn this country into a theocracy, those pesky federal courts have stymied things.

So now — according to the liberal Americans United for Separation of Church and State — the right-wingers have come up with a new scheme. All they plan to do is to strip the federal judges of their right to hear cases involving the separation of church and state.

Reportedly, such leaders as the Rev. Jerry Falwell and Republican Rep. John Hostettler of Indiana, flush with what they see as a successful right-wing revolution, believe they can make the federal courts virtually powerless.

Rep. Hostettler, addressing a special legislative briefing of the Christian Coalition last month in Washington, reportedly talked at length about a bill he plans to introduce. It would deny federal courts the right to hear cases challenging the Defense of Marriage Act, which bans same-sex marriage.

"Congress controls the federal judiciary," Rep. Hostettler was quoted as saying. "If Congress wants to, it can refer all cases to the state courts. Congress can say the federal courts have limited power to enforce their decision."

Apparently, the Hoosier congressman has not heard of the balance of power among the three arms of our government. He was quoted as telling the Christian Coalition members:

"When the courts make unconstitutional decisions, we should not enforce them. Federal courts have no army or navy... The court can opine, decide, talk about, sing, whatever it wants to do. We're not saying they can't do that. At the end of the day, we're saying the court can't enforce its opinions."

Another congressman, Alabama Republican Robert Aderholdt, was quoted as advocating court stripping as a means to protect state-sponsored Ten Commandment displays, such as the one erected by former Alabama Supreme Court Chief Justice Roy Moore.

And then there was Sheila Cole, executive director of the Republican Study Committee, a group of ultra-conservative House members. She said federal judges who refuse to listen to Congress might well be impeached.

Others in attendance at the session called for more direct action to render the federal courts powerless. During a question-and-answer period, a member reportedly said that in such cases as the Ten Commandments display, people should form a human barrier, if neccessary, to prevent removal.


When I say this isn't a fascist dictatorship, I mean that. But when you have Congressmen who no longer believe in the rule of law, you're taking a step on that road.

Democracy HAS to be defended. There are ALWAYS threats to our freedom, always have been. Some by the misguided, some by the rational and well-meaning.

Rep. Hostettler has not heard of the following: Marbury vs. Madison

If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.

Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that the courts must close their eyes on the constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.


I don't care what wingnuts think they can do. This was the first decision of the SCOTUS. The Congress does not get to determine what is and is not constitutional. And the federal court has an ample network of law enforcement to ensure the law is followed. I'd send this to my free-market conservative friends. They're letting people who are deeply unpatriotic decide the future of this country. Not obey the law? Impeachement? Well, yes, they WILL be impeached.

These folks think they now run the country. Despite opposition to this wackiness within their own party. This is pushing the tipping point where even conservatives will no longer support this kind of theocratic wackiness. The Founding Fathers were not idiots. They knew what power did to people. They won by 3 million votes, not 30 million. These folks are overestimating their power to a foolish degree. If they want to rewrite the constitution, they might try having a convention first. Which wouldn't happen.

Just another thing to keep Tom DeLay up at night.

posted by Steve @ 5:35:00 PM

5:35:00 PM

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