The most important duty of the 105th Congress is to protect America from judicial
usurpation. This goal should take priority over everything else because the judiciary
poses the number-one threat to our democratic process and because the Congress has the
power to take constructive steps that cannot be vetoed by Bill Clinton.
When a case is presented to the courts, judges make their decisions in one of two
ways. They can look to the United States Constitution and see whether it authorizes or
forbids the disputed action, or the judges can impose their own social views on us,
dressed up with self-serving jargon.
In United States v. Virginia, seven Justices ordered women admitted to Virginia
Military Institute, an institution that had been constitutionally all-male for 150 years.
Without any authority from the Constitution, the Court wrote Ruth Bader Ginsburg's
radical feminism into the law and even smeared as "close-minded" those who believe
there are inherent differences between men and women.
In Romer v. Evans, the Court overturned the majority of the people of Colorado
who, by statewide referendum (Amendment 2), precluded localities from granting special
status to homosexuals. Without any authority from the Constitution, the Court ruled that
Colorado's Amendment 2 was totally without a rational basis and was "born of
animosity" toward homosexuals.
It would be more accurate to say that the Court's decision was without a
constitutional basis and was born of animosity toward traditional moral standards and the
people who hold them sacred. Will the Court's own animosity prevail when it considers
the Hawaii Supreme Court's invention of the new "right" of same-sex marriages?
Also in the last term, the Court struck down a federal statute that required cable
television operators to put their "patently offensive" pictures of sexual activities or organs
on a separate channel that could be accessed only on a subscriber's written request.
Without any authority from the Constitution, the Court again perverted the First
Amendment in order to protect pornography.
The arrogance of the Supreme Court justices reached its apogee in Planned
Parenthood v. Casey (1992), when the Court linked its own legitimacy with abortion in a
circular, macabre argument. Roe v. Wade (1973) was handed down without any authority
from the Constitution, yet the Court in Casey urged that Roe be cast in stone lest "the
Court's legitimacy be undermined." In other words, to maintain the Court's legitimacy,
we are told not to criticize an illegitimate decision!
Taking their lead from the Supreme Court, lower federal courts have manifested
their disdain for the popular will by arrogantly overturning the wishes of the majority of
the voters expressed in statewide referenda. A single federal judge overturned California
Proposition 187, which received five million votes in 1994 and would have prohibited
giving taxpayer benefits to illegal aliens.
Another single federal judge overturned Proposition 209, the California Civil
Rights Initiative to end affirmative action, which overwhelmingly passed in 1996. Prop
209's text reads like it was copied from the 1964 Civil Rights Act.
Judge Thelton Henderson, the Carter appointee and a former ACLU board member
and civil rights litigator who rendered this decision, didn't merely use his judicial power
to overturn the wishes of 4.7 million Californians. In a highly suspect procedure, he
grabbed jurisdiction over this case away from another judge.
In a statewide referendum in 1991, the voters in the state of Washington reaffirmed
a state statute that prohibited anyone from "knowingly causing or aiding other persons in
ending their lives." In Compassion in Dying v. Washington in 1996, a federal appeals
court overturned the vote of the people, invented a right to assisted suicide, and smeared
those who oppose this as "cruel."
Another federal appeals court threw out the state of New York's prohibition
against assisted suicide. The Supreme Court will hear arguments on these cases this
week.
What are our remedies? The U.S. Senate should refuse to confirm any judge or
justice nominated by President Clinton unless he is committed to deciding cases solely on
the basis of the United States Constitution. The House Judiciary Committee should hold
hearings on proposals to stop the usurpation of power by the federal courts.
Judge Robert Bork has suggested making court decisions subject to modification
or reversal by a majority vote of Congress. Others suggest limiting the terms of all
federal judges.
Since Article III of the U.S. Constitution gives Congress the power to make
"exceptions" and "regulations," Congress should withdraw jurisdiction from the federal
courts on selected subjects. At least, Congress should take away their power to issue
injunctions against state laws or decrees to micromanage schools and prisons.
Article III also specifies that all federal judges, including Supreme Court justices,
"shall hold their offices during good behavior." Making outrageous rulings that have no
basis in the Constitution should be grounds for impeachment.
Clinton has already appointed 202 activist judges, more than 25 percent of the
entire federal bench. If this continues, by the end of his term Clinton will have named a
majority of judges. If the Republican Congress allows this to happen, it doesn't deserve
to be reelected next time around.
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